[2014] KEHC 3 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

MISC . APPLICATION NO. 19 OF 2008

IN THE MATTER OF APPLICATION BY KEFA MANYADA & 9 OTHERS

FOR LEAVE TOINSTUTUTEJUDICIAL REVIEW ORDERS

OFCERTIORARI PROHIBITION & MANDAMUS

AND

IN THE MATTER OF THE DECISION BY THE NAKURU MUNICIPALITYLANDS

DISPUTES TRIBUNAL LAND DISPUTES CLAIM NO. 20 OF 2006

AND

IN THE MATTER OF LAW REFORM ACT CAP 26

AND

IN THE MATTER OF THE LAND DISPUTE TRIBUNALS ACT NO 18 of 1990

AND

IN THE MATTER OF THE REGISTERED LAND ACT CAP 300

KEFA MANYADA.............................................................1ST APPLICANT

BARNABUS NYONG'A OTUKHO...................................2ND APPLICANT

PST.CHARLES OGUTA THE TRUSTEE OF

CHURCH OF THE NAZARENE.........................................3RD APPLICANT

DANIEL KIPKURUI...........................................................4TH APPLICANT

DAVID LIHANDA ADIKA.................................................5TH APPLICANT

JOSEPH NYAKORE OLOO.............................................6TH APPLICANT

CHARLES NGANGA.........................................................7TH APPLICANT

DAVID MBWARO............................................................8TH APPLICANT

KIMETOR A TANGUT.......................................................9TH APPLICANT

PETER MBURU............................................................. 10TH APPLICANT

VERSUS

NAKURU MUNICIPALITY LANDS

DISPUTES TRIBUNAL.................................................1ST RESPONDENT

REGISTRAR NAKURU DISTRICT..............................2ND RESPONDENT

DISTRICT LAND SURVEYOR...................................3RD RESPONDENT

AND

JOHNSON MUGHALU MWAKABA...................1ST INTERESTED PARTY

KALENJIN ENTERPRISES LTD.........................2ND INTERESTED PARTY

JUDGMENT

l.The ex-parte applicants filed a Notice of Motion dated 8th August, 2008 under Order LIII Rule 3 of the old Civil Procedure Rules and Sections 8 and 9 of the Law reform Act seeking;

i) That this Honourable court be pleased to issue an Order of Certiorari to bring to the High Court to quash the decision/determination of the Nakuru Municipality Land Dispute Tribunal No. 20 of 2008 and its subsequent adoption by the Chief Magistrate's Court vide award No. 11 of 2008.

ii) That this Honourable court be pleased to Issue an order of prohibition to prohibit the District Land Surveyor and directors of Kalenjin Enterprises Company Ltd ("the company") from executing the decree of the Chief Magistrate's court adopted on 13th May, 2008 and issued on 4th June, 2008 and the District Land Registrar, Nakuru from registering the outcome of the resurvey.

iii) That this Honourable court be pleased to issue an order of mandamus to compel the District Land Registrar Nakuru and Surveyor Nakuru District to delete entries if any that might have been effected pursuant to the decree and retain the original records and survey and register the subjects herein to their respective parcels of land.

iv) That the subjects be awarded costs of this application.

2. The application was filed pursuant to leave granted on28th July, 2008. The leave granted was to operate as a stay but the same was set side on 16th March, 2010 because the applicants had failed to serve the interested party with the pleadings.

3. The application is premised on the grounds on the face of the application and is supported by a Statutory Statement dated 23rd July, 2008 a Verifying Affidavit sworn by Kefa Manyada of even date and a supporting affidavit ofBarnabas Nyong'a Otukho dated 25th July, 2008. The grounds are set out as follows; -

a) That the subjects are the registered bona fide owners of parcels of land known as :

