HON JUSTICE J.W.WANYONYI
1. Before this Court is the Ex-parte Applicant's Notice of Motion dated 18th July 2025, brought pursuant to Order 53 Rule 3 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. The Applicant seeks the following orders: -
a) That this Honourable Court be pleased to issue an order of Certiorari removing into this Court for purposes of quashing the decision of the Land Registrar, Homa Bay, implementing the judgment of the Minister made pursuant to proceedings under the Land Adjudication Act in Appeal Case No. 699 of 1985, in respect of land parcel number KABUOCH/K/K/KOGUTA/184 , on the ground that the said decision had become unenforceable upon the lapse of twelve (12) years.
b) That costs of and incidental to this application be provided for.
2. The application is supported by the affidavit of the Ex-parte Applicant sworn on 18th July 2025. The Applicant contends that he was the registered proprietor of land parcel number KABUOCH/K/K/KOGUTA/184 until 22nd November 2024 when the Land Registrar cancelled his registration and registered the Interested Party pursuant to a decision allegedly made by the Minister on 9th December 1991 under Section 29 of the Land Adjudication Act. He argues that the Minister's decision had become obsolete after the expiry of twelve years and could therefore not lawfully be implemented by the Land Registrar.
3. In response to the Grounds of Opposition filed by the 1st and 2nd Respondents, the Ex-parte Applicant filed a Further Affidavit in which he deponed that the implementation of the Minister's decision was undertaken without any notice whatsoever being issued to him despite the fact that the suit property was, at the material time, registered in his name. He states that he only became aware of the cancellation of his title in the course of proceedings in Ndhiwa ELC Case No. 22 of 2024 between himself and the Interested Party. It is therefore his contention that the implementation was procedurally unfair as he, being the registered proprietor and the person directly affected by the decision, was neither notified nor afforded an opportunity to participate before the implementation was effected. He further depones that the implementation was based solely on an alleged Minister's decision rendered over thirty (30) years earlier without the support of any existing adjudication records, and consequently questions the authenticity and credibility of the said decision.
4. The 1st and 2nd Respondents opposed the application through Grounds of Opposition dated 15th September 2025. Their position is that the implementation undertaken by the Land Registrar was lawful, procedural and within his statutory mandate. They contend that the Minister's decision has never been quashed, reviewed or set aside by any competent court and therefore remains valid and binding. They further submit that the Land Registrar had no jurisdiction to question or decline to implement the Minister's determination.
5. The Interested Party, JOSEPH OLALA OWINO , filed a Replying Affidavit sworn on 12th November 2025 opposing the application. He raises a preliminary issue that the judicial review proceedings are time-barred under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules since the implementation complained of took place on 22nd November 2024 while the substantive motion was filed on 18th July 2025, more than six months thereafter. He further contends that leave granted in Homa Bay ELCLJR E001 of 2025 could not validate proceedings instituted outside the statutory period. On the merits, he maintains that the Minister's decision remains valid and that there is no legal basis for the argument that such a decision becomes obsolete after twelve years.
6. The parties canvassed the application by way of written submissions which this Court has carefully considered together with the pleadings and the authorities cited.
Issues for Determination
7. I have carefully considered the Notice of Motion, the affidavits filed by the parties, the rival submissions and the authorities relied upon. The issues that arise for determination are:-
a) Whether the Minister had powers to entertain the Appeal
b) Whether these proceedings are statute barred.
c) Whether the implementation of the Minister's decision by the
Land Registrar was unlawful, irrational or procedurally
improper so as to warrant the grant of an order of certiorari .
8. Determination
I)Whether the Minister had powers to entertain the
Application
9. Section 28 of the Land Adjudication Act provides what the Chief Land
Registrar is required to do in the event of an appeal being filed during the
adjudication process. It stipulates as follows:
“ Upon receiving the adjudication register under section 27 of this Act, the Chief Land Registrar shall cause registrations to be effected in accordance with the adjudication register:
Provided that, where the land is affected by an appeal under section 29 of this Act, a restriction shall be made and registered in respect of that land expressed to endure until the determination of the appeal, and on such determination the register shall if necessary be altered in accordance with the determination. ” (emphasis added)
10. Section 29 of the Land Adjudication Act stipulates as follows:
“(1) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—
(a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and
(b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.
(2) The Minister shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar.
(3) When the appeals have been determined, the Director of Land Adjudication shall—
(a) alter the duplicate adjudication register to conform with the determinations; and
(b) certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.” (emphasis added)
11.Land adjudication is a process where community land rights and
interests in land are ascertainedand recorded before registration. It is
governed by the Land Adjudication Act and Consolidation Act , Cap 284
and 283, Laws of Kenya, respectively.
12. Sections 2) and (3), 21(3), 26, and 29 of the Land Adjudication Act provide for those processes starting with the Arbitration Board,
Committee, Objection to Adjudication Register, and then the Minister’s
Appeal, which is final.
13. As was held in the cases of Tobias Achola Osindi & 13 others v Cyprianus Otieno Ogalo & 6 others [2013] KEHC 2165 (KLR)and Bhaijee & another v Nondi & another (Civil Appeal 139 of 2019) [2022] KECA 119 (KLR) (18 February 2022) (Judgment), power and jurisdiction of the court to hear and determine disputes on land falling under Caps 283 and 284 is restricted until the mechanisms in the Acts are exhausted.
