[2009] KEHC 3882 (KLR)
The court held that the applicants, by accepting the offer of plots in the Nguu Settlement Scheme, were bound by the terms allowing the Settlement Fund Trustees and the Director of Land Adjudication and Settlement to create access roads as necessary until the transfer of title. The court found that no transfer had...
Source-derived case information.
- Citation
- [2009] KEHC 3882 (KLR)
- Parties
- Applicant: Morgan Munywoki Sii; Applicant: Mbatha Mueke; Applicant: Florence Kagunda; Applicant: Mule Mueke; Respondent: District Land Adjudication Officer, Kibwezi District; Respondent: The Attorney General; Interested Party: Joseph Muli
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 80 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Institute Judicial Review and for Stay
- Outcome
- application dismissed
- Judges
- I Lenaola
- Legal Topics
- Land Adjudication, Settlement Scheme Access Roads, Judicial Review Prohibition, Compulsory Acquisition, Title Transfer, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morgan Munywoki Sii
Applicant
Mbatha Mueke
Applicant
Florence Kagunda
Applicant
Mule Mueke
Applicant
District Land Adjudication Officer, Kibwezi District
Respondent
The Attorney General
Respondent
Joseph Muli
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Institute Judicial Review and for Stay
Legal Issues
- 1 Whether the applicants are entitled to judicial review orders of prohibition to prevent the respondent from constructing access roads on their plots before transfer of title.
- 2 Whether the applicants' acceptance of the offer to take up the plots included consent to the creation of access roads by the Settlement Fund Trustees.
- 3 Whether the application is competent in light of the applicants' legal status and the terms of the offer.
Ratio Decidendi
The court held that the applicants, by accepting the offer of plots in the Nguu Settlement Scheme, were bound by the terms allowing the Settlement Fund Trustees and the Director of Land Adjudication and Settlement to create access roads as necessary until the transfer of title. The court found that no transfer had been effected, and thus, the applicants had no absolute proprietary rights to exclude the respondent from demarcating access roads. Preventing the respondent from carrying out this statutory duty would be unlawful and impractical, potentially resulting in disorder within the settlement scheme. Consequently, the application for judicial review orders of prohibition was found to...
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Misc. Appli. 80 of 2009
1. MORGAN MUNYWOKI SII
2. MBATHA MUEKE
3. FLORENCE KAGUNDA
4. MULE MUEKE………………………………….…APPLICANTS
VERSUS
DISTRICT LAND ADJUDICATION OFFICER,
KIBWEZI DISTRICT...……………....………....1ST RESPONDENT
THE ATTORNEY GENERAL.………………...2ND RESPONDENT
AND
JOSEPH MULI …………....….………….…INTERESTED PARTY
RULING
1. The Application before me is for leave to institute the judicial review orders of prohibition to prohibit the 1st Respondent from “expounding on road construction encroaching on the Applicant’s parcels of land Plot Numbers 718, 716, 720 & 721 Nguu Ranch Settlement Scheme in Makueni District” The same is premised on Order LIII Rule 1(2) of the Civil Procedure Rules and should leave be granted, it is prayed that the same should operate as a stay of the order of implementation of the extension of the road.
2. I have read the Statement of Facts and the Verifying Affidavits and the Applicants’ case is that sometime in 1995, they were offered plots of land in Nguu Settlement Scheme by the Director of Land Adjudication and Settlement and one of the conditions of offer was that “the Settlement Fund Trustees during the period from the date hereof to the date of execution of transfer of the land”shall have inter-alia the right to“provide such ways of access as may be necessary for and … access thereto to rivers by persons and cattle from adjoining and neighbouring pieces of land.”Transfer is defined in the letter of offer to include grant of title. From all that has been exhibited to the Verifying Affidavit, no transfer was effected to the Applicants although the process towards that position has been embarked on by payment of requisite deposits and conveyance fees.
3. The complaint by the Applicants is that on 5. 8.2008, the 1st Respondent wrote to them and intimated that he would visit the land on 20. 8.2008 and “re-open the road of access between [their] plots.” They are unhappy with that decision because the same would mean encroachment into their land parcels without compensation.
4. My view is straight forward; the Application is misguided because by accepting the offer to take up the plots, the Applicants were expected to allow the Settlement Land Trustees through the Director of Land Adjudication and Settlement to have access to the land and it is commonly accepted that the Applicants until their titles are granted would allow the offeror to demarcate the land including creating roads of access and to stop him from doing so would be both unlawful and impractical as chaos and disorder would otherwise ensue. Surely, it is the duty of the 1st Respondent to ensure orderly access to all neighbouring plots and when some parties, close off access roads infighting and anarchy would be created.
5. The Application before me is wholly misguided, is incompetent and is dismissed with no order as to costs.
6. Orders accordingly.
Dated and delivered at Machakos this 22ndday of April 2009.
Isaac Lenaola
Judge
In the presence of: Mr. Kimeu for Applicant.
Isaac Lenaola
Judge