[2018] KEHC 4509 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

JUDICIAL REVIEW NO. 9 OF 2016

MARGARET WAMBUI MWANGI..............................................APPLICANT

V E R S U S

CABINET SECRETARY MINISTRY OF LANDS

HOUSING ANDURBANDEVELOPMENT....................1ST RESPONDENT

NATIONAL LAND COMMISSION ................................2ND RESPONDENT

AND

LAND REGISTRAR KIRINYAGA DISTRICT........INTERESTED PARTY

RULING

1. The applicant herein sought order for the Judicial Review orders of Certiorari and Mandamus in respect of Land Parcel No. KIINE/THIGIRICHI/527. It is based on the following grounds:

There has been several cases involving the said land KIINE/THIGIRICHI/527 and other Interested Parties.

a. Kerugoya Chief Magistrate Court Civil suit No. 208 of 2005.

b. Nairobi High Court Miscellaneous (J.R) Suit No. 178 of 2007.

c. Embu High court Civil Suit No. 35 of 2006.

d. Embu High court Miscellaneous Application No. 49 of 2011.

All this suit have ended with the same result, matter dismissed. All suits were dismissed in favour of the applicant.

Applicant’s Case.

The applicant is the registered owner of the suit land as per the annexed title deed annexture MWM.

2. There have been several suits in regard to the said suit land in particular Embu Misc. App No. 49 of 2011 and Embu Misc app No. 26 of 2012 which have been annexed to the application. The applicants in Misc App. No. 49/2011 had sought for leave to appeal out of time. However due to the fact that they were not parties in the lower court proceedings, their application was dismissed and the court held that a party cannot be brought into proceedings at appeal level. The Judge stated that they could seek solace under order 45 C.P.R and apply for review of the Judgment of the lower court. This was not done. The applicant annexed a verifying affidavit.

3. The respondents herein placed restriction on the same sometime in 2014 claiming that the suit land was under investigations by the National Land Commission. Despite the restriction, the applicant has never been notified of any proceedings in relation to the suit land or received any summons thereof.

Respondent’s case

The respondents’ through served did not file any response and the application was therefore unopposed.

Interested party’s case

The interested party though served did not file any response and the application was therefore unopposed.

1. ORDER OF CERTIORARI

In Kenya National Examination Council –v- Republic Ex-parte Geoffrey Gathenji Njoroge & 9 Others (1997)eKLR.

The Court of Appeal at Nairobi stated;

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.

The applicant is seeking to quash the respondents’ order of restriction on the suit land.

2. ORDER OF MANDAMUS.

Kenya National Examination Council –v- Republic Ex-parte Geoffrey Gathenji Njoroge & 9 Others (1997)eKLR.

The Court of Appeal at Nairobi stated:

“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.”

At paragraph 90 headed “the mandate” it is stated: “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.”

What do these principles mean? They mean 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 the 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 applicant is seeking for orders compelling the respondents to include her in any proceedings conducted in respect of the suit land and expeditiously conduct any such proceedings.

In addition, she is seeking order of mandamus compelling the Interested Party to issue her with a title deed to the suit land.

4. The applicant is the registered owner of the land therefore has made out a prima facie case which has not been rebutted by the respondents. In addition, she has judgment which is in her favour and no appeal has been lodged against it therefore she is entitled to the orders of certiorari and mandamus as sought.

I make the following orders in conclusion:

1. A order of certiorari to remove and quash the respondents order of restriction on land parcel No. Kiine/Thigirichi/527 is hereby issued.

2. An order of Mandamus is issued to compel the Interested Party to issue the applicant with a title deed to parcel No. Kiine/Thigirici/527. The respondent to include the applicant in any proceedings conducted they conduct over the said land parcel and expeditiously conduct such proceedings.

3. I make no orders as to costs as the application is not opposed.

Dated at Kerugoya this 1st day of August 2018.

L. W. GITARI

JUDGE

Mr. Mwangi for Applicant

C/A – Naomi

Respondent - Absent