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ELCPartially AllowedELCL Judicial Review No. E001 of 2026

Republic of Kenya in the Matter of a Judicial Review Application by DWA Estate Limited for Orders of Temporary Interdict/Stay and Restraining Orders, Certiorari, Prohibition and Declaratory Orders

Environment and Land Court of Kenya
8 October 2026
2,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Makueni court has temporarily blocked the National Land Commission from implementing recommendations that would have forced a landowner to surrender acreage and pay compensation.

What this practically means

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Executive summary

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DWA Estate Limited filed an originating motion and notice of motion at the Environment and Land Court at Makueni seeking certiorari, prohibition and declaratory orders quashing recommendations of the National Land Commission published in Gazette Notice Vol. CXXVII-No. 230 of 14th November 2025 in respect of historical land injustice claim NLC/HLI/031/2017, together with interim conservatory/stay orders. The NLC recommended resurvey of the Applicant's land, surrender of any excess acreage to the Ngukakika Community, and joint investigation of a 1996 assessment by the Ministry of Agriculture to determine whether compensation was paid, failing which the Applicant would pay compensation. The Applicant argued the NLC acted ultra vires, lacked jurisdiction, and directed its recommendations at the wrong legal entity (DWA Sisal Estate Limited). Respondents opposed, contending the proceedings were time-barred under Rule 6(1) of the Fair Administrative Action Rules, 2024, and that the court could not review the merits of the NLC's decision. The court framed two issues: limitation and the threshold for conservatory orders. It held the six-week limitation was unavailable because Rule 6(1) stood suspended by a conservatory order issued by Hon. Bahati Mwamuye in HCCHRPET E168 OF 2025, which had not been reviewed or set aside; the proceedings were therefore properly filed under Section 7(1) of the Fair Administrative Action Act, 2015. Applying the Munya, Sakwa and Mrao authorities, the court found the Applicant had a prima facie, arguable case, undisputed ownership and possession, and that the Respondents had not demonstrated any prejudice. The application was allowed in terms of prayer 3, staying implementation of the NLC recommendations pending hearing and determination of the judicial review proceedings, with costs abiding the outcome of the substantive motion.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the judicial review proceedings are time-barred by virtue of the Fair Administrative Action Rules 2024
  2. 2.Whether the Applicant has demonstrated the threshold for issuance of conservatory/stay orders pending the hearing and determination of the Petition

Key legal issues

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01

Whether the judicial review proceedings were time-barred under Rule 6(1) of the Fair Administrative Action Rules, 2024

Holding

Not time-barred; Rule 6(1) was suspended by a conservatory order in HCCHRPET E168 OF 2025 that had not been reviewed or set aside, so the proceedings were properly filed under Section 7(1) of the Fair Administrative Action Act, 2015.

Reasoning

The court perused the order of Hon. Bahati Mwamuye dated 28th March 2025 staying the implementation of Rules 5, 6, 7, 11(4), 27(3) and 33 of the Fair Administrative Action Rules 2024. Since no order reviewing or setting aside that suspension was shown, the six-week limitation in Rule 6(1) could not be invoked against the Applicant, whose proceedings were therefore properly filed under Section 7(1) of the parent Act.

p. 7
02

Whether the Applicant demonstrated the threshold for conservatory/stay orders

Holding

Yes. The Applicant established a prima facie case with an arguable case on jurisdictional and ultra vires grounds, and the Respondents failed to show any prejudice they would suffer if the orders were granted.

Reasoning

Applying the Munya test and the prima facie case standard from Mrao Ltd, the court found the Applicant's ownership and possession undisputed, its jurisdictional and ultra vires challenges arguable, and the Respondents had not addressed the prejudice question. The court concluded the substratum of the proceedings should be preserved with the suit properties remaining in situ pending full hearing.

p. 10

Legal principles established

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  • Where the time-limiting rule (Rule 6(1) of the Fair Administrative Action Rules, 2024) has been suspended by a subsisting conservatory order, judicial review proceedings filed outside six weeks are properly filed under Section 7(1) of the Fair Administrative Action Act, 2015.
  • An applicant for conservatory orders must demonstrate a prima facie case and that irreparable injury will follow if the orders are not granted.

Court orders

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  1. 1.A stay order and/or temporary interdict/conservatory order staying the implementation of the recommendations in Gazette Notice Vol. CXXVII-No. 230 dated 14th November 2025, published 17th November 2025, under NLC/HLI/031/2017, pending hearing and determination of the judicial review proceedings
  2. 2.Costs to abide the outcome of the substantive originating motion

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Judicial review under the Fair Administrative Action Act, 2015 (Section 7(1)) and the Constitution 2010, heard by the Environment and Land Court

Relief refused

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Costs of the interlocutory application in the cause

Costs deferred to the outcome of the substantive originating motion rather than awarded now

p. 10

Costs

Costs shall abide the outcome of the substantive originating motion.

Quotable passages

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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 herein is merited. It is allowed in terms of prayer No. 3. Costs shall abide the outcome of the substantive originating motion.
p. 10Final orders/disposition
It is therefore the finding of this court that the Applicant have demonstrated a prima facie case for the issuance of conservatory orders as sought.
p. 10Prima facie case established
I have seen no order reviewing or setting aside the above order issued by Mr. Justice Bahati Mwamuye MBS. In view of the same, this court finds that the judicial review proceedings herein are appropriately filed in accordance with the provisions of Section 7(1) of the Fair Administrative Action Act, 2015.
p. 7Limitation - suspended Rule 6(1)
From the material that has been presented, there is conclusive evidence that the Applicant has an arguable case which ought to be determined while the suit properties remain in situ.
p. 10Arguable case and preservation of suit property

Issues in the judgment

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minor

Judgment refers to 'the Petition' in the second issue though the matter is a judicial review originating motion

minor

Replying affidavit deponent described as 'Chairman of the Society' without identifying the society

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 of Kenya in the Matter of a Judicial Review Application by DWA Estate Limited for Orders of Temporary Interdict/Stay and Restraining Orders, Certiorari, Prohibition and Declaratory Orders", Case Analysis (2026). ELCL Judicial Review No. E001 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6299/eng@2026-10-08

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