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ELCDismissedJudicial Review (Chamber Summons dated 24th April, 2025), Naivasha

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)

Environment and Land Court
17 July 2025
5,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicants moved the Environment and Land Court at Naivasha by Chamber Summons dated 24th April 2025 under Order 53 Rules 1(1), 2, 7(2) and Order 22 Rule 22 of the Civil Procedure Rules seeking leave to institute judicial review proceedings for certiorari to quash the Land Registrar, Naivasha's decision of 19th January 2023 cancelling title to Miti Mingi/Mbaruk Block 5/5172 (Kiungururia) and its subdivisions 6021-6028 held by Joseph Kariuki Murimi, plus a stay of execution of the judgment in Naivasha CMCELC No. E037 of 2024. The 2nd Respondent raised a preliminary objection that the application was time barred under Section 9(2) and (3) of the Law Reform Act and Order 53 Rule 2, was res judicata the judgment of 7th April 2025 in Naivasha CMCELC No. E037 of 2024, and was defective for seeking orders on behalf of a stranger to the proceedings. Delivering a single reasoned ruling on 17th July 2025, M.C. Oundo J applied the Mukisa Biscuits definition of a preliminary objection, held that the applicants had pleaded knowledge of the cancellation in their plaint of 9th February 2023 and defence of 22nd October 2024, and that the statutory six-month period could not be extended. The court further found the intended proceedings res judicata the previous final judgment between the same parties over the same title. The Chamber Summons was dismissed with costs to the 2nd Respondent and the preliminary objection upheld.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Application for Leave is time barred
  2. 2.Whether the proceedings for orders of Certiorari for which Leave is sought would be Res-Judicata
  3. 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. 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

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01

Whether the application for leave to apply for certiorari was time barred

Holding

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

Reasoning

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.

p. 8
02

Whether the intended certiorari proceedings were res judicata the judgment in Naivasha CMCELC No. E037 of 2024

Holding

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

Reasoning

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.

p. 10
03

Whether the preliminary objection was a proper point of law

Holding

The objection constituted pure points of law capable of disposing of the matter, following Mukisa Biscuits

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Applicants' Chamber Summons dated 24th April, 2025 seeking leave to institute judicial review proceedings is dismissed
  2. 2.The 2nd Respondent's Notice of Preliminary Objection dated 4th June 2025 succeeds
  3. 3.Costs of the application to the 2nd Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 8

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

p. 10

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

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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.
p. 10Disposition
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.
p. 10Res judicata
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.
p. 8Limitation
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.
p. 10Finality of judgments

Issues in the judgment

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minor

Quotation of Order 53 Rule 2 contains an internal contradiction with the statutory text ('No Leave shall not be granted')

minor

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')

minor

Conflicting dates of the impugned decision: applicants assert cancellation occurred on 26th April 2023 while the court proceeds on 19th January 2023

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.