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Republic v County Land Registrar Kwale & 3 others; Mwaranduni & 424 others (Interested Parties) (Environment and Land Judicial Review Case E002 of 2025) [2025] KEELC 18538 (KLR) (27 November 2025) (Judgment)

Republic v County Land Registrar Kwale & 3 others; Mwaranduni & 424 others (Interested Parties) (Environment and Land Judicial Review Case E002 of 2025) [2025] KEELC 18538 (KLR) (27 November 2025) (Judgment)
Citation
Republic v County Land Registrar Kwale & 3 others; Mwaranduni & 424 others (Interested Parties) [2025] KEELC 18538 (KLR)
Media Neutral Citation
[2025] KEELC 18538 (KLR)
Court
Environment and Land Court
Court station
Environment and Land Court at Kwale
Outcome
Struck out
Case number
Environment and Land Judicial Review Case E002 of 2025
Attorneys
Mr. Asige Advocate, Mr. Birir Advocate, Mr. Kemei Advocate, Mr. Kimani Horeria Advocate,
Judges
LL Naikuni
Judgment date
27 November 2025
Language
English
Type
Judgment
Original source file
Download DOCX (111.1 KB)
Collections
Date published
16 February 2026
Case action
Judgment
Court division
Environment and Land
Filing county
Kwale
Order
Ultimately, having caused such an in-depth analysis to the framed issues herein, for avoidance of doubt, the Honourable Court accordingly proceeds to issue the following specific orders:- (a). THAT the Preliminary Objection dated 3rd June, 2025 by the 1st, 2nd & 3rd Respondents be and is hereby upheld. (b). THAT in essence the Notice of Motion application dated 3rd March 2025 be and is hereby struck out in entirety for breaching the Doctrine of Sub – Judice to the Civil Case “ELC No, 113 of 2015 - Emfil Limited - Versus - the Hon. Attorney General & 424 others”. (b). THAT taking into account the dispute is still pending then each party to bears its costs.
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I. Preliminaries
1.The Judgement by this Honourable Court pertains to the Civil Suit instituted by Emfil Limited, the Ex – Parte Applicant (Herein after referred to as “The Applicant”) through a Judicial Review seeking for several prerogative writs against the Respondents and the Interested Parties herein. The Court shall be dealing with each of the issues separately.
II. The Application by the Ex – Parte Applicant.
2.As a matter of background, on 28th February 2025, this Court granted leave to the Ex - Parte Applicant pursuant to Chamber Summons application dated 28th February 2025. The Ex - Parte Applicant subsequently filed substantive Notice of Motion dated 3rd March 2025 through LJA Advocates which is now under consideration seeking the following orders which the Court will reproduce verbatim as sought:-a.An order of CERTIORARI to remove into this Honorable Court for the purposes of quashing the decision by the Land Registrar Kwale to register and issue title deeds issued under Kwale/Ramisi Kinondo Squatter Settlement Scheme in particular all the parcels hived out of the Ex-Parte Applicant’s properties including L.R No. Kwale/Ramisi/Kinondo S.S.S Parcel Number 1, Kwale/Ramisi/Kinondo S.S.S Parcel Number 2, Kwale/Ramisi/Kinondo S.S.S Parcel Number 3, Kwale/Ramisi/Kinondo S.S.S Parcel Number 5, Kwale/Ramisi/Kinondo S.S.S Parcel Number 6, Kwale/Ramisi/Kinondo S.S.S Parcel Number 7, Kwale/Ramisi/Kinondo S.S.S Parcel Number 8, Kwale/Ramisi/Kinondo S.S.S Parcel Number 9, Kwale/Ramisi/Kinondo S.S.S Parcel Number 10, Kwale/Ramisi/Kinondo S.S.S Parcel Number 11, Kwale/Ramisi/Kinondo S.S.S Parcel Number 12, Kwale/Ramisi/Kinondo S.S.S Parcel Number 12, Kwale/Ramisi/Kinondo S.S.S Parcel Number 13, Kwale/Ramisi/Kinondo S.S.S Parcel Number 14, Kwale/Ramisi/Kinondo S.S.S Parcel Number 15, Kwale/Ramisi/Kinondo S.S.S Parcel Number 16, Kwale/Ramisi/Kinondo S.S.S Parcel Number 18, Kwale/Ramisi/Kinondo S.S.S Parcel Number 19, Kwale/Ramisi/Kinondo S.S.S Parcel Number 20, Kwale/Ramisi/Kinondo S.S.S Parcel Number 21, Kwale/Ramisi/Kinondo S.S.S Parcel Number 22, Kwale/Ramisi/Kinondo S.S.S Parcel Number 23, Kwale/Ramisi/Kinondo S.S.S Parcel Number 24, Kwale/Ramisi/Kinondo S.S.S Parcel Number 25, Kwale/Ramisi/Kinondo S.S.S Parcel Number 26, Kwale/Ramisi/Kinondo S.S.S Parcel Number 27, Kwale/Ramisi/Kinondo S.S.S Parcel Number 27, Kwale/Ramisi/Kinondo S.S.S Parcel Number 28, Kwale/Ramisi/Kinondo S.S.S Parcel Number 210, Kwale/Ramisi/Kinondo S.S.S Parcel Number 211, Kwale/Ramisi/Kinondo S.S.S Parcel Number 212, Kwale/Ramisi/Kinondo S.S.S Parcel Number 213.b.An order of PROHOBITION to prohibit the Land Registrar Kwale from approving any dealings or transactions under the Kwale/Ramisi Kinondo Squatter Settlement Scheme in particular, L.R No. Kwale/Ramisi/Kinondo S.S.S Parcel Number 1, Kwale/Ramisi/Kinondo S.S.S Parcel Number 2, Kwale/Ramisi/Kinondo S.S.S Parcel Number 3, Kwale/Ramisi/Kinondo S.S.S Parcel Number 5, Kwale/Ramisi/Kinondo S.S.S Parcel Number 6, Kwale/Ramisi/Kinondo S.S.S Parcel Number 7, Kwale/Ramisi/Kinondo S.S.S Parcel Number 8, Kwale/Ramisi/Kinondo S.S.S Parcel Number 9, Kwale/Ramisi/Kinondo S.S.S Parcel Number 10, Kwale/Ramisi/Kinondo S.S.S Parcel Number 11, Kwale/Ramisi/Kinondo S.S.S Parcel Number 12, Kwale/Ramisi/Kinondo S.S.S Parcel Number 12, Kwale/Ramisi/Kinondo S.S.S Parcel Number 13, Kwale/Ramisi/Kinondo S.S.S Parcel Number 14, Kwale/Ramisi/Kinondo S.S.S Parcel Number 15, Kwale/Ramisi/Kinondo S.S.S Parcel Number 16, Kwale/Ramisi/Kinondo S.S.S Parcel Number 18, Kwale/Ramisi/Kinondo S.S.S Parcel Number 19, Kwale/Ramisi/Kinondo S.S.S Parcel Number 20, Kwale/Ramisi/Kinondo S.S.S Parcel Number 21, Kwale/Ramisi/Kinondo S.S.S Parcel Number 22, Kwale/Ramisi/Kinondo S.S.S Parcel Number 23, Kwale/Ramisi/Kinondo S.S.S Parcel Number 24, Kwale/Ramisi/Kinondo S.S.S Parcel Number 25, Kwale/Ramisi/Kinondo S.S.S Parcel Number 26, Kwale/Ramisi/Kinondo S.S.S Parcel Number 27, Kwale/Ramisi/Kinondo S.S.S Parcel Number 27, Kwale/Ramisi/Kinondo S.S.S Parcel Number 28, Kwale/Ramisi/Kinondo S.S.S Parcel Number 28, Kwale/Ramisi/Kinondo S.S.S Parcel Number 29, Kwale/Ramisi/Kinondo S.S.S Parcel Number 30, Kwale/Ramisi/Kinondo S.S.S Parcel Number 31, Kwale/Ramisi/Kinondo S.S.S Parcel Number 32, Kwale/Ramisi/Kinondo S.S.S Parcel Number 34, Kwale/Ramisi/Kinondo S.S.S Parcel Number 35, Kwale/Ramisi/Kinondo S.S.S Parcel Number 36, Kwale/Ramisi/Kinondo S.S.S Parcel Number 38, Kwale/Ramisi/Kinondo S.S.S Parcel Number 39, Kwale/Ramisi/Kinondo S.S.S Parcel Number 40, Kwale/Ramisi/Kinondo S.S.S Parcel Number 41, Kwale/Ramisi/Kinondo S.S.S Parcel Number 42, Kwale/Ramisi/Kinondo S.S.S Parcel Number 42, Kwale/Ramisi/Kinondo S.S.S Parcel Number 43, Kwale/Ramisi/Kinondo S.S.S Parcel Number 44, Kwale/Ramisi/Kinondo S.S.S Parcel Number 45, Kwale/Ramisi/Kinondo S.S.S Parcel Number 48, Kwale/Ramisi/Kinondo S.S.S Parcel Number 49, Kwale/Ramisi/Kinondo S.S.S Parcel Number 50, Kwale/Ramisi/Kinondo S.S.S Parcel Number 50, 51, Kwale/Ramisi/Kinondo S.S.S Parcel Number 52, Kwale/Ramisi/Kinondo S.S.S Parcel Number 52, Kwale/Ramisi/Kinondo S.S.S Parcel Number 53, Kwale/Ramisi/Kinondo S.S.S Parcel Number 54, Kwale/Ramisi/Kinondo S.S.S Parcel Number 54, Kwale/Ramisi/Kinondo S.S.S Parcel Number 54, Kwale/Ramisi/Kinondo S.S.S Parcel Number 54, Kwale/Ramisi/Kinondo S.S.S Parcel Number 56, Kwale/Ramisi/Kinondo S.S.S Parcel Number 57, Kwale/Ramisi/Kinondo S.S.S Parcel Number 58, Kwale/Ramisi/Kinondo S.S.S Parcel Number 60, Kwale/Ramisi/Kinondo S.S.S Parcel Number 61, 62, Kwale/Ramisi/Kinondo S.S.S Parcel Number 63, Kwale/Ramisi/Kinondo S.S.S Parcel Number 64, Kwale/Ramisi/Kinondo S.S.S Parcel Number 65, Kwale/Ramisi/Kinondo S.S.S Parcel