[2023] KEELC 20774 (KLR)

Republic v County Government of Uasin Gishu & 7 others; Kiptoo & 419 others (Interested Parties) (Judicial Review E004 of 2021) [2023] KEELC 20774 (KLR) (18 October 2023) (Judgment)

Neutral citation: [2023] KEELC 20774 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Judicial Review E004 of 2021

EO Obaga, J

October 18, 2023

IN THE MATTER OF ARTICLE 162, 67 AND 159 OF THE CONSTITUTION IN THE MATTER OF LAW REFORM ACT

Between

Republic

Applicant

and

County Government Of Uasin Gishu

1st Respondent

County Land Registrar

2nd Respondent

Chief Land Registrar

3rd Respondent

Director of Surveys, Ministry of Lands, Housing & Urban Develpoment

4th Respondent

Principal Secretary Ministry of Lands, Housing & Urban Development Settlement Officer, Uasin Gishu County

5th Respondent

Settlement Officer, Uasin Gishu County

6th Respondent

Director Of Land Adjudication & Settlement, Ministry Of Lands & Housing & Urban Development

7th Respondent

Honourable Attorney General

8th Respondent

and

John Arusei Kiptoo

Interested Party

Julius Kiprotich Biwott

Interested Party

Wilson Ngetich

Interested Party

Wilfred Kirwa Cheruiyot

Interested Party

David Kipkering Totorei & 415 others

Interested Party

Judgment

Introduction 1. The Ex-parte Applicants filed a Notice of motion dated 22/4/2021 in which they sought the following reliefs; -1. That pending the hearing and determination of this application the Honourable court be pleased to issue a conservatory order of injunction retraining the 1st Respondent and their agents from authorizing and/or carrying out the process of surveying, subdivision, adjudication and registration of parcels out of L.R No. 9621 the property of Kesses Kelchin Farm Limited.2. That the honourable court be pleased to issue an order of prohibition to forbid and prohibit the 1st Respondent and their agents from authorizing and/or carrying out the process of surveying, subdivision, adjudication and registration of parcels of land out of L.R No. 9621 the property of Kesses Kelchin Farm Limited.3. That the honourable court be pleased to issue an order of mandamus compelling/directing the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents to carry out the process of surveying adjudication and registration of all that parcel of land known as Kesses Kelchin Farm Limited L.R No. 9621 by using the area list prepared by the Exparte Applicants as per the shareholding of each member in 1976. 4.That costs of this application be provided.

Background; 2. The 1st Ex-parte Applicant (Kelchin Farm) was established in the 1960’s for the purpose of acquiring land which was to be shared among its shareholders. On 30/12/1968, Kelchin Farm acquired land in 2005 from a White Settler who was departing the country after Kenya gained independence. The property was charged to Agricultural Finance Corporation (AFC) to secure a loan of Kshs 116,000/= The initial shareholders were 46 but as at the time the loan to AFC was cleared, there were 207 shareholders.

3. The property was LR. No. 9621 (Suit property). The suit property was subdivided in 1973 but the shareholders have never obtained individual titles. This is because each time attempts are made to subdivide the suit property and give out individual titles, the process is hampered due to internal wrangles as to the number of shareholders to benefit.

4. Cases have been filed in court which have stalled the process of subdivision and issuance of titles. There are parallel list of shareholders which keep coming up. With the passage of time, the original shareholders have passed on and others have sold their shares thus increasing the membership.

Ex-parte Applicants’ contention; 5. The Ex-parte Applicants contend that the 1st Respondent went to the farm and addressed members and informed them that the farm was going to be subdivided in accordance to where each member is occupying. The Ex-parte Applicants state that Kelchin Farm being a private entity, the subdivision should be done in accordance with the list of shareholders provided by them. According to them, the suit property should be shared out to the 207 shareholders in accordance with payments made between 1968 and 1976.

6. Whereas the Ex-parte Applicants appreciate the fact that those in occupation of the farm may be purchasers from the original shareholders, the purchasers never followed the procedure laid out in the companies Act as regards transfer or transmission of shares. It is on this basis that they want the 1st Respondent prohibited from proceedings with subdivision in accordance with their proposal and order that the 2nd to 8th Respondent’s be compelled to subdivide the farm in accordance with the shareholders who were in the register as at 1976 and that these are the people who helped clear the loan owned to AFC.

7. The Ex-parte Applicants argue that if the 1st Respondent is allowed to proceed in the manner they suggested, other shareholders will end up having more land than what they paid and that intruders who did not make any contribution and who forcefully entered the farm will end up benefitting.

8. The Exparte Applicants further argue that the 2nd to 8th Respondents have declined to comply with court orders issued pursuant to a judgement by Eldoret Magistrate’s Court in Award No. 49 of 2011.

First Respondent’s contention; 9. The 1st Respondent opposed the Ex-parte Applicants’ notice of motion based on a replying affidavit sworn on 5th May, 2022. The 1st Respondent states that it has its functions which are set out under the constitution and that part of the functions is to ensure that there is compliance with the Physical Planning requirements. Sometime in February 2021 it learnt that the 1st Respondents was planning to subdivide its land amongst its members and buyers.

