[1998] KEHC 3 (KLR)

REPUBLIC OF KENYA Republic vCounty Council of Kwale & another ex parteKondo & 57 others

High Court, at Mombasa February 2, 1998

Waki J

Miscellaneous Civil Application No 384 of 1996

Land– land use by indigenous inhabitants – rights of access to the sea by

local community – where the land has been set apart and allocated to a

private developer – procedure by which the community can enforce their

rights - matters the court will consider.

Judicial Review– notice to the Registrar – where the Registrar is given

notice six months after filing the application – whether such notice is a

nullity – Civil Procedure Rules order 53

Judicial Review– application for leave – purpose of the leave stage –

matters a court will consider before leave to commence action may be

granted – exercise of the court’s discretion

Judicial Review– certiorari - whether an order of certiorari may be

granted six months after the date of the proceedings being challenged -

persons or bodies against whom an application for certiorari may lie –

whether the Commissioner of Lands is a person against whose actions an

order of certiorari may lie - Civil Procedure Rules order 53 rule 2.

An application was made by 58 persons who said they were native

inhabitants of Funzi Island off the Kenyan Coast. They were mostly

fishermen and boatmen who had used the waters around the Island for

fishing. To access the sea and to be able to land their boats they used a

sand-pit adjoining the Island. The said sand-pit used to come in handy

particularly during the South – East Monsoons in April up to October in

each year. They also claimed customary rights over the entire Island which

was part of trust land.

Later on, it came to their realization that a portion of the Island had been

set aside by the Commissioner of Lands and allocated to a private limited

liability company, which had started developing it. The allocated land

included the entire area of the sand-pit used by the applicants in their

fishing activities. The applicants argued that the blockage which prevented

them from accessing the sea was bound to affect their livelihood.

The applicants thus filed an application stating that the entire process of

setting apart the land was ultra viresthe law and thus a nullity and sought

for the process to be quashed through an order of certiorari. The application

was drawn and filed about seven months after the decision of the

Commissioner of Lands. A notice of the application was not served on

the Registrar of the Court until six months after the filing of the application.

Held:

1. A notice to the Registrar of an application under the Civil Procedure

Rules order 53 rule 1(3) is an integral part of the application for leave.

It is mandatory because without it the application itself is incomplete,

incompetent and cannot be proceeded with.

2. Where notice is given to the Registrar one day before the actual hearing

of the application and six months after the filing of the application,

such notice is irregular but not a nullity and is curable by a directive

that proper service be effected.

3. So long as an applicant has served notice on the Registrar of the High

Court one day before actual appearance before a single judge, there is

compliance with the rule.

4. The purpose of the 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 the substantive hearing

if the court is satisfied that there is a case fit for further consideration.

5. 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 parteshearing 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.

6. Order 53 rule 2 of the Civil Procedure Rules is a mandatory provision

prohibiting the grant of an order of certiorariunless the application is

made not later than six months after the date of the proceedings against

which it is to be issued.

7. Certiorarilies not only to courts but to other persons and bodies having

legal authority to determine questions affecting the rights of subjects

and having the duty to act judicially. The Commissioner of Lands was

such a person and his actions are amenable to the grant of orders of

certiorari.

8. It is trite law that in an ex parteapplication when the court does not

have the benefit of hearing the other party the applicant has a duty to

conduct the application with utmost good faith and make full and frank

disclosure of all material facts.

Application dismissed.

Cases

1. Odhiambo, Walter Fredrick v Registrar of Trade UnionsMiscellaneous

Civil Case No 210 of 1987

2. R v Inland Revenue Commissioners v National Federation of Self

Employed and Small Business Ltd[1982] AC 617; [1981] All ER 93;

[1981] 2 WLR 722

Texts

Nowrojee, P Practice Procedure & Values of the Three Orders of

Mandamus, Certiorari & Prohibition, Nairobi Law Monthly Magazine,

November/December 1987

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order LIII rules 1(2), (3); 2

2. Civil Procedure Act (cap 21) section 2, 81(1)

3. Registration of Titles Act (cap 281)

4. Trust Land Act (cap 288) section 12

5. Law Reform Act (cap 26) sections 9(1) (2) (3)

6. Interpretations and General Provisions Act (cap 2) section 29

Advocates

Mr Lumatetefor the Applicants

February 2, 1998, Waki Jdelivered the following Ruling.

