[2025] KEELC 147 (KLR)

Republic v Deputy County Commissioner, Turbo Sub-County & another; Lagat (Exparte Applicant) (Judicial Review E003 of 2024) [2025] KEELC 147 (KLR) (23 January 2025) (Judgment)

Neutral citation: [2025] KEELC 147 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Judicial Review E003 of 2024

JM Onyango, J

January 23, 2025

Between

Republic

Applicant

and

The Deputy County Commissioner, Turbo Sub-County

1st Respondent

The Hon Attorney General

2nd Respondent

and

Ezekiel Lagat

Exparte Applicant

Judgment

1. By a Notice of Motion dated 7th May, 2024 the ex-parte Applicant filed suit against the Respondents seeking the following orders:-a.Spentb.An order of Certiorari to remove into this honourable court and quash the decision and/or the resolution of the 1st Respondent dated 17th October 2023 regarding Title No. Kiplombe/ Kiplombe Block 2 (kipsang Suge) 44. c.An order of Prohibition to cease all actions by the 1st Respondent in interfering with the ex-parte Applicant (sic) right to peaceful ownership of land parcel No. Kiplombe/kiplombe Block 2 (kipsang Suge) 44. d.The costs of this application be provided for.

2. The Motion is premised on the grounds set out thereon and supported by the ex-parte Applicant’s Affidavit and Statutory Statement. The ex-parte Applicant’s case is that he is the registered proprietor of land parcel No. Kiplombe /kiplombe Block 2 (kipsang Suge) 44, the suit property herein. He avers that on 17th October, 2023 he was summoned to the Deputy County Commissioner’s Office. This was pursuant to a complaint by one Jonah Seroney who claimed to have purchased 1½ acres of the suit property from one Paulina Singoei, who also claimed to have bought the same from one Kipsang Bore. He avers that the 1st Respondent entertained the complaint yet Jonah Seroney had no locus standi to present it, having presented no evidence of his interest in the land.

3. The ex-parte Applicant further alleges that he was not given sufficient time to understand the complaint or respond to it. It is his case that on 17th October, 2023 the 1st Respondent resolved that Jonah Seroney owned the land and directed the ex-parte Applicant to transfer it to him. The ex-parte Applicant claims that his proprietary interests have been prejudiced by the 1st Respondent’s said administrative action, which he terms illegal, biased and unfair. He deponed that it is fair, just and in the interest of justice that the 1st Respondent’s decision be quashed and the said office be prohibited from unlawfully interfering with his rights as proprietor.

4. In the Respondents’ Replying Affidavit sworn by Ezekiel Njue on 19th June, 2024, the Assistant County Commissioner Turbo County, the ex-parte Applicant’s claims are denied. He instead deponed that Jonah Seroney complained that the ex-pate Applicant had refused to transfer the land to him at the Land Control Board. The 1st Respondent then summoned the ex-parte Applicant and also notified the Area Chief, Kiplombe Location. He deponed that from the deliberations held on 23rd August, 2023 it emerged that the ex-parte Applicant had sold a portion of land measuring 1½ acres to Kipsang Bore, who sold the land to Paulina Jepkemboi Singoei, who in turn sold it to Jonah Seroney. He averred that a further meeting was held on 30th August, 2023 where the ex-parte Applicant denied knowing Jonah Seroney, but admitted having sold 1 acre to Paulina Jepkemboi.

5. He avers that on 19th September, 2023 he conducted a ground visit in the presence of the parties and the Area Assistant Chief. He then prepared the report dated 17th October, 2023 on the dispute presented to him in his capacity as the Assistant County Commissioner, which was aimed at resolving the said dispute and ensuring peaceful co-existence. The 1st Respondent claims that the conclusions in his report do not confer ownership of the land neither do they affect any records held by the Land Registrar with respect to the suit land. That the ex-parte Applicant cannot therefore allege that his rights have been affected by the resolutions in the said report since the report is not addressed to any office for implementation. The 1st Respondent also deponed that the Application has no merit, does not meet the threshold of judicial review, is an abuse of the court process and should be dismissed with costs.

