Wafula & 4 others v Saenyi & another (Environment and Land Miscellaneous Application E039 of 2025) [2026] KEELC 3143 (KLR)
The bottom line
#The High Court refused judicial review and recusal but gave the land owners 60 days to file an appeal before eviction.
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 court should grant the reliefs sought in the three applications, including leave to apply for prerogative orders, stay of execution, expungement of a succession cause, and recusal of the trial magistrate
Key legal issues
#Whether leave should issue for prerogative orders (mandamus, prohibition, certiorari) against the trial court's judgment
Refused; judicial review does not lie as a substitute for an appeal from a competent subordinate court
The court held that the Applicants' grievance with the magistrate's judgment and interlocutory rulings could properly be addressed on appeal. The Applicants had not appealed in time and had not sought extension of time, and the review application raised new issues not addressed before the trial court. Judicial review is not the proper vehicle for challenging the correctness of a trial court's decision on evidence and law.
Whether the magistrate should recuse himself
Refused; the recusal application was not first made before the magistrate
The court found that recusal must be sought before the judicial officer concerned so that he has the opportunity to hear and determine the application. Raising recusal for the first time on appeal, without affording the magistrate that opportunity, was procedurally improper.
Whether stay of execution should be granted
Granted for 60 days, with the appeal to be filed within 14 days
Although the Applicants' intended remedy was a stay pending appeal rather than judicial review, the court considered it in the interest of justice to stay execution of the trial court's judgment, including the eviction order, for a limited period to enable the Applicants to lodge and pursue their appeal.
Legal principles established
#- A party aggrieved by a subordinate court's judgment should challenge it on appeal, not through judicial review proceedings
- An application for a judicial officer's recusal must first be made before that judicial officer
- The court may in the interest of justice grant a time-limited stay of execution to enable an aggrieved party to lodge and pursue an appeal
Court orders
#- 1.Stay of execution of the judgment delivered in Kimilili CMCC Case No. E003 of 2021 for 60 days to enable the Applicants lodge and pursue their appeal
- 2.The appeal must be filed within the next 14 days
- 3.Each party to bear its own costs for the applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Kimilili
- Kimilili CMCC Case No. E003 of 2021
- Jurisdiction invoked
- Order 53 Rules 1 to 7 of the Civil Procedure Rules (judicial review and supervisory jurisdiction over subordinate court)
Relief refused
#Leave to file an application for mandamus, prohibition and certiorari against the trial court's judgment
The proper recourse against the magistrate's decision is an appeal, not judicial review
Recusal of Hon. John Ndururi from further conduct of the Kimilili case
The recusal application should have been made before the magistrate himself, not raised on appeal
Expungement of Kakamega High Court Succession Cause No. 221 of 2006 from the record
Not addressed in the court's determination; subsumed within the refusal of judicial review
Extension of time to lodge an appeal
The Applicants did not seek leave for extension of time despite the time for appeal having lapsed
Costs
Each party will bear its costs for the applications.
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 proper recourse for the Applicants to take if they are aggrieved by the decision of the Learned Magistrate is to challenge the judgment on appeal and not through judicial review proceedings.
that application ought to have been made before the Learned Magistrate and not taken up as a matter on appeal without first afiording the judicial oficer the opportunity to hear the application seeking his recusal from handling the case.
It is in the interest of justice to stay of execution of the judgment delivered in Kimilili CMCC Case No. E003 of 2021 60 days to enable the Applicants lodge and pursue their appeal against the decision of the trial court.
The appeal must be filed within the next 14 days.
Each party will bear its costs for the applications.
Issues in the judgment
#No High Court case number or neutral citation is stated in the judgment for the ruling itself; the matter is identified only by reference to the Kimilili trial case
The Respondent's grounds of opposition refer to a judgment delivered on 21/8/2025 while the ruling elsewhere records the judgment as delivered on 3/7/2025 and 3/5/2025; dates are inconsistent
The third application is dated 7/2/6, an evidently erroneous date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula & 4 others v Saenyi & another (Environment and Land Miscellaneous Application E039 of 2025) [2026] KEELC 3143 (KLR)", Case Analysis (2026). Kimilili CMCC Case No. E003 of 2021 (related applications; ruling delivered at Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3143/eng@2026-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.