The Miscellaneous Civil Application dated 31. 5.1996 raises some vexing

questions of fact and law. It is an ex partechamber summons seeking

leave of this court under order 53 Rule 1(2) Civil Procedure Rules to

apply for judicial review in the nature of orders for certiorari mandamus

and Prohibition.

Although the application was drawn on 31. 5.96 and two affidavits in

support thereof were sworn on 6. 6.1996, the application was not filed

until 17. 12. 1996 –about seven months later! No notice was served on the

Registrar at the time of filing the application. But six months later on

19. 6.1997, the applicant filed a notice addressed to the Registrar in the

words:

“Take Notice that on or after the day succeeding this

notice, the above named applicants will apply to this

Honorable Court for leave to apply for orders of

CertiorariProhibition and mandamusas detailed in the

statement. A copy of the statement and of the supporting

affidavit is filed herewith. Dated 30. 5.1997”.

The chamber summons itself was fixed for hearing on 20. 6.97.

The first vexing question is whether the Notice to the Registrar was given

in accordance with order 53 Rule 1(3). Put another way, the issue is whether

then Rule requires the giving of notice at least one day before the filing

of the application or the day before the hearing of the application or one

day before the hearing of the application before a judge in chambers.

The law is clear in situations where no notice at all is served on the

Registrar. Leave granted in such circumstances and the Notice of Motion

filed subsequent thereto would be a nullity. It was so held by two judges

of this court (Cockar J (as he then was) and Amin J) in Walter Fredrick

Odhiambo –vs- Registrar of Trade UnionsHCC Misc 210/87 UR. They

said in their findings

“We agree with Mr.Nowrojee that these prerogative

orders fall under a special jurisdiction of this court

created by a statute whereby an institution of the

republic is empowered to supervise the functions of its

subordinate institutions. There are no pleadings

involved. The whole process becomes a nullity if leave

is not first obtained from a judge in chambers.

It is to be observed that the application itself before the

judge in chambers is ex parte. The Registrar receives

the notice on behalf of the republic which thereby

becomes involved in the matter. In our view, notice to

the Registrar of the application under sub-rule 3 is an

integral part of the application for leave. It is mandatory

because without it the application itself is incomplete,

incompetent and cannot be proceeded with. The

proceedings are a nullity.”

That is not the position in this application. Notice was given to the Registrar

but only one day before the actual hearing of the application and six months

after the filing of the application. It becomes necessary to cite the

provisions of sub rules (2) and (3).

“2. An application for such leave as aforesaid shall be

made ex parteto a judge in chambers and shall be

accompanied by a statement setting out the name and

description of the applicant, the relief sought and the

grounds on which it is sought and by affidavits verifying

the facts relied on.

3. The applicant shall give notice of the application for

leave not later than the proceeding day to the Registrar

and shall at the same time lodge with the Registrar

copies of the statement and affidavits. Provided the court

may extend this period or excuse the failure to file the

notice of the application for good cause shown.”

These are the steps governing the first step in obtaining any of the orders

of judicial review. In an article written by Pheroze Nowrojee, senior

councel for the Nairobi Law Monthly magazine in November/ December

1987, on the “Practice, Procedure and values”of the three orders of

mandamus certiorariand Prohibition councel opined thus:

“Order 53 rule 1 (2) sets out the steps at this stage. The

application for such leave shall be made ex parteto a

judge in chambers. This application consists then of:

a) The chamber summons endorsed “ex

parte”……………..

b) A statement filed pursuant to order 53 Rule 1 (2)….

c) An affidavit………………………………………

All three documents must be intituled as set out in

Appendix B.

The applicant is required to give notice of the

application for leave “not later than the preceding day”

to the Registrar of the High Court and the statement

and the affidavits must be filed at the same time (order

53 rule 1 (3)).

The application is then heard by a single judge in

chambers.”

It seems to me that the suggestion is that the notice to the Registrar be

filed at the same time the statement, affidavits and the applications are

being filed in court for subsequent hearing before a single judge. If that

opinion is correct then I think with respect that it places a strained

construction on the Rule. I agree with Mr Lumatete for the applicant in

this case in his submission that the rule is plain beyond argument that so

long as an applicant has served notice on the Registrar of the high court

one day before the actual appearance before a single judge, there is

compliance with the rule.

