[2013] KEHC 6336 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JR ELC CASE NO 24 OF 2010

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REPUBLIC.............................................................................................APPLICANT

V

CHAIRMAN,KANDARA LAND DISPUTES TRIBUNAL .....................1ST RESPONDENT

CHIEF MAGISTRATE’S COURT THIKA............................................2ND RESPONDENT

MARGARET WAMBUI WAINAINA ..........................................1ST INTERESTED PARTY

JANE WANJIKU ....................................................................2ND INTERESTED PARTY

JANE WANJIKU NYOIKE..........................................................3RDINTERESTED PARTY

EX-PARTE

JOEL GICHARU WAINAINA

JOTHAM KIRINGA GICHERU

DAMSON WAINAINA GICHERU

JUDGEMENT

Through sale agreements dated 31st December, 2004 Joel Gicharu Wainaina (the 1st ex-parte applicant) herein sold one acre of land to Margaret Wambui Wainaina (the 1st interested party) and another acre of land to Jane Wanjiru Ngugi (the 2nd interested party). The pieces of land sold to the interested parties were to be excised from the 1st ex-parte applicant’s land parcel number Loc.5/GITURA/293 measuring 3. 1 acres. Each interested party paid Kshs.70,000/= to the 1st ex-parte applicant and the balance of Kshs.130,000/= from each of the interested parties was to be paid on or before 1st January, 2006. For reasons which are not clear, the agreements were not concluded amicably. The interested parties later filed Case No. 16 of 2009 before the Kandara Land Disputes Tribunal (the 1st Respondent) asking for the enforcement of the sale agreements. The defendants in that case were Joel Gicharu Wainaina, Jotham Kiringa Gicharu and Danson Wainaina Gicharu who are the respective 1st to 3rd ex-parte applicants in these proceedings.

After hearing the dispute the 1st respondent found in favour of the interested parties herein and directed that each of the interested parties would get an acre of land from land parcel number Loc. 5/GITURA/1155 which was registered in the name of the 1st ex-parte applicant. The interested parties were directed to pay the balance of kshs.240,000/= to the 1st ex-parte applicant. The interested parties proceeded to file case No. 50 of 2009 at Thika Chief Magistrate’s Court and moved the court to adopt the decision of the 1st respondent as its own decision. The court issued orders accordingly. The Chief Magistrates Court at Thika is therefore the 2nd respondent in these proceedings.

The ex-parte applicants moved to this court on 16th April, 2010 and obtained leave to commence judicial review proceedings. Through the notice of motion dated 5th May, 2010 they therefore pray for orders that:-

1. THAT this Honourable Court be pleased to issue an order of certiorari to remove into this court the award of the Land Disputes Tribunal, Kandara Case No. 16 of 2009 and the proceedings of Thika Chief Magistrate’s Case No. D.O. 50 of 2009 for purposes of being quashed.

2. THAT this Honourable Court be pleased to issue an order of prohibition against the Chief Magistrate’s Court Thika prohibiting it from further effecting the decree dated 24/11/2009 emanating from the award hereinabove being sought to be quashed in D.O. Case No. 50 of 2009 regarding the dispute touching on land parcel No. LOC 5/GITURA/1155

3. THAT the costs of this application be provided for

The ex-parte applicants’ case is clearly brought out by the grounds in support of the said notice of motion in the following words:-

1. The Land Disputes Tribunal at Kandara in its LDT Case No. 16 of 2009 had no jurisdiction to hear and determine a dispute touching on ownership and title to land registered under Cap. 300 Laws of Kenya

2. The tribunal had no jurisdiction to enforce a contract arising from a sale of land agreement

3. The tribunal had no jurisdiction to order the ex-parte applicants to subdivide land parcel No. LOC. 5/GITURA/1155 and transfer 2. 0 acres to the interested parties as the same will offend sections 27 & 28 of the Registered land Act Cap 300 Laws of Kenya

4. The Land Disputes Tribunal acted ultra vires to its mandate and jurisdiction under S. 3(1) of the Land Disputes Tribunal Act No. 18 of 1990

The 1st interested party opposed the application through grounds of opposition dated 29th November, 2011. The said grounds of opposition are as follows:-

1. THAT the 1st Applicant died on 2nd February, 2010 before the filing of the instant application yet he is referred to as the 1st applicant.

2. THAT the applicants have not brought the present application as the legal representatives of the 1st applicant since deceased hence they have no locus standi to bring the suit.

3. THAT the application/suit has not been brought in good faith as the 2nd and 3rd applicants did not disclose that the 1st applicant had died before filing of the suit.

4. THAT further the applicants have no capacity to bring forth the suit on behalf of the 1st applicant who is deceased and the present suit/application had abated.

