Republic v Attorney General & 18 others; Makunyu & 112 others (Ex parte Applicants) (Environment and Land Miscellaneous Case E038 of 2025) [2026] KEELC 4979 (KLR)

JUDGMENT Background 1. In 2014, the Court of Appeal at Nyeri adopted a consent order settling Nyeri Civil Appeal 129 of 2005. The effect of the consent order was to hive off a block of land from Ruiri Rwarera Adjudication Section and create a new adjudication section known as Mbwaa 1 Adjudication Section. The land adjudication exercise in the newly created Mbwaa 1 Adjudication Section was to start a fresh, meaning that all the land adjudication steps required under the Land Adjudication Act were to be undertaken a fresh in relation to the block of land that constituted Mbwaa 1 Adjudication Section. Any pre-existing demarcation number at the time of adoption of the consent order stood invalidated if the affected parcel number fell within the block that constituted Mbwaa 1 Adjudication Section. 2. Pursuant to the above consent, the fresh adjudication exercise in Mbwaa 1 Adjudication Section was initiated and went through the stages of demarcation, ownership dispute resolution at the committee stage and ownership dispute resolution at the arbitration board stage. The adjudication register for Mbwaa 1 Adjudication Section was subsequently completed and a notice to that effect was published toward the end of June 2025 and the public was invited to inspect the register and raise objections. 3. Aggrieved by the adjudication register, the 113 ex-parte applicants in the chamber summons that initiated this judicial review case sought leave of the court to bring a ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 2

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judicial review motion for an order of mandamus compelling the Land Adjudication and Settlement Officer for Tigania West Sub-County to issue to them statutory consents to sue or, in the alternative, to register their objections to the adjudication register. They further prayed for leave to seek a prohibition order barring the 2nd respondent against continuing with the register inspection exercise. 4. Vide a brief ex-tempore ruling rendered on 17/9/2025, this Court [Eboso J] granted leave to those ex-parte applicants who alleged that they had been denied the opportunity to file/register their objections. The court made it clear that the ex-parte applicants who had registered their objections were not covered by the leave so granted. 5. Subsequent to that, on 8/10/2025, one hundred and nine (109) ex-parte applicants brought a notice of motion dated 8/10/2025 seeking: (i) an order of mandamus compelling the 2nd respondent to issue to them statutory consents to sue in respect of various parcel numbers that existed under Ruiri Rwarera Adjudication Section; and (ii) an order prohibiting the 2nd respondent against continuing with the inspection of the adjudication register relating to Mbwaa 1 Adjudication Section. The motion is what falls for determination in this Judgment. 6. The two key questions to be determined in the Judgment are: (i) Whether a proper case has been made to warrant an order compelling the 2nd respondent to issue to the 109 ex-parte applicants and to the 17 interested parties ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 3

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statutory consents to sue; and (ii) Whether a proper case has been made to warrant an order prohibiting the 2nd respondent against continuing with the exercise of adjudication register inspection. Before I analyse and dispose the two issues, I will briefly outline the respective cases of the parties to these proceedings. Ex-parte Applicants’ Case 7. The case of the 109 ex-parte applicants is that they were recorded as owners of various demarcated parcels in Ruiri Rwarera Adjudication Section. The block of land within which their parcels were located was hived off to create a new adjudication section, Mbwaa 1 Adjudication Section. Upon the 2nd respondent publishing the adjudication register relating to Mbwaa 1 Adjudication Section on 26/6/2025, they realized that their parcels were not reflected in the new adjudication register. They requested the 2nd respondent to: (i) issue them with statutory notices to enable them sue; or (ii) to register their objections to the adjudication register. The 2nd respondent refused/neglected/failed to issue them with statutory consents and similarly refused to register their objections to the adjudication register. The ex-parte applicants contend that the 2nd respondent is in the process of having the adjudication register relating to Mbwaa 1 Adjudication Section inspected and marked as correct. They urge the court to grant the above judicial review orders. Case of the Respondents 8. The respondents opposed the motion through a replying affidavit sworn on 28/10/2025 by Samuel Thinguri Njau ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 4