10. The 1st Respondent then decided to be part of the team subdividing the land to ensure that there was provision for social amenities such as schools, hospitals, roads among others. Its intention was to oversee proper planning and had nothing beyond its mandate. The 1st Respondent has no objection to participation of the 2nd to 7th Respondents and that it has no intention of controlling the activities of the 1st Ex-parte Applicant.

The 2nd to 8th Respondents’ contention; 11. The 2nd to 8th Respondents opposed the Ex-parte Applicants’ Notice of motion based on grounds of opposition dated 28/3/2023. The 1st Respondent contends that the Notice of motion is defective; it does not meet the threshold for grant of orders of judicial review; that section 14 of the Land Registration Act gives the 2nd and 3rd Respondents discretion to consider documents submitted for registration before effecting them; that section 16 and 26 of the Land Adjudication Act gives the 4th and 7th Respondents discretion to adjudicate the suit property; that the Notice of motion lacks merit; that the issue of ownership cannot be litigated through judicial review and that the remedy of mandamus is not the most efficacious.

The Interested parties’ contention; 12. The Interested parties opposed the Ex-parte Applicants’ Notice of Motion through a replying affidavit sworn on 25/4/2022. They contend that the Ex-parte Applicants’ application is incompetent, frivolous, vexatious and an abuse of the process of the court. They further state that the Ex-parte Applicants have not shown or demonstrated when the decision which they are contesting was made or exhibit a copy of the same to the court.

13. The Interested parties further state that the suit property is outside the jurisdiction of 6th and 7th Respondents and that there is no basis for issuing an order of mandamus against them. The interested parties further contend that the subdivision exercise has been delayed by the Ex-parte Applicants who have been out to lock genuine shareholders and bring in an amorphous group known as “absentee Kipsigis”. This was done through filing proceedings in a Tribunal.

14. The Tribunal proceeded to determine the issue of ownership. The Interested parties moved to the High Court and filed judicial Review proceedings which were fully heard resulting in quashing of the Tribunal award as well as its adoption before Eldoret Magistrate’s Award No. 49 of 2011. Upon determination of this dispute, the interested parties proceeded to ask the 1st Respondent to assist in the survey process. When the survey process started some third parties went and filed Eldoret ELC No. 26 of 2015. The Interested parties applied to have the suit struck out.

15. Once the suit was struck out, the Interested parties asked the 1st Respondent to proceed with the subdivision process. As the subdivision process was going on, these proceedings were filed which halted the exercise. The interested parties argue that he real dispute in this matter is on the legitimacy of the shareholders, identity of their respective shares and authority of the registers which issues cannot be resolved through judicial review proceedings.

Analysis and determination; 16. The parties were directed to file written submissions. The Exparte Applicants filed their submissions on 8/5/2023. The 1st Respondent did not file submission and if any were filed, then they are not in the file as at 3. 9.2023 when writing this judgement. The 2nd to 8th Respondents filed their submissions on 5/6/2023. The Interested party filed their submissions on 7/7/2023.

17. I have carefully considered the Ex-parte Applicants’ application as well as the opposition to the same by the Respondents and interested parties. I have also considered the submissions by the parties. It is the Exparte Applicants’ submissions that on 4/3/2021, the 1st Respondent went to the farm and convened a meeting of residents whereby it informed the residents that a subdivision will be carried in 45 days and that the subdivision will proceed on the basis of what the occupants were having and not as per the list provided. In or around 25/5/2021 the survey process started.

18. The survey process by the 1st Respondent prompted the Exparte Applicants to move to court where they filed an application for injunction. The court gave orders of maintenance of status quo. It is the Ex-parte Applicants’ contention that as the 2nd to 8th Respondents have failed to carry out survey, an order of mandamus should be issued compelling them to carry out survey and subdivision.

19. The 2nd to 8th Respondents submitted that where a statute gives an entity charged with carrying out certain duties, an order of mandamus cannot issue. In support of this, they cited the case of Republic –VS- Marshland and Fen District Commissioners (1910) IKB 155 at 165 where the court stated as follows: -“It may be that the Act of Parliament has granted a power rather than imposed a duty, has conferred a discretion rather than an obligation. If a power or discretion only as distinct from a duty, exists then the prerogative writ of mamdamus will not be issued by the court.”

20. The 2nd to 8th Respondents also relied on paragraph 90 of Hulsbury’s Laws of England which states as follows:-“Commands no more than to do that which the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandatory order cannot require it to be done at once. Where a statute which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the application is laid, a mandatory order cannot command the duty in question to be carried out in a specific way.”

21. In the case of Nairobi CACA No. 266 of 1996 Kenya National Examinations Council Vs. Republic Ex-parte Geofrey Gathenji Njoroge, it was held that mandamus cannot compel the performance of a duty in a particular way or to achieve a particular outcome.