14. Under Section 29 of the Land Adjudication Act (Cap 284, Laws of
Kenya) , the Minister (currently the Cabinet Secretary responsible for lands)
is clothed with quasi-judicial powers to act as the final appellate authority in
land adjudication matters as here under :
a) She is accorded the mandate to hear and determine appeals lodged
by any person aggrieved by the decision of an Adjudication Officer
regarding land objections.
b) she can issue any order on the appeal that they deem "just" under
the circumstances which is not limited to upholding, reversing, or
varying the original decision. .
a) The order made is statutorily final and cannot be appealed in a court of law.
b) The said order can only be challenged via a Judicial Review in the
High Court under grounds of procedural unfairness or excess of jurisdiction.
c) The Minister can delegate their appellate powers, duties, and functions through a notice in the Kenya Gazette to any specified public officer (such as a Deputy County Commissioner) and the decision arising is legally deemed to be that of the Minister
15. Under Regulation 4(4) of the Land Adjudication Regulations
i) the Minister has the discretion to grant leave for a party to call new
witnesses or introduce fresh evidence if necessary.
ii) The Minister reviews the full administrative record of previous
proceedings from the adjudication committee, arbitration board, and
adjudication officer.
iii) Upon receiving a copy of the appeal, the Director of Land
Adjudication—acting under the framework of the appeal—can restrict any
transactions or dealings on disputed parcel until the Minister makes a final
determination.
16. . Requirements for exercise of Ministerial Authority
The acts sets down the minimum requirements and aggrieved party
must meet to enable the minster act in respect of an Appeal
a) An appeal must be lodged within 60 days of the Adjudication
Officer's objection decision,
b) must be in writing , clearly specifying the grounds of the appeal, a copy must be sent directly to the Director of Land Adjudication , and
c) lastly the appeal must include a tracing from the demarcation map showing the borders of the disputed land.
17. In Republic v Kenya National Examination Council Exparte Gathenji & Another Civil Appeal No. 266 of 1996, the court said that the court must satisfy itself that the public officers have acted procedurally; the decision was reasonable and legal.
18.To succeed in an application for judicial review, the ex parte applicant must satisfy the court that the decision made was tainted with illegality, irrationality, and was out of procedural impropriety on the part of the decision maker.It must be shown that a public officer acted unprocedurally and that the decision was unreasonable and in breach of the law In Republic v Kenya National Examination Council Exparte Gathenji & Another Civil Appeal No. 266 of 1996
19. An illegality is thus committed when the decision-making authority commits an error of law in the process of making the decision, acts without jurisdiction or ultra vires, or contrary to the provisions of the law or its principles.
20. A Minister must adhere to Article 47 of the Constitution , since they decide on matters of land, touching on the law and the rights of citizens, whose decision(s)are final, with serious implications on the interest holders to the land. A Minister must first establish if the appeal was filed on time, the grounds of appeal, and lastly, look at or make a consideration of the history of the dispute right from inception.
21. In the case of Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others (Civil Appeal E033 of 2021) [2023] KECA 1280 (KLR) (27 October 2023) (Judgment), the Court of Appeal at paragraph 22 observed as follows:
“ The Act is clear that any person aggrieved by a decision made under the Section 26 of the Act must follow the process under Section 29 and appeal to the Minister. Once the Minister, or the panel delegated to makes a determination, his order is final. That means the Minister’s decision cannot be appealed, whether under the Act or in Court. The option the Appellant had was to pursue Judicial Review process provided under Article 47 of the Constitution, and the Fair Administrative Action Act, 2015 a statute enacted pursuant to the Article 47 of the Constitution. He could not re-open the case and challenge it except through Judicial Review. The Appellant was attempting to undo the process he participated in using a process that is not provided for, and that is not allowed”
ii. Whether the proceedings are time barred
22. The Interested Party contends that these proceedings offend Section
9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure
Rules because the implementation complained of took place on 22nd
November 2024 whereas the substantive motion was filed on 18th July 2025.
23. The record of Homa Bay ELCLJR E001 of 2025 , which this Court
has called for and considered, shows that the application seeking
leave to commence judicial review proceedings was filed on 18th
March 2025 , approximately four months after the impugned
implementation. The Court granted leave on 2nd July 2025 and
directed that the substantive motion be filed within twenty-one (21)
days.
24. It is settled that what must be filed within the six months prescribed
under Section 9(3) of the Law Reform Act is the application for
leave.Once leave is granted, the substantive motion is filed
pursuant to the leave of the Court. Since the leave proceedings were
commenced within six months of the impugned implementation, I
find no merit in the objection that these proceedings are statute
barred.
iii. Whether Section 4(4) of the Limitation of Actions Act applies
25. The Applicant's principal argument is that the Minister's decision became "obsolete" after twelve years by virtue of Section 4(4) of the Limitation of Actions Act and therefore could not lawfully be implemented in the year 2024.
26. Section 4(4) of the Limitation of Actions Act bars actions brought upon a judgment after twelve years from the date the judgment became enforceable.
27. The question therefore is whether a decision rendered by the Minister under Section 29 of the Land Adjudication Act is a judgment or decree whose implementation is subject to Section 4(4).
28. A d ecree is strictly a formal expression of an adjudication by a competent court of law that conclusively determines the rights of the parties within a properly instituted suit.
