[2020] KEELC 3680 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC JUDICIAL REVIEW NO. 11 OF 2019

(FORMERLY HC CIVIL APPLICATION NO. 63 OF 2010 (J/R) )

KIPROTICH NGERECH.....................................................................APPLICANT

VERSUS

MOLO LAND DISPITE TRIBUNAL.......................................1ST RESPONDENT

PRINCIPAL MAGISTRATE MOLO.......................................2ND RESPONDENT

PETER TENGECHA SEREM..................................................3RD RESPONDENT

J U D G M E N T

1. The applicant was granted leave to institute Judicial Review Proceedings on 14th June 2010 and on 25th June 2010 filed the substantive motion praying for orders that:-

1. The Honourable Court be pleased to issue an order of certiori to bring to the High Court to quash a decision determination of the Olenguruone District Land Tribunal in Tribunal Case No. 8 of 2005 and its adoption by Molo Principal Magistrate’s Court Vide Land Dispute No.57 of 2006 on the 4th day of May 2010.

2. The Honourable Court be pleased to issue an order of prohibition to prohibit the Respondent, Peter Tengecha Serem from executing the decree of the Principal Magistrate in the Molo Land Dispute Tribunal case No.57 of 2006.

3. The Applicant be awarded the costs of the suit.

2. The Notice of Motion was grounded on the grounds set out on the body of the application and on the affidavit verifying the statement of facts. On the grounds in support of the application the applicant averred that he was the bonafide owner of land parcel Nakuru/Olenguruone/Chepakundi/53 (“the suit property”); that the 1st Respondent had no jurisdiction to entertain the claim which involved land that had a title deed; and that 1st Respondent acted ultra vires in entertaining a claim of ownership of the land.

3. In the affidavit verifying the statement of facts, the applicant stated that the Respondent obtained a decree pursuant to a decision made by Olenguruone Land Dispute Tribunal in Molo PMC land Dispute No. 57 of 2006.

4. The applicant averred that the Respondent as per the decree sought to have him evicted from the land parcel Nakuru/Olenguruone/Chepakundi/53 where he had established a home and had been in occupation, since 1994. The Applicant claimed that he had purchased the land from one Dorcas Nyambura, widow of one Kariuki Githii for the sum of Kshs130,000/= vide a sale agreement dated 20th June 1994. The Applicant contended that the Molo District Land Dispute Tribunal made their decision without having any sufficient evidence to support the same. The Applicant stated the Tribunal failed to take account of how he had acquired possession of the property and thus in giving its decision in favour of the respondent totally disregarded the evidence adduced by the applicant.

5. The 3rd Respondent/interested party filed a replying affidavit dated 13th April 2012 sworn by Charles Mosonik( administrator of the estate of Peter Tengecha Serem). The 3rd Respondent averred that the deceased ( Peter Tengecha Serem) was the registered absolute owner of the suit property and annexed copies of the title deed, green card and certificate of official search which showed the deceased to have been registered as owner of the suit land. The deceased allegedly purchased the suit land from Kariuki Githii before it was registered in the 3rd Respondent’s name in 1997. The 3rd Respondent averred that he was all along paying rates for the property and it was only in 2004 that the Applicant claimed to have purchased the land from the widow of Kariuki Githii. The 3rd Respondent contended there was no proof that the applicant purchased the suit land in 1994 as he claimed. The Lare Chief’s letter annexed by the Applicant to support the alleged purchase was made on 10th December 2004 while the purported sale agreement is shown to be dated 20th June 2004.

6. The parties argued the Notice of Motion by way of written submissions. The applicant’s submissions dated 2nd August 2019 were filed on 6th August 2019 while the 3rd Respondent’s interested party’s submissions dated 21st November 2019 were filed on the same date. I have considered the Notice of Motion and the grounds in support and in opposition and have further considered the submissions by the parties. The issue for determination is whether the applicant has made out a case for grant of an order of certiorari and prohibition as prayed in the Notice of Motion.

7. In the authority cited by the Applicant in support of his submissions David Kimani Karogo -vs- Thika dispute Tribunal & 2 others (2017) eKLR the Court appropriately referred to the cases of Municipal Council of Mombasa -vs- Republic, exparte Umoja Consultant Ltd, Nairobi Civil Appeal No.185 of 2001 (2002) eKLR; Pasholi - vs- Kabale District Local Government Council & others (2008) 2EA 300; and Kenya National Examination Council -vs- Republic Exparte Geoffrey Gathenji & 9 others, Civil Appeal No.266 of 1996 where the Courts considered and pronounced themselves on the ambit of judicial review .

8. In the case of Municipal Council of Mombasa -vs- Republic and Umoja Consultants Ltd (supra) the Court stated thus:-

“ 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 make 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 they 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 this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.

9. The Court further in the case of Pastoli –vs- Kabale District Local Government Canal & others(supra) held that where a decision is tainted with illegality, irrationality and procedural impropriety the court will interfere and will quash such a decision. The court stated as follows:-

“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.

Illegalityis 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 it 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.

Procedural improprietyis 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 to act 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 legislature instrument by which such authority exercises jurisdiction to make a decision. (Al-mehidswi -vs- Secretary of State for the housing Department (1990) Ac 876”.

10. In the case of Kenya National examination Council -vs- Republic, Exparte Geofrey Gathenji & 9 others Civil Appeal No.266 of 1996 the Court of Appeal stated as follows regarding the scope of Judicial Review:-

“That now bring us to the question we started with, namely the efficacy and scope of mandamus, prohibition and certiorari. These remedies are only available against public bodies such as the council in this case; 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 law 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.