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and written submissions dated 16/12/2025 filed by Ms Esther Wairimu, a Senior State Counsel in the Office of the Attorney General. The case of the respondents is that Mbwaa 1 Adjudication Section was declared on 20/8/2015 following a consent order issued by the Court of Appeal in Nyeri Civil Appeal No 129 of 2005. The said consent order set aside the demarcation numbers that had been issued under Ruiri/Rwarera Adjudication Section in relation to the block of land that constituted Mbwaa 1 Adjudication Section and new demarcation numbers were issued in the new Mbwaa1 Adjudication Section. Further, under the consent, the persons who were already settled on the land were to have their land adjudicated. 9. The respondents add that land adjudication in Mbwaa 1 Adjudication Section went through demarcation; dispute resolution at the committee stage; and dispute resolution at the arbitration stage. They state that upon completion of the adjudication register, the register was published for inspection and the inspection period lapsed on 23/8/2025. 10. The respondents add that under the Second Schedule of the Land Adjudication (Amendment) Regulations 2024, a party applying for consent is required to pay Kshs 3,000. They state that under Section 30(3) of the Land Adjudication Act, any one who is aggrieved by the refusal of the Adjudication Officer to give consent has a right of appeal to the Minister within 28 days. They emphasize that no application for consent was presented to the 2nd respondent by the ex-parte applicants. They point out that exhibit Nos “JKM - 70” and ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT “JKM - 71” which the exPage 5

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parte applicants are relying on bear a stamp relating to Land Adjudication Office in Meru as opposed to Tigania West Land Adjudication Office. They further point out that the ex-parte applicants have not exhibited any evidence relating to the requisite statutory fee of Kshs 3,000 payable by each land owner seeking consent to sue. 11. It is the case of the respondents that had the ex-parte applicants paid the requisite fees and presented their formal requests for consents, they would be required to lodge appeals to the Minister in the event the Adjudication Officer failed to grant them the consents. They argue that this court lacks jurisdiction to entertain this dispute because the ex-parte applicants have not exhausted the redress mechanisms provided in the Land Adjudication Act. They urge the court to reject and dismiss the motion. Case of the Interested Parties 12. Vide a notice of motion dated 11/11/2025, the 17 interested parties applied to be joined to the suit as interested parties. They were admitted and subsequently filed an affidavit sworn on 12/1/2026 by Denis Kimathi Mutua, supporting the case of the ex-part applicants. They contend that they were the recorded owners of various parcels in Ruiri Rwarera Adjudication Section, adding that when the adjudication register for Mbwaa 1 Adjudication Section was published and the public was invited for inspection and objection, they inspected it and did not find their names and parcel numbers in the published register. Their efforts ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 6

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to file objections to the adjudication register were frustrated by the 2nd respondent. They urge the court to grant the orders sought in the notice of motion in favour of the ex-parte applicants and in their favour. Analysis and Determination 13. The court has considered the motion, the responses to the motion and the parties’ respective submissions. The two key questions that fall for determination in this Judgment are: (i) Whether a proper case has been made to warrant issuance of an order compelling the 2nd respondent to issue to the 109 ex-parte applicants and to the 17 interested parties statutory consents to initiate a suit/suits relating to land/lands in Mbwaa 1 Adjudication Section; and (ii) Whether a proper case has been made to warrant issuance of an order prohibiting inspection of the adjudication register in Mbwaa 1 Adjudication Section. 14. Has a proper case been made to warrant issuance of an order compelling the 2nd respondent to issue consents to the 109 ex-parte applicants and to the 17 interested parties to initiate a suit/suits? I will start with the interested parties. 15. The 17 interested parties were not parties to the initial proceedings in which leave to initiate judicial review proceedings was granted. They joined this suit as interested parties on 3/12/2025 after they brought an application dated 11/11/2025 seeking joinder in that ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 7

