[2018] KEELC 2276 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

JUDICIAL REVIEW MISC. CIVIL APPLICATION NO. 8 OF 2017

IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS

OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF: THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE LAND ADJUDICATION ACT (CAP 284), ORDER

53 CIVIL PROCEDURE RULES AND ALL OTHER

ENABLING PROVISIONS AND PROCEDURES OF THELAW

AND

IN THE MATTER OF: PLOT NO. 891 IN MIKAHANI/MAWE MABOMU/CHONYI ADJUDICATION SECTION OF HURUMALOCATION-RABAI

AND

IN THE MATTER OF: THE DECISION OF THE MINISTER IN CASE NO. 178

OF 2016 DELIVERED ON 23RD FEBRUARY 2017

CHEMBE KATANA CHANGI....................................................APPLICANT

VERSUS

1. THE CABINET SECRETARY

(MINISTER FOR LANDS AND SETTLEMENT

2. LAND ADJUDICATION OFFICER, KILIFI COUNTY

3. THE LAND REGISTRAR, KILIFI COUNTY

4. THE DIRECTOR OF LAND ADJUDICATION

5. THE ATTORNEY GENERAL.....................DEFENDANTS

AND

MWANGARI TSORI..............................INTERESTED PARTY

JUDGMENT

1. Before me for determination is a Notice of Motion application dated and filed herein on 8th May 2017. The Ex parte Applicant Chembe Katana Changi prays for the following:-

1. An order of certiorari to remove into the High Court for the purpose of its being quashed the decision of the 1st Respondent delivered on 23rd February 2017 in Minister’s Case No 178/2016 by which the 1st Respondent directed the Plot No. 891 Mikahani/Mawe Mabomu/Chonyi Adjudication Section be subdivided and a new number issued in favour of the Interested Party.

2. An order of Prohibition to prohibit the Respondents from sub-dividing the Applicant’s Plot No. 891 Mikahani/Mawe Mabomu/Chonyi Adjudication Section and from issuing a new number issued in favour of the Interested Party.

3. An order of prohibition to prohibit the Respondent’s from sub-dividing the Applicant’s Plot No. 891 Mikahani/Mawe Mabomu Adjudication Section and from issuing a new number in favour of the Interested Parties or any other person.

4. An order for costs.

5. Such further and other relief be granted to the Applicant as the Court deems fit.

2. The said application is supported by the grounds set out in the Statement dated 25th April 2017 and filed in Court on 26th April 2017 and in the Verifying Affidavit of Chembe Katana Changi sworn also on 25th April 2017 and filed herein on 26th April 2017.

3. In opposition to the said application the Honourable the Attorney General on behalf of the five Respondents herein lodged Grounds of Opposition on 18th September 2017 stating that:-

1. The panel hearing the appeal was constituted in accordance with Section 29(4) of the Land Adjudication Act (and was) thus competent to hear the appeal.

2. The appeal to the Minister case was heard and determined within the timelines provided for under Section 29(1) of the Land Adjudication Act.

3. The Ministerial decision was proper and well within their powers as provided for by law and that no rules of Natural Justice are demonstrated to have been breached.

4. That the Respondents acted in accordance with the law and that the orders made were reasonable in the circumstances and in good faith.

5. That the application is otherwise an abuse of the process of this Honourable Court as the issues herein on the subject matter of the application between the parties were determined by this Court(sic).

4. Even though he filed a Memorandum of Appearance through an Advocate, the Interested Party, one Mwangari Tsori neither filed any response to the application nor did he participate in these proceedings.

5. I have considered the application and the response by the Honourable the Attorney General. I have equally considered the oral submissions made before me by the Learned Counsels for the parties.

6. It is apparent from the material placed before me that following the process of adjudication of land in Mikahani/Mawe Mabomu/Chonyi Area, the Applicant herein was proposed for registration as the owner of Plot No. 891 on or about 14th March 2014. Aggrieved by the said decision, the Interested Party’s father, one Tsori Mwangiri Tsori lodged an objection with the Land Adjudication Committee of the said Adjudication Section.

7. After hearing the objection, the Committee dismissed it on 17th February 1986. The said Tsori Mwangiri Tsori then appealed higher up to the Arbitration Board vide Kilifi Arbitration Board Case No. 7 of 1985-86. By a determination made on 23rd March 1987, the Board dismissed the appeal once again and confirmed the Land Adjudication Committee‘s decision.

