Wamala v Chief Magistrates Court Milimani Law Courts & 4 others; Kagwima & another (Interested Parties) (Environment and Land Judicial Review Case E005 of 2025) [2025] KEELC 6597 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's attempt to use judicial review to stop criminal proceedings and cancel a rival title, because the issues were already settled and the application was procedurally defective.
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 Applicant has met the threshold for grant of leave to institute judicial review proceedings seeking orders of prohibition and mandamus in respect of the suit property
Key legal issues
#Whether the threshold for grant of leave to apply for judicial review orders of prohibition and mandamus was met
The application was dismissed; the Applicant failed to demonstrate illegality, irrationality or ultra vires conduct by the 2nd and 3rd Respondents, and the application was res judicata and procedurally defective
The court found that the validity of Title LR 15400 and the non-existence of LR 11379/3 had been settled in prior decisions (ELCC/E335/2022 and Civil Application Number 35 of 2018), rendering the application res judicata. The application was also not accompanied by a Statutory Statement under Order 53, making it defective. The Applicant's remedy against adverse prior decisions was appeal, not judicial review.
Whether the application was res judicata
Yes - the issues of validity of Title No. LR 15400 and non-existence of L.R. No. 11379/3 had already been settled by courts of competent jurisdiction
The court noted that the Applicant did not deny that these matters were settled in ELCC/E335/2022 and Civil Application Number 35 of 2018, where the court held that the 2nd Interested Party's ownership of L.R. No. 11379/3 ceased upon compulsory acquisition in 1974. Pursuing the same issues in judicial review offended the res judicata doctrine.
Procedural defect - absence of a Statutory Statement
The application was defective for want of a Statutory Statement as required under Order 53 of the Civil Procedure Rules
Order 53 Rule 1 requires that an application for leave be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds, and by verifying affidavits. The 1st Interested Party raised this defect and the court agreed that the application was defective.
Legal principles established
#- The leave stage requires the applicant to demonstrate an arguable case; the test is whether the applicant has an arguable case, leave serving to filter out frivolous applications
- Judicial review is unsuitable where resolution requires determination of disputed issues of fact; such disputes must be ventilated in ordinary civil suits
Court orders
#- 1.The Chamber Summons application dated the 10th February 2025 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13(2) of the Environment and Land Court Act; judicial review leave procedure under Order 53 of the Civil Procedure Rules
Relief refused
#Leave to apply for an order of prohibition barring the Respondent from continuing with any case or harassing the Applicant in relation to Nairobi/Block 173/283 and Title Number 15400/564
The Applicant failed to demonstrate illegality, irrationality or procedural impropriety, and the issues are res judicata having been settled in prior court decisions
Leave to apply for an order of mandamus compelling the 4th Respondent to cancel the FRs overlaid on LR No. 11379/3 and the 5th Respondent to cancel Title No. 15400
Root of title issues had already been determined by courts of competent jurisdiction; contested matters of title can only be determined in a civil suit with viva voce evidence
Prayer for stay of lower court proceedings
The Applicant abandoned prayer 2 of the application, rendering the stay prayer mute
Leave to apply for certiorari to quash Chief Magistrates Court Criminal Case No. E963 of 2024
Abandoned by the Applicant on 30th April 2025
Costs
No order as to costs - the court dismissed the application but made no order as to costs.
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.
I find that the ex parte Applicant has not met the criteria for grant of leave to commence judicial review orders of mandamus and prohibition and will decline to grant him the orders as sought.
In the circumstances, I find the Chamber Summons application dated the 10th February 2025 unmerited and will dismiss it but make no order as to costs.
From these facts alone, I opine that the instant application is actually res judicata.
the instant application was not accompanied by a Statutory Statement as stipulated under Order 53 of the Civil Procedure Rules and I hence find it defective.
The leave of court is a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications.
In my view the ex parte Applicant seeks the Court to make a determination of the contested matters once more touching on the root of his title but this can only be done in a civil suit where viva voce evidence can be adduced.
Issues in the judgment
#The 2nd and 3rd Respondents' cited authority 'Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015' contains inconsistent year and petition number (2010 vs Petition No. 446 of 2015)
The 1st Interested Party's cited authority 'Karisa Chengo & 2 others vs Re (2015) eKLR' appears to misname the case (Karisa Chengo & 2 others v Republic)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamala v Chief Magistrates Court Milimani Law Courts & 4 others; Kagwima & another (Interested Parties) (Environment and Land Judicial Review Case E005 of 2025) [2025] KEELC 6597 (KLR)", Case Analysis (2025). Chamber Summons application dated 10th February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6597/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.