1. This ruling is in respect of the notice of preliminary objection dated 9th September 2025, filed by the interested party herein. Through the notice, the interested party seeks to strike out with costs, the applicant’s chamber summons (application for leave to institute judicial review proceedings against the decision of the respondents made on 22nd April 2025) on the grounds that: -
i) The entire judicial review application is misconceived, incompetent and an abuse of the court’s process as it seeks to resolve a private land boundary dispute by way of public law remedy contrary to section 18 and 19 of the Land Registration Act 2012;
ii) The court lacks jurisdiction to hear and determine issues raised in the judicial review application as the dispute between the parties is a private matter concerning proprietary rights and ought to have been dealt with in the Chief Magistrate’s court considering the value of the land;
iii) The judicial review application attempts to circumvent the proper statutory procedure for resolving the land boundary dispute as provided for under section 19 and 18 of the Land Registration Act and section 18 of the Survey Act;
iv) The issues raised can only be resolved via a substantive suit where all the parties adduce evidence and are cross examined and not through judicial review application;
v) The applicant, if dissatisfied with the findings of the survey process is permitted to request for another survey to confirm the issues he is dissatisfied with but to file a judicial review application;
vi) It is well settled that the purpose or reason behind leave sought under Order 53 rule 1 for judicial review orders is to enable a court weed out or sieve frivolous applications from going to substantive stage in order to save time and costs to parties and the present application is frivolous, vexatious or oppressive to the Interested Party as it does not raise serious issues that ought to be canvassed in the substantive application.
vii) That the application as drawn and filed is fatally defective and unsustainable in law.
2. Pursuant to directions given on 6th November 2025, the preliminary objection was disposed of by way of written submissions.
3. In his submissions dated 5th January 2026, the interested party identifies the main issue for determination to be whether this court has jurisdiction to entertain judicial review proceedings arising from a boundary dispute where the applicant has not exhausted the available options under the Land Registration Act 2012. Regarding that issue, the interested party submits as follows: -
“The issues of boundaries is provided under sections 18, 19, 20 and 21 of the Land Registration Act together with Regulation 40(6) of the Land Registration (General) Regulations, 2017…Regulation 40 deals with applications for re-establishment of a missing boundary or ascertainment of a boundary in dispute. Regulation 40(6) allows a dissatisfied party to appeal within 30 days of the boundary decision…”.
4. The interested party points out that the ex parte applicant, participated in the process that culminated in the decision that forms the subject matter of the impugned application for leave to file judicial review proceedings. The interested party takes issue with the fact that the ex parte applicant did not lodge an appeal against the decision of the respondents as contemplated in Regulation 40(6). Terming the ex parte applicant’s application for leave to institute judicial review proceedings against the decision of the respondents a violation of sections 18 and 19 of the Land Registration Act, 2012 and Regulation 40(6) of the Land Registration (General) Regulation 2017, the interested party seeks to strike out, in limine, the application for leave to institute judicial review proceedings against the decision of the respondents on the reason(s) cited herein above.
5. The interested party has placed reliance on the following cases: Pete v Kidiga (Environment and Land Appeal E057 of 2024) (2025) KEELC 4910 (KLR) (30 June 2025) (judgment); Nzaka & 2 others v District Lands Registrar Kilifi & another; Katumbi (Interested Party) (Environment and Land Judicial Review Case E006 of 2024) (2025) KEELC 992 (KLR) (26 February 2025) (Ruling).
6. In his submissions dated 9th February 2026, the ex parte applicant submits as follows: -
“…the objection that judicial review must be filed in the High Court is misplaced and contrary to settled jurisprudence and the letter of the law…this court cannot be barred from exercising its jurisdiction as the matters sought are reserved for it as a special court as espoused under Article 162(2)(b) of the Constitution…indeed the general jurisdiction is set out in section 13(1) which emphasizes that the Environment and Land Court has both original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of the Environment and Land Court Act or any other law applicable in Kenya relating to environment and land…The Interested Party has failed to note that this instant application is not intended for appeal to look into the merits but seeks discretionary judicial remedies and nothing prevents this court from redressing admistrative and quasi-judicial process that is impugned for want of fairness, reasonableness, relevance, legality and procedural fairness….The Interested Party has failed to note that, this instant application is not intended for appeal to look into the merits, but seek discretionary judicial remedies, and nothing prevents this court from redressing administrative and quasi-judicial process that is impugned for want of fairness, reasonableness, relevance, legality and procedural fairness…nothing stops this court nor the applicant to seek judicial review remedies where the 1st Respondent persists in his failure to render an administratively fair decision-making….this court …should not be expected to excuse impropriety, irrespective of how many times the Interested Party fails to follow a due process of law …”.