The other vexing question is how such Notice is given. For there is only

one Registrar of the High court who is stationed at the High Court buildings

in Nairobi. Was it the intention of the Rules Committee that the person

for the time being occupying that office be personally served? I do not

think so. Registrar as defined under the Civil Procedure Act section 2

“includes a District Registrar and a Deputy Registrar.” It is sufficient for

purposes of the rule that a District Registrar or a Deputy Registrar, where

one is available, be served. There is no prescribed form of such Notice so

long as it conveys the intention of the Rule and encloses the statement

and affidavits as required under the rule. Nor, as far as I can see, is there

a prescribed manner in which service of the Notice on the Registrar may

be effected. It would remain in each particular case therefore a matter of

fact to be established that the notice was served.

As far as I can see in this application, the Notice conveys the required

message under the Rule and was filed, received and paid for in the court

registry. There are several Deputy Registrars in these courts and some

have been assigned specific tasks in the High Court. There is an

administrative arrangement that the Chief Magistrate who doubles up as

the Deputy Registrar, and is for the time being in the person of Mr Aggrey

Muchelule, be served with applications under order 53. Where possible

such service has been affected personally on Mr Muchelule. Where such

personal service has not been affected however and a party has filed the

Notice in the registry clearly indicating that it is filed for the purpose of

order 53 Civil Procedures Rule, I am not prepared to say that such service

is a nullity. It may be irregular but not a nullity and is curable by a directive

that proper service be effected. I am satisfied that the notice given herein

is not a nullity.

Having determined the issues arising on the Notice, it remains for the

applicant to satisfy me that the leave sought should issue.

The purpose of the 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. As was

pointed out by Lord Diplock in Republic -vs- Inland Revenue

Commissioners ex p National Federation of Self Employed and Small

Businnesses Ltd[1982] AC 617, 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 courts discretion but as always is has to be exercised judicially. Has

the applicant satisfied these principles?

The application is made by 58 persons who say they are the native

inhabitants of Funzi Island off the Kenya coast for many generations.

They are mostly fishermen and boatmen and have used the waters around

the Island for fishing. To access the sea and to be able to land their boats

they use a sand-pit adjoining the Island. The said sand pit comes in handy

particularly during the south-east monsoon in April up to October in each

year. They also claim customary rights over the entire Island which is

part of the trust land as defined under the Constitution of Kenya.

In 1994, they had a member of parliament in the name of one Kassim

Mwamzandi. They approached him for assistance to petition the

government on their behalf to have their rights on the island adjudicated

upon and titles to the land issued to them. They never saw him again. The

next thing they realized was that a portion of the Island had been set apart

by the commissioner of lands and was allocated to a private limited liability

company known as PATI Ltd. It is not clear when they came by this

information but, there is a Gazette Notice No 3831 dated 24. 6.1994 signed

by the Commissioner of Lands in these words:

“The Trust Land Act cap 288

Setting Apart of Land.

Notice is given that the land described in the schedule

hereto has been duly set apart in accordance with the

provision of part V of the Trust Land Act for the purpose

specified in the said schedule.

Schedule

Place: Funzi Island, Kwale District

Purpose: Boat Landing Base

Area: 0. 7 hectares approximately

Description: The site lies along Funzi Beach on the

Western side of Funzi Island to Mto Vikuarani and South

West of Mlimani Island. It is edged red on the top sheet

copies of which can be available in the office of the

District Commissioner, Kwale District.

Dated 24th June 1994.

Wilson Gachanja

Commissioner of Lands. ”

Then the applicant discovered (and they do not say when) that although

the area so described is said to be 0. 7 Hectares, it measures 3. 7 Hectares

on the ground. After allocation to the private company and the issuing of

a grant of title under the Registration of Titles Act on undisclosed dates,

the company fenced off the area and started developing it. It included the

entire area of the sand-pit used by the applicants in their fishing activities.

They say their means of livelihood and earning income has been curtailed

by these acts. The setting apart of the land and the subsequent allocation

of it to a private company was unlikely to benefit them and they should

have been given an opportunity to object to such allocation. It was an

insult above injury to take their land without compensation and, in addition,

deprive them access from the beach. The entire process from setting apart

the land up to the issuing of the grant and giving possession of the land

was ultra viresthe Constitution, the Trust Land Act and the Registration

of Titles Act and therefore a nullity. All that process should be quashed

and the Commissioner ordered to follow the law if he still intends to have

the land set apart.

On the face of it, the application for an order of certiorariseeking to

bring before the court and have quashed the Gazette Notice dated

24. 6.1994 and the Grant No CRN 106 issued subsequent to that Notice,

flies in the face of the provisions of order 53 Rule 2. It is a mandatory

provision prohibiting the grant of such an order in certain cases; that is:

“…..any judgment, order, decree, conviction or other

proceeding ……unless the application is made not later

than six months after the date of the proceeding…”

Underlining mine.

