Republic v Deputy County Commisioner - Kilungu & 5 others; Yulu (Ex parte Applicant) (Environment and Land Judicial Review Case E002 of 2023) [2026] KEELC 4718 (KLR)
The bottom line
#The Environment and Land Court in Makueni dismissed a landowner's judicial review challenge, confirming that government land adjudication decisions can only be overturned for process failures, not disagreements over the outcome.
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 Ex-parte Applicant has sufficiently demonstrated that judicial review orders of certiorari, prohibition and mandamus ought to issue against the Respondents.
Key legal issues
#Whether the Ex-parte Applicant was accorded a fair hearing before the 1st Respondent
A fair hearing was accorded: the Applicant was present, cross-examined witnesses and was heard
The court found the Applicant was present at the hearing of his appeal and that both parties were given equal opportunity to cross-examine each other and their witnesses. The complaint about the 1998 clan meeting was spurious since the clan proceedings were alluded to by both sides in oral evidence and the 1st Respondent considered them.
Whether the 1st Respondent acted ultra vires, illegally or irrationally
The 1st Respondent had jurisdiction under Section 29 of the Land Adjudication Act and acted lawfully
The court held there was no error of law in the decision-making process. The 1st Respondent had jurisdiction to hear the appeal, considered relevant considerations including the 1998 clan proceedings, and did not ignore material evidence. The judicial review thresholds of illegality, irrationality and procedural impropriety were not met.
Whether the application was a proper vehicle to challenge the merits of the decision
No; the application was an appeal on the merits disguised as judicial review
The court, applying Municipal Council of Mombasa v Republic, held that a judicial review court may not act as an appellate court over the decision-maker by examining the sufficiency of evidence. The Applicant's real grievance was with the merits of the 1st Respondent's findings, which is outside the province of judicial review.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision itself
- An applicant for judicial review must show the decision is tainted with illegality, irrationality or procedural impropriety
- The audi alteram partem rule does not require a full adversarial hearing; procedural fairness depends on the context
Court orders
#- 1.The application is dismissed
- 2.Costs of the application to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act and Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010
Relief refused
#Order of Certiorari to quash the decision of the Deputy County Commissioner dated 30th May, 2023 over Land Parcel No. 731 & 886 Wautu Adjudication Section
No proof of procedural impropriety, illegality or irrationality; the Applicant was accorded a fair hearing
Order of Prohibition against the 2nd Respondent from implementing the decision in Appeal to the Minister Case No. 91 of 2013
The 1st Respondent acted within jurisdiction under Section 29 of the Land Adjudication Act and followed due process
Order of mandamus compelling the 2nd Respondent to enter the Ex-parte Applicant's name on the adjudication register for Plot No. 886
The application constituted an impermissible appeal on the merits, not a proper judicial review
Costs
The application is dismissed with costs to the Respondents.
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 application is devoid of merit. It is dismissed with costs.
The instant application constitutes an appeal on the merits of the 1st Respondent's decision and these are not the proper proceedings for such a challenge.
Noting the foregoing, it is clear that due process was accorded to the Ex-parte Applicant and the Interested Parties in the proceedings before the 1st Respondent and hence a fair hearing was achieved.
In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
Issues in the judgment
#Gender of the 1st Respondent is inconsistently described in the judgment ('he' in some passages, 'her/she' in others)
The court's own record describes the 1st Respondent as 'Deputy County Commissioner – Makueni County' while the Applicant averred the decision was the 1st Respondent's ruling; the 2nd Respondent is never named in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Deputy County Commisioner - Kilungu & 5 others; Yulu (Ex parte Applicant) (Environment and Land Judicial Review Case E002 of 2023) [2026] KEELC 4718 (KLR)", Case Analysis (2026). Judicial Review Application (amended Notice of Motion dated 29th September, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4718/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.