7. According to the ex parte applicant, the cases cited by the interested party are not analogous to the matter in issue.
8. I have read and considered the grounds of objection taken up by the interested party and the submissions filed by the parties in respect thereof. I find the sole issue for the court’s determination to be whether the interested party has made up a case for striking out the ex parte applicant’s application for leave to institute judicial review proceedings against the decision of the respondents made on 25th April, 2025.
9. As pointed out herein above, the interested party seeks to strike out the ex parte applicant’s application for leave to institute judicial review proceedings on several grounds whose cumulative effect is that this court lacks jurisdiction to hear and determine an application for judicial review arising from exercise of the Registrar’s boundary fixing powers under Section 18 and 19 of the Land Registration Act. I have considered that argument/contention vis-à-vis the relevant provision of the Land Registration Act, regarding review of the powers of the Land Registrar, and the general power donated to this court to review administrative decisions of under inter alia the Law Reform Act and the Fair Administrative Actions Act, 2015.
10. Section 86(1) of the Land Registration Act, 2012 and Regulation 40 (6) of the Land Registration (General Regulations), 2017 on which I presuppose the preliminary objection herein is hinged, respectively provide as follows: -
“If any question arises with regard to the exercise of any power or performance of any duty conferred or imposed on the Registrar by this Act, the Registrar or any aggrieved person shall state a case for the opinion of the Court, and there upon the Court shall give its opinion, which shall be binding upon Parties-Section 86(1);
Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within thirty days of the date of notification, appeal the decision to the Court-Regulation 40(6)”
11. My reading and interpretation of the provisions of Section 86(1) of the Land Registration Act, 2012 as read with Regulation 40(6) of the Land Registration (General Regulations) 2017, is that they presuppose that the Court would do a merit review of the decision of the Registrar and make its own opinion in respect thereof.
12. Unlike a Case stated or an appeal, judicial review is not concerned with the merits of the decision but the legal propriety of the decision and/or the decision making process.
13. Being of the view that the review contemplated under section 86(1) is distinct from judicial review contemplated in Order 53 of the Civil Procedure Rules and the Fair Administrative Action Act, 2015, I do not agree with the interested party’s claim/contention that failure to exhaust the dispute resolution mechanism provided in the Land Registration Act, 2012 and Regulation 40(6) of the Land Registration (General Regulations) 2017 has the effect of ousting the jurisdiction of this court to entertain an application for judicial review of the impugned decision of the respondents.
14. By dint of the provisions of Section 9(2) and read with subsection (3) of the Fair Administrative Action Act 2015, a Court may exempt a person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. My reading and interpretation of the provisions of Section 9(2) as read with subsection (3) is that they give the Court discretionary power to exempt an applicant for judicial review from exhausting any remedy if satisfied that such exemption is in the interest of justice.
15. It is trite law that a preliminary objection cannot lie on an issue that involves exercise of the Court’s discretion. In that regard, see Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors (1969) EA 696 where it was stated/held: -
“A preliminary objection consists of a point of law which has been pleaded or arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit…It cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion.”
16. As to whether judicial review is unavailable in disputes that are private in nature, I am persuaded by the decision in the case of JR 615 of 2017-PS Ministry of Interior & another v Schon Noorani & Jack & Jill Supermarket Ltd where Mativo J. (as he then was), stated/held:-
“Judicial Review is available as relief to a claim of violation of the rights and freedoms guaranteed…”
17. Being of the view that the decision whether to allow or deny the ex parte applicant’s application for leave involves exercise of discretionary power of this court, under inter alia section 9(3) of the Fair Administrative Action Act 2015, I decline to uphold the interested party’s objection and direct the parties to, within seven days from the date of delivery of this ruling, file submissions in respect of the ex parte applicant’s chamber summons dated 9th September 2025, particularly on whether this court should exercise its discretionary power in favour of the ex parte applicant despite having failed to exhaust the available remedies under the Land Registration Act, 2012.
Ruling dated, signed and delivered virtually at Busia this 13th day of April, 2026.
In the presence of;
N/A for the Exparte Applicant
N/A for the Respondents
Mr Nyongesa for the Interested Party
Court Assistant: Tracy