The underlined parts raise the question at once whether the Gazette Notice

and the Grant issued by the Commissioner of Lands are covered under

the Rule. It is my view nonetheless that certiorarilies not only to courts

but to other persons and bodies having legal authority to determine

questions affecting the rights of subjects and having the duty to act

judicially. The Commissioner of Lands in my view is such a person and

his actions are amenable to the grant of orders of certiorari. So the orders

sought to quash the two documents are clearly out of time and no

application can under the rules be entertained or orders thereunder granted.

Indeed I did not understand Mr Lumatete for the applicant to have differing

views on this position in law.

His contention was that order 53 rule 2 Civil Procedure Rules does not

apply because there are express provisions under the Trust Land Act cap

288 at section 12. That section states:

“12. Notwithstanding anything in this Act, any person

claiming a right or interest in Land set apart under this

Act shall have access to the High Court for –

(a) the determination of the legality of the setting apart

and

(b) the purpose of obtaining prompt payment of any

compensation awarded”.

In Mr Lumatete’s submission, the applicants are coming to court to

question the legality of the setting apart of trust land and the section does

not set a time limit as to when that can be done. The time limit set out in

order 53 rule2 of the Civil Procedure Rules is set by the Rules Committee

established under the Civil Procedure Act. The Rules therefore become

the subsidiary legislation referred to in section 29 of the Interpretation

and General Provisions Act cap 2. As such, the Rules cannot, in Mr

Lumatete’s submission, oust the provisions of an Act of Parliament, which

the Trust Land Act is. Unless section 12 of that Act is repealed therefore,

there is no time limit as to when one can come to court after six months.

With utmost respect to counsel, that argument may be logical but is flawed

and misconceived in law.

The Rules Committee established under the Civil Procedure Act did not

make rule 2 of order 53 on the basis of their appointment and power

granted to them under section 81(1) of the Civil Procedure Act. Order 53

rule (2) Civil Procedure Rules has as its genesis an Act of Parliament,

The Law Reform Act cap 26 Laws of Kenya. The Act itself under section

9 (3) has a provision identical to rule 2, and there is further subsidiary

legislation in L/N 299/1957 in which the Rules Committee specifically

invoked the power granted to it under section 9 (1) of the Law Reform

Act, to make the rule which has existed in identical wording since the

legal Notice was published on 29th May 1957. The special jurisdiction

established under the Law Reform Act is also reflected in the Rules made

under section 9 of the same Act. As was stated by Cockar & Amin JJ in

the Walter Odhiambocase above.

“Subsidiary legislation is as good binding a law as an

Act and must be interpreted and applied as strictly as a

statute.”

I agree with that view and hold that the provisions of the Trust Land Act

and the Law Reform Act with the Rules made thereunder is not mutually

exclusive.

The applicants made a conscious decision to challenge actions ascribed

to an Act of Parliament which are amenable to orders of certiorari. Whether

such actions arise from Acts of Parliament which leave limitation periods

open or not the provisions of the Law Reform Act are applicable. In this

particular case I find that the Act was not complied with. There has been

no attempt to explain the delay in filing the proceedings in this matter and

the affidavit in support is evasive on certain dates when the applicants

became aware of the infringement of their rights. It is trite law that in an

ex parteapplication when the court does not have the benefit of hearing

the other party the applicant has a duty to conduct the application with

utmost good faith and make full and frank disclosure of all material facts

in documents. A court of equity will look at an application not so conducted

with disfavor.

There may well be some merit in the applicants’ complaints that the

Commissioner of Lands contravened the law in proceeding in the manner

he did, and for my part I regret that this application was not brought within

the law. Equity follows the law however and there is a law prohibiting the

grant of orders of certiorariafter a period of six months, which have in

this matter admittedly long expired. I am afraid I have no discretion in the

matter and the application on that score will have to fail.

I see no time limit provided for under the Law Reform Act for one to

apply for orders of mandamus and prohibition, although section 9(2) of

the Act provides for such limitation to be made. In view of my ruling

regarding the orders of certiorarihowever I doubt the efficacy of those

orders even if they were granted. It seems to me that the two are only

consequential on the grant of the first order of certiorari. It would be

futile therefore to grant leave to pursue a shadow. The application must

regrettably fail and is hereby dismissed. There may perhaps be other

avenues of pursuing the same goal. I leave it to counsel.

There will be no order as to costs.