[2020] KEELC 1140 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAJIADO

AMENDED JUDICIAL REVIEW APPLICATION

MISCELLANOUS CIVIL APPLICATION NO. 18 OF 2018

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PURSUANT TO ORDER 53 (1), (2), (3) & (4) OF THE CIVIL PROCEDURE RULES 2010 OF THE LAWS OF KENYA

AND

IN THE MATTER OF LEAVE FOR THE ORDERS OF MANDAMUS COMPELLING THE 1ST RESPONDENT TO TAKE ANY APPROPRIATE ACTION TO PREVENT THE 2ND, 4TH AND 5TH RESPONDENTS FROM FURTHER ENCROACHING ON THE APPLICANT’S LAND PURSUANT TO ORDER 53 OF THE CIVIL PROCEDURE RULES, SECTION 8 & 9 OF THE LAW REFORM ACT CAP 26 AND THE FAIR ADMINISTRATIVE ACTION 2015 OF THE LAWS OF KENYA

BETWEEN

RAMPAI OLE SAIDIMU.....................................................EX PARTE APPLICANT

AND

THE DISTRICT LAND REGISTRAR..........................................1ST RESPONDENT

MUTERO SANTAMO....................................................................2ND RESPONDENT

HON. ATTORNEY GENERAL.....................................................3RD RESPONDENT

MAGEI SANTAMU SENGE.........................................................4TH RESPONDENT

JOSEPH SANTAMU......................................................................5TH RESPONDENT

EX PARTE..............................................................................RAMPAI OLE SAIDIMU

RULING

What is before Court for determination is the Ex parte Applicant’s Amended Chamber Summons application dated the 11th June, 2018 where he seeks leave to apply for orders of Mandamus including Prohibition and the said Leave operate as a stay pending the determination of the substantive motion. The application is premised on the amended Statutory Statement of Facts and Amended Verifying Affidavit sworn by RAMPAI OLE SAIDIMU as well as the annexures thereon. In the verifying affidavit, the deponent confirms being the registered proprietor of land parcel number Kajiado/ Purko/ 452 which borders the 4th Respondent’s parcel of land known as Kajiado/ Purko/ 453. He explains that there has been a protracted boundary dispute between the 2nd, 4th and 5th Respondents and himself over the exact location of their boundary. Further, the 2nd and 5th Respondents have continuously encroached on his land. He has lodged formal complaints to various offices seeking final redress and on various dates, they were summoned by the Land Registrar including the Land Surveyor for ascertaining the boundary. He contends that the 2nd, 4th and 5th Respondents have failed to abide by the Counsel provided by the Provincial Administration Officers through numerous meetings held involving the said dispute. Further, in 2004, the District Land Surveyor surveyed the land and subsequently prepared a comprehensive report making a final conclusion to the aforementioned dispute. He further explains that on 29th September, 2016 a site visit was conducted by the District Surveyor’s office which subsequently prepared a comprehensive report dated 4th October, 2016. He insists despite the above, the 2nd, 4th and 5th Respondents have continued to persist that the boundary dispute was not resolved. Further, the 1st Respondent also prepared a comprehensive report on 17th January, 2017 making a final conclusion to the boundary dispute and advised the parties to maintain and respect the boundaries as determined. He claims the 1st Respondent being a public official has refused and or ignored to perform a public duty and should be compelled to do so. Further, an order of mandamus should compel him to take appropriate action to stop any further encroaching and trespassing on land parcel number Kajiado/ Purko/ 452 and maintain the boundaries as determined. He reiterates that he has made numerous requests to the 1st Respondent to take appropriate action to stop the 2nd , 4th and 5th Respondents from encroaching and or trespassing on his land but he has deliberately refused/ declined to adhere to his requests.

The application was unopposed .

Analysis and Determination

Upon perusal of the instant Amended Chamber Summons Application including the amended Statement of Facts and Verifying affidavit as well as the annexures thereon, I find that the only issue for determination is whether the Ex parte Applicant is entitled to leave to commence judicial review proceedings.

The Applicant seeks leave to apply for orders of Mandamus including Prohibition to compel the 1st Respondent to maintain boundaries between Kajiado/ Purko/ 452 and 453 as had been determined. He contends that despite numerous requests, the 1st Respondent has declined to do so, and he has hence failed to perform his public duty. Further, this is a breach of the principles of natural justice.

In the case ofRepublic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996Waki, J (as he then was) provided the parameter for granting leave to file judicial review and stated as follows:

“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.

I note from the Comprehensive Report of the Principal Land Registrar dated the 17th January, 2017, he clearly indicated that at the expiry of 30 days together with the District Surveyor, they would proceed to fix the two beacons as determined, if no objection would have been filed. In the current scenario, there is no indication if any objection has been filed. I note it is more than three years since the said boundary dispute was determined. The Ex parte Applicant avers that despite several requests to the 1st Respondent, who is the Land Registrar, has failed to act as per the determination made in the aforementioned report.

It is against the foregoing and in associating myself with the judicial authority cited above that I will exercise my discretion and grant the Ex parte Applicant leave to commence judicial review proceedings of Mandamus and Prohibition within 21 days from the date hereof. I further order that the said leave operates as a stay pending the hearing and determination of the substantive motion.

Dated signed and delivered in open court at Kajiado this 5th day of October, 2020.

CHRISTINE OCHIENG

JUDGE