[2017] KEHC 8357 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

MILIMANI LAW COURTS

JUDICIAL REVIEW APPLICATION NO. 321 OF 2013

AND

IN THE MATTER OF AN APPLICATION BY MICHAEL NJEGA WAWERU FOR ORDERS OF MANDAMUS AGAINST THE CHIEF LAND REGISTRAR

AND

IN THE MATTER OF THE LAND REGISTRATION ACT, 2012

AND

IN THE MATTER OF THE LAND ACT, 2012

BETWEEN

REPUBLIC…………………………….………...….…………..……..APPLICANT

VERSUS

THE CHIEF LAND REGISTRAR ………….................….………….RESPONDENT

AND

JANE WAIRIMU MWANGI

SAMUEL MWANGI NJAU.INTERESTED PARTIES/APPLICANTS

EX PARTE: MICHAEL NJENGA WAWERU

RULING

Introduction

1. On 16th July, 2014, this Court (Korir, J) recorded a consent order by which the Notice of Motion dated 18th September, 2013 as amended was allowed as prayed with no order as to costs. The effect of the said order was that an order of mandamus was issued compelling the Respondent, the Chief Lands Registrar, to effect the Registration of the Grant (Title Deed) in favour of the applicant in respect of the property known as LR No. 870/VI/80 Westlands, Nairobi and release the said Grant (Title Deed) to the applicant.

2. Subsequent to the said order, the interested parties herein, Jane Wairimu Mwangi and Samuel Mwangi Njau, moved the Court by an application dated 15th October, 2015, by which they sought to be joined to these proceedings as such interested parties. They also sought an order quashing the proceedings and the order issued herein on 21st July, 2014. As indicated above the order was actually granted on 16th July, 2014 but was issued by the registry on 21st July, 2014. Strictly speaking what the interested parties ought to have sought to quash was the order granted on 16th July, 2014 since quashing the issued order without quashing the actual decision granted by the Court would be futile. Nothing however turns on the issue as that is a matter that is curable under Article 159(2)(d) of the Constitution.

3. According to the interested parties, they are the registered owners of land reference No. 1870/VI/80 Nairobi having been allocated the same by the Government of Kenya on the 28th May, 1999.

4. They averred that after accepting all the conditions and paying the requisite fees to the government, a grant was registered in their favour on the 1st July, 2002 and issued with an I.R. No. 88987/1. However in the year 2003, when they were about to start renovations to an old house that was within the said property, an individual unknown to them forcefully moved in purporting to have bought the property from one Michael Njenga Waweru. Upon the matter being referred to the police, the interested parties contended that whereas they produced their documentation in verification of their claim, the purported seller did not and he was arrested and put in custody.

5. The interested parties averred that they thereafter never heard of any incident until the year 2010, when the 1st interested pay was called by their agents enquiring whether they had offered the property for sale and disclosed that they had a copy of a letter together with copy of grant purporting to sell the land. After obtaining the same from their agents the 1st interested party immediately reported the same at Parklands Police Station under OB/No.40/12/7/2010.

6. It was averred by the 1st interested party that she has since been charging and discharging the said property with various banks notably, Standard Chartered Bank and Family Bank. However, on 7th July, 2011, the Ministry of Land through the Senior Registrar of Titles wrote to Standard Chartered Bank informing them that they have received a court order in civil case no. 395 of 2010 High Court of Kenya Nairobi dated 15th March, 2011 from one Michael Njenga Waweru directing them to cancel the grant to the 1st interested party’s property. Upon the Bank communicating the same, the 1st interested party rushed to the Ministry of Lands to confirm what was going on accompanied by her advocate and were directed to see one Madam Mule, the then Senior Registrar of Titles who informed them to see her the next day. In the meantime the advocate went to the High Court made a perusal to the purported court file where the court order emanated from and found out that both the parties to the suit and the suit premises were totally different. Immediately, the advocate wrote a letter to the Chief Land Registrar advising her of the foregoing vide a letter dated 16th January, 2012.

7. It was averred that upon receipt of the said letter the Ministry of Lands through the Assistant Commissioner of Lands vide their letter dated 13th January, 2012 wrote to Standard Chartered Bank withdrawing the contents of their letter dated 7th July, 2011 intending to cancel the grant. Thereafter there was no issue till sometimes in 2014 when the bank conducted search on the property and the deed file could not be traced, upon which the 1st interested party instructed her advocates who registered a deed of indemnity and gazetted the lost deed file.