29. Because a Minister is an executive officer and not a judicial body, their determinations are classified as administrative decisions or statutory orders , rather than judicial decrees.
30. I have taken the pain of distinguishing between a court decree and Minsiterial powers as follows:
a)Lack of Judicial Adjudication: A decree requires a formal judicial determination while a Minister acts as a quasi-judicial administrative authority, not a court.
b)Procedural Origin: A decree must stem from a civil suit while Ministerial decisions arise from statutory mandates, petitions, or administrative appeals.
c) Methods of Legal Challenge: If you disagree with a judicial decree, you file a statutory appeal to a higher court while a Ministerial decision is challenged through Judicial Review (seeking orders like Certiorari or Mandamus) in an Environment and Land Court, attacking the fairness or legality of the administrative process.
31 . A determination made by the Minister under Section 29 of the Land
Adjudication Act is the culmination of the adjudication process established
under that Act. Once rendered, it becomes final subject only to judicial
review or other lawful challenge. The implementation of that determination
by the Land Registrar is not execution of a civil decree under the Civil
Procedure Act but the discharge of a statutory obligation imposed by t he
Land Adjudication Act.
32. Consequently, I find no legal basis for the Applicant's contention that the Minister's decision lapsed merely because twelve years had elapsed. Had Parliament intended to impose a limitation period within which the Land Registrar was to implement such decisions, nothing would have been easier than to expressly provide so.
33.Accordingly, the Applicant's argument founded on Section 4(4)the Limitation of
Actions Act fails.
34.In Republic v National Employment Authority & 3 others Ex-Parte Middle
East Consultancy Services Limited [2018] EKLR the court at para. 55 held;
broadly, in order to succeed in a Judicial Review proceeding, the applicant will
need to show either:
- a. the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or b. a decision or action that has been taken is 'beyond the powers' (in Latin, 'ultra vires') of the person or body responsible for it. An administrative or quasi-judicial decision can only be challenged for illegality, irrationality and procedural impropriety. An administrative decision is flawed if it is illegal. A decision is illegal if it: - (a) contravenes or exceeds the terms of the power which authorizes the making of the decision; (b) pursues an objective other than that for which the power to make the decision was conferred; (c) is not authorized by any power; (d) contravenes or fails to implement a public duty.
iv. Whether the implementation violated the rules of natural
justice
35.The Applicant nevertheless contends that even if the Minister's
decision remained valid; the Land Registrar implemented it without
notifying him notwithstanding that he was the registered proprietor
of the suit land.
36.In his Further Affidavit, the Applicant depones that no notice of the intended
implementation was ever served upon him. He states that he only became aware that
his title had been cancelled while proceedings were pending in Ndhiwa ELC Case
No. 22 of 2024 between himself and the Interested Party. According to him, the
implementationwas undertaken secretly and without affording him an opportunity to
be heard.
37.The Respondents, on the other hand, maintain that the Land Registrar merely
implemented a valid Minister's decision and was under a statutory obligation to do
so.They have deliberately eschewed addressing the issue of service upon the Ex-
parte Applicant.
38.The Court has examined the documents exhibited. Although the register reflects that
on 22nd November 2024 the Applicant's registration was cancelled and the Interested
Party registered as proprietor pursuant to the Minister's decision, neither the
Respondents nor the Interested Party have exhibited any notice issued to the Applicant informing him of the intended implementation or requiring him to surrender the title before the register was altered.
39.Equally absent from the record is any evidence demonstrating that the Applicant was
invited before the Land Registrar or otherwise afforded an opportunity to raise any
issue touching on the implementation process.
40. As was stated by the Court of Appeal in Municipal Council of Mombasa -vs-
Republic & Umoja Consultants Limited (Civil Appeal No. 185 of 2001)(2002)
eKLR;
“ Judicial review is concerned with the decision-making process, not with the merits of the decisions itself. The court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account irrelevant matters … The Court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself such as whether there was or there was no sufficient evidence to support the decision touching on violation of fundamental rights.”
41. Section 4 (3) of the Fair Administrative Action Act provides that:
“ Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—
4a) prior and adequate notice of the nature and reasons
for the proposed administrative action;
b) an opportunity to be heard and to make \
representations in that regard;
c)notice of a right to a review or internal appeal against an administrative decision, where applicable;
d) a statement of reasons pursuant to section 6;
e) notice of the right to legal representation, where applicable;
f) notice of the right to cross-examine or where applicable;
g) Information, materials and evidence to be relied upon in making the decision or taking the administrative action.
42. This Court appreciates that the Land Registrar was not sitting on appeal
against the Minister's decision and had no authority to vary or review its
merits. Nevertheless, where implementation of such a decision requires
alteration of an existing register and cancellation of an existing title, the
Registrar remains bound by the Constitution and the Fair Administrative
Action Act to act fairly, reasonably and procedurally.
43.The duty to accord procedural fairness does not entail reopening the Minister's
decision. Rather, it requires that a person whose registered proprietary rights
stand to be affected be notified of the intended administrative action and be
informed of the basis upon which the alteration is to be undertaken .
44. The rules of natural justice, which the Minister ought to have complied with, are well articulated in Halsbury Laws of England, 5 th Edition 2010 Vol. 61 at para. 639 as follows:
“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
45. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, lawful, reasonable and procedurally fair.
