[2021] KEELC 984 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC PETITION NO. E006 OF 2020

FERANKLINE MURIIRA M’NKANATA...............................................................PETITIONER

VERSUS

THE ADJUDICATION OFFICER

RUIRI/RWARERA ADJUDICATION SECTION.........................................1ST RESPONDENT

THE LAND REGISTRAR MERU CENTRAL DISTRICT.........................2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL..........................................3RD RESPONDENT

AND

ANNAH MWARI MUTUMA.............................................................1ST INTERESTED PARTY

JACOB KITHAE MAKUNYU..........................................................2ND INTERESTED PARTY

GACANI MBERIA...............................................................................3RD INTERESTED PARTY

ELIAS MUTHIORA NATHAN.........................................................4TH INTERESTED PARTY

RULING

1. By a notice of motion dated 28. 10. 2021 brought under Section 68 of the Land Registration Act, Articles 1, 2, 3, 10, 11, 20, 21, 22, 23, 27, 28,47, 50, 73 and 75of the Constitution and Section 1A, 1B 3 & 3A of the Civil Procedure Actas well as Order 51of the Civil Procedure Rules, the petitioner/ applicant seeks inhibition and temporary orders of injunction restraining any dealings, efforts of eviction, disposal, issuance of title deeds against the respondents over Parcels No’s 283, 3483, 3484, 3485 and 3486 Ruiri/Rwarera adjudication section pending hearing and determination of the petition.

2. The application is supported by an affidavit sworn on 28. 10. 2020 and the grounds that: though the petitioner/applicant is the rightful recorded owner and or occupant of the suit properties, the 1st and 2nd respondents have illegally amended the adjudication records and inserted the names of the interested parties contrary to the law and his rights under the Constitution. The applicant is therefore threatened with eviction and denial of his possession and occupation rights.

3. Further the applicant states efforts to follow-up the procedures of appeal and objection under the Land Adjudication Act have been unsuccessful out of which he was granted a consent to pursue his rights in court. Further the petitioner alleges 1st and 2nd respondents are colluding with the interested parties to fraudulently acquire the suit properties in utter disregard of both the law and the Constitution.

4. By a petition dated 28. 10. 2021 he claims Parcels No’s 3486were gathered in 1969 by his late fatherM’Mkanata M’Chau from which he inherited but discovered the original Land Parcel (NOT NAMED) was sub-divided into the aforesaid portions.

5. Following discovery (DATE NOT DISCLOSED) the petitioner lodged objection No’s 05, 3382, 3444, 3779 and 473 which were dismissed and ruled in favour of the interested parties.

6. He was subsequently issued with a consent to sue dated 14. 1.2020 for injunction against any encroachment over the aforesaid suit land.

7. The main claim therefore is that his constitutional rights under Article 40 of the Constitution have been infringed and continue to be infringed hence seeks:

a) declaration that the said actions are illegal, wrongful and amount to breach of his ownership rights.

b) He be declared the absolute owner of the suit land

c) Mandamus to issue compelling the 1st and 2nd respondents to amend the adjudication register and record him as the correct owner.

d) Certiorari to quash the registration of the suit land in the names of the interested parties.

e) Mandamus compelling the Land Registrar to register him as the owner of the suit land instead of the interested parties and lastly,

f) Permanent order of injunction restraining the respondents as well as the interested parties from any interference with the petitioner’s peaceful, lawful possession and occupation of the suit properties.

8. The court record shows by 27. 10. 2021 no replies had been made by both the respondents and the interested parties to the notice of motion and the main petition.

9. Going by the pleadings on record it is apparent the Ruiri/Rwarera Adjudication Process as at 4. 05. 2018 had reached objection stage. Upon dismissal of the alleged objections the petitioner was given his rights of appeal exercisable within sixty days. In both the petition and the notice of motion, it is not clear if the petitioner exercised such rights and lodged an appeal to the Minister as required under Section 26 of the Land Adjudication Act.

10. Under the Land adjudication Act once a party has lodged an appeal with the Minister and the same is determined, one way or the other, he still has another right to move to the High Court for redress by way of judicial review.

11. My reading and understanding of both the Land Adjudication Act and Fair Administrative of Actions Act 2015 is that the fact that one is claiming infringement of his constitutional rights does not replace the invocation of the internal dispute mechanism as set out in the Land Adjudication Act. Indeed Article 159 (2) (d) is couched in mandatory terms that courts must encourage parties to resort to alternative dispute resolution. This position has been affirmed by the Supreme Court of Kenya in the Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Ltd. & 2 Others [2012] eKLR and Speaker of National Asembly-vs- James Njenga Karume [19920 eKLR.

12. The applicant herein seeks orders of inhibition under Section 68of the Land Registration Act. The Land Registration Act 2012comes into place only after the adjudication register has been certified complete and the records forwarded to the Chief Land Registrar by the Director of Land adjudication for issuance of title deeds.

13. The consent giving the petitioner rights to sue is given by the Sub-County Land Adjudication and Settlement Officer for properties described as Land Parcel No’s 283, 3483, 3484, 3485 and 3486 Ruiri/Rwarera adjudication section falling under Cap 284 as at 14. 1.2020.

14. The supporting affidavits do not state if any title deeds have been issued and or whether the adjudication register has been declared complete under Section 26 of the Land Adjudication Act. It would therefore be premature for the applicant to seek and be granted such orders under a law which does not govern the suit land at the moment.

15. Further, the court is being asked to issue temporary injunctive orders against the 2nd respondents. Again as I have stated above, the petition and the notice of motion do not state what role the 2nd respondent has played with regard to suit land. The role of a land registrar is governed by the Land Act and Land Registration Act as opposed to Land Adjudication Act.

16. This court would be going against the letter and spirit of the Constitution to issue orders of temporary injunction against a party whose jurisdiction does not cover the subject property.

If the applicant was seeking for conservatory orders, perhaps the court would have considered such a request which is not the case in this petition.

17. Given the foregoing reasons, it is my considered view that the application dated 28. 10. 2020 lacks merit. The same is dismissed with costs to the respondents and the interested parties.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 17TH DAY OF NOVEMBER, 2021

In presence of:

Miss Gitonga holding brief for Maranya for petitioner

Kimathi for 3rd and 4th respondents

Court Assistant - Kananu

HON. C.K. NZILI

ELC JUDGE