[2024] KEELC 1371 (KLR)

Republic v Deputy County Commissioner, Makueni & 3 others; Matolo (Exparte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2024] KEELC 1371 (KLR) (6 March 2024) (Judgment)

Neutral citation: [2024] KEELC 1371 (KLR)

Republic of Kenya

In the Environment and Land Court at Makueni

Environment and Land Judicial Review Case E021 of 2022

TW Murigi, J

March 6, 2024

IN THE MATTER OF SECTION 8 AND 9 OF LAW REFORM ACT CAP 26, LAWS OF KENYA AND IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT NO. 4 OF 205 AND IN THE MATTER OF DECISION OF AN APPEAL IN THE MINISTER CASE NO.87/1995 DELIVERED BY THE DEPUTY COUNTY COMMISSIONER - MAKUENI ON 5TH SEPTEMBER, 2022 OVER LAND PARCEL NO. 1000

Between

Republic

Applicant

and

Deputy County Commissioner, Makueni

1st Respondent

Director Of Land Adjudication And Settlement, Makueni

2nd Respondent

The Land Registrar, Makueni

3rd Respondent

The Hon Attorney General

4th Respondent

and

Robert Muli Matolo

Exparte Applicant

Judgment

1. By a Notice of Motion dated 10th January 2023 brought under Sections 8 and 9 of the Law Reform Act in addition to Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010, the Ex-parte Applicant Robert Muli Matolo seeks the following orders: -1. That an order of certiorari do issue to move this Honourable Court and quash the decision of the 1st Respondent delivered on 5th December, 2022 over land Parcel No. Makueni/Kivani/1000. 2.That an Order Of Prohibition be issued directing the 3rd Respondent to refrain from implementing and/or effecting the decision of the 1st Respondent delivered on 5th December, 2022 over land Parcel No. Makueni/Kivani/1000. 3.That an order of mandamus be issued to compel the 1st Respondent to rehear the parties afresh.4. That costs of this application be in the cause.

2. The application is supported by the affidavit of Robert Muli Matolo sworn on even date.

The Ex Parte Applicant’s Case 3. The Ex Parte Applicant averred that he was not given a fair hearing to present his case during the hearing of the Appeal to the Minister arguing that his right to a fair hearing was violated. He further averred that he was denied his right to land and that it is imperative that the matter be relooked by this court.

4. He further averred that the hearing of the Appeal to the Minister was marred with procedural flaws as the parties therein were not granted an opportunity to present their respective cases as evidenced by the absence of the record of proceedings. He stated that when he appeared before the 1st Respondent on 24/5/2022, he was informed that the proceedings could not be conducted because the 1st Interested Party had failed to appear for the hearing. According to him, the court in Makueni ELC OS No. 5 of 2019 removed the restriction on the suit property because the 1st Interested Party had always indicated that the Appeal to the Minister was non-existent. He contended that the transfer of the suit property to the 2nd Interested Party was an illegality which must be declared a nullity by this Court. According to him, the 1st Interested Party acted ultra vires his jurisdiction as he failed to get into the merits of the case.

5. He averred that the 1st Respondent’s decision was arbitrary and illegal because he handled the matter casually without exercising proper discretion. He further averred that the 1st Respondent is subject to the supervisory jurisdiction of this court hence the need for issues to be relooked by the court.

The Respondents Case 6. In opposing the application, the Respondents filed grounds of opposition dated 3rd March, 2023 citing the following grounds:-1. The application is fatally defective, incompetent, malapropism and untenable both in substance and form and contrary to the provisions of the law under which it is brought thus proper for dismissal.2. The Notice of Motion is incurably defective, incompetent, frivolous and vexatious and devoid of substance with unsupported conclusions and only tailored and stage managed to hoodwink this court.3. That the Notice of Motion is an abuse of the court process due to the fact that the Applicant has confirmed that there is an existing court ruling originating from Makueni ELC OS No. 51 of 2019 that gave the 1st Interested Party title over the suit land thus rendering the Appeal a non-starter as the 1st Respondent had no jurisdiction to cancel the said title as those are powers solely reserved to the courts.4. That the Notice of Motion lacks any merit as it falls short of meeting the threshold of judicial review as enumerated in the celebrated case of Republic versus Public Procurement Administrative Review Board & 2 Others Ex Parte- Sanitam Services (E.A) Limited (2013) eKLR.5. That the Notice of Motion offends the provisions of Order 53 of the Civil Procedure Rules by proviso of been time barred as the decision being challenged was made 7 months ago well outside the 6 months period for instituting judicial review orders of certiorari.6. That the Notice of Motion is a lamentation on the merits of the decision been challenged and not the decision making process in which judicial review is concerned with addressing.7. That the Notice of Motion is a mere grope in the dark and an abuse of the court process as the Applicants hope to circumvent the subsequent decision of the trial court in Makueni ELC OS No. 5 of 2019. 8.That the Notice of Motion is a non-starter, abuse of court and justice as the orders sought are well outside the scope and form of matters that can be determined by judicial review.