Number 66, Kwale/Ramisi/Kinondo S.S.S Parcel Number 67, Kwale/Ramisi/Kinondo S.S.S Parcel Number 68, Kwale/Ramisi/Kinondo S.S.S Parcel Number 69, Kwale/Ramisi/Kinondo S.S.S Parcel Number 70, Kwale/Ramisi/Kinondo S.S.S Parcel Number 71, Kwale/Ramisi/Kinondo S.S.S Parcel Number 72, Kwale/Ramisi/Kinondo S.S.S Parcel Number 73, Kwale/Ramisi/Kinondo S.S.S Parcel Number 73, Kwale/Ramisi/Kinondo S.S.S Parcel Number 74, Kwale/Ramisi/Kinondo S.S.S Parcel Number 77, Kwale/Ramisi/Kinondo S.S.S Parcel Number 78, Kwale/Ramisi/Kinondo S.S.S Parcel Number 80, Kwale/Ramisi/Kinondo S.S.S Parcel Number 81, Kwale/Ramisi/Kinondo S.S.S Parcel Number 82, Kwale/Ramisi/Kinondo S.S.S Parcel Number 83, Kwale/Ramisi/Kinondo S.S.S Parcel Number 84, Kwale/Ramisi/Kinondo S.S.S Parcel Number 85, Kwale/Ramisi/Kinondo S.S.S Parcel Number 86, Kwale/Ramisi/Kinondo S.S.S Parcel Number 87, Kwale/Ramisi/Kinondo S.S.S Parcel Number 88, Kwale/Ramisi/Kinondo S.S.S Parcel Number 90, Kwale/Ramisi/Kinondo S.S.S Parcel Number 91, Kwale/Ramisi/Kinondo S.S.S Parcel Number 92, Kwale/Ramisi/Kinondo S.S.S Parcel Number 94, Kwale/Ramisi/Kinondo S.S.S Parcel Number 95, Kwale/Ramisi/Kinondo S.S.S Parcel Number 96, Kwale/Ramisi/Kinondo S.S.S Parcel Number 97, Kwale/Ramisi/Kinondo S.S.S Parcel Number 98, Kwale/Ramisi/Kinondo S.S.S Parcel Number 99, Kwale/Ramisi/Kinondo S.S.S Parcel Number 100, Kwale/Ramisi/Kinondo S.S.S Parcel Number 101, Kwale/Ramisi/Kinondo S.S.S Parcel Number 102, Kwale/Ramisi/Kinondo S.S.S Parcel Number 104, Kwale/Ramisi/Kinondo S.S.S Parcel Number 105, Kwale/Ramisi/Kinondo S.S.S Parcel Number 106, Kwale/Ramisi/Kinondo S.S.S Parcel Number 107, Kwale/Ramisi/Kinondo S.S.S Parcel Number 108, Kwale/Ramisi/Kinondo S.S.S Parcel Number 109, Kwale/Ramisi/Kinondo S.S.S Parcel Number 110, Kwale/Ramisi/Kinondo S.S.S Parcel Number 111, Kwale/Ramisi/Kinondo S.S.S Parcel Number 112, Kwale/Ramisi/Kinondo S.S.S Parcel Number 113, Kwale/Ramisi/Kinondo S.S.S Parcel Number 114, Kwale/Ramisi/Kinondo S.S.S Parcel Number 114, Kwale/Ramisi/Kinondo S.S.S Parcel Number 115, Kwale/Ramisi/Kinondo S.S.S Parcel Number 115, Kwale/Ramisi/Kinondo S.S.S Parcel Number 116, Kwale/Ramisi/Kinondo S.S.S Parcel Number 117, Kwale/Ramisi/Kinondo S.S.S Parcel Number 118, Kwale/Ramisi/Kinondo S.S.S Parcel Number 119, Kwale/Ramisi/Kinondo S.S.S Parcel Number 120, Kwale/Ramisi/Kinondo S.S.S Parcel Number 121, Kwale/Ramisi/Kinondo S.S.S Parcel Number 124, Kwale/Ramisi/Kinondo S.S.S Parcel Number 126, Kwale/Ramisi/Kinondo S.S.S Parcel Number 122, Kwale/Ramisi/Kinondo S.S.S Parcel Number 123, Kwale/Ramisi/Kinondo S.S.S Parcel Number 127, Kwale/Ramisi/Kinondo S.S.S Parcel Number 128, Kwale/Ramisi/Kinondo S.S.S Parcel Number 129, Kwale/Ramisi/Kinondo S.S.S Parcel Number 130, Kwale/Ramisi/Kinondo S.S.S Parcel Number 131, Kwale/Ramisi/Kinondo S.S.S Parcel Number 131, Kwale/Ramisi/Kinondo S.S.S Parcel Number 133, Kwale/Ramisi/Kinondo S.S.S Parcel Number 134, Kwale/Ramisi/Kinondo S.S.S Parcel Number 135, Kwale/Ramisi/Kinondo S.S.S Parcel Number 136, Kwale/Ramisi/Kinondo S.S.S Parcel Number 137, Kwale/Ramisi/Kinondo S.S.S Parcel Number 139, Kwale/Ramisi/Kinondo S.S.S Parcel Number 140, Kwale/Ramisi/Kinondo S.S.S Parcel Number 141, Kwale/Ramisi/Kinondo S.S.S Parcel Number 141, Kwale/Ramisi/Kinondo S.S.S Parcel Number 142, Kwale/Ramisi/Kinondo S.S.S Parcel Number 143, Kwale/Ramisi/Kinondo S.S.S Parcel Number 145, Kwale/Ramisi/Kinondo S.S.S Parcel Number 146, Kwale/Ramisi/Kinondo S.S.S Parcel Number 146, Kwale/Ramisi/Kinondo S.S.S Parcel Number 147, Kwale/Ramisi/Kinondo S.S.S Parcel Number 148, Kwale/Ramisi/Kinondo S.S.S Parcel Number 149, Kwale/Ramisi/Kinondo S.S.S Parcel Number 150, Kwale/Ramisi/Kinondo S.S.S Parcel Number 152, Kwale/Ramisi/Kinondo S.S.S Parcel Number 153, Kwale/Ramisi/Kinondo S.S.S Parcel Number 154, Kwale/Ramisi/Kinondo S.S.S Parcel Number 155, Kwale/Ramisi/Kinondo S.S.S Parcel Number 157, Kwale/Ramisi/Kinondo S.S.S Parcel Number 158, Kwale/Ramisi/Kinondo S.S.S Parcel Number 159, Kwale/Ramisi/Kinondo S.S.S Parcel Number 160, Kwale/Ramisi/Kinondo S.S.S Parcel Number 161, Kwale/Ramisi/Kinondo S.S.S Parcel Number 162, Kwale/Ramisi/Kinondo S.S.S Parcel Number 163, Kwale/Ramisi/Kinondo S.S.S Parcel Number 164, Kwale/Ramisi/Kinondo S.S.S Parcel Number 164, Kwale/Ramisi/Kinondo S.S.S Parcel Number 165, Kwale/Ramisi/Kinondo S.S.S Parcel Number 166, Kwale/Ramisi/Kinondo S.S.S Parcel Number 169, Kwale/Ramisi/Kinondo S.S.S Parcel Number 170, Kwale/Ramisi/Kinondo S.S.S Parcel Number 171, Kwale/Ramisi/Kinondo S.S.S Parcel Number 172, Kwale/Ramisi/Kinondo S.S.S Parcel Number 177, Kwale/Ramisi/Kinondo S.S.S Parcel Number 179, Kwale/Ramisi/Kinondo S.S.S Parcel Number 180, Kwale/Ramisi/Kinondo S.S.S Parcel Number 184, Kwale/Ramisi/Kinondo S.S.S Parcel Number 186, Kwale/Ramisi/Kinondo S.S.S Parcel Number 187, Kwale/Ramisi/Kinondo S.S.S Parcel Number 188, Kwale/Ramisi/Kinondo S.S.S Parcel Number 189, Kwale/Ramisi/Kinondo S.S.S Parcel Number 190, Kwale/Ramisi/Kinondo S.S.S Parcel Number 191, Kwale/Ramisi/Kinondo S.S.S Parcel Number 192, Kwale/Ramisi/Kinondo S.S.S Parcel Number 193, Kwale/Ramisi/Kinondo S.S.S Parcel Number 194, Kwale/Ramisi/Kinondo S.S.S Parcel Number 198, Kwale/Ramisi/Kinondo S.S.S Parcel Number 199, Kwale/Ramisi/Kinondo S.S.S Parcel Number 201, Kwale/Ramisi/Kinondo S.S.S Parcel Number 202, Kwale/Ramisi/Kinondo S.S.S Parcel Number 203, Kwale/Ramisi/Kinondo S.S.S Parcel Number 204, Kwale/Ramisi/Kinondo S.S.S Parcel Number 206, Kwale/Ramisi/Kinondo S.S.S Parcel Number 207, Kwale/Ramisi/Kinondo S.S.S Parcel Number 208, Kwale/Ramisi/Kinondo S.S.S Parcel Number 209, Kwale/Ramisi/Kinondo S.S.S Parcel Number 210, Kwale/Ramisi/Kinondo S.S.S Parcel Number 211, Kwale/Ramisi/Kinondo S.S.S Parcel Number 212, Kwale/Ramisi/Kinondo S.S.S Parcel Number 213.c.An Order of MANDAMUS compelling the Land Registrar, Kwale to revoke and cancel title deeds issued under the Kwale/Ramisi Kinondo Squatter Settlement Scheme in particular all the parcels hived out of the Ex – Parte Applicant’s properties, including L.R No. Kwale/Ramisi/Kinondo S.S.S Parcel No. 1 – LR No. Kwale/Ramisi S.S.S Number 213.d.An order of PROHIBITION to prohibit the Land Registrar Kwale from dealing with, in any manner that may interfere with or be inconsistent with the validity of Title Numbers Land Reference Numbers 13433/6, 13433/7, 13433/13, 13433/14, 13433/17, 13433/21, 13433/22, 13433/23, 13433/24, 13433/25, 13433/26, 13433/27, 13433/28, 13433/29, 13433/30, 13433/31, 13433/32, 13433/33, 13433/34, 13433/35, 13433/36, 13433/37, 13433/38, 13433/39, 13433/40, 13433/41, 13433/42, 13433/43, 13433/44, 13433/45, 13433/46, 13433/47, 13433/48, 13433/49, 13433/50, 13433/51, 13433/52, 13433/53, 13433/54, 13433/55, 13433/56, 13433/57, 13433/58, 13433/60, 13433/61, 13433/62, 13433/63, 13433/64, 13433/65, 13433/66, 13433/67, 13433/68, 13433/69, 13433/70, 13433/71, 13433/72, 13433/73, 13433/74, 13433/77, 13433/78, 13433/80, 13433/81, 13433/82, 13433/83, 13433/84, 13433/85, 13433/86, 13433/87, 13433/88, 13433/89, 13433/90, 13433/91, 13433/92, 13433/93, 13433/94, 13433/95, 13433/96, 13433/97, 13433/98, 13433/99, 13433/100, 13433/101, 13433/102, 13433/103, 13433/104, 13433/105, 13433/106, 13433/107, 13433/108, 13433/109, 13433/110, 13433/111, 13433/112, 13433/113, 13433/114, 13433/119, 13433/120, 13433/121, 13433/123, 13433/124, 13433/125, 13433/126, 13433/127, 13433/128, 13433/129, 13433/130, 13433/131, 13433/132, 13433/133, 13433/134, 13433/135, 13433/136, 13433/137, 13433/138, 13433/139, 13433/140, 13433/141, 13433/142, 13433/143 situate in Kwale County.
