[2018] KEELC 1872 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET

E & L PETITION NO. 8 OF 2015

IN THE MATTER OF CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE UNFAIR ADMINISTRATIVE ACTION CONTRARY TO ARTICLE 47 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE FAILURE TO ENFORCE A COURT DECREE PURSUANT TO SECTIONS 18 TO 23 OF THE REGISTERED LANDS ACT AND THE LAND REGISTRATION ACT, 2012

AND

IN THE MATTER OF LAND REFERENCE KNOWN AS NANDI/KEMELOI/752

AND

IN THE MATTER OF PERCEIVED ABUSE OF AUTHORITY AND CONTEMPT OF COURT ORDERS BY FAILURE TO ENFORCE LAWFUL DECREE IN KAPSABET SENIOR RESIDENT MAGISTRATE’S COURT AWARD NO. 20 OF 2010

BETWEEN

MARGARET KONAH

KENNETH KONAH (On behalf of the Estate of

PEDRO KONA AYODI alias PETRO KONA AYOTI)..............................PETITIONERS

VERSUS

NANDI COUNTY LAND REGISTRAR...............................................1ST RESPONDENT

NANDI COUNTY SURVEYOR............................................................2ND RESPONDENT

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

AND

JOSEPH KIBIDI.........................................................................1ST INTERESTED PARTY

LUKA MADEGWA....................................................................2ND INTERESTED PARTY

JUDGMENT

PETITIONERS’ CASE

Margaret Konah and Kenneth Konah, (hereinafter referred to as petitioners) have come to court as the administratix and administrator respectively of the estate of the deceased, Petro Kona Ayodi alias Petro Kona Ayoti against Nandi County Land Registrar and Nandi County Surveyorand the Attorney General in respect of Land Parcel No. Nandi/Kemeloi/752 claiming that the above land parcel No. NANDI/KEMELOI/752, borders NANDI/KEMELOI/238 and NANDI/KEMELOI/239 of which there exists a boundary dispute that needs fair administrative action to determine and open a road of access to the area for development and that the Respondents are mandated by law, previously Sections 16 to 23 of the Registered Lands Act and subsequently Sections 18 - 23 of the Land Registration Act to determine and fix boundaries based on a cartographical formulae determined by Parliament.

The applicants claim that by a decree dated 20th day of April, 2011, the Senior Resident Magistrate’s Court at Kapsabet on adoption of an Award by the ALDAI DIVISION LAND DISPUTES TRIBUNAL in LTD No. 20 of 2010 decreed that the Surveyor should be called through the Lands Registrar so as to determine the original boundaries between NANDI/KEMELOI/752, 238 and 239 respectively.

That by a decree issued by the Senior Resident Magistrate’s Court at Kapsabet on 8th day of March, 2011, the 1st and 2nd respondents were ordered to determine the original boundaries to Land Parcels NANDI/KEMELOI/ 752, NANDI/KEMELOI/238, and NANDI/KEMELOI/239 respectively.

The decree was extracted and served on the 1st and 2nd respondents’ offices for enforcement and a mutually convenient date fixed for the picking of the boundaries; the Respondents’ representatives never showed up nor provided an explanation as to their failure to show up at the locus of enforcement of the order.

The petitioner states that as a result of the respondents’ failure to exercise and ensure fair administrative action, the Petitioners’ rights to administer the estate and enjoy it as beneficiaries has been compromised as the 2nd respondent was to be called and effect order of court through the 1st respondent so as to determine the original boundaries between Land Parcels NANDI/KEMELOI/752, NANDI/KEMELOI/238, and NANDI/KEMELOI/239 respectively.

The Petitioners extracted the Decree and had it served upon the 1st and 2nd respondents with a hope that the 1st and 2nd respondents would discharge their statutory mandate without any doubt as to their ability to discharge the duty.

However, in breach of the requirement of Article 47 of the New Constitution of Kenya 2010 and contrary to the fair administrative action principles, the 1st and 2nd respondents have willfully refused to enforce due process as required by the Decree above dated 20th April, 2011.

The petitioner states that as a result of the 1st and 2nd respondents’ intransigency and breach of public trust reposed in them by statute, the Petitioners have been inconvenienced in the administration of the estate of the deceased and their own as overriding interests vide Section 28 of the Land and Registration Act and hence unable to administer the estate fully.

That as a result of the 1st and 2nd respondents’ breach of Constitutional duty, the estate has been inconvenienced, subjected to injury, loss and damages from the time the Decree was issued by Kapsabet Senior Resident Magistrate’s Court on 8th day of March, 2011.

The petitioners contend that contrary to the legitimate expectation that Petitioners would be provided with the clear public road earmarked on the map and now blocked by 1st and 2nd Interested Parties, having complied with the due process, the 1st and 2nd respondents have willfully been executing an unfair administrative act by failing to neither provide a notice nor provide any written explanation as to why the Decree date 20th April, 2011 has never been enforced in their favour 5 years after presentment and payment made.