Barnabus Nyong'a Atukho-Nakuru Municipality Block 29/428

Daniel Kipkurui-Nakuru Municipality Block 29/434

Charles M Nganga- Nakuru Municipality Block 29/427

Joseph Nyakore Oloo- Nakuru Municipality Block 29/438

Mbwaro David- Nakuru Municipality Block 29/425

Peter Mburu- Nakuru Municipality Block 29/421

Church of the Nazarene-Nakuru Municipality Block 29/424

David Lihanda Adika-Nakuru Municipality Block 29/429

Kimetor A Tangut- Nakuru Municipality Block 29/425

b) That through the 1st Respondent's decision, the 3rd respondent was ordered to resurvey the entire parcel of land Nakuru Municipality Block 29/420 to 438 and thereafter issue new titles.

c) That the 1st Respondent has no jurisdiction to entertain the matter in respect of parcels of land which had already been adjudicated and titles issued.

d) That the decision infringes on the Subjects' rights to absolute ownership.

e) That the 1st Respondent condemned the Subjects unheard.

f) That the 1st Respondent acted ultra vires its powers in entertaining a claim of ownership.

g) That the said determination was filed and adopted by the court.

4. In his affidavit, Kefa Manyada deposes that he has filed the affidavit on behalf and with authority of the other applicants; That he is the rightful owner of Nakuru/ Municipality Block 20/430 having purchased the same fromSamuel Aduma, a member of the company; That his co-applicants are the owners of the suit parcels as stated herein above; that they have settled and substantially developed their respective portions and have been issued with title deeds; That he came to learn of the award and/ or determination of the tribunal when the award was being adopted by the court and his co-applicants learnt of the award on 15th June, 2008 when he was served with the decree by one of the directors of the company; that a survey had been undertaken in 1972 and confirmed in 1986 when the applicants were allocated their respective plots; that the tribunal in ordering for a resurvey, acted in excess of its jurisdiction by determining an issue relating to ownership of land; That it was important to issue the orders sought as the surveyors had already visited the site to confirm the beacons and if the resurvey was undertaken it would be to the detriment of the applicants.

5. The application was not contested. Despite service, the respondents and the Interested Party did not enter appearance or file any documents.

6. When the application came up for hearing on 8th July, 2014 Mr Waambeyi Counsel for the exparteapplicants chose to rely solely on his submissions filed on 4th December, 2009. Mr Kirui, the State Counsel representing the 1st, 2nd and 3rd respondents was present in court although he had not filed any documents or entered appearance. He intimated that the respondents were not opposing the application and the same may be allowed as prayed. Mr Chelaite present on behalf of the 2nd respondent stated that he could not remember whether they had filed any replying affidavit.

7. In his submissions, Counsel for the applicants stated that the Land Dispute Tribunal Act (repealed) was established to deal only with Agricultural land and that tribunal's mandate did not extend to land situated within an Adjudication section declared under The Land Adjudication Act, The Land Titles Act, or the Land Consolidation Act. The plots in dispute were not within an Agricultural area but were located within a Municipality; that the tribunal in determining such a dispute exceeded its jurisdiction therefore their decision was void.

8. He further submitted that in ordering a resurvey, the tribunal was interfering with plots where the respective owners had already been issued with title deeds. It was his contention that the tribunal had no jurisdiction to determine boundaries to land whose title had been adjudicated; That under Section 19(2) of the Registered Land Act, alteration of boundaries resulted in cancellation of the titles thus giving rise to a new title number; that underSection 19(1) and Section 26(1) of the Registered Land Act Cap 300 (repealed) this could not be done and the registry index map could not be altered without the consent of the owner.

9. The remedy of judicial review is concerned not with the private rights or merits of the decision being challenged but with the decision making process. Its purposes is to ensure that the individual is given fair treatment by the authority to which he has been subjected. See Republic vs Secretary of State for Education and Science (Exparte) Avon County Council (1991) I ALLER 282 at 285. The point is more succinctly made in the English case of Chief Constable of North Wales Police Vs Evan ( 1982) I W .L.R 1155, by Lord Hailsham of St Marlebone.