3.The application was premised on the grounds, testimonial facts and the averments made out under the Verifying Affidavit sworn on 29th January 2025 by VINAYCHANDRA DAMODAR POPAT annexed to the Chamber Summons application dated 29th January, 2025, together with the Statutory Statement verified on oath and is based, inter alia, on the grounds that:-a.the Ex-Parte Applicant (Emfil Limited) is the registered proprietor of the property known as Land Reference Numbers 13433/6, 13433/7, 13433/13, 13433/14, 13433/17, 13433/21, 13433/22, 13433/23, 13433/24, 13433/25, 13433/26, 13433/27, 13433/28, 13433/29, 13433/30, 13433/31, 13433/32, 13433/33, 13433/34, 13433/35, 13433/36, 13433/37, 13433/38, 13433/39, 13433/40, 13433/41, 13433/42, 13433/43, 13433/44, 13433/45, 13433/46, 13433/47, 13433/48, 13433/49, 13433/50, 13433/51, 13433/52, 13433/53, 13433/54, 13433/55, 13433/56, 13433/57, 13433/58, 13433/60, 13433/61, 13433/62, 13433/63, 13433/64, 13433/65, 13433/66, 13433/67, 13433/68, 13433/69, 13433/70, 13433/71, 13433/72, 13433/73, 13433/74, 13433/77, 13433/78, 13433/80, 13433/81, 13433/82, 13433/83, 13433/84, 13433/85, 13433/86, 13433/87, 13433/88, 13433/89, 13433/90, 13433/91, 13433/92, 13433/93, 13433/94, 13433/95, 13433/96, 13433/97, 13433/98, 13433/99, 13433/100, 13433/101, 13433/102, 13433/103, 13433/104, 13433/105, 13433/106, 13433/107, 13433/108, 13433/109, 13433/110, 13433/111, 13433/112, 13433/113, 13433/114, 13433/119, 13433/120, 13433/121, 13433/123, 13433/124, 13433/125, 13433/126, 13433/127, 13433/128, 13433/129, 13433/130, 13433/131, 13433/132, 13433/133, 13433/134, 13433/135, 13433/136, 13433/137, 13433/138, 13433/139, 13433/140, 13433/141, 13433/142, 13433/143 situate in Kwale County, hereinafter called the suit property , the original number of the suit property before subdivision was Land Reference No. 12335/1, registered in the name of Associated Sugar Company Limited from who the Applicant acquired the property.b.The Ex - Parte Applicant states that during the subdivision, Applicant had spent substantial amount of monies in the development of the suit property which include surveying of the suit property, construction of the main road, internal road, public parking areas and surrender of land for public utility for the benefit of the local community (the Kayas).c.The Applicant’s total land value was in excess of Kenya Shillings Three Billion Five Hundred Thousand (Kshs. 3.5 billion) and Applicant planned to develop it and boost the tourism sector in the region. This would in turn lead to the direct and indirect creation job opportunities for thousands of Kenyans. Once the properties was developed the potential value will be in excess of Kshs. 10 billion. It is pleaded that the above sub-divisions were carried out after obtaining the relevant approvals and consents from the Government. Applicant had been paying and had paid up to date the Land Rent as assessed and apportioned by the Government and the Land Rates as assessed and apportioned by the Local Authority. Further that the Title documents to the suit properties were never been surrendered by the Applicant to the Commissioner of Lands to necessitate the conversion of the registration thereof from Registration of Titles Act, Cap. 281 of the Laws of Kenya to the Registered Lands Act, (Cap. 300 of the Laws of Kenya) or to any land registration system.d.It was stated that in the year 2007 there was a fraudulent attempt by persons known as Hamisi Mwalimu Mwarandani, Abdalla Mwinyi, Juma Salim Mwakobe, Mohamed Mwaranani, Isaa Mohammed Issa, Saidi Mwinyi Kunenwa, Salim Hamisi Mwabagizo, Juma Mwachai, Beach Properties Limited and the Commissioner of Lands to dispossess the Applicant of its property by creating a settlement scheme called the Kinondo Chale Settlement Scheme. The Applicant filed a civil suit in Court being Civil case, “Mombasa High Court Civil Cases No. 181 of 2007 – Emfil Limited - Versus - Hamisi Mwalimu Mwarandani & 8 others” (herein after referred to as “the 2007 Civil Suit”) for injunctive orders against the Respondents vis-à-vis the suit property.e.That the issue of ownership of the Applicant’s land was conclusively determined following a full hearing in Mombasa “HCCC No. 181 of 2007 Emfil Limited - Versus Hamisi Mwalimu Mwarandani & 9 Others”. The Honorable Mr. Justice Sergon delivered Judgment on 29th October 2010 where he granted a permanent injunction against the Defendants from interfering with the Applicant’s land and specifically held that all title deeds issued to the Defendants were null and void. In the Judgment, the Court held, inter alia: -a.Emfil had bought the suit land and was the registered owner.b.Emfil had sub-divided its land into 143 sub-divisions, surrendered some land to the Government and donated portions to Chale Fishermen’s Self-Help Group.c.The 1st to 8th Defendants therein had connived with officials in the Ministry of Lands to fraudulently retain letters of allotment and to subsequently obtain title deeds based on the recalled and revoked letters of allotment.d.The 1st to 8th Defendants therein did not have valid interests in land to pass to the 9th Defendant.e.Emfil has a valid title deed which was protected under Section 23 (1) of the Registration of Titles Act.f.The 1st to 8th Defendants therein were never in lawful occupation.g.The cause of action arose due to the actions of unscrupulous Government Officials working under the supervision of the 10th Defendant (the Commissioner of Lands) therein.h.All letters of offer, title deeds issued to the Defendants therein and/or to any other person in respect of the Plaintiff’s suit were irregular, unlawful, illegal, null and void and are of no legal effect.
4.It was pleaded that the Court thereafter issued a Decree on the 5th November 2010 which Decree has never been overturned on an appeal or at all. The issue of the Applicant’s lawful ownership to the suit property had therefore conclusively been litigated upon in a Court of competent jurisdiction and the same decided on with finality. Contrary to the principle of sanctity of the title and in contravention of the right to property under the provision of Article 40 of the Constitution of the Kenya, 2010, the Registrar of Titles- Mombasa through a Gazette Notice Number 6652 (Special Issue) dated the 14th June 2011 and published on the 15th day of June 2011 purported to revoke various titles including the suit property, being; Land Reference Numbers 13433/6, 13433/7, 13433/13, 13433/14, 13433/17, 13433/21, 13433/22, 13433/23, 13433/24, 13433/25, 13433/26, 13433/27, 13433/28, 13433/29, 13433/30, 13433/31, 13433/32, 13433/33, 13433/34, 13433/35, 13433/36, 13433/37, 13433/38, 13433/39, 13433/40, 13433/41, 13433/42, 13433/43, 13433/44, 13433/45, 13433/46, 13433/47, 13433/48, 13433/49, 13433/50, 13433/51, 13433/52, 13433/53, 13433/54, 13433/55, 13433/56, 13433/57, 13433/58, 13433/60, 13433/61, 13433/62, 13433/63, 13433/64, 13433/65, 13433/67, 13433/68, 13433/69, 13433/70, 13433/71, 13433/72, 13433/73, 13433/74, 13433/77, 13433/78, 13433/80, 13433/81, 13433/82, 13433/83, 13433/84, 13433/85, 13433/86, 13433/87, 13433/88, 13433/89, 13433/90, 13433/91, 13433/92, 13433/93, 13433/94, 13433/95, 13433/96, 13433/97, 13433/98, 13433/99, 13433/100, 13433/101, 13433/102, 13433/103, 13433/104, 13433/105, 13433/106, 13433/107, 13433/108, 13433/109, 13433/110, 13433/111, 13433/112, 13433/113, 13433/114, 13433/119, 13433/120, 13433/121, 13433/123, 13433/124, 13433/125, 13433/126, 13433/127, 13433/128, 13433/129, 13433/130, 13433/131, 13433/132, 13433/133, 13433/134, 13433/135, 13433/136, 13433/137, 13433/138, 13433/139, 13433/140, 13433/141, 13433/142 and 13433/143 situate at the South West of Mombasa Municipality in Kwale District, Kwale County all of which belong to the Applicant herein and purportedly stated, inter alia, that the said parcels of land were preserved for public purpose and that the allocation to the Applicant was allegedly illegal and unconstitutional.