The petitioners have particularized breach of constitutional and statutory duty as follows: -

(a)Failing to exercise fair administrative action contrary to Article 47 of the Constitution of Kenya, 2010.

(b)Failing to discharge statutory duty imposed by it by Sections 18 to 23 of the Land Registration Act.

(c)Failing to enforce a court Order/Decree contrary to Section 5 of the Judicature Act.

(d)Failing to discharge its administrative acts fairly.

(e)Res Ipsa Liquitor.

The petitioner further contends that as a result of the respondents’ breach of the petitioner's fundamental rights and the petitioner who is now ageing has spent the rest of her adult life praying, watching and waiting for justice to be done by availing title to her. The conduct of the respondents has been less than professional as they have totally over overlooked the provisions of Article 47 of the New Constitution of Kenya, 2010 by making oral reference contrary to the Constitution.

That in spite of demand and notice, the 1st and 2nd respondents have willfully refusedneglected to obey and enforce the Order/Decree as issued on 20th April, 2011, thereby inconveniencing the Petitioners utilization of the land parcel NANDI/KEMELOI/752 properly.

The Petitioners avers that the 1st and 2nd respondents have persisted in avoiding its statutory duty and subjecting the Petitioners to psychological torture, and sleepless nights, distress and have persisted in keeping them on the road travelling watching, praying and waiting for enforcement of Order/Decree of the Court, the 1st and 2nd respondents have willfullyand negligently refused to honor as issued.

The court has exclusive jurisdiction under Articles 22, 23, 40 and 62 of the Constitution of Kenya 2010 to hear and determine land matters. The petitioners therefore pray for orders:

(a) An order of mandamus to compel the County Lands Registrar and County Surveyor to determine the original boundary parcel NANDI/KEMELOI/752, NANDI/KEMELOI/238 and NANDI/KEMELOI/239 respectively by fixing beacon features.

(b) That upon determination of (a) above, the 1st and 2nd respondents do clear a public road earmarked on the map and now blocked by interested parties hereto.

(c) An order for damages from the time the Decree was issued up to the conclusion of this case.

(d) Costs of the suit.

REPONDENTS’ CASE

Mr. Esau Aloo Odero, the Nandi County Land Registrar swore the replying affidavit stating that from the records available at his office:

(i) Nandi/Kameloi/238 measuring 2. 49 Ha is registered in the name of Joseph Isiahiliza Kibidi;

(ii) Nandi/Kameloi/239 measuring 1. 39 Ha is registered in the name of Lubusi Ayoti;

(iii) Nandi/Kameloi/752 measuring 1. 07 Ha is registered in the name of Petro Kona Ayoti.

He states that he is aware that the Senior Resident Magistrate at Kapsabet in LDT No. 20 of 2010 issued an order dated 20. 04. 2011 directing the surveyor through the District Land Registrar to determine original boundaries between Nandi/Kameloi/752, 238 and 239 which order was duly extracted and served upon his office, a copy whereof is attached hereto and marked 'EAO 2'.

The said order was duly implemented when the District Surveyor and he visited the suit properties on 28. 03. 2012 and with the knowledge of the parties herein wherein their representations were considered and the exact survey exercise conducted and a report to this effect compiled. That from the survey conducted in implementation of the order dated 20. 04. 2011, the following observations and recommendations were made:

(i) That all the three parcels of land herein are first registration during the adjudication process in the early 1970's as per the attached adjudication records.

(ii) That from the R.I.M. diagram 2 of Kameloi Adjudication Scheme Section parcel number 752 is sandwiched between parcel number 238 and 239 and all the three parcels extend to a stream which separates them from parcels on the southern side, to wit; Nos. 232, 234, 318, 1111 and 1110.

(iii) That using the available techniques for determining boundaries such as the GPS map, scale and tape measure they embarked on the process of establishing ground sizes vis-a-vis the exact measurements as per the RIM and other documents in their custody. Their findings were as follows:

(a) Nandi/Kameloi/238 measured 2. 49 Ha yet ground measurement was 2. 57 Ha hence an excess of 0. 08 Ha.

(b) Nandi/Kameloi/239 measured 1. 39 Ha yet ground measurement was 2. 16 Ha hence an excess of 0. 77 Ha.

(c) Nandi/Kameloi/752 measured 1. 07 Ha yet the ground measurement was 0. 567 Ha hence a deficit of 0. 503 Ha.

(iv) That the land represented by the RIM printed by the Director of Survey in the 1990s did not correspond to ground measurements hence the need to draw a new sketch plan for purposes of amending the RIM to reflect the correct position on the ground, a copy whereof is the sketch plan.