8. It was averred that recently the same individual lodged a complaint with the National Land Commission, claiming the property to be his and that the interested parties came to learn from the sittings at the National Land Commission that the applicant had filed the instant judicial review case against the Registrar of Titles seeking an order of mandamus to compel to Register the Titles to register the suit property in his favour, knowing that there exists and that the 1st interested party holds the original title to the property.

Respondent’s Case

9. In opposition to the application, the Respondent filed the following grounds of opposition:

1) That the application is defective, has no merits and is based on the misconception of the law, vexatious and an abuse of the court process.

2) That the matter offends the provisions of Order 53 of the Civil Procedure Rules and Section 8 and 9 of the Law Reform Act as they are the only provisions that apply to Judicial Review.

3) That the provisions of Order 1 Rule 8(3), Order 45 Rule 1, 2(1) & (5) of the Civil Procedure Rules & Order 53 rule (6) & (7) invoked on the face of the application do not confer jurisdiction on the court to grant the said orders neither do they apply to Judicial Review. See Kuria Mbae v The Land Adjudication Officer, Chuka and Another Nairobi HCMCA No 257 of 1983 and Jotham Mulati Welamondi v The Electoral Commission of Kenya Bungoma HC Misc Appl No 81 of 2002 [2002] 1 KLR 486.

4) That prayer (d) of the application if allowed is not within the purview of Judicial Review court neither does it meet the basic tenets of a judicial review application. It is seeking a merit analysis of evidence which is not possible within these proceedings. See Sanghani Investment Limited vs. Officer in Charge Nairobi Remand and Allocation Prison [2007] 1 EA 354.

5) That as far as prayer (d) is concerned, this court does not have jurisdiction to preside over this matter for the reason that The Environment and Land Court has been established under Article 162(2)(b) (3) of the constitution of Kenya and Act No. 19 of 2011 (The Environment & Land Court Act) to deal with land matters and by dint of the of the provisions of Article 165(5) has specifically limited the jurisdiction of the High Court to this extent. See Samuel Mutonga Thiru & 8 Others vs Colgate Palmolive (East Africa Ltd) {2013} eKLR. Republic v commissioner of Lands, Cabinet Secretary Ministry of Lands Housing & Urban Development Pamela Mutegi & 5 Others Ex parte Samuel Muciri W’njuguna [2014] eKLR JR 229 of 2013.

6) That further to the foregoing, the application is not within the purview of Judicial Review Court neither does it meet the basic tenets of judicial review application. It is seeking a substantive review and variation of this Court’s judgment which is not possible within these proceedings. The High Court does not have the power to review its decisions in a judicial review application under order 53 of The Civil procedure rules. See Court of appeal decision in Biren Amritlal Shah and another v Republic and 3 others [2013] eKLR.

7) That to grant the order for review would fundamentally and radically change the judgment to be reviewed and would open a new front to litigation thus amounting to an abuse of court. See Sara Lee Household & Body care (K) Ltd vs Damji Pramji Mandavia Kisumu HCCC No 114 of 2004.

8) That the application is an abuse of the court process and lacks merit and has been filed in total disregard of provisions of Section 13 of the Environment & Land Court Act.

9) That the Application dated 10th October 2015 does not satisfy the threshold for the reviewing of the orders sought The Respondent therefore, prays that the said Application be dismissed with costs.

10. It was submitted on behalf of the Respondent that the High Court sitting as a judicial review court has no Jurisdiction to review its own orders. It was further contended that the orders sought are not within the purview of Judicial Review Court and do not meet the basic tenets of judicial review application. It is seeking a substantive review and variation of this Court’s judgment which is not possible within these proceedings. In support of this position the Respondent relied on Biren Amritlal Shah and another vs. Republic and 3 Others [2013] eKLR.

11. To the Respondent, this being an application brought under judicial review, the provisions of order 1 rule 8(3), order 45 rule 1,2(1) & (5) of the Civil Procedure Rules &order 53 rule (6) & (7) invoked on the face of the application do not confer jurisdiction on the court to grant the said orders neither do they apply to Judicial Review. The Respondent referred to Kuria Mbae vs. The Land Adjudication Officer, Chuka and Another Nairobi HCMCA No 257 of 1983andJotham Mulati Welamondi vs. The Electoral Commission of Kenya Bungoma HC Misc Appl No 81 of 2002 [2002] 1 KLR 486and emphasised that the application offends the provisions of order 53 rule 3 and sec 8 & 9 of the Law reform Act which do not provide for review of its orders.