7. On the basis of the above, the Respondents urged the court to dismiss the application with costs.

The Interested Parties Case 8. The Interested Parties opposed the application through the replying affidavit of the 1st Interested Party sworn on his own behalf and on behalf of the 2nd Interested Party. He averred that the instant application and the Appeal to the Minister are overtaken by events as he had been issued with a Title deed for the suit property which he has since transferred to the 2nd Interested Party. He averred that the proceedings herein against the 2nd Interested Party have no basis since he was not a party in the Appeal before the Minister.

9. He further averred that the decision of the 1st Respondent is in conformity with the decision of Justice Mutungi in Nairobi ELC Case No. 599 of 2013. According to the Interested Parties, the decision by the 1st Respondent was correct as the Appeal to the Minister was statutorily barred since the Land Adjudication Officer’s decision was made on 18/4/1989 and the Appeal to the Minister was filed in the year 1995.

10. He further averred that the Ex-parte Applicant was not a party in the Appeal to the Minister since the deceased Applicants were never substituted. He argued that the Ex-parte Applicant had no capacity to prosecute the Appeal which in any event had abated as ruled by Justice Mutungi. He stated that the Ex-parte Applicant had filed other cases related to the suit property namely: -i.Nairobi ELC Case No. 599 of 2013ii.Machakos ELC Misc App No. 193 of 2012iii.Makueni ELC Case No. 51 of 2017

11. He averred that he had filed an application against the Chief Land Registrar and the Land Registrar Makueni seeking the removal of the restriction registered against the suit property. He stated that the court decided in his favour and dismissed the Land Registrar’s contention of a pending Appeal to the Minister. He urged the court to dismiss the application with costs to the Interested Parties.

The Response 12. In a further affidavit filed on 26/04/2023, the Ex-parte Applicant averred that Appeal No. 85 of 1995 was filed within the timelines provided by the law as evidenced by the Appeal form and the grounds of Appeal produced as Exhibit “RM1”. According to him, the 1st Interested Party has all along attempted to defeat his quest for justice in Appeal No. 85 of 1995. He argued that the sale agreements provided by the 1st Interested Party, clearly show that the same were executed after the deceased registered owner had passed on. He further averred that the 1st Interested Party has not addressed the main issue as to whether the Appeal to the Minister was procedurally heard and determined in accordance with the applicable law.

13. According to the Applicant, the Appeal to Minister has not abated since he was issued with the grant of letters of administration in respect of the Estate of the late Philip Kilonzo Moki and the late Wallace Mutungwa Moki. He contended that the Court ought to quash the decision of the 1st Respondent as it offends the rules of natural justice.

14. The application was canvassed by way of written submissions.

The Ex Parte Applicant’s Submissions 15. The Ex-parte Applicant’s submissions were filed on 5/5/2023.

16. On his behalf, Counsel outlined the following issues for the court’s determination:-1. Whether the Applicant should be granted Judicial Review order of certiorari to move to this Honourable Court and quash the decision of the 1st Respondent delivered on 5th September 2022 over land parcel No. Makueni/Kivani/1000. 2.Whether the Applicant should be granted an order of Prohibition directing the 3rd Respondent to refrain from implementing and/or effecting the decision of the 1st Respondent delivered on 5th September 2022 over land parcel number Makueni/Kivani/1000. 3.Whether the Applicant should be granted an order of Mandamus directing the 3rd Respondent to register the Applicant as the registered owner of land parcel No. Makueni/Kivani/1000.

17. As regards the first issue, Counsel submitted that the Ex-parte Applicant was not given a fair hearing by the 1st Respondent which is a violation of Article 50 (1) of the Constitution. Counsel further submitted that the 1st Respondent could not pronounce himself on the matter since no party in the Appeal was given a chance to present its case. On that basis, Counsel urged the court to quash the decision of the 1st Respondent.