46. This has position has been upheld by the Court of Appeal in Pashito Holdings Limited & Another vs Paul Nderitu Ndungu & 2 Others [1997]eKLR . In Judicial Service Comission vs Mbalu Mutava & another [2015] eKLR , the Court of Appeal stated that natural justice comprises the
duty to act fairly:
“Article 47(1) does not exclude the application of common law particularly the common law right to fair hearing. As I have endeavoured to show above, natural justice comprises the doctrine of or is synonymous with “acting fairly”. The term “procedurally fair” used in article 47(1) by a proper construction, imports and subsumes to a certain degree, the common law including rules of natural justice which means that common law is complementary to the right to fair administrative action….Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
47. In Dande & 3 others v Inspector General, National Police Service , the court held that public and administrative office holders must ensure not only procedural compliance, but also substantive fairness in their decision-making. See also Mumo Matemu v Trusted Society for Human Rights Alliance & Others [2015] KECA 445 [KLR], and in Odhiambo John Dudley Ochel Transformation of Judicial Review in Kenya under 2010 Constitution http// www/erepository.monbi.ac.ke.
48. The failure by the 1 st Respondent to give the Exparte Applicant an opportunity to heard before rendering its decision was an infringement of their right to fair hearing under Article 47 of the Constitution and his duty to uphold the national values set out in Article 10 of the Constitution.
49. That omission renders the process through which the Minister's decision was implemented procedurally unfair. The Court emphasizes that this finding does not invalidate or quash the Minister's decision itself. Rather, it concerns only the administrative process employed by the Land Registrar in implementing that decision.
50. Article 35 of the Constitution provides for the right to access to information
in the following terms:'
35.(1) Every citizen has the right of access to-
a. Information held by the state; and
b.Information held by another person and required for the exercise or
protection of any right or fundamental freedom.
(2). Every person has the right to the correction or deletion of untrue or
misleading information that affects the person.
(3). The state shall publish and publicize any important information
affecting the nation.'
51.Similarly, section 4 of the Access to Information Act , No 31 of 2016 which
was enacted to give effect to the rights under article 35 of the constitution
provides for the right of access to information held by the State and information
held by another person and is required for the exercise or protection of any
right or fundamental freedom.
52.The right to access to information is also contained in several international
conventions and treaties ratified by Kenya. Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) for example makes the right to
information imperative when it states that 'Everyone shall have the right to
freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regard less of frontiers, either orally,
in writing or in print, in the form of art, or through any other media of his
choice.'
53 . The right to access to information is also stipulated under article 9(1) of
the African Charter on Human and Peoples Rights which states that‘every
individual has the right to receive information.'
54. .The Access to Information Act proceeds to define ‘public body’ as 'any
public office, as defined in article 260 of the Constitution ; or (b) any entity
performing a function within a commission, office, agency or other body
established under the Constitution .
55. Information is necessary to enable exercise of the right to access to justice
under article 48 of the Constitution and also necessary for the protection of
the right to a fair hearing and fair trial under article 50 of the Constitution .
56. By cancelling the title without notice the Land Registrar violated the
applicant’s right to information which would have enabled him to pursuing
any available legal remedy to challenge the cancellation or intended cancellation
V. Did the Land Registrar weild the power to cancel title
57. It is indeed interesting to note the haste with which the Respondents
proceeded to revoke the first title .
58. Section 79 of the Land Registration Act donates to the Land Registrar
power to rectify the register. Section 79(2) of the same reads:
79 (2):No alteration affecting the title of the proprietor may be made pursuant to sub-section (1) without the proprietor’s consent unless –
a.The proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; or
b.It would for any other reason be unjust for the alteration not to be made.
Provided that a written notice of ninety days shall be given to the proprietor of such intention to make the alteration.” Emphasis mine
.Section 80(1) of the same Act on the other hand reads as follows:
“Subject to Section (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.” Emphasis mine.
59. In Kuria Greens Ltd -vs- Registrar of Titles & Another (2011) eKLR
Olao J., dealing with a near similar issue stated as follows:
- In my view therefore, the Registrar of Titles exceeded his power and thus acted ultra vires in purporting to revoke the Petitioners title. There can be no dispute that an ultra vires act by a public authority is unlawful. In Republic -vs- Kisumu District Lands Officer & Another, the court held that “it is clear that it is only the court that can cancel or amend a title where the court is of the view that the registration has been obtained, made or omitted through fraud or mistake and only where it is not a first registration.”
60. Similarly, in Josphat Nyaga Mukembo & 21 Others -vs- Attorney General
& 4 Others (2016) eKLR, Olao J., dealing with a matter where the Minister
proceeded with a hearing after title was issued observed as follows: -
“ It is clear from the above that even as the District Commissioner was hearing the appeal, it was made known to him that titles had been issued to some of the land parcels in dispute and he was advised by none other than the Director, Land Adjudication to suspend the hearing of these appeals and return the files to the Department. That advise was ignored with the result that the District Commissioner proceeded to make the orders that he did which were ultra vires because he had no jurisdiction to revoke titles .”