(v) That as a result of the survey, they discovered that Nandi/Kameloi/752 was encroached into by the proprietors of Nandi/Kameloi/238 and 239.

(vi) That the survey was concluded by re-installing the boundaries between parcel number 752, 238 and 239 from the stream to the road using the RIM as the reference material and the boundary was found to be almost a straight line.

(vii) That it was also discovered that on the ground, the proprietor of parcel number 238 had occupied the position of the access road by planting eucalyptus trees thereby deviating the road through parcel numbers 239 and 752 and after survey this position was also rectified.

Joseph Kibidi, the 1st interested party and the registered owner of Nandi/Kemeloi/238 confirms that the deceased died in 1976 at Kemeloi. He confirms that the petitioners instituted the suit No. Kapsabet Senior Resident Magistrate’s Court Award No. 20 of 2010 but the court found that it had no locus standi and that the elders erred in law. The court dismissed the claim for lack of jurisdiction. He claims that no road has been closed and that no provisions of the constitution have been offended.

The 2nd interested party states that the petition does not disclose a reasonable cause of action for the orders sought to be granted. He states that parcel No. 239 is his property having purchased the same from Solomon Lubusi Ayoti (deceased). The land was surveyed, beacons placed and he has made substantial developments. There is no road on the R.I.M. He claims that the alleged decree to be enforced was obtained exparte and that he was not aware of the proceedings before the Tribunal.

ANALYSIS AND DETERMINATION

I have considered the submissions of the petitioners, respondents and the interested parties and do find the following issues ripe for consideration:

1. Whether the petition raises constitutional issues.

2. Whether an order of mandamus lies against the respondents.

On whether the petition raises constitution issues, the court finds that the Senior Resident Magistrate’s Court in Kapsabet issued an order dated 20. 4.2011 directing the Surveyor through the District Land Registrar to determine the original boundary between Nandi/Kemeloi/752, 238 and 239 which order was extracted and served upon the Land Registrar, Nandi. If we pause at this point and ask the question posed by the learned State Counsel that assuming that the court order was not obeyed, will this lead to breach of the constitution of Kenya and that does the petitioner raise a constitutional question that can be addressed by a petition?

WHETHER THE PETITION RAISES A CONSTITUTIONAL ISSUE

This court finds that petitioner has approached the court through the provision of Article 47 of the Constitution of Kenya, 2010 and in the matter of the failure to enforce a court decree pursuant to sections 18 to 23 of the Registered Land Act Cap 300 laws of Kenya (repealed) and the Land Registration Act, 2012. This court finds that failure to obey court orders by any administrative officers is a breach of Article 47 of the Constitution of Kenya as it affects administration of justice amounts to a clog to the justice system. Though disobedience of court orders amounts to contempt of court, it also amounts to breach of the principle of fair administrative action. Article 47 (1) provides that every person is entitled to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. It is unlawful for any administrative officer to ignore court orders and therefore, any officer who ignores court orders would be in breach of Article 47(1) of the Constitution. However, in this case, the 1st and 2nd respondents complied with the court order and implemented the same. The replying affidavit of Esau Aloo Odero was not controverted. Paragraph 7 of the said affidavit, the Land Registrar states that he complied with the court order. Those facts are not controverted. I do find that the 1st respondent complied with the court order.

WHETHER AN ORDER OF MANDAMUS CAN ISSUE

In the case ofKENYA NATIONAL EXAMINATION COUNCIL v REPUBLIC Ex-parte GEOFFREY GATHENJI NJOROGE & 9 others [1997] eKLR, the court of appeal discussed at length the scope and efficacy of an Order of Mandamus. While referring to Halsbury’s Laws of England, 4th Edition Volume 1 at page 111 from paragraph 89 which treatise says: -

“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.”

“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a Mandamus cannot command the duty in question to be carried out in a specific way.”

The court held that an order of Mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed

The petitioner appears to seek the Land Registrar to implement the court order in a specific manner. It is trite law that an order of Mandamus cannot compel the authority to act in a specific manner. Moreover, this court cannot substitute the Land Registrar’s decision with its decision but can only compel the land registrar to perform only what he is required by law to perform.

Needless to say, that the petitioner has not applied for an order of Certiorari to quash the decision of the land registrar and therefore an order of Mandamus cannot issue. 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.

This court cannot compel the land registrar to clear the bushes and trees on the land for the parties herein as that is not the statutory duty of the land registrar.

The petitioner has not demonstrated that the decision of the Land Registrar was made without jurisdiction and therefore, illegal that there was procedural impropriety or irrationality in making the decision. The upshot of the above is that the petition is dismissed with costs.

Dated and delivered at Eldoret this 26th day of July, 2018.

A. OMBWAYO

JUDGE