18. On the second issue, Counsel submitted that the court should grant the order of prohibition because the decision of the 1st Respondent is null and void.

19. On the third issue, Counsel submitted that the court ought to issue an order of Mandamus directing the 3rd Respondent to register the Ex-Parte Applicant as the legal owner of the suit property. Counsel submitted that Moki Matolo, the owner of the suit property did not execute the sale agreements because he had passed on as at the time. Counsel argued that the Ex-parte Applicant should be registered as the owner of the suit property since he has obtained the necessary succession documents.

20. Concluding his submissions, Counsel submitted that the court ought to utilize its supervisory jurisdiction to grant the orders sought in the application. To buttress his submissions, Counsel relied on the following authorities: -i.Republic v Vice Chancellor Jomo Kenyatta University of Agriculture and Technology [2008] eKLR.ii.Michael Thiongo Gatete v Attorney General & 4 others [2017] eKLR.iii.Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maina [2019] eKLR.iv.Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR

The Interested Party’s Submissions 21. The Interested Parties submissions were filed on 19/5/2023.

22. On their behalf, Counsel reiterated the contents of the 1st Interested Party’s replying affidavit.

23. Counsel urged the court to dismiss the application with costs. To buttress his submissions, Counsel relied on the following cases: -i.Nairobi ELC Case No. 599 of 2012 Robert Muli Matolo v Director of Land Adjudication & 2 others.ii.Makueni ELC OS No. 5 of 2019 Peter Nzesya Maithya v Chief Land Registrar & Another.iii.Makueni ELC Case No. 51 of 2017 Robert Muli Matolo v Atorney General & 3 Others.iv.Machakos ELC Misc Appn No. 193 of 2012 Robert Muli Matolo v Robert Muthiani & Another.

Analysis And Determination 24. Having considered the application, the respective affidavits, the grounds of opposition and the rival submissions, the following issues fall for determination;i.Whether the Appeal to the Minister was filed out of time.ii.Whether the Applicant has made out a case for the grant of judicial review orders.

25. The duty of a Court in Judicial Review proceedings was set out in the case of Pastoli Vs Kabale District Local Government Council and Others (2008) 2 E.A 300 where it was held as follows:-“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ….. Illegality is when the decision making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of a law or its principles are instances of illegality …. Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards ….. Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.’

26. The parameters of Judicial Review were re-affirmed by the Court of Appeal in the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd C.A Civil Appeal No. 185 of 2001 where it held:-“Judicial Review is concerned with the decision making process, not with the merits of the decision itself; the Court would concern itself with such issues as to whether the decision maker 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. The Court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself – such as whether there was or there was not sufficient evidence to support the decision.”

27. The purpose of judicial review is not to review the decision but the decision making process. This was stipulated by the Court of Appeal in the case of Republic Vs Kenya Revenue Authority Exparte Yaya Towers Limited (2008) eKLR, where it was held that;“The remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision-making process itself. It is important to remember in such case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he/she has been subjected….”

28. It is not in dispute that the Respondent had the power to hear and determine the Appeal Case No.85 of 1995 in accordance with Section 29 of the Land Adjudication Act.

Whether the appeal to the minister was filed out of time 29. The Respondents argued that the Notice of Motion seeking judicial review orders offends the provisions of Order 53 of the Civil Procedure Rules for being filed out of time. The Respondents submitted that the application was filed seven months after the decision was made.

30. Section 9(3) of the Law Reform Act provides for the time frame within which an application for an order of certiorari should be made and states as follows;“In the case of an application for an order for certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceedings or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceedings is subject to an appeal, and a time is limited by the law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

31. The above provision is echoed in Order 53 Rule 2 of the Civil Procedure Rules which provides as follows;“Leave shall not be granted to apply for an order of certiorari to remove to court any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

32. The above provisions are couched in mandatory terms that leave shall not be granted unless the application for leave is made not later than six months after the date of the decision.