61. In Pastoli -vs- Kabale District Local Government Council & Others (2008) 2 EA 300, the court defined “irrationality” as follows: - “Irrationality is when there is such gross unreasonableness in the decision taken or act done,
[...truncated]
1. Before this Court is the Ex-parte Applicant's Notice of Motion dated 18th July 2025, brought pursuant to Order 53 Rule 3 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. The Applicant seeks the following orders: -
a) That this Honourable Court be pleased to issue an order of Certiorari removing into this Court for purposes of quashing the decision of the Land Registrar, Homa Bay, implementing the judgment of the Minister made pursuant to proceedings under the Land Adjudication Act in Appeal Case No. 699 of 1985, in respect of land parcel number KABUOCH/K/K/KOGUTA/184 , on the ground that the said decision had become unenforceable upon the lapse of twelve (12) years.
b) That costs of and incidental to this application be provided for.
2. The application is supported by the affidavit of the Ex-parte Applicant sworn on 18th July 2025. The Applicant contends that he was the registered proprietor of land parcel number KABUOCH/K/K/KOGUTA/184 until 22nd November 2024 when the Land Registrar cancelled his registration and registered the Interested Party pursuant to a decision allegedly made by the Minister on 9th December 1991 under Section 29 of the Land Adjudication Act. He argues that the Minister's decision had become obsolete after the expiry of twelve years and could therefore not lawfully be implemented by the Land Registrar.
3. In response to the Grounds of Opposition filed by the 1st and 2nd Respondents, the Ex-parte Applicant filed a Further Affidavit in which he deponed that the implementation of the Minister's decision was undertaken without any notice whatsoever being issued to him despite the fact that the suit property was, at the material time, registered in his name. He states that he only became aware of the cancellation of his title in the course of proceedings in Ndhiwa ELC Case No. 22 of 2024 between himself and the Interested Party. It is therefore his contention that the implementation was procedurally unfair as he, being the registered proprietor and the person directly affected by the decision, was neither notified nor afforded an opportunity to participate before the implementation was effected. He further depones that the implementation was based solely on an alleged Minister's decision rendered over thirty (30) years earlier without the support of any existing adjudication records, and consequently questions the authenticity and credibility of the said decision.
4. The 1st and 2nd Respondents opposed the application through Grounds of Opposition dated 15th September 2025. Their position is that the implementation undertaken by the Land Registrar was lawful, procedural and within his statutory mandate. They contend that the Minister's decision has never been quashed, reviewed or set aside by any competent court and therefore remains valid and binding. They further submit that the Land Registrar had no jurisdiction to question or decline to implement the Minister's determination.
5. The Interested Party, JOSEPH OLALA OWINO , filed a Replying Affidavit sworn on 12th November 2025 opposing the application. He raises a preliminary issue that the judicial review proceedings are time-barred under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules since the implementation complained of took place on 22nd November 2024 while the substantive motion was filed on 18th July 2025, more than six months thereafter. He further contends that leave granted in Homa Bay ELCLJR E001 of 2025 could not validate proceedings instituted outside the statutory period. On the merits, he maintains that the Minister's decision remains valid and that there is no legal basis for the argument that such a decision becomes obsolete after twelve years.
6. The parties canvassed the application by way of written submissions which this Court has carefully considered together with the pleadings and the authorities cited.
Issues for Determination
7. I have carefully considered the Notice of Motion, the affidavits filed by the parties, the rival submissions and the authorities relied upon. The issues that arise for determination are:-
a) Whether the Minister had powers to entertain the Appeal
b) Whether these proceedings are statute barred.
c) Whether the implementation of the Minister's decision by the
Land Registrar was unlawful, irrational or procedurally
improper so as to warrant the grant of an order of certiorari .
8. Determination
I)Whether the Minister had powers to entertain the
Application
9. Section 28 of the Land Adjudication Act provides what the Chief Land
Registrar is required to do in the event of an appeal being filed during the
adjudication process. It stipulates as follows:
“ Upon receiving the adjudication register under section 27 of this Act, the Chief Land Registrar shall cause registrations to be effected in accordance with the adjudication register:
Provided that, where the land is affected by an appeal under section 29 of this Act, a restriction shall be made and registered in respect of that land expressed to endure until the determination of the appeal, and on such determination the register shall if necessary be altered in accordance with the determination. ” (emphasis added)
10. Section 29 of the Land Adjudication Act stipulates as follows:
“(1) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—
(a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and
(b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.
(2) The Minister shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar.
(3) When the appeals have been determined, the Director of Land Adjudication shall—
(a) alter the duplicate adjudication register to conform with the determinations; and
(b) certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.” (emphasis added)
11.Land adjudication is a process where community land rights and
interests in land are ascertainedand recorded before registration. It is
governed by the Land Adjudication Act and Consolidation Act , Cap 284
and 283, Laws of Kenya, respectively.
12. Sections 2) and (3), 21(3), 26, and 29 of the Land Adjudication Act provide for those processes starting with the Arbitration Board,
Committee, Objection to Adjudication Register, and then the Minister’s
Appeal, which is final.
13. As was held in the cases of Tobias Achola Osindi & 13 others v Cyprianus Otieno Ogalo & 6 others [2013] KEHC 2165 (KLR)and Bhaijee & another v Nondi & another (Civil Appeal 139 of 2019) [2022] KECA 119 (KLR) (18 February 2022) (Judgment), power and jurisdiction of the court to hear and determine disputes on land falling under Caps 283 and 284 is restricted until the mechanisms in the Acts are exhausted.
