Republic v The Attorney General, The County Land Registrar Kisumu County, The County Land Surveyor Kisumu County & Fred Odiwuor Apida, Ex Parte Michael Otieno Arango

MICHAEL OTIENO ARANGO……………….EX-PARTE APPLICANT RULING What is before the court is a Chamber Summons application dated 25th April 2025, in which the applicant has sought the following orders; a) Leave to apply for an order of certiorari to bring before the court and quash the decision of the 2nd and 3rd respondents made on 16th January 2012, exchanging the position of land parcels known as Title Nos. Kisumu/Kochieng/ 3070 and Kisumu/Kochieng/ 3071 on the ground and altering the 20 th Edition Area Map Sheet for Kisumu Kochieng; b) Leave to apply for an order of certiorari to bring before the court and quash the decision of the 2nd and 3rd respondents made on 13th January 2011; c) Leave to apply for an order of certiorari to bring before the court and quash the decision of the 2nd and 3rd respondents which resulted in the exchange of the location of the land ELCLJR. NO. E001 OF 2025 RULING Page 2

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parcels known as Title Nos. Kisumu/Kochieng/ 3070 and Kisumu/Kochieng/ 3071; d) Leave to apply for an order of mandamus directing the 2 nd and 3rd respondents to annul the exchange of the land parcels known as Title Nos. Kisumu/Kochieng/ 3070 and Kisumu/Kochieng/ 3071 as they appear in Kisumu Kochieng Registration Section Diagram No. 24 and amend the Map to reflect the position of the two parcels of land as per the 20 th Edition Map Sheet; e) That the leave, if granted, do operate as a stay of any other or further consequential action or any dealings with or transactions being carried out on the land parcels known as Title Nos. Kisumu/Kochieng/ 3070 and Kisumu/Kochieng/ 3071 by the respondents in any manner which may prejudice the interests of the applicant on the same; f) That the leave, if granted, should operate as a stay of further proceedings in Nyando SPMCC ELC No. 96 of 2018, Michael Otieno Orango v. Fred Odiwuor Apida & 3 others; and g) That the costs of the application be provided for. ELCLJR. NO. E001 OF 2025 RULING Page 3

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The application is said to be supported by a verifying affidavit of the applicant, Michael Otieno Arango, and the accompanying statement of facts. However, the verifying affidavit is not on record. The 4th respondent’s advocates raised the issue of the missing verifying affidavit with the applicant’s advocates when the matter came up on 30th September 2025. The applicant should have noted at that stage that he had not filed a verifying affidavit and taken steps to address the anomaly. As things stand, the application is not supported by a verifying affidavit, which is a primary document in an application for leave to apply for judicial review under Order 53 of the Civil Procedure Rules. Order 53, Rule 1 of the Civil Procedure Rules provides as follows: 1. (1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule. (2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. ELCLJR. NO. E001 OF 2025 RULING Page 4

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The rule provides that the application for leave for an order of mandamus, prohibition and certiorari shall be accompanied by a statement setting out the grounds on which the application has been brought and an affidavit verifying those facts. The applicant has filed a statement, as required by the rule. The applicant has stated that he is the registered owner of the land parcel Title No.Kisumu/Kochieng/3071(suit property); that in March 2012, he received a letter from the 2nd respondent dated 2nd March 2012 asking him to appear before the 2nd respondent and surrender the title deed for the suit property within 14 days; that in the meantime, the 4th respondent and his family invaded the suit property; that with the assistance from the 2 nd and 3rd respondents, the 4th respondent illegally and unlawfully amended the Registry Index Map (RIM) and swapped the positions of the suit property and land parcel Title No.Kisumu/Kochieng/3070, with the effect that the suit property was indicated in the Map as located where land parcel Title No.Kisumu/Kochieng/3070 is situated on the Map and land parcel Title No.Kisumu/Kochieng/3070 is indicated as located where the suit property is situated on the Map; that the whole process of ELCLJR. NO. E001 OF 2025 RULING Page 5

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swapping the two parcels of land on the RIM was conducted unlawfully and irregularly; that the applicant was not notified of the decision to conduct the exercise; that the irregular process has enabled the 4th respondent to take over the suit property on which he has put up a permanent structure; that the applicant and his family have been dispossessed of the suit property thereby subjecting them to great loss; and that the actions of the 2nd and 3rd respondents complained of were marred with irregularities. These statements must be verified by an affidavit before the court can act on them. In the absence of such an affidavit, the application is incomplete and, to that extent, incompetent. The court had directed that the application be served and heard inter partes. The respondents were served, and the 4 th respondent filed grounds of opposition dated 1 st November 2025. respondent contended that the application The 4th offended the provisions of Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act, Chapter 26 Laws of Kenya. ELCLJR. NO. E001 OF 2025 RULING Page 6

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When the application came up for hearing on 5 th November 2025, the applicant’s advocate informed the court that the applicant wished to rely entirely on the statement and a verifying affidavit filed in support of the application. The 4 th respondent’s advocates also chose to rely entirely on their grounds of opposition. I have considered the applicant’s application and the 4 th respondent's grounds of opposition. Two issues arise for determination. First, whether the applicant has made out a case for the grant of leave sought, and secondly, whether leave, if granted, should operate as a stay. In Njuguna v. Minister for Agriculture [2000] 1 E.A 184, it was held that: “the test as to whether leave should be granted to an applicant for judicial review is whether, without examining the matter in any depth, there is an arguable case, that the reliefs might be granted on the hearing of the substantive application.’’ In Republic v. County Council of Kwale & Another Ex Parte Kondo & 57 Others [1998] 1 KLR (E&L), the court set out the rationale for seeking leave to apply for judicial review as follows: ELCLJR. NO. E001 OF 2025 RULING Page 7

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“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration.” As mentioned earlier in the ruling, the applicant’s application offends the provisions of Order 53 Rule 1(2) of the Civil Procedure Rules in that the facts on which the application is based are not verified by an affidavit. They are, therefore, just bare statements with no evidential value. In the absence of an affidavit verifying the facts relied on by the applicant, I cannot determine the application on its merits. Without any evidence of the issues raised in his complaint, I cannot say whether he has an arguable case. I cannot even determine whether the application is timebarred as claimed by the 4th respondent. For the foregoing reasons, I find that the applicants’ application dated 25th April, 2025, is defective in substance. I strike out the application with costs to the 4th respondent. ELCLJR. NO. E001 OF 2025 RULING Page 8

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Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this 28th day of September 2026 E. K.WABWOTO JUDGE Ruling delivered virtually through Microsoft Teams Video Platform in the presence of: N/A for the Applicant N/A for the 1 st , 2nd and 3rd Respondents N/A for 4 th Respondent Joanne Omondi ELCLJR. NO. E001 OF 2025 RULING -Court Assistant Page 9

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