12. In the Respondent’s view, to grant the order for review would fundamentally and radically change the judgment to be reviewed and would open a new front to litigation thus amounting to an abuse of court. The application, it was contended is seeking a merit analysis of evidence which is not possible within these proceedings and reliance was placed on Sara Lee Household & Body Care (K) Ltd vs Damji Pramji Mandavia Kisumu HCCC No 114 of 2004 and Sanghani Investment Limited vs. Officer in Charge Nairobi Remand and Allocation Prison [2007] 1 EA 354

13. It was further submitted that this court does not have jurisdiction to preside over this matter for the reason that The Environment and Land Court has been established under Article 162(2)(b) and (3) of the Constitution of Kenya and Act no 19 of 2011(The Environment & Land Court Act)to deal with land matters and by dint of the provisions of Article 165(5) has specifically limited the jurisdiction of the High court to this extent. In this respect the Respondent relied on Samuel Mutonga Thiru & 8 others vs. Colgate Palmolive(East Africa Ltd){2013} eKLR and Republic v Commissioner of Lands, Cabinet Secretary Ministry of Lands Housing & Urban Development Pamela Mutegi & 5 others Ex-parte Samuel Muciri W’njuguna [2014] eKLR JR 229 of 2013.

14. Based on the foregoing the Respondent submitted that the Application dated 15th October 2015 lacks merit and does not satisfy the threshold for the reviewing of the grant of orders sough and prayed that the same be dismissed with costs.

Ex Parte Applicant’s Case

15. On the part of the ex parte applicant it was averred that at the time the interested parties/applicants unlawfully and forcefully took over the suit property from him, he had a tenant occupying the property namely Onesmus Gachuhi Githinji an advocate of this Court who was paying him monthly rent in the sum of Kshs 50,000/=.

16. The ex parte applicant disclosed that the said Onesums Gachuhi Githinji filed suit being HCCC No. 989 of 2005 against the interested parties on 5th August, 2005, seeking damages for their unlawful deeds but was unable to trace their whereabouts resulting in the said advocates filing an application to extend the validity of the summons. However the said suit was ultimately dismissed on 24th February, 2015 for want of prosecution.

17. In the ex parte applicant’s view, the claim, if any, to the suit property by the interested parties is illegal and riddled with fraud.

18. It was the ex parte applicant’s case that this Court has no jurisdiction to grant the principal relief sought by the proposed interested parties/applicants in their application.

Determinations

19. The first issue is whether this Court has jurisdiction to review, set aside or vary its orders made after the hearing of a judicial review application.

20. The Court of Appeal in Biren Amritlal Shah & Another vs. Republic & 3 Others [2013] eKLR expressed itself on section 8(5) of the Law Reform Act as follows:

“It is therefore quite clear that appeals in respect of orders made under judicial review lie with the Court of Appeal. Therefore, in answering the question whether the High Court had jurisdiction to entertain a review application, we agree with the learned judge of the High Court that, in exercising its special jurisdiction under the Law Reform Act, the High Court had no jurisdiction to review its previous order.”

21. The same Court however held in Nakumatt Holdings Limited vs. Commissioner of Value Added Tax [2011] eKLR that the superior court in the matter before the court has the residual power to correct its own mistake. Accordingly, where a mistake is shown to have been committed which is remediable by the Court the same ought to be corrected by the Court in the exercise of its inherent jurisdiction. In my view where a mistake has been brought to the attention of the Court which is capable of being remedied, be it by review or otherwise, I do not see any bar to the Court invoking its inherent powers to do so.

22. Accordingly, to the extent that the Court has no powers under Order 45 of the Civil Procedure Rules to review its orders made on judicial review, I agree that the Court of Appeal’s decision in Biren Amritlal Shah & Another vs. Republic (supra) cannot be faulted. In light of a different view taken by the same Court in Nakumatt Holdings Limited vs. Commissioner of Value Added Tax (supra) this Court is free where there is a conflict of authorities to choose between the two especially and as it seemed to have been the position in this case where the second decision is given in ignorance of the former without being fully analysed. See Major Joseph Mwateri Igweta vs. Mukiri M’ethare & Another Civil Application No. Nai. 8 of 2000.

23. It is therefore my view that whereas the Court has no power to review a decision made on judicial review pursuant to section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, it has a residual jurisdiction pursuant to its inherent powers to correct its mistakes and this may, where merited, include granting orders whose effect may amount to a review. That the Court may not review its decisions under the Civil Procedure Act is in my view informed by the provisions of section 3 of the Civil Procedure Act which provides:

In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force.