14. Under Section 29 of the Land Adjudication Act (Cap 284, Laws of
Kenya) , the Minister (currently the Cabinet Secretary responsible for lands)
is clothed with quasi-judicial powers to act as the final appellate authority in
land adjudication matters as here under :
a) She is accorded the mandate to hear and determine appeals lodged
by any person aggrieved by the decision of an Adjudication Officer
regarding land objections.
b) she can issue any order on the appeal that they deem "just" under
the circumstances which is not limited to upholding, reversing, or
varying the original decision. .
a) The order made is statutorily final and cannot be appealed in a court of law.
b) The said order can only be challenged via a Judicial Review in the
High Court under grounds of procedural unfairness or excess of jurisdiction.
c) The Minister can delegate their appellate powers, duties, and functions through a notice in the Kenya Gazette to any specified public officer (such as a Deputy County Commissioner) and the decision arising is legally deemed to be that of the Minister
15. Under Regulation 4(4) of the Land Adjudication Regulations
i) the Minister has the discretion to grant leave for a party to call new
witnesses or introduce fresh evidence if necessary.
ii) The Minister reviews the full administrative record of previous
proceedings from the adjudication committee, arbitration board, and
adjudication officer.
iii) Upon receiving a copy of the appeal, the Director of Land
Adjudication—acting under the framework of the appeal—can restrict any
transactions or dealings on disputed parcel until the Minister makes a final
determination.
16. . Requirements for exercise of Ministerial Authority
The acts sets down the minimum requirements and aggrieved party
must meet to enable the minster act in respect of an Appeal
a) An appeal must be lodged within 60 days of the Adjudication
Officer's objection decision,
b) must be in writing , clearly specifying the grounds of the appeal, a copy must be sent directly to the Director of Land Adjudication , and
c) lastly the appeal must include a tracing from the demarcation map showing the borders of the disputed land.
17. In Republic v Kenya National Examination Council Exparte Gathenji & Another Civil Appeal No. 266 of 1996, the court said that the court must satisfy itself that the public officers have acted procedurally; the decision was reasonable and legal.
18.To succeed in an application for judicial review, the ex parte applicant must satisfy the court that the decision made was tainted with illegality, irrationality, and was out of procedural impropriety on the part of the decision maker.It must be shown that a public officer acted unprocedurally and that the decision was unreasonable and in breach of the law In Republic v Kenya National Examination Council Exparte Gathenji & Another Civil Appeal No. 266 of 1996
19. An illegality is thus committed when the decision-making authority commits an error of law in the process of making the decision, acts without jurisdiction or ultra vires, or contrary to the provisions of the law or its principles.
20. A Minister must adhere to Article 47 of the Constitution , since they decide on matters of land, touching on the law and the rights of citizens, whose decision(s)are final, with serious implications on the interest holders to the land. A Minister must first establish if the appeal was filed on time, the grounds of appeal, and lastly, look at or make a consideration of the history of the dispute right from inception.
21. In the case of Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others (Civil Appeal E033 of 2021) [2023] KECA 1280 (KLR) (27 October 2023) (Judgment), the Court of Appeal at paragraph 22 observed as follows:
“ The Act is clear that any person aggrieved by a decision made under the Section 26 of the Act must follow the process under Section 29 and appeal to the Minister. Once the Minister, or the panel delegated to makes a determination, his order is final. That means the Minister’s decision cannot be appealed, whether under the Act or in Court. The option the Appellant had was to pursue Judicial Review process provided under Article 47 of the Constitution, and the Fair Administrative Action Act, 2015 a statute enacted pursuant to the Article 47 of the Constitution. He could not re-open the case and challenge it except through Judicial Review. The Appellant was attempting to undo the process he participated in using a process that is not provided for, and that is not allowed”
ii. Whether the proceedings are time barred
22. The Interested Party contends that these proceedings offend Section
9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure
Rules because the implementation complained of took place on 22nd
November 2024 whereas the substantive motion was filed on 18th July 2025.
23. The record of Homa Bay ELCLJR E001 of 2025 , which this Court
has called for and considered, shows that the application seeking
leave to commence judicial review proceedings was filed on 18th
March 2025 , approximately four months after the impugned
implementation. The Court granted leave on 2nd July 2025 and
directed that the substantive motion be filed within twenty-one (21)
days.
24. It is settled that what must be filed within the six months prescribed
under Section 9(3) of the Law Reform Act is the application for
leave.Once leave is granted, the substantive motion is filed
pursuant to the leave of the Court. Since the leave proceedings were
commenced within six months of the impugned implementation, I
find no merit in the objection that these proceedings are statute
barred.
iii. Whether Section 4(4) of the Limitation of Actions Act applies
25. The Applicant's principal argument is that the Minister's decision became "obsolete" after twelve years by virtue of Section 4(4) of the Limitation of Actions Act and therefore could not lawfully be implemented in the year 2024.
26. Section 4(4) of the Limitation of Actions Act bars actions brought upon a judgment after twelve years from the date the judgment became enforceable.
27. The question therefore is whether a decision rendered by the Minister under Section 29 of the Land Adjudication Act is a judgment or decree whose implementation is subject to Section 4(4).
28. A d ecree is strictly a formal expression of an adjudication by a competent court of law that conclusively determines the rights of the parties within a properly instituted suit.
