[2013] KEHC 2096 (KLR)
The court held that judicial review is a discretionary remedy and should not be granted where there are pending suits in competent courts that can address the substantive issues in dispute. Since the applicants and interested parties were already litigating ownership of the suit properties in CMCC No. 1796 of 2009...
Source-derived case information.
- Citation
- [2013] KEHC 2096 (KLR)
- Parties
- Applicant: Republic; Applicant: Jane Wairimu Mwangi; Applicant: Samwel Mangi; Applicant: Nelson Mukuna Mwangi; Applicant: Eric Njau Mwangi; Applicant: Benson K Mwangi; Applicant: John Mwaura Muigai; Applicant: Grace Muthoni Mwaura; Applicant: Nicholas Kabucho Murimi; Applicant: Mary Mukami Kariithi; Applicant: Stephen Kariithi Mungai; Respondent: Commissioner of Lands; Respondent: Chief Land Registrar; Respondent: Director of Survey; Interested Party: Councillor Joshat Waichahi; Interested Party: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 163 of 2012
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Deed Plans, Ownership Disputes, Certiorari, Pending Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Jane Wairimu Mwangi
Applicant
Samwel Mangi
Applicant
Nelson Mukuna Mwangi
Applicant
Eric Njau Mwangi
Applicant
Benson K Mwangi
Applicant
John Mwaura Muigai
Applicant
Grace Muthoni Mwaura
Applicant
Nicholas Kabucho Murimi
Applicant
Mary Mukami Kariithi
Applicant
Stephen Kariithi Mungai
Applicant
Commissioner of Lands
Respondent
Chief Land Registrar
Respondent
Director of Survey
Respondent
Councillor Joshat Waichahi
Interested Party
City Council of Nairobi
Interested Party
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether an order of certiorari should issue to quash the decision of the Director of Survey approving Deed Plans relating to the suit properties pending determination of ownership in CMCC No. 1796 of 2009.
- 2 Whether judicial review is the appropriate remedy where there are pending suits on ownership of the same property.
Ratio Decidendi
The court held that judicial review is a discretionary remedy and should not be granted where there are pending suits in competent courts that can address the substantive issues in dispute. Since the applicants and interested parties were already litigating ownership of the suit properties in CMCC No. 1796 of 2009 and other related cases, the issues concerning the Deed Plans could be adequately addressed in those proceedings. Granting an order of certiorari would risk interfering with the effective and real determination of ownership by the trial courts. The court found that the applicants had an efficacious remedy in the pending suits and that judicial review was not warranted in the...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 20th May 2012 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. APPL. NO. 163 OF 2012
BETWEEN
REPUBLIC …………..……………………………..................................................… APPLICANT
AND
THE COMMISSIONER OF LANDS ….…….................................................... 1ST RESPONDENT
THE CHIEF LAND REGISTRAR ……...................................................…..…. 2ND RESPONDENT
THE DIRECTOR OF SURVEY …………...................................................….. 3RD RESPONDENT
EX-PARTE
JANE WAIRIMU MWANGI …………....................................................……...… 1ST APPLICANT
SAMWEL MANGI …………………....................................................……….… 2ND APPLICANT
NELSON MUKUNA MWANGI ………....................................................…….… 3RD APPLICANT
ERIC NJAU MWANGI …………………....................................................….….. 4TH APPLICANT
BENSON K MWANGI …………………….......................................................… 5TH APPLICANT
JOHN MWAURA MUIGAI ………………....................................................…… 6TH APPLICANT
GRACE MUTHONI MWAURA …………....................................................….… 7TH APPLICANT
NICHOLAS KABUCHO MURIMI ……...….....................................................… 8TH APPLICANT
MARY MUKAMI KARIITHI ………….......................................................…...… 9TH APPLICANT
STEPHEN KARIITHI MUNGAI …………......................................................… 10TH APPLICANT
AND
COUNCILLOR JOSHAT WAICHAHI
CITY COUNCIL OF NAIROBI AND 23 OTHERS ……...……………… INTERESTED PARTIES
JUDGMENT
I have considered this matter, the depositions and submissions and it concerns on-going litigation in the Chief Magistrates’ Court, to wit CMCC No. 1796 of 2009 between the ex-parte applicants and the interested parties concerning the property known as Land Reference No. 209/7260/175 to 209/7260/176(IR 23787). There are also other case file in the High Court, Environment and Land Division which concern the suit land. The suits, it appears, were filed when the Magistrate Court’s directed that the interested parties in the court case pending in the subordinate court should file separate suits to determine their matters.
The Notice of Motion dated 20th May 2012, seeks an order of certiorari to quash the decision of the 3rd respondent approving Deed Plans relating to the suit properties pending hearing and determination of CMCC No. 1796 of 2009.
In my view a deed plan is an integral part of the title to property and where the suit pending before the court deals with ownership, then the court will direct its inquiry to the incidents of ownership and accordingly make the declaration. Such declaration or other relief may be enforced against the relevant parties.
Judicial Review is a discretionary remedy and one of the factors to be considered is whether there is an efficacious remedy available and whether the circumstances warrant the grant of such an order. The material before the Court is clear that there are several suits concerning the properties in dispute and the courts called upon to adjudicate the issue of ownership will carry out a full inquiry. The grant of an order of judicial review would undercut the pending suit by interposing an order that may affect the real and effective determination of the matters at hand.
I am satisfied that the issues raised in respect of the Deed Plans to the suit properties can be dealt with by the court where the case is filed. In the circumstances, the Notice of Motion dated 20th May 2012 is dismissed with no order as to costs.
DATED and DELIVERED at NAIROBI this 1st day of October 2013
D.S. MAJANJA
JUDGE
Mr Kiarie instructed by Ndegwa Kiaries and Company Advocates for the ex-parte applicants.
Mr Mwangi instructed by Irungu Mwangi Ng’anga’a T. T. And Company Advocates for the interested parties.
Mr Mosoti, instructerd by Momanyi and Associates for the Nairobi City Council.