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ELCPartially AllowedKitale ELC Judicial Review (Notice of Motion dated 28/4/2025)· [2025] KEELC 7236 (KLR)

Republic v Kaplamai Land Control Board & another; Gichuhi & 2 others (Ex parte Applicants) (Environment and Land Judicial Review Case E005 of 2025) [2025] KEELC 7236 (KLR)

Environment and Land Court of Kenya
22 October 2025
3,578 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kitale court invalidated a land board's unreasoned 'deferred' decision but ruled applicants are stuck with the grounds in their original filing.

What this practically means

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Executive summary

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The ex parte applicants, decree holders in Kitale ELC No. 103 of 2015, sought certiorari to quash the Kaplamai Land Control Board's decision of 31/10/2024 rejecting (or deferring) their application for consent to amalgamate portions of L.R. No. 1803 totalling 70 acres, an amalgamation meant to actualise a consent order of 24/1/2023 allowing excision of 70 acres for sale in execution. They alleged breach of natural justice, bias, entertaining an objection from a non-attendee without notice, and acting as an appellate body over a court order. The 1st respondent, through the affidavit of its chairman Pierra Ntongai, denied procedural irregularity, explaining the application was deferred on 26/9/2024 and rejected on 31/10/2024 because the owners of parcel No. 1457 were not notified and some owners were never parties to the suit. The court first excluded grounds in the notice of motion not contained in the statutory statement, and held that the Constitution and the Fair Administrative Action Act, invoked only at submissions, could not widen the scope of Order 53 proceedings; following Saisi and Dande, only process review was available. On the merits of process, the court found the board failed to record its considerations or give written reasons - the minutes bore only the word 'deferred' - leaving no decision capable of being quashed and amounting to abuse of discretion. The court invalidated the board's proceedings and directed the applicants to lodge a fresh land control consent application within two weeks, with costs awarded against the 1st respondent.

Key legal issues

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01

Whether new grounds raised in the notice of motion, absent from the statutory statement, could be relied upon

Holding

No - grounds not set out in the statement of facts, and no leave sought to amend, cannot be considered at the hearing

Reasoning

Order 53 Rule 4(2) confines the applicant at the hearing to the grounds and reliefs in the statutory statement. No amendment of the statement was sought or granted, so the extra grounds were excluded from consideration.

p. 2
02

Whether the Constitution and Fair Administrative Action Act, invoked only at submissions, could widen the relief

Holding

No - parties are bound by their pleadings; without invoking the Constitution at the leave stage the court is limited to traditional process review

Reasoning

Relying on Saisi and Dande (Supreme Court), where proceedings are commenced under Order 53 without claiming constitutional violations, merit-based review is unavailable. The applicants invoked the Constitution only at the submissions stage, after leave, which could not open the door to merit review.

p. 6
03

Whether the 1st respondent's 31/10/2024 decision was procedurally proper and quashable

Holding

The board failed to make a reasoned written decision; there was no decision capable of being quashed, and the proceedings were invalidated instead

Reasoning

The replying affidavit was silent on compliance with the fair hearing framework; the minutes contained only the word 'deferred' without reasons; no written reasons were given to the applicants. An indefinite deferral is not envisaged in law and amounts to abuse of discretion under Article 129.

p. 7

Legal principles established

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  • Where judicial review proceedings are commenced under Order 53 of the Civil Procedure Rules without invoking the Constitution, the court is confined to process review and parties are bound by their pleadings and the grounds in the statutory statement
  • An administrative body refusing or deferring a land control consent must give its decision in writing with reasons; a mere indefinite deferral recorded in the minutes is not a decision capable of appeal or quashing and amounts to abuse of discretion
  • Judicial review relief is discretionary and may be refused where it is not the most efficacious remedy