6. The Motion was canvassed by way of written submissions. The Applicant’s Submissions are dated 4th November, 2024 whereas the Respondents’ Submissions are dated 20th November, 2024.

Applicant’s Submissions 7. In his submissions, counsel for the ex-parte Applicant cited Article 47 of the Constitution of Kenya on the right to fair administrative action alongside Section 4 of the Fair Administrative Actions Act. He also cited Section 7(2) of the said Act which provides the grounds upon which a court of law can review an administrative action. Counsel submitted that the decision is amenable to review on grounds of illegality under Section 7(2) of the Act. Counsel also submitted that the decision was made ultra vires and contrary to Section 13(2)(b) of the Environment and Land Court Act and Section 101 of the Land Registration Act. Counsel accused the 1st Respondent of committing an illegality, by purporting to waive the provisions of Section 25 of the Land Registration Act in directing him to transfer the suit property to the complainant yet there was no privity of contract. He relied on Kenya national Examination Council vs Republic ex parte Geoffrey Gathenji Njoroge & 9 Others (1997) eKLR and Republic vs Public Procurement Administrative Review Board & 2 Others ex parte Rongo University (2018) eKLR.

8. Counsel went on to submit that the 1st Respondent acted unreasonably, irrationally and unfairly. That as a result, the 1st Respondent arrived at a hurried decision, which did not consider the fact of his ownership and the lack of privity of contract, which principle was affirmed in Kenya Women Finance Trust vs Bernard Oyugi Jaoko & 2 Others (2018) eKLR. Counsel further argued that the ex-parte Applicant was not given an opportunity to be heard, thus there was unfairness in making the decision as it contravened the rules of natural justice (Mumo Matemu vs Trusted Society of Human Rights Alliance (2013) eKLR). Counsel prayed that the impugned decision be quashed and that the 1st Respondent be prohibited from further actions regarding the ex-parte Applicant’s rights.

Respondents’ Submissions 9. In response, the Attorney General submitted that the 1st Respondent’s report was advisory in nature flowing from his mandate to mediate and resolve land disputes under the Land Act, 2012 and the National Land Commission Act, 2012. That it is not a judicial decision but a recommendation/finding based on the 1st Respondent’s investigation, which is not binding unless confirmed by the court. She relied on Republic vs Public Procurement Administrative Review Board (Supra). Counsel argued that no grounds have been established for issuance of certiorari or prohibition, adding that the report was prepared following due process, was made in good faith and is rational. Counsel added that the ex-parte Applicant was given an opportunity to be heard and participate in the process, thus there was no violation of procedural fairness. She relied on the case of Republic vs Judicial Service Commission ex parte Pareno (2004)1 KLR 203 and Republic vs Kenya National Examinations Council (Supra).

10. Counsel for the Respondents also submitted that for an order of prohibition to issue, there must be proof that an authority is about to act unlawfully or outside its jurisdiction (Republic vs The Minister for Transport & 4 Others ex parte Kamlesh Mansukhal Dave (2012) eKLR). She opined that the 1st Respondent was acting in good faith, within its statutory mandate and in accordance to the law, and further, that the Respondent had not demonstrated otherwise, thus the remedy of prohibition is not appropriate. She argued that the 1st Respondent’s actions are lawful, and the report is neither irrational nor unlawful. She urged that the instant Motion be dismissed with costs.

Analysis and Determination 11. I have considered the Motion herein, the affidavits both in support of and in opposition to the application, the statement of facts and the submissions by Counsel for the parties, as well as authorities cited. I am convinced that the following issues lend themselves for determination:-i.Whether there is a competent decision capable of being subjected to judicial scrutiny through judicial review;ii.Whether the ex-parte Applicant has met the threshold for grant of orders of certiorari and prohibition;

12. Pursuant to Order 53 Rule 1 of the Civil Procedure Rules 2010, the ex-Parte Applicant filed an application for leave vide Chamber Summons dated 15th May, 2024 filed in Eldoret ELC JR No. E001 of 2024. The said application was allowed on 2nd May, 2024 granting the ex parte Applicant leave to file the substantive Motion herein.a.Whether there is a competent decision capable of being subjected to judicial scrutiny through judicial review

