Kemboi & 2 others v Land Registrar, Naivasha & 3 others (Environment and Land Judicial Review Case E001 of 2025) (Environment and Land) [2025] KEELC 5362 (KLR)
The bottom line
#The Environment and Land Court in Naivasha dismissed a late challenge to a land title cancellation, confirming Kenya's strict six-month deadline for certiorari.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Application for Leave is time barred
- 2.Whether the proceedings for orders of Certiorari for which Leave is sought would be Res-Judicata
- 3.Whether the Applicants' Chamber Summons for Leave is fatally defective and incompetent considering that the orders for Certiorari would be urged on behalf of a stranger Joseph Kariuki Murimi
- 4.Whether the Applicants' prayer for Stay of Execution of the Judgement issued in Naivasha MC. ELC. E037 of 2024 is tenable
Key legal issues
#Whether the application for leave to apply for certiorari was time barred
The application was time barred; the applicants knew of the 19th January 2023 decision by February 2023 at the latest, and the six-month statutory period could not be extended
Order 53 Rule 2 and Section 9(3) of the Law Reform Act bar leave for certiorari beyond six months from the date of the proceeding. The applicants pleaded knowledge of the cancellation in the plaint filed on 9th February 2023 in Naivasha CMCELC No. 010 of 2023 and in their defence and counterclaim of 22nd October 2024. As the limitation is statutory, the time could not be extended, and an application filed on 24th April 2025, over two years later, could not stand.
Whether the intended certiorari proceedings were res judicata the judgment in Naivasha CMCELC No. E037 of 2024
The matter was res judicata; the same issues, parties and title had been determined by a court of concurrent jurisdiction on 7th April 2025 with finality and no appeal preferred
Applying the Supreme Court's elements of res judicata in John Florence Maritime Services, the court compared the pleadings and counterclaim in the previous suit and found the matters identical, the parties similar, the title the same and jurisdiction concurrent. The previous judgment was final in nature and no appeal had been preferred, so only the same court or an appellate court could disturb it.
Whether the preliminary objection was a proper point of law
The objection constituted pure points of law capable of disposing of the matter, following Mukisa Biscuits
The court adopted Law JA's classic definition of a preliminary objection as a point of law pleaded or arising by clear implication from the pleadings which, if argued as a preliminary point, may dispose of the suit, citing limitation as an example. Limitation and res judicata are both matters going to jurisdiction to be determined in limine.
Legal principles established
#- Leave to apply for certiorari must be sought within six months of the decision and time cannot be extended under the Civil Procedure Rules because the limitation is statutory
- Adding parties to a subsequent suit does not defeat the doctrine of res judicata
- A judgment of a competent court can only be varied, vacated, set aside or reviewed by the same court or an appellate court
Court orders
#- 1.The Applicants' Chamber Summons dated 24th April, 2025 seeking leave to institute judicial review proceedings is dismissed
- 2.The 2nd Respondent's Notice of Preliminary Objection dated 4th June 2025 succeeds
- 3.Costs of the application to the 2nd Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 53 Rule 1(1), 2, 7(2) and Order 22 Rule 22 of the Civil Procedure Rules
Relief refused
#Leave to institute judicial review proceedings for orders of certiorari to quash the Land Registrar's decision cancelling the title
Application filed more than two years after the impugned decision of 19th January 2023, far outside the six-month limitation period
Leave in so far as the claim is res judicata Naivasha CMCELC No. E037 of 2024
The matter was directly and substantially decided in the previous suit between the same parties
Stay of execution of the judgment in Naivasha CMCELC No. E037 of 2024
Contested as a stand-alone prayer with no correlation with the substantive judicial review issues
Costs
The Applicants' application is dismissed with costs to the 2nd Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the Applicants' application by way of a Chamber Summons dated 24th April, 2025 is herein dismissed with costs while the 2nd Respondent's Preliminary Objections dated the 4th June 2025 herein succeeds.
the mere addition of parties in a subsequent suit does not necessarily render the doctrine of res judicata inapplicable since a party cannot escape the said doctrine by simply undertaking a cosmetic surgery to his pleadings.
Consequently, this Application seeking leave to institute Judicial Review proceedings having been made more than two years from the date of the impugned decision on 19th January 2023 cannot stand.
There having been a Judgment from a Court of competent jurisdiction, the same could only be varied, vacated, set aside or reviewed by the same Court, or by an appellate Court in an appropriate proceeding.
Issues in the judgment
#Quotation of Order 53 Rule 2 contains an internal contradiction with the statutory text ('No Leave shall not be granted')
The Section 9(3) Law Reform Act quotation repeats a phrase within itself ('and where that judgment, order, decree, conviction or other proceedings or such shorter period as may be prescribed under any written law')
Conflicting dates of the impugned decision: applicants assert cancellation occurred on 26th April 2023 while the court proceeds on 19th January 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemboi & 2 others v Land Registrar, Naivasha & 3 others (Environment and Land Judicial Review Case E001 of 2025) (Environment and Land) [2025] KEELC 5362 (KLR)", Case Analysis (2025). Judicial Review (Chamber Summons dated 24th April, 2025), Naivasha. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5362/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.