It does not; however lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. See Halsbury’s Law of England, 4th Edition , Vol.1 at page 37 paragraph 128”.

11. The applicant has argued that he was the bonafide owner of the suit property and that; the tribunal lacked the jurisdiction to deal with the dispute that related to the land which had a title and that in doing so the tribunal exceeded its jurisdiction and consequently its decision which the 2nd respondent adopted was ultra vires and therefore null and void abinitio.

12. The 3rd Respondent/Interested party for his part contended that the widow of Kariuki Githii from whom the exparte applicant claimed to have purchased the suit land from lacked the locus standito deal with the assets of her deceased husband as she was not the administrator of his estate. The 3rd respondent relied on the provisions of section 55,79,80 and 82 of the succession Act, Cap 160 Laws of Kenya to support his submissions

13. Section 55 of the Law of Succession Act provides : -

No distribution of capital before confirmation of grant

(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:

Provided that—

(i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and

(ii) no immovable property shall be sold before confirmation of the grant;

(c) to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;

14. Section 79 provides as follows:-

Property of deceased to vest in personal representative

The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.

15. Section 80(2) of the Law of succession Act Provides as follows:-

“ A grant of letters of Administration with or without the will annexed shall take effect from the date of the Grant.

16. Section 82 of the Law of succession Act makes it clear that it is only a duly appointed personal representative who has authority to represent the estate of a deceased person.

82. Personal representative shall, subject only to any limitation imposed by their grant, have the following powers.

(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:

Provided that—

(i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and

(ii) no immovable property shall be sold before confirmation of the grant;

(c) to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;

17. From the record and evidence adduced before the tribunal it is apparent that the exparte applicant entered into an agreement with Dorcas Nyambura who purportedly was representing her deceased husband Karioki Githii. There was no evidence that the said Dorcas Nyambura held any grant of letters of administration that could have enabled her to represent her late husband in the sale transaction. She did not hold any grant of letters of administration and therefore lacked the authority to represent the estate of the deceased. Any agreement entered into was a nullity for want of capacity on the part of the vendor.

18. The validity of the agreement for sale notwithstanding, I must observe that having scrutinized the copy of the agreement said to have been dated 20th June 1994 made between Dorcas Nyambura on behalf of the vendor and the applicant as purchaser, I have doubts as to its authenticity. Although the agreement is said to have been made in 1994 it is clear the year has been altered. All indications are that the year was 2004 altered to read 1994. The year of 2004 is consistent with the date of 10th December 2004 that is on the letter from the Chief Lare location which indicated there was an agreement for exchange of land parcels Nakuru/Lare/Kiriri/87 and Nakuru/Olenguruone/Chepkundi/53. The alleged agreement of 20th June 1994 shows the suit property was purchased for Kshs130,000/= whilst the memorandum of agreement prepared by the chief on 10th December 2004 indicated there was an exchange of the parcels of land. Be it as it maybe, the point remains the widow of Kariuki Githii had no authority to act for and represent the estate of her deceased husband as she had no grant of letters of administration to represent the deceased estate.

19. The jurisdiction of the Land Disputes Tribunals was provided under section 3(I) of the Land Disputes Tribunal Act No.18 of 1990 ( now repealed) which was on the following terms:-

20. Section 3(1) Subject to this Act, all cases of a Civil nature involving a dispute as to :-

(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, shall be heard and determined by a Tribunal established under section 4;

21. The jurisdiction of the Tribunal therefore did not extend to include a claim to title to land. The Tribunal could not determine a claim relating to ownership of land.

22. In the matter before the Tribunal the claimant who is the present 3rd Respondent/Interested party referred a dispute seeking an order of eviction of the applicant from his ( 3rd respondents) land parcel Nakuru/Olengurone/Chepakundi/53 in respect of which he was the registered owner . By analogy the claim was founded on trespass to land. Under section 3 (I) (c) of the Land Disputes Tribunal Act, the Tribunal had jurisdiction to entertain claims relating to trespass. Before the Tribunal the 3rd Respondent produced documentary evidence to show he was the registered owner of the suit property.

23. The applicant did not produce any documentary proof of ownership of the suit property. He relied on the agreement dated 20th June 1994 whose authenticity is in question as I have observed above. The Tribunal would not have had the jurisdiction to determine the validity of the contract and/or the issue of ownership. The 3rd Respondent having produced documents to support his claim of ownership of the suit property and the applicant having not demonstrated he had any ownership rights, the Tribunal was properly seized with jurisdiction to entertain the dispute as one that related to trespass.

24. The Applicant could only have challenged the title held by the 3rd Respondent over the suit property through the court process under the provisions of sections 159 and 143 of the Registered Land Act, Cap 300 Laws of Kenya ( now repealed), if he considered the 3rd Respondent obtained the title through fraud and/or mistake. The Tribunal could not inquire as to whether the 3rd Respondent had acquired the title fraudulently and/or through mistake . They had no jurisdiction to do so.

25. On the evidence and material on record the Tribunal acted properly within its mandate and I find no basis to fault their decision. I accordingly find no merit in the exparte Applicant’s Notice of Motion and I order the same dismissed with costs to the 3rd Respondent.

26. Orders accordingly.

Judgment dated signed and delivered at Nakuru this 13th day of February 2020.

J. M. MUTUNGI

JUDGE