5. THAT the 2nd applicant did file a succession cause for the Estate of JOEL GICHARU WAINAINA the 1st applicant being succession cause Number 281 of 2009 Thika Law Court a year before the 1st applicant had died as evidenced in the certificate of death number 238833.

The 1st interested party also filed a replying affidavit which she swore on 29th November, 2011. Through the said affidavit she averred that the 2nd ex-parte applicant who had been appointed as an administrator of the estate of the 1st ex-parte applicant had since transferred the suit property namely Loc. 5/GITURA/1155 to a third party namely Beatrice Wangari Nyaguthi. The 1st interested party’s position was affirmed by Jane Wanjiku Ngugi (the 2nd interested party) and Jane Wanjiku Nyoike (the 3rd interested party). It is important to note at this stage that the 3rd interested party joined these proceedings through a consent order entered on 23rd July, 2012.

In my view, the first issue for the determination of this court is whether the 1st respondent had jurisdiction to hear the dispute between the applicants and the 1st and 2nd interested parties. The second issue is whether the applicants are deserving of the orders sought.

On the firstissue, it is agreed by all that the issue that was before the 1st respondent revolved around the sale of land to the 1st and 2nd interested parties by the deceased 1st applicant (hereinafter simply referred to as the deceased). The 1st respondent determined that the deceased had indeed sold land to the 1st and 2nd interested parties and directed the deceased to transfer land to the 1st and 2nd interested parties.

The question is whether the 1st respondent exceeded its jurisdiction by making that decision. The applicants argue that the 1st respondent had no jurisdiction to handle the dispute. The Attorney General for the respondents agreed with this submission. This came out clearly on 27th November, 2012 when Ms Maina for the Attorney General stated the position taken by the Attorney General. The interested parties did not address this issue.

The jurisdiction of the 1st respondent was donated by Section 3(1) of the repealed Land Disputes Tribunal Act as follows:-

“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. ”

The 1st respondent could only do that which it was mandated by the law to do. A look at the above quoted Section clearly shows that the jurisdiction of the 1st respondent was very limited. In my view the 1st respondent had no jurisdiction to hear disputes relating to breach of contract arising from sale of land. This position was clearly captured by G.B.M. Kariuki (as he then was) when he stated in the case ofJAMES ALUKOYE WERE v LURAMBI DIVISIONAL LAND DISPUTES TRIBUNAL & ANOTHER [2006] eKLRthat:-

“The suit land is and appears to have been registered in the name of the exparte applicant as its proprietor. The powers vested in the Divisional Lands Disputes Tribunal such as the Lurambi Division Lands Disputes Tribunal under section 3(1) of Act 18 of 1990 do not include the power to decide rights of parties under a contract for sale of land (or any other contract) nor do they include the jurisdiction to grant specific performance of such contract or to decide issues affecting title to land. The Lurambi Lands Disputes Tribunal in attempting to deal with the title to the said land and to determine the rights of the parties and also to decree specific performance went far beyond its powers and acted ultra vires such powers. Its decision was clearly a nullity.”

It is therefore quite clear that the 1st respondent went overboard when it decided to hear this matter. I think the interested parties opted to keep quiet about the issue of jurisdiction because they knew that the 1st respondent could not be defended on this issue.

The second issue is whether the applicants are deserving of the orders sought. Judicial review orders are discretionary remedies. They are issued to meet the ends of justice. Even where a party has established that he/she deserves the orders, the court may nevertheless decline to issue the orders. In doing so, the court must act judiciously and give reasons why it has declined to issue the orders. In the case before me, it is clear that the 2nd and 3rd applicants filed this matter using the name of a deceased person (the 1st applicant). They never disclosed to this court that the 1st applicant was already deceased at the time they filed this cause. That amounts to a misrepresentation of facts and a court of justice cannot be seen to assist a party who misleads the court. Secondly, the interested parties have informed the court, and which information is not disputed by the ex-parte applicants, that the 2nd ex-parte applicant filed a succession cause pertaining to the estate of the deceased and has since transferred the suit property to a third party who is not even before this court. This is an act of bad faith on the part of the 2nd and 3rd ex-parte applicants. How could they transfer a property which they themselves have made a subject of these proceedings? In my view their actions amounts to a clear abuse of the court process. They used this court to stall the court case before the 2nd respondent and then went ahead to transfer the property. That is quite wrong. The summary of it all is that the applicants are not deserving of the orders sought. Their application is dismissed. From the look of things, the proceedings before the 2nd respondent may no longer be of any use to the interested parties. They may now have to go back to the drawing board and re-strategize on how to get justice. The actions of the 2nd and 3rd ex-parte applicants should, however, not go unpunished. They will meet the costs of the respondents and interested parties in these proceedings.

Dated, signed and delivered at Nairobi this 16th day of April , 2013

W. K. KORIR,

JUDGE

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