5.The Ex - Parte Applicant stated that following the unlawful revocation of title, it filed a judicial review application in the Civil Case of “Mombasa JR No. 84 of 2011 R - Versus - the Registrar of Titles & Other. (The Judicial Review Proceedings) and on 8th August 2011 obtained Orders before Maureen Odero J. restraining all dealings with the Applicant’s land.
6.During the pendency of the aforementioned stay Order granted on 8th August 2011 in the Judicial Review Proceedings and with obvious knowledge of the decree in HCCC No. 181 of 2007, the Government officers in the Ministry of Lands, in utter contempt, commenced the survey, demarcation and allocation of Ramisi Kinondo Squatter Settlement Scheme which was created from Applicant’s Land. Subsequently, the Judicial Review was determined by Muriithi J. who proceeded to dismiss the Petition on 7th September 2012. The Judge ruled that the Respondents therein could not revoke the Plaintiff’s titles to the suit property. A site visit to the suit property revealed that the land had been utilized for settlement of squatters. The interest of the squatters would in public interest override those of the Petitioner (Emfil). The squatters had acquired good titles to the property having purchased the same from the Government. The Petitioner would be entitled to compensation by the Government for compulsory acquisition of the property.
7.Aggrieved by the Judgement of Muriithi J, the Applicant appealed to the Court in “Civil Appeal No. 312 of 2012 – Emfil Limited - Versus - The Registrar of Titles & 2 Others”. On 11th March, 2024, the appeal was heard and Judgement was delivered on 18th July 2024. The Court allowed the Appeal and set aside the Judgment of Muriithi J and, inter alia, restored the Applicant’s titles and under the prayers for prohibition, restrained the Respondents therein from offering or alienating the Applicant’s properties.
8.By a letter dated 11th November 2024, the Ex – Parte Applicant wrote to the Cabinet Secretary, Ministry of Lands complaining that notwithstanding the various Court Orders, the Registrar of Titles had continued to issue Letters of Offer and Certificate of Titles in respect of Emfil’s properties. By a letter dated 26th November 2014, the Cabinet Secretary, Ministry of Lands, instructed the Registrar of Titles, Kwale, to allow the Applicant’s representatives to peruse the files at the Registry, restrained him from further dealings with the properties and further ordered him to provide particulars, inter alia, of the original allotees, the Land Reference Numbers to the plots and particulars of the current registered owners of the properties. The Applicant’s Advocate, Mr. James Singh, visited the Kwale Registry where he found out that contrary to the various Court Orders and Judgment referred to hereinabove, and in defiance of the Cabinet Secretary’s, Ministry of Lands directive, the Land Registrar, Kwale had continued to deal with the Applicant’s properties and allowed transfer of some properties under a Scheme commonly known as the Kwale/Ramisi/Kinondo Squatter Scheme.
9.The Ex - Parte Applicant blamed the Respondents for creating the Kwale/Ramisi Kinondo Squatter Settlement Scheme which were not only acting contrary to restraining orders issued by Court but were purporting to confer Titles to squatters when aware that they legally could not do so. Even though the suit property described hereinabove was vested in the Ex - Parte Applicant, the 2nd Respondent had included in their rating rolls and has approved and continues to approve building plans and planning permission submitted by the trespasses and it is therefore necessary to restrain the 2nd Respondent from receiving, applying or, in any way, endorsing any plans and/or allowing development of the suit property, to restrain any dealings with the property and to evict those who entered and trespassed onto the Ex - Parte Applicant’s properties, the Ex - Parte Applicant filed “ELC 113 of 2015 – Emfil Limited - Versus - the Hon. Attorney General & 424 others”, where on 27th May 2015, Lady Justice Omollo issued an interim order restraining dealing with the properties, which Orders are still in place, pending the hearing and determination of that suit. It is averred that Lady Justice Omollo also struck out of the Defences filed by the Attorney General and the 2nd to 7th Defendants therein on 20th July 2017.
10.Pursuant to that, the Hon. Attorney General preferred an appeal in “Court of Appeal No. 37 of 2020, the Hon. Attorney General - Versus - Emfil Limited and Others”, and by Judgement of 14th April 2023, the Court of Appeal struck out the Appeal by the Hon. Attorney General and the Defences of the Attorney General and the 2nd to 7th Defendants but ruled that the defences filed by the 154th, 157th, 158th, 161st, 166th, 167th, 12th, 142nd, 145th, 147th, 149th, 239th , 241st, 283rd, 293rd, 306th, 308th and 318th Defendants should proceed for determination. The matter had been fixed for hearing on 17th March 2025. It was concluded that having struck out the said Defences, the Court of Appeal in essence:a.Affirmed the Ex - Parte Applicant’s title to the properties.b.Dismissed the Attorney General’s averments that the Ex - Parte Applicants was not the proprietor and owner of the subject property, and that the Plaint did not disclose a cause of action against the 1st to 7th Defendants, and that the Plaint filed was defective.
11.The Ex - Parte Applicant stated that the only issue pending in the Civil Case of ELC 113 of 2015 was that of trespass and vacant possession by those claiming ownership and whether the Defendants therein was in the same land as the Ex - Parte Applicant. The issue of the title had been conclusively determined. The Defences filed in the Civil Case of ELC 113 of 2015 affirm that the Titles issued to the Defendants was on the same property that belonged to the Ex - Parte Applicant, and the only issue raised in the Defences was that the Defendants were allegedly innocent purchasers of the parcels. The illegal registration of titles to its parcels of land to third parties by the Respondents in breach of various Court Orders issued in favour of the Ex - Parte Applicant, continued and had been apparent as recent as November 2024.
III. The Responses by the Attorney General.
12.The Honourable Attorney General in response filed Notice of Preliminary Objection and a Notice of Motion application both dated 3rd June 2025 seeking to have the Honourable Court to dismiss the suit for want of jurisdiction. The main basis was that there existed a Civil Suit “ELC 113 of 2015” filed by the Applicant herein vide Plaint dated 20th May 2015 thus the matter was “Sub Judice”.
The responses by the 143rd , 146th , 149th , 150th , 153rd , 158th , 162nd , 164th 196th , 224th , 232nd , 234th , 249th , 282nd , 234th , 249th , 282nd , 283rd , 284th , 301st , 419th , 420th 421st , 423rd , 424th , 425th and 426th Interested parties.
13.The above Interested Parties filed their Replying Affidavit sworn by NASSORO ABDALLA MWACHIBULO, the 159th Interested Party on 30th May 2025. They indicated that they were the absolute registered proprietors of freehold titles in all that parcel of land known as Kwale/ Ramisi Kinondo Squatters Settlement Scheme and provided various properties which they say the do own. They averred that there existed a Civil Suit - “Mombasa ELC NO. 113 of 2015” listed for hearing on 21st July 2025. They termed the instant motion by the Applicant as doomed and should be dismissed. They also filed Grounds of Opposition dated 28th May 2025. Further, they filed Notice of Preliminary Objection dated 28th May 2025 on the basis that this Honourable Court lacked jurisdiction. Further, that the suit offended the doctrines of res judicata and sub judice. They termed the application as fishing expedition.
V. The responses by the 424th Interested Party.
14.The 424th Interested Party filed a Replying Affidavit sworn by NARINDER SINGH MATHARU on 17th April 2025. He averred he was the husband to the 424th Interested Party and had a Power of Attorney from his wife. It was said she purchased Plot numbers 58, 59, 77, 78 and 85. Therefore, she was an innocent and bona fide purchaser without notice and did not play any mischief.
VI. Replying Affidavit by the Ex - Parte Applicant
15.The Ex - Parte Applicant filed a Replying Affidavit sworn on 18th June 2025 by VINAYCHANDRA DAMODAR POPAT in response to the Respondent’s Notice of Preliminary Objection and the Notice of Motion Application dated 3rd June 2025. There was on record a Further Affidavit sworn by the same person on 18th June 2025 in response to the Replying Affidavit filed by the 276th Interested Party. There was also another Further Affidavit sworn in response to the Replying Affidavit by the 159th , 143rd , 146th , 149th , 150th , 153rd , 158th , 162nd , 164th , 196th , 224th , 249th , 282nd , 283rd , 284th , 301st , 419th , 420th , 421st , 422nd , 423rd , 424th , 425th and 426th Interested Parties. The Ex - Parte applicant maintained that the above parties had failed to prove that they were the absolute proprietors of various freehold titles subject of the land. In particular they have failed to produce the sale agreements, valuation reports, proof of payment of purchase price, payment of stamp duty , registered transfers, land rent and rates clearance certificates and consents. The same party also filed Further Affidavit sworn on 18th June 2025 in response to the Replying Affidavit sworn by the 148th Interested Party.
V. Submissions
16.On diverse dates of 3rd April, 2025 and 4th June, 2025 respectively, while in the presence of all the parties, the Honourable Court directed that both the Notice of Motion by the Ex – Parte Applicant, the Notice of Motion application dated 3rd June, 2025 and the Preliminary Objection dated 3rd June, 2025 to be disposed off by way of written submissions.
17.Pursuant to that all the parties fully complied accordingly. Indeed, on 10th July, 2025 at 10.45 am upon their request, all the parties were accorded an opportunity to highlight their submissions. The Court holds that it was a duty the Learned Counsels, Mr. Singh James, Mr. Kemei, Mr. Asige, Mr. Mwangi Kihira and Mr. Birir executed with such high degree of professionalism, diligence, dedication, devotion. The Honourable Court was extremely grateful to them.