22. The interested parties submitted that there are disputed matters of fact which cannot be resolved in a judicial review application. In support of this they relied on the case of Miscellaneous Application 23 and 78 of 2010 Republic –Vs- Commissioner of Lands & 2 others (2013) eKLR where it was held as follows:-“It follows therefore that where the resolution of the dispute before the court requires the court to make a determination on disputed issues of fact that is not a suitable case for judicial review. Judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal and the Civil Procedure Act does not apply. It is governed by sections 8 and 9 of the Law Reform Act being the substantive law and Order 53 of the Civil Procedure Rules being the procedural law. Section 8 of the Law Reform Act specifically sets out the orders that the High Court can issue in judicial review proceedings and the orders are, mandamus, certiorari and prohibition. A declaration, for example, does not fall under the purview of judicial review for the simple reason that the court would require viva voce evidence to be adduced for the determination of the case on the merits before declaring who that owner of the land is. Judicial review on the other hand is only concerned with the reviewing of the decision making process and the evidence is found in the affidavits filed in support of the application. See Commissioner of Lands vs. Hotel Kunste Ltd Civil Appeal No. 234 of 1995. Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review applications do not determine ownership of a disputed property but only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.

23. From the submissions and the Applicants application as well as the opposition to the same by the Respondents and the Interested parties, the only issue for determination is whether the Ex-parte Applicants have met the threshold for grant of the prerogative orders sought.

24. A close look at the dispute which resulted in these proceedings show that there are serious disputed matters of fact as to how many shareholders should benefit from the subdivision of this suit property. There is also the issue of which register is the legitimate one and which one is not. Whereas the Exparte Applicants appreciate that some of the interested parties purchased land from shareholders, they contend that the process which was followed did not comply with the companies Act Procedures on transfer and transmission of shares.

25. The Ex-parte applicants are also insisting on the subdivision being carried out in a particular way i.e by use of list of members who made payment between 1968 and 1976. On the other hand, the interested parties are saying that they have a list containing more than one thousand members or shareholders. Then there is an issue on certain members who have more land than what they paid for and those who are on the land yet they did not make any payment.

26. There are clearly serious disputed matters of fact which cannot be decided in a judicial review proceeding. This was what was stated in the case of miscellaneous application 23 and 78 of 2010 (Supra). This court therefore lacks jurisdiction to determine those issues which clearly call for evidence to ascertain which of the parallel registers are genuine, who paid for land or did not pay and whether the suit property should be subdivided in accordance with the shareholders who had made payment between 1968 and 1976.

27. The Ex-parte Applicants are insisting that the subdivision be carried out in a certain way. They are saying that they will never rest until the subdivision is done in accordance with the 207 shareholders who made payment between 1968 and 1976. Section 14 of the Land Registration Act provides as follows:-The Chief Land Registrar, County Land Registrars or any other land registrars may, in addition to the powers conferred on the office of the Registrar by this Act—a.require any person to produce any instrument, certificate or other document or plan relating to the land, lease or charge in question, and that person shall produce the same;b.summon any person to appear and give any information or explanation in respect to land, a lease, charge, instrument, certificate, document or plan relating to the land, lease or charge in question, and that person shall appear and give the information or explanation;c.refuse to proceed with any registration if any instrument, certificate or other document, plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;d.cause oaths to be administered or declarations taken and may require that any proceedings, information or explanation affecting registration shall be verified on oath or by statutory declaration; ande.order that the costs, charges and expenses as prescribed under this Act, incurred by the office or by any person in connection with any investigation or hearing held by the Registrar for the purposes of this Act shall be borne and paid by such persons and in such proportions as the Registrar may think fit.

28. The above quoted section 14 of the Land Registration Act gives various Land Registrars discretion in carrying out their duties. In the circumstances of this case no order of mandamus can issue to compel the Land Registrars to carry their duties in a particular way or to achieve a particular outcome.

29. The Tribunal award which resulted in adoption in Eldoret Magistrate Award No 49 of 2011 was quashed. The Tribunal had directed the survey and subdivision to be carried out in a certain way with a particular outcome. The Ex-parte Applicants cannot therefore accuse the Respondents of not complying with what was already quashed. The 1st Respondent cannot be prohibited from doing what is constitutionally their mandate. The suit property falls within their jurisdiction. They have to ensure that there is proper planning and there is provision for social amenities like schools, health facilities and other amenities.

30. It is unfortunate that 55 years later, the shareholders and purchasers of the suit property do not have their titles which they would have used to get loans from financial institutions to uplift their economic welfare. Kelchin Farm is one of the land buying companies who have caused immense torture and suffering whose root cause is the management who in most cases engineer endless litigation with a view to benefitting a few individuals. I hope a solution will be found out of court as the Ex-parte Applicants’ counsel had indicated on 12/4/2023.

Disposition; 31. It is clear from the above analysis that the Ex-parte Applicants’ application is devoid of merit. The same is dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 18TH DAY OF OCTOBER, 2023. E. O. OBAGAJUDGEIn the virtual absence of parties who were aware of the date of judgement.