Nganga v Land Control Board of Makueni/Kyaluma & another; Wambua (Interested Party) (Environment and Land Judicial Review Case E010 of 2025) [2026] KEELC 770 (KLR)
The bottom line
#If a Land Control Board refuses your consent in Kenya, you must appeal to the provincial appeals board first before going to court.
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 preliminary objection herein is merited?
- 2.Whether the Ex-parte Applicant has sufficiently demonstrated that judicial review orders of certiorari and mandamus ought to issue against the Respondents.
Key legal issues
#Validity of the preliminary objection on res judicata
The preliminary objection failed as it was founded on disputed facts requiring proof, not a pure point of law
Relying on Mukisa Biscuit and Oraro v Mbaja, the court held that a preliminary objection must not be blurred with factual details liable to be contested. The court had not perused the pleadings and judgment in Makueni ELC No. 89 of 2019 to ascertain identity of parties, subject matter and issues, and could not speculate on the similarity of the suits. The objection was therefore improperly raised and dismissed with costs.
Exhaustion of statutory appeal mechanism under the Land Control Act
The Applicant did not exhaust the appeal to the provincial land control appeals board as provided by Sections 11 and 13 of the Land Control Act, so judicial review could not issue
Section 11 of the Land Control Act provides that a party aggrieved by refusal of consent may appeal to the provincial land control appeals board within thirty days. The Applicant adduced no evidence of filing such an appeal. Applying the exhaustion doctrine as articulated by the Court of Appeal and the Supreme Court, the court held the application was misconceived and dismissed it.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot rest on disputed facts
- Where a statutory dispute resolution mechanism exists, it must be exhausted before recourse to the courts
Court orders
#- 1.The preliminary objection dated 22nd September, 2025 is dismissed with costs
- 2.The Notice of Motion dated 29th August, 2025 seeking judicial review orders of certiorari and mandamus is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 23(3) of the Constitution, Section 8 of the Law Reform Act and Section 13(7) of the Environment and Land Court Act 2011
Relief refused
#Order of certiorari quashing the Land Control Board's refusal of consent
Applicant failed to exhaust the appeal mechanism under Section 11 of the Land Control Act before moving the court
Order of mandamus compelling cancellation of consent and title issued to the Interested Party
Application dismissed for failure to exhaust statutory appeal mechanisms
Costs
The preliminary objection and the application were each dismissed with costs to the Interested Party.
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 preliminary objection dated 22nd September, 2025 is devoid of merit and must accordingly be dismissed with costs.
It does not pass the test of a valid preliminary objection.
On the basis of the foregoing, the application herein is devoid of merit and is dismissed with costs.
the Ex-parte Applicant has not proved that he fully exhausted the appeal mechanism on the refusal to grant him the appropriate consent.
Issues in the judgment
#Judgment refers to Bethwell Allan Omondi Okal v Telkom (K) Ltd as having been decided by the Supreme Court context yet attributes it to the Court of Appeal; also the Chaurembo Mumba passage is introduced as 'The Supreme Court went on' immediately after a Court of Appeal citation, creating ambiguity about which court issued which quote
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nganga v Land Control Board of Makueni/Kyaluma & another; Wambua (Interested Party) (Environment and Land Judicial Review Case E010 of 2025) [2026] KEELC 770 (KLR)", Case Analysis (2026). Makueni ELC Judicial Review Application (Notice of Motion dated 29th August, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/770/eng@2026-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.