18.Subsequently, it reserved 22nd September, 2025 as the date to deliver its Judgement accordingly. However, due to the intensity of the matter, the bulk and voluminous records filed by the parties, it became unavoidable to defer the delivery of the Judgement until 28th November, 2025.
A. The Written and Oral submissions by the Ex - Parte Applicants.
19.The Ex - Parte Applicant filed written submissions dated 27th June 2025. Mr. James Singh Advocate commenced the submissions by providing the Court with a detailed background of the matter. He stated that the Ex – Parte Applicant was seeking the prerogative Writs of “Certiorari“ and Prohibition” respectively. Essentially it was to bring to Court and quash a decision pertaining to the suit properties by made the Land Registrar, Kwale. The Counsel held that the title deeds to be quashed were made under the provision of the Registered Land Act, Cap. 300 (Now Repealed) and yet the original titles were under the Registered Title Act, Cap. 281 (Now repealed). It was his contention that Court of Appeal had directed its Deputy Registrar to conduct a site visit and confirm that the suit land was the same. Subsequently, a report was prepared to that effect. All along this time, the Honourable Attorney General had confirmed that the suit land which though belonged to the Ex – Parte Applicant but had been allocated to squatters. Initially, the suit land had been registered under KUSCO who eventually sold it to Emfil Limited. All the 400 people were served and they came to Court.
20.Through the Judgement by Justice Sergon sitting at Mombasa affirmed the proprietorship to Emfil Limited (see pages 376 & 379 of the bundles – the Judgement and the Decree) which granted the orders of Prohibition against the title held by Emfil Limited thereof.
21.The Learned Counsel informed Court that there was no appeal preferred. He stated that there was another attempt to revoke the title held by Emfil Limited but without success. The afore – said Judgement was recognized by the Minister of Lands through a letter dated 26th November, 2014 found on page 522 of the bundle of documents by the Applicant. Additionally, there was an order by Justice Omollo affirming the title held by the Applicant - see pages 524 to 724 of the bundle. Nonetheless, despite of all these Court orders, the Land Registrar still had been proceeding to disregard them. He had been proceeding to transfer land on 1st January, 2006 (it will be noted that this was a Public holiday – the New year!!) – See Pages 32 of the submissions. Clearly, this was an abuse of the due process which is contrary to the provisions of Sections 23 of the Registered Titles Act, Cap. 281 and Section 83 of the land Registration Act, No 3 of 2012. To buttress on this point, the Learned Counsel cited the cases of “ELC No. 760 of 2014 – Amos Mpeshe & Others – Salau Ole Sokon Modo” Where Justice Mutungi stated that Judicial review is a remedy applicable with the decision of a power by the Registrar. It held:-“Under Section 86 ( 1 ), if any question arises with regard to the exercise of any power or performance of any duty conferred or imposed on the Registrar by this Act, the Registrar or any aggrieved person shall state a case for the opinion of the Court and thereupon the Court shall give its opinion, which shall be binding upon the parties”
22.Additionally, the Learned Counsel referred Court to this Court’s decision in “ELC No. 001 of 2021 – Estate of Sonrisa Limited – Versus – Land Registrar Kwale & Others” the issue was raised by the Land Registrar on whether the Court has jurisdiction to hear an application challenging a decision of the Land Registrar. The Court held:-“The jurisdiction of this Court has been put into question on the basis that this Court is not the proper forum for resolution of any controversy arising from the report of the Land Registrar which was prepared pursuant to the order of the Court of Appeal. The Plaintiff has submitted that this Court is the right forum to state a case for the opinion of the Court having been aggrieved by the decision of the Land Registrar. Further, that the Court of Appeal indeed recognized that the process under Section 79 (3A), 80, 86 and 91 (9) of the Land Registration Act may be challenged in Court by way of a case stated for the opinion of the Court. It was also urged that the Plaintiff could not ignore the very hierarchy of Courts by bypassing the Environment & land Court which is conferred with the Appellate jurisdiction for a party aggrieved by a decision of the Land Registrar……..”
23.Similarly, the Learned Counsel cited the case of “ELC No. 40 of 2014 – Terry C. Maina – Versus – the District Land Registrar, Kajiado” which held:-“The Court is not aware of any rules as contemplated in Section 86 ( 2 ) of the land Registration Act have been made. In the absence of such rules, the Court would take contempt in Sections 1A, 1B and 3A of the Civil procedure Act, which enjoin the Court to give effect to the overly objective of the Act…..which clothes the Court with inherent powers to do justice”
24.The Ex - Parte Applicant identified 7 issues for determination being:-Whether the notice of preliminary objection raised by the 1st and 3rd Respondents and the 159,th 143rd , 146th , 150th , 153rd , 158th , 162nd , 164th , 196th , 224th , 232nd , 234th , 249th 282nd , 283rd , 301st 419th , 420th , 421st 422nd 423rd , 424th , 425th , 426th Interested Parties was merited. On this subject, the Ex - Parte Applicants submitted that the two objections dated 28th May 2025 and 3rd June 2025 the Preliminary Objection on the issue of sub judice which mainly urged the Court to look into pleadings filed in this matter and therefore not a pure point of law. The Ex - Parte Applicants stated that the objections was not merited.
25.On whether the matter herein was sub judice to the Civil Suit – “ELC No. 113 of 2015”, the Ex - Parte Applicant stated that the answer was in the negative. The Ex - Parte Applicants submitted that it had disclosed in its application the existence of the said civil suit – “ELC 113 of 2015; Emfil Limited - Versus - the Attorney General and 423 others”. That the orders being sought in that case were ‘inter alia” damages for trespass , eviction from the suit land, and permanent injunctions against the Defendants in the said case. To the Counsel, these were all purely administrative actions as envisaged and available under the Fair Administrative of Act, Act. According to the Ex - Parte Applicant, the Defences of the Attorney General had already been dismissed. Furthermore, the issues of ownership of the land had already been determined by the Court of Appeal. Indeed, the Court had already declared that the Ex - Parte Applicant was the lawful owner of the suit property through a Judgement delivered in the two cases – “the Civil Case No. 181 of 2007 and in Civil Appeal No. 312 of 2012 (See pages 858) . They averred that despite of the existence of the orders, the Respondents had continued with the illegal registration of the suit land to third parties being the Interested Parties herein. The Ex - Parte Applicants submitted that it filed the instant suit seeking orders of “Certiorari” to quash the decision of the Land Registrar Kwale to register and issue title deeds in respect of all that parcel of land known as Kwale/Ramisi Kinondo Squatter Scheme hived off from the Ex - Parte Applicant’s properties. Further, they sought for the an order of “Mandamus” compelling the Land Registrar, Kwale to revoke and cancel titles title deeds issued under the Kwale/Ramisi Kinondo Squatter Scheme hived of the Ex - Parte Applicant’s properties, an order of prohibition to prohibit the Land Registrar Kwale from dealing with in any manner that may interfere with or be inconsistent with the validity of title relating to the suit properties.
26.On the other hand, this instant suit had been filed effectively seeking judicial review orders challenging the decision making process of the Land Registrar, Kwale to issue and register titles belonging to the Ex - Parte Applicant to the Interested Parties despite proof of ownership by the Interested Parties. Therefore even if the suits related to the same property, the prayers sought were distinct, different in nature, different cause of actions and did not seek identical orders. They were only seeking for eviction orders and not ownership of the land. Here they were only dealing with administrative actions of the matter. Judicial review was no longer strictly on the administrative action but had matured to be a Constitutional issue and/or right. (See the case of “Petition No. E005 of 2022 - Dande & 3 Others – Versus – Inspector General of the National Police Service & 5 Others”). The Court was said to have jurisdiction. A decision in the matter would not render the others Res Judicta and hence rule of Sub - Judice did not apply.
27.On whether the Court has jurisdiction. The Learned Counsel for the Ex - Parte Applicant asserted that the suit sought judicial review orders brought pursuant to the provision of Order 53 Rule 1 of the Civil Procedure Rules, 2010, the Fair Administrative Action Act and Articles 40 (1), (3) 47 (1) (2) , 50 (1) and 60 (1) (b) of the Constitution. The Ex - Parte Applicant had cited numerous authorities in support thereof.
28.As to whether the Interested Parties could claim to be bonafide purchasers of the suit property, it was submitted that this was an issue that would be determined in ELC 113 of 2015. In the defences filed by the vast majority of the Defendants were that they were innocent purchasers for value. The Learned Counsel brought to the attention of the Court that whilst majority of the Interested Parties had not bothered to file responses to the substantive Notice of Motion, the few who had, purported to produce titles and claimed they were bona fide innocent purchasers for value without notice. Additionally, the Learned Counsel argued that it was wrong to make such a claim as the land was under the Settlement Scheme and hence it was not available for allocation – See the provision of Section 1333 and 134 of the Land Act, No. 6 of 2012.
29.It was the contention by the Learned Counsel for the Ex - Parte Applicant that the argument was not novel and was raised at the time the Applicant’s title were revoked by the Legal Notice No. 6652. Notwithstanding the issuance of titles to the alleged squatters, the Court of appeal in “Civil Appeal 312 of 2012, Emfil Limited - Versus - the Registrar of Titles Mombasa” nevertheless had; revocation of titles was not proved; the government would not pass a good title to the squatters; the revoked titles would be revoked and could not be offered or allocated to any person; the newly acquired titles would be revoked and no amount of public interests would override the applicant’s interests in the properties. It was stated that the court of appeal reinstated the Plaintiff’s title and expressly ruled that the properties could not be offered or re allocated, the issuance of title or selling of the properties is inconsequential. The same defence of public interests was raised by the attorney general was in civil appeal no 37 of 2020 but was dismissed.