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capacity. They did not apply to be made ex-parte applicants and for the earlier granted leave to apply to them. Given that they did not apply for leave to seek judicial review orders and they did not join this suit as exparte applicants, their plea for judicial review orders through paragraph 12 of the affidavit of Denis Kimathi Mutua is untenable. If they wanted to seek the reliefs that the 109 ex-parte applicants sought, they ought to have applied for leave. Secondly, they ought to have brought a formal motion seeking the reliefs. As things stand, all they filed is an affidavit. Consequently, the court has no platform on which to consider the plea by the 17 interested parties. I now turn to the 109 ex-parte applicants. 16. The gist of the gravamen of the 109 ex-parte applicants is two-pronged: (i) that the 2nd respondent has refused to grant them consent to initiate a suit/suits relating to parcels of land in Mbwaa 1 Adjudication Section and; (ii) that the 2nd respondent has refused to register and hear their objections to the adjudication register relating to Mbwaa 1 Adjudication Section. 17. There is common ground that the notice publishing the adjudication register and inviting the public to inspect it and raise objections was issued on 26/6/2025. The public was given the statutory period of 60 days within which to inspect the register and lodge objections. The 60 days inspection period lapsed on 25/8/2025. 18. What remedy did the law provide to the ex-parte applicants in the event that they made a formal request to the 2nd ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 8

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respondent for consents to sue and the 2nd respondent failed to grant them the consents? The statutory remedy is found in Section 30(3) of the Land Adjudication Act which provides as follows: “30(3) Any person who is aggrieved by the refusal of the adjudication officer to give consent or make a direction under subsection (1) or (2) of this section may, within twentyeight days after the refusal, appeal in writing to the Cabinet Secretary whose decision shall be final.” 19. If indeed each of the 109 ex-parte applicants paid the requisite statutory fees and presented their respective requests to the 2nd respondent and the 2nd respondent failed to act on their requests, they had the remedy of lodging appeals to the Minister under Section 30(3) of the Land Adjudication Act. It does emerge that instead of utilizing the redress mechanism given to them by the law, the 109 ex-parte applicants chose to completely disregard the statute. No attempt has been made to justify their decision to disregard the mandatory provisions of the law. That is not all. 20. Through his replying affidavit, the 2nd respondent explained that an application for consent is initiated by an applicant paying the requisite fee of Kshs 3,000 in relation to each parcel of land in respect of which a suit is contemplated and a consent is sought. The 2nd respondent vehemently denied the allegation that the exELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 9

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parte applicants applied for consents. Subsequent to the 2nd respondent’s response, the ex-parte applicants filed a supplementary affidavit. They, however, did not bother to exhibit copies of receipts relating to the payments which each of them made in pursuit of the consents. Secondly, they did not present evidence demonstrating that they presented formal applications for consents to the proper Land Adjudication Officer. 21. Similarly, the 109 ex-parte applicants have not presented any evidence demonstrating that each one of them paid the requisite statutory fees and presented formal objections to the adjudication register, inviting the 2nd respondent to objections. Each of the itemized parcels within Mbwaa 1 Adjudication register, Section (Not hear and determine Ruiri/Rwarera their Adjudication Section) was to be identified as the subject matter of an objection and the requisite fees was to be paid by each objector. The court has painstakingly gone through all the exhibits which were presented in this motion. None identifies specific parcels in Mbwaa 1 Adjudication Section. Clearly, it would be unrealistic to expect the 2nd respondent to register an objection that related to a parcel number that did not exist in the published register. If the ex-parte applicants wanted to challenge certain parcels in the published register relating to Mbwaa 1 Adjudication Section, they ought to have identified them by the numbers that appeared in the published register. They did not do that. ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 10

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22. Having evaluated the evidence and the submissions that were presented in this suit, I do not think the ex-parte applicants and the interested parties have made a proper case to warrant issuance of the order of mandamus sought in the motion. That is the finding of the court on the first issue. 23. With regard to the plea for an order prohibiting the 2nd respondent against proceeding with the statutory exercise of adjudication register inspection, the court having made the above finding on the first issue, there is no proper basis for the prohibitory order. Secondly, the inspection was undertaken from 27/6/2025 and ended on expiry of 60 days. There is nothing to prohibit at this point. That is the finding of the court on the second issue. Disposal Orders 24. In light of the above findings, the notice of motion dated 8/10/2025 is rejected and dismissed for lack of merit. In line with the principle in Section 27 of the Civil Procedure Act, the ex-parte applicants shall bear costs of the suit. DATED, SIGNED AND DELIVERED AT MERU THIS 21ST DAY OF JULY, 2026 B M EBOSO [MR] ELC JUDGE ELC (MISC) CASE NO. E038 OF 2025 – JUDGMENT Page 11

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