24. It follows that where there is a special jurisdiction or power conferred, or any form or procedure prescribed, by or under any other law, the provisions of the Civil Procedure Act are inapplicable. It must be remembered that apart from Order 53 of the Civil Procedure Rules, the provisions of the Civil Procedure Act and the Rules made thereunder do not apply to judicial review proceedings. Accordingly Order 45 of the Civil Procedure Rules would similarly not apply to these type of proceedings. In Kuria Mbae vs. The Land Adjudication Officer, Chuka & Another Nairobi HCMCA No. 257 of 1983 the court held that where proceedings are governed by a special Act of Parliament, the provisions of such an Act must be strictly construed and applied and therefore the provisions of the Civil Procedure Act and Rules do not apply unless expressly provided by such an Act and the provisions of the Civil Procedure Act and rules cannot be applied merely because the special procedure does not exclude them. In Jotham Mulati Welamondi vs. The Electoral Commission of Kenya Bungoma H.C. Misc. Appl. No. 81 of 2002 [2002] 1 KLR 486, the Court held that Judicial review is a special procedure and as the Court is exercising neither a civil or criminal jurisdiction in the strict sense of the word, the invocation of the provisions of section 3A and order 1 rule 8 of the Civil Procedure Rules render the application wholly incompetent.

25. However, where a mistake is shown to have been committed which is remediable by the Court the same ought to be corrected by the Court in the exercise of its inherent jurisdiction and not necessarily under section 3A of the Civil Procedure Act which strictly speaking does not apply to judicial review proceedings. That section it has been held time and again does not confer inherent jurisdiction on the Court but only reserves the same. The court, no doubt has inherent powers to make such orders as may be necessary for the ends of justice and inherent power is not donated by Section 3A of the Civil Procedure Act. In Ryan Investments Ltd & Another vs. The United States of America [1970] EA 675 it was held that section 3A of the Civil Procedure Act is not a provision that confers jurisdiction on the court but simply reserves the jurisdiction which inheres in every court. The court has inherent jurisdiction not created by legal provisions, but which only manifests the existence of such powers.

26. Dealing with inherent powers of the Court it was held in Republic vs. The Public Procurement Complaints, Review and Appeals Board & Another Ex Parte Jacorossi Impresse Spa Mombasa HCMA No. 365 of 2006 that the Court has power under its inherent jurisdiction to make orders that may be necessary for the ends of justice and to enable the Court maintain its character as a court of justice and that this repository power is necessary to be there in appreciation of the fact that the law cannot make express provisions against all inconveniences.

27. Similarly, in The Matter of The Estate of George M’mboroki Meru HCSC No. 357 of 2004, Ouko, J (as he then was) expressed himself inter alia as follows:

“It is....accepted that the court retains certain intrinsic authority in the absence of specific or alternative remedy, a residual source of power, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent abuse of its process, to do justice between the parties and to secure a fair trial between them.”

28. I therefore hold that this Court has powers to review its decisions made in judicial review proceedings pursuant to its inherent powers.

29. The interested parties’ case is that although they have interest in the suit property, they were never served nor joined to these proceedings.

30. Order 53 rule 3(2) of the Civil Procedure Rules provides:

The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.

31. It is therefore a mandatory requirement that the notice of the application ought to be served on all persons directly affected. In this case, it is contended that the interested parties are persons directly affected by the decision sought to be set aside since they were allotted the suit property and issued with a grant for the same. A perusal of the record clearly shows that the interested parties were neither parties to the application which gave rise to the said orders nor were they served.

32. As was held in Onyango Oloo vs. Attorney General [1986-1989] EA 456:

“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...To “consider” is to look at attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to think, hold the opinion... “Consider” implies looking at the whole matter before reaching a conclusion...A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...It is improper and not fair that an executive authority who is by law required to consider, to think of all the events before making a decision which immediately results in substantial loss of liberty leaves the appellant and others guessing about what matters could have persuaded him to decide in the manner he decided...In the course of decision making, the rules of natural justice may require an inquiry, with the person accused or to be punished, present, and able to understand the charge or accusation against him, and able to give his defence. In other cases it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decision-making body or person, who, having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected. The extent to which the rules apply depends on the particular nature of the proceedings...It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard renders any decision made null and void ab initio.”[Emphasis mine].

33. It is therefore clear that it is not the perceived hopelessness of a person’s case that determines whether or not he ought to be heard in a decision likely to adversely affect him since under Article 19 of the Constitution the right to be heard is a fundamental human right that is not given by the State as human rights are generally universal and inalienable rights of human beings only given recognition by the Constitution.

34. Therefore the omission to afford the interested parties an opportunity of being heard by omitting them from the proceedings altogether was a breach of their fundamental rights as envisaged under Article 47 of the Constitution and that is a reason to set aside the proceedings herein.