13. The Respondents are of the view that the report by the Deputy County Commissioner is not a judicial decision but a recommendation/finding arising from the 1st Respondent’s investigation. They submitted that the said report is only advisory in nature and is not binding unless affirmed by a court. There is thus need for the court to determine whether there is in existence an order capable of being called into this court to be so quashed. The Court of Appeal in Republic vs Mwangi S. Kimenyi Ex-Parte Kenya Institute for Public Policy and Research Analysis (KIPPRA) (2013) eKLR discussed the need for a court to ascertain the existence of an impugned decision before granting an order of certiorari. The court stated:-“The learned judge in his judgment was correct in stating that the court cannot act in vain against a non-existent decision. There was no decision or letter dated 24th August, 2005 that could be called and removed into the High Court to be quashed. This being so, the learned judge erred in quashing the alleged decision of 24th August, 2004 when the said decision is non-existent. Further, the learned judge erred in issuing orders to quash the letter of 16th December, 2004 when the court had not determined that the decision made on 3rd December, 2004 was in existence. A court of law should not descend into the realm of speculation. The decision to be quashed must first be ascertained and determined to be in existence. This is the rationale for calling and removing into court a decision to be quashed. We hold that the learned Judge erred and it was not appropriate to issue the judicial review orders in this matter.”

14. The ex-parte Applicant herein was summoned to the Deputy County Commissioner’s office vide the 1st Respondent’s letter dated 21st August, 2023 which reads in part:-“Re: Land Dispute Meeting – Kiplombe/ Kiplombe Block 2(kipsang Suge)/263It has come to our attention that there is a serious issue between you and Mr. Jonah Kipkoech Seroney concerning the above mentioned parcel of land. This prevents Mr. Seroney from acquiring a title for his rightful owned parcel of land…”

15. Notably, the letter seemed to have already assumed that the land rightfully belonged to the complainant even before the parties were heard. In the 1st Respondent’s letter dated 30th August, 2023 summoning Paulina Singoei, the 1st Respondent acknowledged that the matter raised many legal questions that needed to be addressed. Despite this, the said office still purported to hold a hearing and make a finding thereon which the Respondents now wish to refer to as an advisory report. I have perused the document from the office of the Deputy County Commissioner dated 17th October, 2023 titled “Land Dispute Resolution”. It bears the citation “Kiplombe/ Kiplombe Block 2 (Kipsang suge) 44, Jonah Kipkoech Seroney vs Paulina Jepkemboi Singoei and Exekiel Lagat”.

16. The said resolution indicates that the complainant in the case claimed the ex-parte Applicant herein had failed to appear before the Turbo Land Control Board to transfer the suit property to him.At paragraph 2 thereof, the document states that:-“On 27/08/2023, the two parties (Ezekiel Lagat and Jonah Sroney) appeared before this office for determination of their case.”

17. For reasons explained in the said document, the matter was not concluded, and the parties convened again at the Deputy County Commissioner’s office for another sitting, for which it is indicated at paragraph 3 thereof that:-“On 1st September 2023, all parties and their representatives appeared before this office for hearing and determination of the matter.”

18. The Deputy County Commissioner, through Ezekiel Njue, the Assistant County Commissioner, proceeded to hear the case and received evidence on the same from the complainant. He even conducted a site visit of the suit property to determine the size of the land in dispute. At page 3 of the said report, the 1st Respondent’s report indicates that:“After going round the entire land as shown by Paulina Singoei, it was noted that the size shown measured 1. 4 Acre of land and this was to be the true size of the land owned by Mr. Jonah Seroney.” Emphasis mine

19. At the conclusion of the hearing, the 1st Respondent made the following conclusion:-“After an in-depth analysis of the matter, it is hereby established that;-a.Paulina Singoei bought 1½ acre of land from Kipsang Bore and later sold it to Mr. Jonah Seroney as per the document attached.b.Ezekiel Lagat is the seller of the 1½ to Kipsang Bore as per the documents attached.c.Jonah Seroney is the rightful owner of 1½ piece of land in dispute.d.Ezekiel Lagat should have raised the matter long time ago. Allowing Jonah Seroney in the land for 20 years is an indication of consent that Jonah owns that parcel of land, thus he should with immediate effect transfer the same parcel of land to him.” (Emphasis mine).

