Karanja t/a Joekabs Enterprises v Kenya Urban Roads Authority (Environment and Land Judicial Review Case E034 of 2025) [2026] KEELC 2018 (KLR)

leave and the issuance of conservatory orders to preserve the status quo pending determination of the intended proceedings. The Response 5. The application is opposed by the Respondent through a Replying Afidavit sworn on 22nd May 2025 by Eng. Joseph K. Kivanguli, a senior oficer of the Respondent, together with written submissions filed on its behalf. The Respondent disputes the Applicant’s assertion that the impugned administrative action was unlawful, arbitrary, or procedurally unfair. 6. In the replying afidavit, the Respondent averse is a statutory body mandated by law to develop, manage, protect, and preserve urban road infrastructure and road reserves. He depones that the impugned decision was made pursuant to this statutory mandate, by a competent authority, and in accordance with the applicable legal framework governing the protection of public infrastructure. 7. It is further deponed that the Applicant’s structures were identified through routine enforcement and technical assessments, and that the Applicant was afiorded an opportunity to engage with the Respondent prior to the issuance of the impugned decision. The Respondent maintains that no violation of the rules of natural justice has been demonstrated, that the application does not disclose an arguable case for judicial review, and that public interest considerations militate against the grant of leave or any stay of the impugned administrative action. The Submissions 8. In the Applicant’s written submissions, it was averred that the Court has jurisdiction under Articles 162(2)(b), 159 and 165 of the Constitution, read together with the Environment and Land Court Act and Order 53 of the Civil Procedure Rules, to grant leave and interim relief in judicial review proceedings. 9. The Applicant identified the issues for determination as whether the Respondent’s decision was tainted by illegality, irrationality, and procedural impropriety, whether Article 47 of the Constitution on fair administrative action was violated, whether the doctrine of legitimate expectation was breached, and whether leave ought to operate as a stay to preserve the substratum of the dispute. 10. It was further submitted that at the leave stage, the Court is only required to determine whether an arguable case has been disclosed, without delving into the merits of the dispute. In support of this position, reliance was placed on Republic -Vs- County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996, and Suchan Investment Limited -Vs- Ministry of National Heritage & Culture & 3 Others [2016] eKLR, where the Court emphasised that judicial review concerns the decision-making process and not the merits of the decision itself. The Applicant also relied on Dande & 3 Others -Vs- Inspector General, National Police Service & 5 Others, Supreme Court Petition Nos. 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated) [2023] KESC 40 (KLR), to underscore that proportionality and procedural fairness are now central to judicial review. 11. On the other hand, the Respondent submitted that the Applicant had failed to demonstrate a prima facie case warranting the grant of leave, and that the impugned decision was made pursuant to a clear statutory mandate. The Respondent identified three issues for determination, namely: whether a prima facie case had been established, whether a dispute involving alleged encroachment onto a road reserve is amenable to judicial review, and whether public interest considerations favour the grant of leave and stay orders. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2018/eng@2026-02-12 2

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12. The Respondent relied on Republic -Vs- County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996, and Mirugi Kariuki -Vs- Attorney General, Civil Appeal No. 70 of 1991 [1990–1994] EA 156; [1992] KLR, to submit that leave should not be granted where no arguable public law issue is disclosed. It was further averred that disputes relating to land boundaries, road reserves, and encroachment are not amenable to judicial review, and that public interest overwhelmingly favours allowing the Respondent to continue executing its statutory mandate, particularly in relation to the protection of road reserves. Analysis and Determination Issue One: Whether the Applicant has established an arguable case to warrant the grant of leave to commence judicial review proceedings 13. The applicable law on applications for leave to commence judicial review proceedings is Order 53 Rule 1 of the Civil Procedure Rules, which requires that leave of the Court be obtained before an applicant can seek orders of certiorari, prohibition, or mandamus. The rationale for this requirement is to filter out frivolous, vexatious, or hopeless claims at an early stage, while permitting only those applications that disclose arguable public law issues to proceed to substantive determination. 14. The principles guiding the grant of leave were settled in Republic -Vs- County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996, where the Court held that at the leave stage, the Court should not delve into the merits of the dispute, but should instead undertake a cursory perusal of the material placed before it to determine whether the applicant has demonstrated an arguable case fit for further investigation. 15. It is therefore trite that at this preliminary stage, the Court is not required to resolve contested facts, determine the correctness of the impugned decision, or pronounce itself on the substantive rights of the parties. Judicial review is concerned with the lawfulness of the decision-making process, rather than the merits or demerits of the decision itself, and any inquiry into factual or evidentiary disputes must await the substantive hearing. 16. In the present application, the Applicant has impugned the Respondent’s administrative action on grounds including alleged excess or abuse of statutory power, breach of the right to fair administrative action under Article 47 of the Constitution, failure to adhere to the rules of natural justice, and violation of the doctrine of legitimate expectation. The Applicant has anchored these allegations on constitutional provisions, statutory law, and judicial precedent, contending that the decision-making process was unlawful, unreasonable, and procedurally unfair. 17. The Respondent has opposed the application on the basis that the impugned decision was made pursuant to a statutory mandate and that the issues raised involve contested factual and technical matters not amenable to judicial review. While these arguments are substantial, they go to the merits and justification of the impugned decision, matters which this Court must refrain from determining at the leave stage. 18. At this juncture, the Court’s task is limited to determining whether the Applicant has raised bona fide questions of legality, procedural propriety, or constitutional compliance in the Respondent’s decision-making process. Upon consideration of the pleadings and material placed before the Court, and without expressing any opinion on the ultimate merits of the dispute, I am satisfied that the issues raised are not frivolous or vexatious, and disclose arguable public law questions suitable for further interrogation at a substantive hearing. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2018/eng@2026-02-12 3

