Akivaga & 5 others v Commission on Administrative Justice; Coldstone Investment Limited & another (Interested Parties) (Judicial Review Application E006 of 2026) [2026] KEELC 2514 (KLR)
The bottom line
#The Environment and Land Court confirmed it can hear cases challenging Ombudsman reports on land matters, and dismissed the Ombudsman's attempt to strike out the case.
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 is competent, i.e. founded on pure points of law
- 2.Whether the dispute falls within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
- 3.Whether failure to serve a notice of intention to sue under Rule 5 of the Fair Administrative Action Rules, 2024 renders the proceedings incompetent
Key legal issues
#Competency of the preliminary objection
The jurisdictional and statutory-exhaustion limbs are pure points of law, but the abuse-of-process limb is not and falls outside the scope of a preliminary objection.
The court applied the settled principles in Mukisa Biscuits and Hassan Ali Joho: a preliminary objection must consist of a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Determining whether the dispute falls within the ELC's jurisdiction can be done solely from the pleadings, and whether the statutory notice was mandatory is likewise a legal question. However, an allegation of bad faith and abuse of process requires interrogating motives, conduct and surrounding facts, which disqualifies it as a preliminary objection.
Whether the ELC has jurisdiction over the judicial review proceedings challenging the Ombudsman's investigation report
The ELC has jurisdiction because the dominant issue requires interrogation of land and environmental matters (development approvals, sewer wayleave, setbacks) on LR Nos. 36/VII/234 and 36/VII/235.
The court surveyed the conflicting approaches between the predominant purpose test and the predominant issue test, and adopted the latter as clarified by the Court of Appeal in Joel Kyatha Mbaluka. Examining the impugned report, the Commission made substantive determinations on the legality of development approvals, planning decisions and the legal effect of a sewer wayleave over land. Quashing those findings would necessarily require the court to examine land use and environmental questions squarely within Article 162(2)(b) and Section 13 of the ELC Act.
Whether failure to serve a notice of intention to sue under Rule 5 of the Fair Administrative Action Rules, 2024 renders the proceedings incompetent
Rule 5 does not apply; it is triggered only where the relief sought is mandamus, whereas the Applicants seek certiorari to quash a completed decision.
Rule 5(1) requires a notice of intention to sue only where the applicant seeks to compel the respondent to take a particular administrative action or decision. The impugned administrative action had already crystallized into a completed decision, and the Applicants sought its quashing, not the compulsion of any further step. Following the reasoning in Republic vs Judicial Service Commission; Esho (Ex parte), the absence of such notice could not render the certiorari proceedings a nullity.
Legal principles established
#- In construing whether the Environment and Land Court has jurisdiction, the determinative consideration is the dominant issue in the dispute, not the predominant purpose of the underlying transaction.
- A preliminary objection must raise pure points of law and cannot be raised where facts must be ascertained or judicial discretion exercised.
- The obligation to serve a notice of intention to sue under Rule 5 of the Fair Administrative Action Rules, 2024 is triggered only where the applicant seeks to compel an administrative action, i.e. mandamus relief; it does not apply to certiorari.
- Where judicial review proceedings are anchored on the Constitution, courts are not confined to the narrow traditional common law approach but may interrogate lawfulness, reasonableness and proportionality.
Court orders
#- 1.The Notice of Preliminary Objection dated 16th February 2026 is dismissed
- 2.The Respondent/Objector to pay the Applicants' costs of the objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, 2011
Relief refused
#Prayer that the suit be struck out as frivolous, vexatious and an abuse of process
Not a pure point of law; would require ascertainment of facts and exercise of judicial discretion
Prayer that the proceedings be found incompetent for failure to serve a notice of intention to sue
Rule 5 applies only where relief sought is in the nature of mandamus; the Applicants seek certiorari of a completed decision
Costs
The Notice of Preliminary Objection dated 16th February, 2026 is dismissed with costs (to the Applicants).
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.
In the end, the court finds no merit in the Notice of Preliminary Objection dated 16th February, 2026. The same is dismissed with costs.
Guided by the exposition by the Court of Appeal in Joel Kyatha(supra), the court will adopt the predominant issue test.
In the premises, the court holds that it possesses the requisite jurisdiction to hear and determine the present judicial review proceedings.
Where the application seeks other reliefs such as prohibition or certiorari, the absence of such notice cannot render the proceedings a nullity.
Jurisdiction is everything. Without it, a court has no power to make one more step.
It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Issues in the judgment
#Judgment internal chronology appears anomalous: the objection dated 16th February 2026 was opposed by 'submissions dated 18th February 2026' by the Applicants, while the Respondent's submissions are dated 28th February 2026, i.e. after the Applicants' reply; also the challenged ELC judgment of 5th February 2026 predates by a day the impugned press statement of 6th February 2026, yet the suit says the findings contradicted it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akivaga & 5 others v Commission on Administrative Justice; Coldstone Investment Limited & another (Interested Parties) (Judicial Review Application E006 of 2026) [2026] KEELC 2514 (KLR)", Case Analysis (2026). Environment and Land Judicial Review proceedings (Originating Motion dated 10th February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2514/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.