30.The Ex - Parte Applicant further submitted on whether the Notice of Motion application dated 3rd March 2025 was merited and whether the reliefs sought should be granted. The Counsel averred that it had been undeniably established that the title over the Ex - Parte Applicant’s properties could not be conferred to the interested parties. It is stated that the government could not pass any good titles to the squatters as the suit properties are private land. The Ex - Parte Applicant further submitted that the Respondents, especially the 1st Respondent had acted illegally and their actions of registering titles over the suit property is un procedural and improper. The Ex - Parte Applicant had also framed an issue of which in effect was that the Respondents and the Interested Parties never produced evidence. On this, the Ex – Parte Applicant cited numerous authorities.
31.On the Preliminary Objection he held that they were guided by the legal ratio in the now Classicus locus case of “Mukisa Biscuits Manufacturing Co. Limited – Versus – West End Distributers Limited (1969) EA” that all objections to be purely on matters of law and not facts. He further cited the case of “ELC No. 012 of 2023 - Cherwon – Versus - the County Government of Uasin Gishu”. Finally, he reiterated that the arguments that the Interested Parties held title deeds was erroneous and a misconception as all the them had been cancelled by the Judgement delivered by Justice Sergon. Indeed, the Land Registrar had not denied that the title Deeds belonged to Emfil Limited.
32.In conclusion, the Ex - Parte Applicant prayed the Honourable Court to allow the Notice of Motion application dated 3rd March 2025.
B. The Written & Oral Submissions by the 1st, 2nd & 3rd Respondents.
33.The 1st , 2nd and 3rd Respondents through the Senior Litigation Counsel filed their written submissions, Mr. Kemei Advocate informed Court that in response to the substantive motion by the Ex – Parte Applicant they filed a Notice of Motion application dated 3rd June, 2025; a Notice of Preliminary Objection and grounds of opposition dated 28th May 2025. The submissions were dated 25th June 2025. Primarily, they held that this Honourable Court was not clothed with the Jurisdiction to handle the Motion instituted by the Ex – Parte Applicant.
34.To commence with, the Attorney General contended that there existed another Civil Suit over the same subject matter and same parties filed at the ELC Mombasa. The Counsel made reference to an annexure marked as “VDP 29” from the Verifying Affidavit by the Ex – Parte Applicant which was a Plaint filed in the Civil case of “Mombasa ELC 113 of 2015, Emfil Limited - Versus - the Hon Attorney General & 423 Others” dated 20th May, 2015 which essentially was challenging the ownership and proprietary rights of titles of all that parcel of land known as Land Reference Numbers Kwale/Ramisi Kinondo Squatter Settlement Scheme as against the Defendants. The Counsel’s contention was that for this Court to continue entertaining the same subject matter. In so doing, it was to get itself into a purview of reviewing the decision already made by the Land Registrar, Kwale and which was one of the issues to be determined at ECL No. 113 of 2015.
35.Whether the Land Registrar disobeyed any Court Order or not. He contended that the Ex – Parte Applicant ought to have to have sought for the appropriate remedies from the Court that issued the said orders. This was the wrong forum for that would appear the application was an execution of the Court Order which never sought.
36.On the Preliminary Objection, the Counsel averred that the Ex – Parte Applicant had approached the Court without producing the impugned decision undertaken by any of the Respondents to effectively commence the alleged unlawful sub – divisions and the registration of the said titles. Furthermore, the main aim for the prerogative writs – of “Certiorari” was to quash a particular decision made by a public officer. In this case the Land Registrar. Clearly, from the record, no such a decision allegedly made by the Land Registrar was provided for by the Ex – Parte Applicant herein. With regard to the Writ of “Mandamus “, the Learned Counsel averred that the case of “Republic – Versus – Public Procurement Administrative Review Board & Kenya Airports Authority Ex – Parte Express DDB Kenya Limited (2018) KEHC 9246 (KLR)” was held that:-“Judicial review is about the decision – making process, not the decision itself. The role of the Court in Judicial review is supervisory. It is not an appeal and should not attempt to adopt the “forbidden appellate approach”. Judicial review is the review by a Judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as a supervisory jurisdiction – reflecting the role of the Courts to supervise the exercise of powers by those who hold it to ensure that it has been lawfully exercised”In short, a Public Officer could not be directed in anyway where a decision had been made as in this case the revocation or cancellation of title deeds.
37.The Learned Counsel submitted that the application by the Ex – Parte bore the hallmark of an appeal where they sought orders in this Court to essentially obtain redress of factual matters that ought to be canvassed in full trial to determine ownership. In the case of Patricia – was where the Court would be exceeding its powers contracting the provision of Sections 8 and 9 of the Law Reform Act, Cap. 26. The Court has to find out whether the Land Registrar disobeyed and the process would be one of contempt of proceeding. There were two ( 2 ) proceedings – No. 113 of 2015 and now this one. It would affect this one.
38.The Respondents identified four issue for determination being whether the Respondent’s preliminary objection raised a point of law; whether the instant suit offended the doctrine of sub judice contrary to the provision of Section 6 of the Civil Procedure Act, Cap. 21 on account of Mombasa ELC No. 113 of 2015; whether the application was incompetent, frivolous and vexatious and whether the orders sought should be issued. In the case of Chewron case – a party can not pursue two processes. The Ex – Parte Applicant are gambling on their land. It’s case of abuse. We pray for the Ex – Parte application to be dismissed with costs.
C. The Written Submission by the 33 Interested Parties.
39.On behalf of the 33 Interested Parties, the law firm of Messrs. Asige Keverenge & Anyanzwa & Company Advocates filed their submissions dated 7th July, 2015. Mr. Asige Advocate commenced by informing the Court that he intended to adopt the whole contents of the filed Submissions. To begin with, he wondered what was the particular decision ostensibly made by the Land Registrar, Kwale that the Ex – Parte Applicant was seeking to have brought to this Court for it to be quashed.
40.According to the Learned Counsel to register for land and issue a title deed was not an administrative decision to be quashed. It was a statutory power vested on the land registrar by law. Besides, the Ex – Parte Applicant ought to have produced each of these decisions separately in terms of dates and land reference numbers as required under the provision of Order 53 Rule 7 of the Civil Procedure Rules, 2010 and which was couched in mandatory terms. To him, the motion was scandalous, vexatious and frivolous having been brought over six (6) months from when the alleged action took place. They were referring to title deeds which were issued in the year 2016 and proceedings which were nine ( 9 ) years old.
41.The Learned Counsel argued that there were three (3) ways upon which one would initiate a Judicial Review in the current dispensation. Firstly, either one moved under the provision of Sections 8 & 9 of the Laws Reforms Act, Cap, 26 and which led to the invoking the provision of Order 53 of the Rules. Secondly, one would proceed under the provision of Article 47 of the Constitution and thus the Fair Administrative of Action, Act; or Finally, through the provision of Article 23 of the Constitution. Taking that the Ex – Parte Applicant sought to be granted leave of Court shows they moved under the first option stated herein.
42.On the issue of jurisdiction, the Counsel reiterated that there already existed a similar suit – ELC No. 113 before Mombasa over the same subject matter. It was a matter that had proceeded on upto the apex Court – the Court of Appeal and back again before the superior court. This court should not be dealing over it at all as it would tantamount to an abuse of the due process. Besides, this Court should not be challenging the issuance of title deeds as that was a main issue before the ELC at Mombasa. The domain of Judicial review should be on the process.
43.Lastly, the Counsel argued that all the 400 Interested parties were issued with title deeds and which had not been cancelled todate. The Ex – Parte Applicant had not pointed out which particular title had been cancelled. This Court could only issue an order towards a quasi – judicial body or sub – ordinate bodies but not individuals. The motion should be dismissed with costs.
D. The Written & Oral Submissions by the 426th Interested Party.
44.The 426th Interested Party filed their written submissions dated 7th July 2025. The 426th Interested Party raised issues of jurisdiction of the court, res judicata, sub judice, and constitutional violation.
45.It submitted that the Court has no jurisdiction to hear the matter as there was an existing case being “Mombasa ELC 113 of 2015” as such the matter was sub judice. It brought to the attention of the Court that this matter had proceeded from the High Court, the Environment and Land Court, the Court of Appeal and the Supreme Court.
46.Thus, the Judicial Review proceedings herein were intended to rob the Interested Parties their property rights without being afforded an opportunity to be heard. The Court was urged to dismiss the motion in entirety.
VII. Analysis and Determination.
47.I have keenly assessed and considered all the filed pleadings herein, the written and oral submissions and the myriad of the cited authorities by the Ex - Parte Applicant, the Respondents and the Interested Parties, the relevant provisions of Constitution of Kenya, 2010 and the statures thereof.
48.For the Honourable Court to reach at an informed, reasonable, just and Equitable decision, it has condensed the subject matter into the following four ( 4 ) issues for its determination. These are:-a.What is the Nature, Meaning & Scope of Judicial Review - prerogative writs Sought.b.Whether the matter is sub - judice to the case of:- “Mombasa Environment and Land Court Case No 113 of 2015?c.Whether the Ex - Parte Applicant is entitled to the reliefs sought?d.Who will bear the costs of this suit.
ISSUE NO. a). What is the nature, scope and meaning of Judicial Review and the prerogative writs?
49.Under this sub - heading, the Honourable Court will extensively deliberate on the expansive and academic concept of Judicial Review vis – a vis the issuance of the Prerogative Writs being the main substratum of the suit before the Court instituted by the Ex – Parte Applicant herein whereby they have sought to be granted the orders of “Certiorari” , “Mandamous” and “Prohibition” thereof.
50.In the Kenyan legal parlance and jurisprudence, Judicial review is founded under the provisions of Order 53 Rules 1 to 7 of the Civil Procedures Rules 2010 where the prerogative orders are sought and thus issued. Primarily, the provisions of Sections 8 and 9 of the Law Reform Act Cap. 26 of the Laws of Kenya where the Provisions of Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules 2010 was initially borrowed from the case of: “Farmers Bus Services – Versus - Transport Licensing Appeals Tribunal (1975) E.A. 523”. And upon the promulgation of the Constitution of Kenya in the year 2010, the provision of Article 47 of the Constitution of Kenya introduced the provisions of Sections 7, 9 and 11 of the Fair Administration of Action, Act of 2012 which is the statutory framework governing judicial review and the Administrative law in Kenya currently. Judicial Review is about the decision-making process, not the decision itself. The role of the Court in Judicial Review is supervisory.