29. Because a Minister is an executive officer and not a judicial body, their determinations are classified as administrative decisions or statutory orders , rather than judicial decrees.
30. I have taken the pain of distinguishing between a court decree and Minsiterial powers as follows:
a)Lack of Judicial Adjudication: A decree requires a formal judicial determination while a Minister acts as a quasi-judicial administrative authority, not a court.
b)Procedural Origin: A decree must stem from a civil suit while Ministerial decisions arise from statutory mandates, petitions, or administrative appeals.
c) Methods of Legal Challenge: If you disagree with a judicial decree, you file a statutory appeal to a higher court while a Ministerial decision is challenged through Judicial Review (seeking orders like Certiorari or Mandamus) in an Environment and Land Court, attacking the fairness or legality of the administrative process.
31 . A determination made by the Minister under Section 29 of the Land
Adjudication Act is the culmination of the adjudication process established
under that Act. Once rendered, it becomes final subject only to judicial
review or other lawful challenge. The implementation of that determination
by the Land Registrar is not execution of a civil decree under the Civil
Procedure Act but the discharge of a statutory obligation imposed by t he
Land Adjudication Act.
32. Consequently, I find no legal basis for the Applicant's contention that the Minister's decision lapsed merely because twelve years had elapsed. Had Parliament intended to impose a limitation period within which the Land Registrar was to implement such decisions, nothing would have been easier than to expressly provide so.
33.Accordingly, the Applicant's argument founded on Section 4(4)the Limitation of
Actions Act fails.
34.In Republic v National Employment Authority & 3 others Ex-Parte Middle
East Consultancy Services Limited [2018] EKLR the court at para. 55 held;
broadly, in order to succeed in a Judicial Review proceeding, the applicant will
need to show either:
- a. the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or b. a decision or action that has been taken is 'beyond the powers' (in Latin, 'ultra vires') of the person or body responsible for it. An administrative or quasi-judicial decision can only be challenged for illegality, irrationality and procedural impropriety. An administrative decision is flawed if it is illegal. A decision is illegal if it: - (a) contravenes or exceeds the terms of the power which authorizes the making of the decision; (b) pursues an objective other than that for which the power to make the decision was conferred; (c) is not authorized by any power; (d) contravenes or fails to implement a public duty.
iv. Whether the implementation violated the rules of natural
justice
35.The Applicant nevertheless contends that even if the Minister's
decision remained valid; the Land Registrar implemented it without
notifying him notwithstanding that he was the registered proprietor
of the suit land.
36.In his Further Affidavit, the Applicant depones that no notice of the intended
implementation was ever served upon him. He states that he only became aware that
his title had been cancelled while proceedings were pending in Ndhiwa ELC Case
No. 22 of 2024 between himself and the Interested Party. According to him, the
implementationwas undertaken secretly and without affording him an opportunity to
be heard.
37.The Respondents, on the other hand, maintain that the Land Registrar merely
implemented a valid Minister's decision and was under a statutory obligation to do
so.They have deliberately eschewed addressing the issue of service upon the Ex-
parte Applicant.
38.The Court has examined the documents exhibited. Although the register reflects that
on 22nd November 2024 the Applicant's registration was cancelled and the Interested
Party registered as proprietor pursuant to the Minister's decision, neither the
Respondents nor the Interested Party have exhibited any notice issued to the Applicant informing him of the intended implementation or requiring him to surrender the title before the register was altered.
39.Equally absent from the record is any evidence demonstrating that the Applicant was
invited before the Land Registrar or otherwise afforded an opportunity to raise any
issue touching on the implementation process.
40. As was stated by the Court of Appeal in Municipal Council of Mombasa -vs-
Republic & Umoja Consultants Limited (Civil Appeal No. 185 of 2001)(2002)
eKLR;
“ Judicial review is concerned with the decision-making process, not with the merits of the decisions itself. The court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account irrelevant matters … The Court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself such as whether there was or there was no sufficient evidence to support the decision touching on violation of fundamental rights.”
41. Section 4 (3) of the Fair Administrative Action Act provides that:
“ Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—
4a) prior and adequate notice of the nature and reasons
for the proposed administrative action;
b) an opportunity to be heard and to make \
representations in that regard;
c)notice of a right to a review or internal appeal against an administrative decision, where applicable;
d) a statement of reasons pursuant to section 6;
e) notice of the right to legal representation, where applicable;
f) notice of the right to cross-examine or where applicable;
g) Information, materials and evidence to be relied upon in making the decision or taking the administrative action.
42. This Court appreciates that the Land Registrar was not sitting on appeal
against the Minister's decision and had no authority to vary or review its
merits. Nevertheless, where implementation of such a decision requires
alteration of an existing register and cancellation of an existing title, the
Registrar remains bound by the Constitution and the Fair Administrative
Action Act to act fairly, reasonably and procedurally.
43.The duty to accord procedural fairness does not entail reopening the Minister's
decision. Rather, it requires that a person whose registered proprietary rights
stand to be affected be notified of the intended administrative action and be
informed of the basis upon which the alteration is to be undertaken .
44. The rules of natural justice, which the Minister ought to have complied with, are well articulated in Halsbury Laws of England, 5 th Edition 2010 Vol. 61 at para. 639 as follows:
“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
45. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, lawful, reasonable and procedurally fair.