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19. For the avoidance of doubt, the finding that the Applicant has established an arguable case does not amount to a determination of the lawfulness or otherwise of the impugned decision, nor does it prejudice the Respondent’s right to justify its actions during the hearing of the substantive Notice of Motion. 19. In the circumstances, and guided by the settled principles governing applications for leave to commence judicial review proceedings, I find and hold that the Applicant has met the threshold required for the grant of leave under Order 53 of the Civil Procedure Rules. Issue Two: Whether the leave granted should operate as a stay of the impugned administrative action 20. Having found that the Applicant has met the threshold for the grant of leave, the next issue for determination is whether the leave so granted should operate as a stay of the impugned administrative action. The grant of a stay at the leave stage is not automatic, but is a matter of judicial discretion, to be exercised judiciously and on the basis of established principles. 21. The legal basis for the grant of a stay at the leave stage is Order 53 Rule 1(4) of the Civil Procedure Rules, which provides that the grant of leave to apply for orders of certiorari or prohibition shall, if the Judge so directs, operate as a stay of the proceedings in question until the determination of the substantive application, or until the Court orders otherwise. It is therefore clear that the power to grant a stay is discretionary and must be exercised on a case-by-case basis. 22. The purpose of a stay order is to preserve the status quo pending the hearing and determination of the substantive judicial review proceedings, so as to prevent the proceedings from being rendered nugatory. In exercising this discretion, the Court is required to consider, among other factors, whether the impugned action is ongoing or imminent, whether the substratum of the dispute is likely to be destroyed, and whether the grant of a stay would unduly prejudice public interest or the lawful exercise of statutory power. 23. In the present application, the Applicant urges the Court to grant a stay on the basis that the impugned administrative action is imminent and that, unless restrained, the intended judicial review proceedings would be rendered nugatory. The Respondent, on the other hand, contends that the grant of a stay would impede the lawful exercise of its statutory mandate and would be contrary to public interest. 24. I am mindful that at the leave stage, the Court must exercise heightened caution so as not to issue orders that have the efiect of determining the dispute prematurely or paralysing the operations of a public body in the absence of a full hearing. The Court must therefore strike a balance between preserving the substratum of the dispute and avoiding undue interference with statutory functions. 25. In the circumstances of this case, and without expressing any view on the merits of the substantive dispute, I am not persuaded that the grant of a stay at this stage is warranted. The Applicant will have an opportunity to canvass all issues relating to interim relief at the hearing of the substantive Notice of Motion, upon full ventilation of the matter by the parties. 26. Accordingly, while leave to commence judicial review proceedings is merited, I decline to direct that the leave so granted shall operate as a stay of the impugned administrative action. The Orders 27. In light of the foregoing findings and determination, the Court makes the following orders: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2018/eng@2026-02-12 4

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a. Leave is hereby granted to the Applicant to commence judicial review proceedings seeking orders of certiorari, prohibition, and mandamus in respect of the impugned administrative action. b. The prayer that the leave so granted do operate as a stay of the impugned administrative action is hereby declined. c. The Applicant shall file and serve the substantive Notice of Motion within twenty-one (21) days from the date hereof. d. The Respondent shall file and serve its response to the substantive Notice of Motion within fourteen (14) days from the date of service. e. The Applicant shall be at liberty to file a supplementary afidavit and written submissions, if necessary, within fourteen (14) days of service of the Respondent’s response. f. The Respondent shall file and serve its written submissions within fourteen (14) days of service of the Applicant’s submissions. g. The costs of the Chamber Summons dated 12th May 2025 shall be in the cause. h. Parties shall be at liberty to apply. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 12TH DAY OF FEBRUARY, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Kurauka for the Applicant Mr. Odongo for the Respondents Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2018/eng@2026-02-12 5

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