35. In this case the ex parte applicant knew that the interested parties were claiming interest in the suit property yet he proceeded to institute these proceedings in which a consent was recorded whose effect was to adversely affect the interests or the interested parties’ claim.

36. Whether an order is by consent or otherwise, this Court cannot countenance a situation where persons decide to make themselves parties to a suit with a view to recording consents thereat in order to deny a person whose interestsare thereby affected an opportunity of being heard. Similar circumstances arose in Nairobi High Court Civil Suit (Civil Division) No. 1573 of 1995 - Daniel Nganga Kamande & 2 Others vs. Ngucanirio Farmers Company Ltd -in which this Curt expressed itself as hereunder:

“To uphold the respondent’s view would amount to giving a judicial seal of approval to unscrupulous parties who would mischievously institute legal proceedings either against non-existent parties or against wrong parties and use decisions obtained therefrom to inflict pain and injury to persons who were never accorded an opportunity to defend themselves. To do so would be unconstitutional and the Court is enjoined to act in accordance with the Constitution. To do otherwise would amount to the abdication of the Court’s Constitutional mandate under the Constitution. I perfectly agree with the respondents that since the applicants were not parties to the suit they are not affected by the judgement.”

37. The law as I understand it is that non-parties to legal proceedings are not bound by orders made therein. In the case of Earnest Orwa Mwai vs. Abdul S. Hashid & Another Civil Appeal No. 39 of 1995the Court of Appeal stated thus:

“Since Hashid was not a party to the decision in which the Court ordered that the lorry be released to the objector, and since he had obtained title to the lorry at a lawful auction before the said decision was made, property had passed and that decision did not bind him since he was not made a party”.

38. In Ramdev Malik vs. Lionel Albert Callow [1958] EA 99it was held inter alia that:

“The court has jurisdiction to set aside a judgement obtained by fraud in a subsequent action brought for that purpose, the proper remedy being an original action and not a re-hearing, but such a judgement will not be set aside upon mere proof that the judgement was obtained by perjury in which case his remedy lies in seeking a review of the judgement…The principle is that where a decree has been obtained by fraud practised upon the other side, by which he was prevented from presenting his case before the tribunal which was called upon to adjudicate upon it in the way most to his advantage, the decree is not binding upon him and may be set aside in a separate suit, and not only by an application made in the suit in which the decree was passed to the court by which it was passed; but it is not the law that because a person against whom a decree has been passed alleges that it is wrong and that it was obtained by perjury committed by, or at the instance of the other party, which is of course fraud of the worst kind, that he can obtain a re-hearing of the questions in dispute in a fresh action by merely changing the form in which he places it before the court and alleging in his plaint that the first decree was obtained by perjury of the person in whose favour it was given. To hold so would be to allow defeated litigants to avoid the operation, not only of the law which regulates appeals, but that which relates to res judicataas well… it is clear that in a proper case the court has jurisdiction to set aside a decree which has been obtained by fraud practised on the court. If, for instance, the existence of certain evidence has been stoutly denied by one party, and the court has been induced to frame its decree on the basis that that evidence did not exist, then, if that evidence is afterwards discovered, and it is of such nature that if it had been before the first court, the probabilities are that the court would have arrived at a different conclusion, then, it may well be, when all the circumstances are looked at, that in that case the court would set aside the original decree…If, for instance a party be prevented by his opponent from conducting his case properly by tricks or misrepresentation, that would amount to fraud.”

39. Even in ordinary suits where there is no issue of violation of the rules of natural justice, the Court has wide powers to set aside orders issued in the absence of the applicant where the justice of the case cries loud for such relief save that where the discretion is exercised the Court will do so on terms that are just. In CMC Holdings Limited vs. Nzioki [2004] 1 KLR 173it was held as follows:

“That discretion must be exercised upon reasons and must be exercised judiciously…... In law the discretion that a court of law has, in deciding whether or not to set asideex parteorder was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle...The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate”.

40. I have said enough to show that the interested parties deserve their day in Court.

Order

41. In the premises I find the Motion on Notice dated 15th October, 2015 merited and I hereby set aside the consent order recorded by this Court on 16th July, 2014 and issued on 21st July, 2014 as well as the consequential orders. Let these judicial review proceeding be heard de novo.

42. As the fault lies with the ex parte applicant, the costs of this application are awarded to the interested parties to be borne by the ex parte applicant in any event.

43. It is so ordered.

44. The delay in delivery of this ruling as scheduled was due to the fact that the parties did not furnish the Court with the soft copies of the pleadings and submissions as directed.

Dated at Nairobi this 30th day of January, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Nyamwota for the Applicant

Mr Kiarie for the interested parties

CA Mwangi