46. This has position has been upheld by the Court of Appeal in Pashito Holdings Limited & Another vs Paul Nderitu Ndungu & 2 Others [1997]eKLR . In Judicial Service Comission vs Mbalu Mutava & another [2015] eKLR , the Court of Appeal stated that natural justice comprises the
duty to act fairly:
“Article 47(1) does not exclude the application of common law particularly the common law right to fair hearing. As I have endeavoured to show above, natural justice comprises the doctrine of or is synonymous with “acting fairly”. The term “procedurally fair” used in article 47(1) by a proper construction, imports and subsumes to a certain degree, the common law including rules of natural justice which means that common law is complementary to the right to fair administrative action….Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
47. In Dande & 3 others v Inspector General, National Police Service , the court held that public and administrative office holders must ensure not only procedural compliance, but also substantive fairness in their decision-making. See also Mumo Matemu v Trusted Society for Human Rights Alliance & Others [2015] KECA 445 [KLR], and in Odhiambo John Dudley Ochel Transformation of Judicial Review in Kenya under 2010 Constitution http// www/erepository.monbi.ac.ke.
48. The failure by the 1 st Respondent to give the Exparte Applicant an opportunity to heard before rendering its decision was an infringement of their right to fair hearing under Article 47 of the Constitution and his duty to uphold the national values set out in Article 10 of the Constitution.
49. That omission renders the process through which the Minister's decision was implemented procedurally unfair. The Court emphasizes that this finding does not invalidate or quash the Minister's decision itself. Rather, it concerns only the administrative process employed by the Land Registrar in implementing that decision.
50. Article 35 of the Constitution provides for the right to access to information
in the following terms:'
35.(1) Every citizen has the right of access to-
a. Information held by the state; and
b.Information held by another person and required for the exercise or
protection of any right or fundamental freedom.
(2). Every person has the right to the correction or deletion of untrue or
misleading information that affects the person.
(3). The state shall publish and publicize any important information
affecting the nation.'
51.Similarly, section 4 of the Access to Information Act , No 31 of 2016 which
was enacted to give effect to the rights under article 35 of the constitution
provides for the right of access to information held by the State and information
held by another person and is required for the exercise or protection of any
right or fundamental freedom.
52.The right to access to information is also contained in several international
conventions and treaties ratified by Kenya. Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) for example makes the right to
information imperative when it states that 'Everyone shall have the right to
freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regard less of frontiers, either orally,
in writing or in print, in the form of art, or through any other media of his
choice.'
53 . The right to access to information is also stipulated under article 9(1) of
the African Charter on Human and Peoples Rights which states that‘every
individual has the right to receive information.'
54. .The Access to Information Act proceeds to define ‘public body’ as 'any
public office, as defined in article 260 of the Constitution ; or (b) any entity
performing a function within a commission, office, agency or other body
established under the Constitution .
55. Information is necessary to enable exercise of the right to access to justice
under article 48 of the Constitution and also necessary for the protection of
the right to a fair hearing and fair trial under article 50 of the Constitution .
56. By cancelling the title without notice the Land Registrar violated the
applicant’s right to information which would have enabled him to pursuing
any available legal remedy to challenge the cancellation or intended cancellation
V. Did the Land Registrar weild the power to cancel title
57. It is indeed interesting to note the haste with which the Respondents
proceeded to revoke the first title .
58. Section 79 of the Land Registration Act donates to the Land Registrar
power to rectify the register. Section 79(2) of the same reads:
79 (2):No alteration affecting the title of the proprietor may be made pursuant to sub-section (1) without the proprietor’s consent unless –
a.The proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; or
b.It would for any other reason be unjust for the alteration not to be made.
Provided that a written notice of ninety days shall be given to the proprietor of such intention to make the alteration.” Emphasis mine
.Section 80(1) of the same Act on the other hand reads as follows:
“Subject to Section (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.” Emphasis mine.
59. In Kuria Greens Ltd -vs- Registrar of Titles & Another (2011) eKLR
Olao J., dealing with a near similar issue stated as follows:
- In my view therefore, the Registrar of Titles exceeded his power and thus acted ultra vires in purporting to revoke the Petitioners title. There can be no dispute that an ultra vires act by a public authority is unlawful. In Republic -vs- Kisumu District Lands Officer & Another, the court held that “it is clear that it is only the court that can cancel or amend a title where the court is of the view that the registration has been obtained, made or omitted through fraud or mistake and only where it is not a first registration.”
60. Similarly, in Josphat Nyaga Mukembo & 21 Others -vs- Attorney General
& 4 Others (2016) eKLR, Olao J., dealing with a matter where the Minister
proceeded with a hearing after title was issued observed as follows: -
“ It is clear from the above that even as the District Commissioner was hearing the appeal, it was made known to him that titles had been issued to some of the land parcels in dispute and he was advised by none other than the Director, Land Adjudication to suspend the hearing of these appeals and return the files to the Department. That advise was ignored with the result that the District Commissioner proceeded to make the orders that he did which were ultra vires because he had no jurisdiction to revoke titles .”
61. In Pastoli -vs- Kabale District Local Government Council & Others (2008) 2 EA 300, the court defined “irrationality” as follows: - “Irrationality is when there is such gross unreasonableness in the decision taken or act done,
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