33. In the case of Republic v Mwangi Nguyai & 3 Others Ex – Parte Haru Nguyai High Court Constitutional & Judicial Review Division Misc. Application No. 89 of 2008 the court stated as follows;“Judicial review proceedings ought as a matter of public policy to be instituted heard and determined within the shortest time possible hence the stringent limitation provided for instituting such proceedings. It is recognized that judicial review jurisdiction is a special jurisdiction. The decisions of parastatals and public bodies involve million and sometimes billions of shillings and public policy demands that the validity of those decisions should not be held in suspense indefinitely. It is important that citizens know where they stand and how they can order the affairs in light of such administrative decisions. The financial public in particular requires decisiveness and finality in such decisions. People should not be left to far that their investment or expenditure will be wasted by reason of belated challenge to the validity of such decisions. The economy with the current volatile financial markets cannot to have such uncertainity. As such judicial review remedies being exceptional in nature should not be made available to indolents who sleep on their rights. When such people wake up they should be advised to invoke other jurisdictions and not judicial review. Public law litigation cannot and should not be conducted at the leisurely pace too often accepted in private law disputes.”

34. Similarly, in Republic v the Minister for Lands and Settlement & Others Mombasa HCMCA No. 1091 of 2006 the Court held that the legal business can no longer be handled in a sloppy and careless manner and some clients must realise at their cost that the consequences of careless and leisurely approach must fall on their shoulders.

35. In the present case, the impugned decision was made on 5th December 2022. The instant application was filed on 10th January 2023. I find that the application was filed within the time frame stipulated by the law.

Whether the applicant has made out a case for the grant of judicial review orders 36. The Ex-parte Applicant is seeking to quash the decision of the 1st Respondent in Minister Appeal Case No. 85 of 1995 delivered on 05/12/2022 on the grounds that he was not accorded a fair hearing. In addition, the Applicant contended that the hearing was marred with procedural flaws since no party was heard in their respective case.

37. The right to be heard is a Constitutional right enshrined in Article 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act.

38. Article 47(1) and (2) of the Constitution provides as follows;i.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.ii.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action

39. It is clear from the above provisions that the tribunal or authority entrusted with the mandate of making decisions must act in a fair manner. Procedural fairness is a Constitutional requirement in administrative actions.

40. Article 50(1) of the Constitution provides for fair trial as follows:-Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or; if appropriate, another independent and impartial tribunal or body.

41. Section 4(3)(b) of the Fair Administrative Action Act, 2015 imports the rules of natural justice and provides as follows:-1. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision:a.an opportunity to be heard and to make representations in that regard;

42. I have perused the proceedings and findings in Minister Appeal Case No. 85 of 1995 conducted before the Deputy County Commissioner Makueni Sub County produced as Exhibit RMM1. In the Appeal before the Minister, the Appellants are Philip Kilonzo Moki and Wallace Mutungwa Matolo who are represented by the Applicant herein while the Respondent name was not indicated though there is an indication that the Respondent was absent.

43. The proceedings before the Minister show that the Ex-parte Applicant was the only party present during the proceedings. The court observed that the parties to the Appeal were summoned to appear for the hearing but only the Ex Parte Applicants representative turned up. The Applicant produced a hearing Notice dated 10th May 2022(RMM2) issued by the 1st Respondent.

44. The Applicant averred that the court vide its ruling delivered on 2nd March 2021 in ELC OS No. 5 of 2019 (Annexure RMM3) ordered for the removal of the restriction registered against the suit property despite the fact that there was a pending Appeal before the Minister. The restriction against the suit property was registered pursuant to Section 28 of the Land Adjudication Act which provides as follows:“Upon receiving the adjudication register under section 27 of this Act, the Chief Land Registrar shall cause registrations to be effected in accordance with the adjudication register:Provided that, where the land is affected by an appeal under section 29 of this Act, a restriction shall be made and registered in respect of that land expressed to endure until the determination of the appeal, and on such determination the register shall if necessary be altered in accordance with the determination.” (emphasis added)

45. In Makueni ELC OS No. of 2019 dated 18th February 2021, the Respondents sought the following orders against the Chief Land Registrar and the Land Registrar Makueni seeking for the followingi.Spent.ii.That the 1st and 2nd Respondents be ordered by this Honourable Court to remove the restriction that was registered against parcel of land known as Makueni/Kivani/1000 since there is no basis for keeping the restriction that was entered against the Registrar.iii.The court do order the 1st and 2nd Respondents to remove the restriction and in default he be punished by the court for contempt of court.iv.That the Respondents do pay the costs of the application.