51.Judicial Review is the review by a Judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the Courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. In considering the said issues, it is imperative at the outset to delineate the parameters of this Court’s powers in judicial review.
52.Judicial Review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, without any biasness, capriciousness, fairness, not acted ultra vires, bad faith, favour and the decision is within the confines of the law, a Court will not interfere. As was held in the case of:- “Republic – Versus - Attorney General & 4 others Ex - Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR” it held that:-“Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant.......”
53.The broad grounds for the exercise of judicial review jurisdiction were stated in the case of “Pastoli – Versus - Kabale District Local Government Council & Others [2008] 2 EA 300” at pages 303 to 304 thus:-“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: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others – Versus - Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi – Versus - Secretary of State for the Home Department [1990] AC 876).”
54.In addition, the parameters of judicial review were addressed by the Court of Appeal in the case of “Municipal Council of Mombasa – Versus - Republic & Umoja Consultants Limited, Nairobi Civil Appeal No. 185 of 2001, [2002] eKLR as follows:-“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.” Broadly, in order to succeed in a Judicial Review proceeding, the applicant will need to show either:-“a. the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; orb.a decision or action that has been taken is 'beyond the powers’ (in latin, ‘ultra vires’) of the person or body responsible for it.”
55.In an application for Judicial review the Applicant must be a person with a sufficient interest – (Locus Standi) and who commences proceedings promptly. To support this legal concept on judicial review, I have made indepth references to several literature review and court decisions – “Pharmaceutical manufacturers Association of South Africa in re- Ex - Parte President of Republic of South Africa - 2000 S.A. 674 CC at 33 Republic – Versus - Speaker of the Senate and Another Ex - Parte Afrison Export Import Limited 2018 eKLR Republic –Versus- Stanley Mambo Amuti (2018) eKLR.”; the Kenya National Examination Council – Versus - Republic (Ex - Parte - Geoffrey Gathenji & Another Nairobi Civil Appeal No. 266 of 1996.
56.The Court does not issue orders in vain even where it has jurisdiction to issue the prayed orders and would refuse to grant judicial review remedy when it is not necessary, or where issues have become academic exercise; or serves no useful or practical significance. Since the court exercises a discretionary jurisdiction in granting prerogative order it can withhold the gravity of the order where among other reasons there has been delay and where a public body has done all that it can be expected to do to fulfil its duty or where the remedy is not necessary or where its path is strewn with blockage or where it would cause administrative chaos and public inconvenience or where the object for which application is made has already been realized.
57.An administrative or quasi-judicial decision can only be challenged for its illegality, irrationality and procedural impropriety. An administrative decision is flawed if it is illegal. A decision is illegal if it: -SUBPARA (a)contravenes or exceeds the terms of the power which authorizes the making of the decision;SUBPARA (b)pursues an objective other than that for which the power to make the decision was conferred;SUBPARA (c)is not authorized by any power;SUBPARA (d)contravenes or fails to implement a public duty.
58.As stated above, this court has powers under Sections 8 and 9 of the Law Reform Act, Cap. 26 of the Laws of Kenya to issue prerogative writ of Certiorari, which brings into this court to quash a decision which is ultra vires. A writ of prohibition intended to forbid or prevent an action by a public officer from taking place is granted alongside Certiorari, since it’s a similar remedy but more prospective than retrospective. While certiorari looks at the past, prohibition looks at the future. The provision of Section 8 of the Law Reform Act, also provides for a writ of prohibition which primarily prohibits a tribunals, judicial bodies or subordinate courts from doing or taking an action in excess of its jurisdiction.
59.In the book of “Administrative Law”, Sir. W. Wade and C. Forsyth, Page 605 noted that:-“I can see no difference in principle between Certiorari and Prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari. I think that prohibition will lie to restrain it from so exceeding its jurisdiction.Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself.”
The writ of Certiorari.
60.The prerogative writs of “Certiorari” derives from the Latin word “Certiorari” which means to be certified, informed, appraised or shown. Both in its embryonic days and today, the order, initially and prerogative writ was inferior courts and required the proceedings of that to be transferred to the High Court and examined for validity. It meant the decision would be quashed. From the Provisions of Order 53 of the Civil Procedure Rules the Applicant ought to move court within a period of six (6) months from the time the order, decree, judgment, conviction or other proceeding was made. Under the provision of Order 53 Rule 7 of Civil Procedure Rules, which provides:-1.In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion he has lodged a copy thereof verified by affidavit with the registrar, or accounts for his failure to do so to the satisfaction of the High Court.2.Where an order of certiorari is made in any such case as aforesaid, the order shall direct that the proceedings shall be quashed forthwith on their removal into the High Court.
61.This provision, requires that any party seeking an order of Certiorari must annex to his application a copy of the order or decision he seeks to challenge or if does not, he must give to court a satisfactory reason for that failure. Order 53 Rule 7 is a precondition to seeking an order of Certiorari and failure to comply renders the entire application incompetent since the court is not in a position to determine whether there in fact existed an order capable of being quashed. The rationale behind it is to enable court satisfy itself of the existence of the orders or decision their contents and whether the application was filed in time.
The writ of Manadamus.
62.The writ of “Mandamus” is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature.
63.The principles that guide the Court when dealing with an application for Judicial Review – the prerogative writs of “Mandamus” was stated in the Court of Appeal case of “Commission on Administrative Justice – Versus -Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR”. Wherein the court stated as follows:-“As observed by the Judge and correctly so in our view, the principle that guides the High Court when dealing with the scope and efficacy of an order of mandamus was crystalized by the Court in Kenya National Examination Council – Versus - Republic Ex - Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR namely:“The order of mandamus is of most extensive remedial nature and is in the form of a command issuing from the High Court of Justice directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is of the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue to the end that justice may be done, in all cases where there is a specific legal right, and it may issue in cases where although there is an alternative remedy, yet the mode of redress is not convenient, beneficial and effectual.”
64.This position was reiterated in the English case of “R – Versus - Dudsheath, Ex - Parte, Meredith [1950] 2 ALL E.R. 741” where it was stated as follows:-“It is important to remember that "Mandamus" is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy. This court has always refused to issue a mandamus if there is another remedy open to the party seeking it.”
65.The order of “Mandamus” is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.
66.It is trite law that “Mandamus” is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in “Apotex Inc. – Versus - Canada Attorney General”), and, was also discussed in “Dragan – Versus - Canada (Minister of Citizenship and Immigration)”. The eight (8) factors that must be present for the Prerogative writ of “Mandamus” to issue are:-a.There must be a public legal duty to act;b.The duty must be owed to the Applicants;c.There must be a clear right to the performance of that duty, meaning that;a.The Applicants have satisfied all conditions precedent; andb.There must have been;i.A prior demand for performance;ii.A reasonable time to comply with the demand;iii.An express refusal, or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the Applicants;v.The order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convenience, mandamus should lie.
The Writ of Prohibition
67.The Order of “Prohibition” issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It’s an order from the High Court directed to an inferior tribunal or body. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.
68.In a nutshell Judicial Review is the means by which High Court Judges scrutinize public law functions intervening as a matter of discretion to quash, prevent, require and/or classify not because they disagree with the judgment but so as to right a recognizable public law wrong. This public law wrong could be unlawfulness, Wednesbury unreasonableness or irrationality, unfair hearing, ultra vires bad faith, unfairness, made or arrived at out of excess powers (ultra vires) biasness, capriciousness or un Judicially.
ISSUE No. b). Whether through the Notice of Motion application dated 3rd March, 2025 the Ex - Parte Applicant has established any grounds to warrant the Court to grant the Judicial Review prerogative writs/orders sought?
69.Under this sub - title, the Court will now proceed to implement and apply the above legal principles to this instant case. Fundamentally, the Ex-Parte Applicant has sought the writ prerogative Orders of Certiorari and Prohibition.
70.The sub-judice rule is therefore well founded. The sub-judice rule is described in the provision of Section 6 of the Civil Procedure Act as follows:-6.Stay of suitNo court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.Explanation.—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court
71.The Supreme Court in the cases of:- “Kenya National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling) stated:-
72.The term ‘Sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.68. In the above context, it cannot be denied that the issues and prayers sought by the Petitioner in the two Constitutional Petitions generally call for the interpretation and application of provisions of Chapter Six of the Constitution. The issues and orders in the two Constitutional Petitions substantially ascend from the criteria for the implementation of the provisions of Chapter Six of the Constitution. For the High Court to sufficiently pronounce itself in the two Constitutional Petitions, it has to interpret and apply the provisions of Chapter Six of the Constitution on leadership and integrity.
73.In the case of:- “Patel & Patel Ltd and another – Versus - Commissioner of Customs and Excise & 6 others [2014] eKLR”. The High Court discussed the application of the doctrine of sub judice. The Court held that the doctrine applies where an issue is pending in a Court of law for determination. It emphasized that when a matter is sub judice, it cannot be the subject of collateral attack in the same Court. The Court further noted that the principle of sub judice is grounded on the basis that, in the interest of parties and the system of administration of justice, multiple suits between the same parties should be avoided.
74.The Court ( John M. Mativo J, as then he was) stated in “the Republic - Versus - Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] KEHC 10142 (KLR) while quoting with approval the case of “National Institute of Mental Health & Neuro Sciences – Versus - C. Parameshwara, (2005) 2 SCC 256” it stated:-24.The sub judice rule like other maxims of law has a salutary purpose. The basic purpose and the underlying object of sub judice is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to prevent multiplicity of proceedings”.
75.I am aware the instant suit has been attached on basis of notices of preliminary objections and an application as described in the preceding paragraphs . I will not delve whether the preliminary objections filed meet the threshold or not as even if I was to find it does not meet the threshold then the aspect of sub judice has been raised by the 1st , 2nd and 3rd Respondents through a formal application while the Respondents have also raised through replying affidavits and grounds of opposition. I will proceed to analyze whether the matter is sub judice.