8. It would appear that thereafter, still not satisfied with the Board’s decision, Tsori Mwangiri Tsori filed another appeal this time round, to the Ministerial Panel of Rabai Adjudication Area. The said Appeal was heard on 25th January 2017 after which a decision was rendered on 23rd February 2017 wherein the Minister directed that the subject Parcel of land be sub-divided and the Appellant to get a new number comprising the portion he is occupying. The new parcel was to be registered in the name of the present Interested Party herein, a son of the Appellant, as the Appellant had passed away in 2005.

9. It is this decision of the Ministerial Panel that prompted the application presently before the Court.

10. Section 29 of the Land Adjudication Act Cap 284 Laws of Kenya provides:-

(1) Any person who is aggrieved by the determination of an objection under Section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by-

(a) Delivering to the Minister an appeal in writing specifying the grounds of appeal; and

(b) Sending a copy of the appeal to the Director Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.

(c) The Minister shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar.

11. From the evidence placed before me the Kilifi Adjudication Arbitration Board rendered its decision on 23rd March 1987. In the said decision headed “Judgment” at the end of the proceedings, the Board stated thus:-

“Judgment”

In view of the foregoing findings, the Board dismisses this Appeal and confirms the Land Adjudication Committee decision. The Portion of P/No. 891 in dispute is awarded to Chembe Katana. The rights of appeal granted in accordance with Section 26(1) of the Land Adjudication Act Cap 284. ”

12. Arising from the foregoing, it is clear that as per Section 29 (1) of Cap 284 cited hereinabove, the Appellant Tsori Mwangiri Tsori had sixty days within which to file an Appeal. While the Interested Party never participated in these proceedings, it is evident from a letter dated 21st March 2016 from the 1st Respondent addressed to the Ex-parte Applicant that the said appeal was not filed within sixty days. The said letter reads in the relevant part thus:-

RE: ADJUDICATION AREA (PLOT NO. 891).

In reference to the above mentioned, this office brings to your attention the issue of Tsori Mwangiri family in relation to Plot No. 891-Mikahani-Mawe Mabomu/Chonyi Adjudication Area. You are asked to maintain status quo till the Minister of Lands appeal case is heard and determined by a Court of Law (sic). Appeal was lodged on 9/6/2004 and until it is heard and determined you are asked to desist from molesting the family of Tsori Mwangiri.”

13. Indeed a confirmation that the Appeal was lodged on 9th June 2004 is available in a copy of an Official Cash Receipt dated the same day and attached to the Applicant’s Verifying Affidavit which clearly shows that on the said date Tsori Mwangiri Tsori paid a sum of Kshs 515/- on account of the appeal. That would mean that rather than being filed within sixty days as envisaged by law, the Appeal filed by the Interested Party’s father arrived some 14 years late.

14. In light of the fact that the appeal was filed out of the sixty day statutory period provided under Section 29 of the Land Adjudication Act, the 1st Respondent had no jurisdiction to hear and determine the same. The scope of the Judicial review remedies of certiorari, mandamus and prohibition was the subject of the Court of Appeal decision in the reknowned case of Kenya National Examinations Council –vs- Republic Ex-parte Geoffrey Gathenji Njoroge & 9 Others (1997) eKLR in which the Court held inter alia as follows:-

“What does an ORDER OF PROHIBITION do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice…

To conclude the aspect of the matter, an order of mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same. If the complaint is that the duty has not been performed according to the law, then mandamus is the wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done. Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons….”

15. In the matter before me it was extremely pretentious for the 1st Respondent to purport to exercise jurisdiction 14 years after the right of appeal expired. Again having purported to exercise jurisdiction, it is regrettable that it took the 1st Respondent a period of 12 years from 2004 to the year 2017 to make a determination on the entitlement of the parties herein. Article 47 of the Constitution entitles the Applicant to administrative action that is fair and expeditious and the decision rendered on 23rd February 2017 was clearly unfair and oppressive to the Applicant in the circumstances.

16. In the result, I am satisfied that the Ex Parte Applicant is entitled to orders of certiorari and prohibition as sought. The Notice of Motion dated 8th May 2017 is accordingly allowed with costs.

Dated, signed and delivered at Malindi this 31st day of July, 2018.

J.O. OLOLA

JUDGE