Court orders

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  1. 1.The new grounds introduced in the notice of motion but not in the statement of facts shall not be considered by the court
  2. 2.The proceedings of the 1st respondent of 31/10/2024 are invalidated for not meeting the constitutional muster (no decision capable of being quashed by certiorari)
  3. 3.The ex parte applicants are directed to lodge a fresh application for land control board consent within 2 weeks for consideration by the appropriate or gazetted Land Control Board
  4. 4.Costs of the proceedings to be met by the 1st respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 2, 3, 4(2)
  • Constitution of Kenya, 2010Articles 47, 48, 25, 50, 24, 10, 129
  • Fair Administrative Action ActSections 3, 4, 5, 7, 8, 12; sections 4(1),(2) and 7(2)(a)(1)
  • Land Control ActSections 8, 9(1)(a) and (b), 10, 11, 12, 13, 15-18, 17(1)
  • Land Control Regulations L.N. No. 23 of 1968Rules 4 and 4A

Cases cited (24)

  • Pastoli -vs- Kabale District Local Government Council & Another
    [2008] 2 EA 300
  • Municipal Council of Mombasa -vs- Republic & Umoja Consultants Ltd
    [2002] eKLR; Civil Appeal No. 185 of 2007
  • Halsbury's Laws of England 5th Edition Vol. 61 page 639
  • Sangram Singh -vs- Election Tribunal Kotech
    Air 1955 SC 664 at 711
  • Baker -vs- Canada (Minister of Citizenship & Immigration
    [1992] 2 SCR 817
  • Onyango Oloo -vs- Attorney General
    [1986-1989] EA 456
  • Republic -vs- Kiambu Land Control Board Exparte Burnaby Properties Ltd
    [2006] KEHE 3081 [KLR]
  • Agricultural Finance Corporation -vs- Land Control Board of Loitoktok & Others
    [2014] eKLR; [2014] KEHC 1013 (KLR)
  • Republic -vs- Public Procurement Administrative Review Board & Others Exparte Olive Telecommunication PVT Ltd
    [2014] eKLR
  • Republic -vs- Kisumu Muslim Association Kisumu
    HC Misc. Appl. No. 280 of 2003
  • Farmers Bus Service & Others -vs- Transport Licensing Appeal Tribunal
    [1959] EA 779
  • Mohamed -vs- Republic
    [1957] EA 523
  • Kenya National Examination Council -vs- Republic Ex parte Geofirey Gathenji Njoroge & Others
    [1997] KECA 58 (KLR)
  • Republic -vs- Kenya Revenue Authority Ex parte Yaya Towers Ltd
    [2008] eKLR
  • Anthony John Dickson & Others -vs- Municipal Council of Mombasa
    MSA HMA No. 96 of 2000
  • Saisi & 7 others -vs- Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated))
    [2023] KESC 6 (KLR) (Civ) (27 January 2023)
  • Dande & Others -vs- Inspector General of Police
    [2023] KESC 4 [KLR] (16th June 2023)
  • Republic -vs- Commission of Administrative Justice & Another, Ex parte Samson Kegengo Ongeri
    [2015] eKLR
  • Kenya Ports Authority -vs- Industrial Court of Kenya
    [2014] eKLR
  • Republic -vs- Public Procurement Administrative Review Board & Others Ex parte Rongo University
    [2018] eKLR
  • Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another -vs- Kenya Commercial Bank Ltd & Others
    [2012] eKLR
  • Republic -vs- Public Procurement Administrative Review Board & Another Ex parte Selex Sistemi Integrati
    [2008] eKLR
  • Republic -vs- Judicial Service Commission Ex-Parte Pareno
    [2004] KEHC 2684 (KLR)
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (application for certiorari); Land Control Act; Fair Administrative Action Act and Article 47 of the Constitution discussed but not invoked at leave stage

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, "Republic v Kaplamai Land Control Board & another; Gichuhi & 2 others (Ex parte Applicants) (Environment and Land Judicial Review Case E005 of 2025) [2025] KEELC 7236 (KLR)", Case Analysis (2025). Kitale ELC Judicial Review (Notice of Motion dated 28/4/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7236/eng@2025-10-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.