76.The Respondents and the Interested Parties have proffered an approach the proceedings herein offends the doctrine of sub - judice. That the Ex - Parte Applicant has instituted two suits between the same parties pending before courts of competent jurisdiction. The Ex - Parte Applicant has disputed this claim and argued that the matter is not sub judice . The Ex - Parte Applicant states it has disclosed the existence ELC 113 of 2015 and annexed the Plaint.
77.As correctly pointed out by the Senior Litigation Counsel for the 1st, 2nd & 3rd Respondents, I have perused the record and noted indeed the annexture marked as “VDP – 29” is a copy of the filed Plaint in the Civil Case of:- “Mombasa Environment and Land Court Number 113 of 2015, Emfil Limited - Versus - the Honourable Attorney General & 430 Others” Amended Plaint dated 13th March 2024. The orders sought are permanent injunction , possession , aggravated damages and costs. Initially, the Ex - Parte Applicant in Prayer No. 4 had sought for cancellation of titles. At Paragraph 5, the Plaintiff avers that the 423 other Defendants are persons who have benefited from illegally issued titles under the Kwale/Ramisi Kinondo Squatter Settlement Scheme that was illegally created from Emfils land, or are persons who have purported to purchase property from persons issued with titles under settlement scheme. Paragraph 6 is to the effect that the 423 Defendants purport to be registered owners of titles issued to the Kinondo/ Squatter settlement as follows... the Plaintiff proceeds to list from 9th Defendant to 431st Defendant and their respective titles thereto.
78.In the instant case, the Ex - Parte Applicant seeks an order of certiorari quashing the decision of the land registrar Kwale to register and issue title deeds issued under the Kwale/ Ramisi Kinondo Squatter Settlement scheme hived off the Ex - Parte Applicant’s property. An order of prohibition to prohibit land registrar Kwale from approving any dealings or transaction under the Kwale/Ramisi Kinondo Squatter Settlement Scheme. The other order is a prohibition order against the land registrar from dealing with in any manner that may interfere with or be inconsistent with validity of the exparte applicant’s property.
79.A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives. In applying the foregoing, the Court finds without any doubt that the instant suit is sub judice. “Mombasa ELC 113 of 2015“ which is pending hearing and determination was instituted first, the two suits relates to the same parties . Both suits are pending before courts of competent jurisdiction. Fundamentally, the two suits involve the same suit property. The exparte Applicant must be pin down to one suit to avoid multiplicity of suits which can result to contradictory decisions.
ISSUE No. c). Whether the Ex - Parte Applicant is entitled to the reliefs sought?
80.Having arrived at the foregoing decision then it will be futile to consider the second issue for determination. There was no need for the instant suit as the orders sought here could even be sought in the already pending suit. Article 23 (3) provides that in any proceedings brought under Article 22, a court may grant appropriate relief, including—(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review.
81.Assuming that I am wrong on the above, the Ex - Parte Applicant seeks among other orders an order of certiorari to remove into this Honorable Court for the purposes of quashing the decision by the Land Registrar Kwale to register and issue title deeds issued under Kwale/Ramisi Kinondo Squatter Settlement Scheme in respect of the suit property. This will amount to revoking the titles said in the names of the ex - parte applicant. In the instant case, there are two competiting titles, one in the name of the Ex - Parte Applicant and others in the names of the Interested parties. Examination of these titles cannot be done through Judicial Review proceedings but a substantive suit which parties can be heard through adducing of “Viva Voce” evidence.
82.The Ex - Parte Applicant indicated that in the Civil Case of “ELC 113 of 2015 –, Emfil Limited - Versus - the Hon. Attorney General & 424 others”, the Court on 27th May 2015 issued an interim order restraining dealing with the properties, which Orders are still in place, pending the hearing and determination of that suit. It is further stated that the issue of ownership of Emfil’s land was conclusively determined following a full hearing in “Mombasa HCCC No. 181 of 2007 Emfil Limited – Versus - Hamisi Mwalimu Mwarandani & 9 others” which the Court delivered Judgment on 29th October 2010. The Ex - Parte Applicant states that the Court thereafter issued a Decree on the 5th November 2010 which Decree has never been overturned on an appeal or at all. The Ex - Parte Applicant states that the issue of Emfil’s lawful ownership to the suit property has therefore conclusively been litigated upon in a Court of competent jurisdiction and the same decided on with finality. It is upon the Ex - Parte Applicant to enforce the orders in place, such an order cannot be enforced by filing a separate suit as done in this case.
83.In passing, I must address an issue raised that contrary to the principle of sanctity of the title and in contravention of the right to property under Article 40 of the Constitution, the Registrar of Titles- Mombasa through a Gazette Notice Number 6652 (Special Issue) dated the 14th June 2011 and published on the 15th June 2011 purported to revoke various titles including the suit property. Does the Land Registrar has powers to cancel/ revoke a Certificate of Title? The answer to this question is a resounding NO!!. See the provisions of Sections 79 and 80 of the Land Registration Act, No. 3 of 2012. In the myriad of cases of:- “Harrison Kiambuthi Wanjiru & another - Versus - District Land Registrar Nairobi & 3 others [2022] eKLRL; Kisumu Misc No. 80 of 2008 Republic - Versus - Kisumu District Lands Officer & another [2010] eKLR; Republic - Versus - Naivasha District Land Registrar & 2 others Ex - Parte Grace Wanjiru Nganga & 2 others [2022] eKLR; Sabina Nyambura Githina & another - Versus - Land Registrar, Thika Land Registry & 3 others; Real Capital Limited (Interested Party) [2021] eKLR and Kuria Greens Limited – Versus – Versus - Registrar of Titles & another [2011] eKLR; Lawrence Muriithi Mbabu – Versus - District Land Registrar, Nyeri & another; John Githui Kinyua (Interested Party) [2019] eKLR and Republic – Versus - Nakuru District Land Registrar & another Ex - Parte Szumbah Mwanaongoro & 7 others [2016] eKLR ; Republic - Versus - Land Registrar Taita Taveta District & Another (2015) eKLR, Republic – Versus - the Registrar of Titles, Mombasa & 2 Ors Ex - Parte Emfil Limited, [2012] eKLR; Republic - Versus - Chief Land Registrar & another Ex - Parte Yosabia Kerubo Manyara (2018) eKLR Super Nova Properties Limited & another - Versus - District Land Registrar Mombasa & 2 others; KACC & 2 others (Interested Parties) (2018) KECA 17 (KLR) (19th April 2018) (Judgement)”.
84.What then is the fate of this suit? The Court ( Justice A.K. Kaniaru) in the case of:- “Charles Ngari Ita - Versus - Mururi Nyaga (Environment & Land Case 26 of 2020) [2023] KEELC 22514 (KLR) (1 November 2023) (Ruling) it held:-“10.An argument may also be raised that raising a preliminary objection is not the proper approach to take where the issue involved is violation of the sub-judice rule. One of the cardinal consequences of a preliminary objection is that it has the potential to preliminarily bring a matter to an end. The sub judice rule however does not bring proceedings to an end. The rule is clear that where violation of sub-judice rule is demonstrated, the court should stay proceedings. Stay, by its very nature, implies a temporary halt of proceedings pending some other action. To the extent that the sub-judice rule does not bring an end to proceedings, and bearing in mind that a fundamental aspect of a preliminary objection is to end proceedings, then it is plausible to say that a challenge to a suit or proceedings on the basis of violation of the sub judice rule needs to be raised via an application or some other suitable court process.
85.The Apex court in the case of:- “National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) ( Supra)” which is binding on this Court is that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. Be as it may be, it will not serve any interests to stay the instant suit to clog our judicial system. The issues raised in this case can be effectively be raised and adjudicated in the case of:- “Mombasa ELC NO 113 of 2015” so as to properly utilize finite judicial resources before one court. The Ex - Parte Applicant is at liberty to move the court appropriately.
ISSUE No, d). Who will bear the costs of this suit
86.It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Black Law Dictionary defines cost to means:-“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.
87.The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides as follows:-“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” By the event, it means the outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.
88.In “Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR” quoted the case of “Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227” the Court held;“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp – Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”
89.In the instant case, taking that the matter is still subsisting in the superior Court as already indicated the umpteenth times, its just fair and reasonable that each party bears their own costs.
VIII. Conclusion and disposition.
90.Ultimately, having caused such an in-depth analysis to the framed issues herein, for avoidance of doubt, the Honourable Court accordingly proceeds to issue the following specific orders:-a).THAT the Preliminary Objection dated 3rd June, 2025 by the 1st, 2nd & 3rd Respondents be and is hereby upheld.b).THAT in essence the Notice of Motion application dated 3rd March 2025 be and is hereby struck out in entirety for breaching the Doctrine of Sub – Judice to the Civil Case “ELC No, 113 of 2015 - Emfil Limited - Versus - the Hon. Attorney General & 424 others”.b).THAT taking into account the dispute is still pending then each party to bears its costs.It Is Ordered Accordingly.
JUDGEMENT DELIVERED VIRTUALLY THROUGH THE MICRO SOFT TEAMS , SIGNED AND DATED AT KWALE THIS ...27TH ........DAY OF ..........NOVEMBER.......2025……………………………….HON. MR. JUSTICE L.L NAIKUNITHE ENVIRONMENT AND LAND COURT,ATKWALEJudgement delivered in the presence of:a. Mr. Daniel Disii, the Court Assistant.b. M/s. Dave Advocate for the Ex – Parte Applicant.c. Mr. Kemei Advocate for the 1st, 2nd & 3rd Respondents.d. Mr. Asige Advocate for the 33 Interested Parties.e. Mr. Kimani Horeria Advocate for the 246th Interested Party.f. Mr. Birir Advocate for the 148th & 276th Interested Parties.g. No appearance for the other Respondents and the Interested Parties.
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