Thus:

"the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court"

10. Therefore, a decision of an inferior court or public authority may be quashed (by an order of certiorari made on application of Judicial review) where the court or authority acted without jurisdiction, or exceeded its jurisdiction, or failed to comply with the rules of natural justice in a case where these rules are applicable, or where there is an error of law on the face of the record or the decision is unreasonable in the Wednesbury sense (as was decided In Associated Provincial Picture Houses Ltd v. Wednesbury Corporation ( 1948) 1 K.B 223)

11. Section 3 ( 1) of the Land Disputes Tribunals Act (repealed) sets out the jurisdiction of the Land Dispute Tribunals as :

"(a) the division of, or the determination of boundaries to land, including land held in common;

(b) a claim to occupy or work land; or

(c) trespass to land......"

12. In the instant case, Johnson Mughalu Mwakaba filed a dispute before Nakuru Municipality Land Dispute Tribunal claiming that Nakuru/ Municipality/ Block/29/431 Rhonda measuring 0. 1902 occupied by Kefa Manyada belonged to him. The Nakuru Municipality Lands Dispute's Tribunal after hearing the dispute, gave their findings as follows;

"After studying the area map sheet number 119/3/7 compiled in 1998, and visiting the ground, the tribunal discovered that the owners of the block containing plots 420 to 438 are not occupying the plots as shown on the map."

and their determination and award as follows;

"The block containing plots Nku/Mnc/Block 29/420 to 438 should be resurveyed and each member shown his own plot. The directors of Kalenjin Enterprises Ltd should supervise the exercise of resurveying the block containing plots number Nku/Mun/Block29/420 to 438 in order to assure each member is settled on rightful share.''

13. This decision clearly speaks for itself. The Tribunal in ordering for resurvey of plots Nos. Nku/Mun/Block29 I 420 to 438, were in effect interfering with the existing titles already held by the applicants. In the event that the resurvey revealed that some members were in occupation of incorrect parcels of land of which they had been issued with titles, then the Commissioners of Land would have to cancel these titles and issue new ones. This was obviously outside the mandate of the tribunal who had no jurisdiction to determine a dispute of ownership of land and interfere with titles issued. Secondly, the dispute before the tribunal related to land within Nakuru Municipality and not Agricultural land. Under Section 2 of the Land Dispute's Tribunal Act (repealed), Tribunals were only to determine disputes relating to Agricultural land which is defined under Section 2 of the Land Control Act. Agricultural Land does not include, land within a municipality or a township.

14. It is clear therefore, that this tribunal in determining the dispute before them, exceeded their jurisdiction as they issued an award that would result in cancellation of title and also one which related to land which was not Agricultural land. This order is ultravires and/ or against the rules of natural justice and this court has no option but to quash the decision. See the case of Kenya National Examination Council vs Republic Exparte Geoffrey Gathenji Njoroge and others.

15. Accordingly, the decision of the Nakuru Municipality Land Disputes Tribunal No. 20 of 2008 and its subsequent adoption by the Chief Magistrate's Court vide award No. 11 of 2008 is here by quashed by an order of certioraritogether with the Decree of the Chief Magistrate's court issued on 4th June, 2008.

16. An order of prohibition is issued against the Nakuru County Land Surveyor and Directors of Kalenjin Enterprises Company Ltd from executing the decree of the Chief Magistrate's court issued on4th June, 2008 and an order of prohibition issued against the Nakuru County Land Registrar from registering the outcome of the resurvey.

17. If orders (i) and (ii) are now spent, an order of Mandamus is hereby issued compelling the County Land Registrar, Nakuru to rectify the register by cancelling any entries effected pursuant to the decree and revert the register as was before the decree was effected.

18. Each party to bear their own costs.

Dated, Signed and Delivered at Nakuru on this 7th day of November 2014.

L N WAITHAKA

JUDGE

Present

Ms Nasimiyu holding brief for Mr Wambeyi for the Applicant

Mr Kirui holding brief for Ms Katambi for the respondents

N /A for the 1st and 2nd Interested Party.

Emmanuel Maeolo: Court Assistant

L N WAITHAKA

JUDGE