46. In allowing the application, the court in its ruling stated as follows in part:-“I have seen no evidence of an ongoing appeal before the Minister. Had there been any by now it ought to have been concluded. There must be an end to the 30 year charade that has kept the Applicant in and out of court as well as the land offices in an attempt to secure justice. I see no reason why I ought not to exert the discretion under section 78 (2) of the Land Registration Act….”

47. There is no evidence that the decision was challenged and/or set aside in any forum.

48. The Ex-parte Applicant faulted the 1st Respondent’s decision mainly on the grounds that the 1st Respondent did not accord the Ex-parte Applicant a fair hearing and also on the basis that the proceedings were marred with procedural flaws. He argued that no party was heard on the Appeal hence the reason why there were not proceedings.

49. The right of appeal to the Minister is governed by Section 29 of the Land Adjudication Act (Cap. 284) Section 29 (1) of the Act stipulates as follows:“(1)Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—(a)delivering to the Minister an appeal in writing specifying the grounds of appeal; and(b)sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.”

50. From a reading of Section 29(1)(b) of the Act, it is clear that it does not provide for any particular procedure to be followed by the Minister in the hearing of the Appeal. Such procedural aspects are left to the discretion of the Minister. The law does not require the Minister to either take evidence or to refrain from taking evidence. There was no demonstration whatsoever of how the Minister allegedly violated the rules of natural justice. The verifying affidavit did not provide any particulars or demonstration of the alleged violations either. It was not alleged or demonstrated that the Minister was biased against the Applicant.

51. The Ex-parte Applicant produced the proceedings and other records from the Arbitration and Objection courts which informed the findings of the 1st Respondent under paragraphs 2 and 3 of the decision dated 5/9/2022. In paragraph 3 and 4 of the decision, the Minister stated as follows:-i.This court also observed that a title deed over the disputed parcel No. 1000 was already issued to the Respondents and registered in his name Maithya Kimeu.ii.This court therefore viewed the Appeal case to be sensitive since the same has been before court of law while the Respondent claiming to have been issued with a title deed hence observed the Appeal case to have been overtaken by events.iii.In the decision/judgment Land Appeal against parcel No. 100- not allowed and dismissed. The ownership of the land to remain as recorded.

52. From the foregoing, it is clear that the 1st Respondent considered relevant factors when making the decision. This Court finds absolutely no evidence of bias or unfair treatment. There is similarly no evidence on record, or material from which it may reasonably be inferred, that the Respondent was biased or unfair towards the Applicant.

53. There is no evidence to demonstrate that the Minister took into account irrelevant considerations or that he failed to take into account relevant considerations in the appeal. The Court would hardly intervene unless it is clearly demonstrated that the decision maker acted upon no evidence, or that he took into account irrelevant considerations and omitted the relevant factors. The Applicant has not demonstrated that such was case in the instant application.

54. In the case of Kenya Revenue Authority & 2 others v Darasa Investments Limited [2018] eKLR, the Court of Appeal held as follows: -“The need to take into account relevant considerations and ignore irrelevant facts in the decision making has close nexus with the need to act reasonably. This much was appreciated by Lord Greene MR in Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation [1948] 1 KB 223 thus, "For instance, a person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'.

55. Similarly, in Republic Vs Secretary of the Firearms Licensing Board & 2 Others Ex parte Senator Johnstone Muthama [2018] eKLR it was held, inter alia, that:“The purpose of the remedy of judicial review is therefore to ensure that an individual is given fair treatment by the authority to which he or she has been subjected, and it is not part of the purpose to substitute the opinion of an individual judge for that of the authority constituted by law to decide the matter in question. As was held in Republic Vs. Kenya Revenue Authority Ex parte Yaya Towers Limited, (2008) eKLR, the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself.”

56. In my view, when the complaints of the Applicant are considered as a whole, it would appear that the Applicant is in reality aggrieved by the merits of the decision of the 1st Respondent. They have nothing to do with the decision making process. In my opinion, a judicial review remedy would not be available in these circumstances. The upshot of the foregoing is that the Court does not find merit in the Application for judicial review.

57. Accordingly, the Notice of Motion dated 10th January 2023 is hereby dismissed with costs.

….…………………………….HON. T. MURIGIJUDGEJUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 6TH DAY OF MARCH, 2024. In the presence of:Court assistant Kwemboi.Ms Njambili holding brief for Masika for the Interested partiesOseko holding brief for Kuria for the Respondents.