20. From the above analysis, there can be no dispute that the alleged report by the 1st Respondent was a determination reached after the purported hearing of the complaint presented to its office. The office of the Deputy County Commissioner’s had no doubt that it was in fact hearing the dispute with the aim of reaching a determination thereon. Further, the wording of the conclusion does not in any way indicate that the same was advisory in nature. It in fact directed the ex-parte Applicant to transfer the suit property to the said Jonah Seroney “with immediate effect”, and there is no provision or direction that the same was to be submitted to a court of law for adoption and/or confirmation as the Respondents’ submitted.

21. It matters not that the decision of the 1st Respondent was not presented to any office for implementation. The Respondents’ cannot, for that reason, be heard to say that the decision of the County Commissioner was not a judicial decision. It follows, therefore, that there is in existence a decision made by the 1st Respondent on 17th October, 2023 capable of being called into this court for purposes of judicial review.b.Whether the ex-parte Applicant has met the threshold for grant of orders of certiorari and prohibition;

22. Section 7 of the Fair Administrative Actions Act allows any person aggrieved by the action or decision of an administrative body to apply for review of the said action or decision. It is trite that Judicial Review is concerned with the decision making process, not with the merits of the decision itself. The purpose of judicial review therefore, is not to review the decision complained of, but the process leading up to the making of the impugned decision. See the Court of Appeal’s holding in the case of Republic vs Kenya Revenue Authority ex parte Yaya Towers Limited (2008) eKLR, where it stated 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….”

23. The court is not supposed to act as an appellate court while determining a Judicial Review Application. This being a Judicial Review Applications, the court is called upon to investigate questions such as how the decision was arrived at, whether those who made the decision have the power/authority/jurisdiction to make it, whether the persons affected by the decision were heard before it was made, or whether the decision-maker took into account relevant matters or if they acted in bad faith among other factors.

24. The ex-parte Applicant herein seeks orders of Certiorari and prohibition against the decision of the 1st Respondent dated 17th October, 2023. This court has power to issue an order of Certiorari, which brings into this court to quash a decision of a lower court, quasi-judicial or administrative body where it is demonstrated that it is ultra vires. An order of prohibition on the other hand is intended to forbid or prevent an action by a public body from taking place is granted alongside Certiorari. Prohibition has been said to be a similar remedy to certiorari, but one that is more prospective than retrospective. This is because whereas certiorari looks at the past, prohibition looks at the future, in that it prevents the administrative body from doing or taking an action in excess of its jurisdiction.

25. The grounds upon which such an application for judicial review may be made are set out at Section 7(2). One of these grounds prescribed under Section 7(2)(a) is where:-a.the person who made the decision–i.was not authorized to do so by the empowering provision;ii.acted in excess of jurisdiction or power conferred under any written law;iii.acted pursuant to delegated power in contravention of any law prohibiting such delegation…

26. Before a court can issue an order of Certiorari, it must examine the impugned decision for validity. From the above parameters of Judicial Review, a Court is also entitled to quash a decision of a lower court, quasi-judicial body, tribunal or administrative body if the decision is made in excess of jurisdiction.

27. The first issue that I will deal with is whether the 1st Respondent had the requisite jurisdiction to hear the complaint presented to it, which relates to ownership and title to the suit land, and determine it vide the impugned decision. It goes without saying that without jurisdiction, a court or administrative body cannot act and must down its tools, as was established The Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (Kenya) Limited (1989) eKLR, where it was held that:-“Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given.”

28. The Supreme Court in the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 others (2012) eKLR, authoritatively explained where a court obtains its jurisdiction, in the following words:-“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”

29. The jurisdiction to hear and determine all disputes relating to the use and occupation of and title to land is conferred upon this court and on selected Magistrate’s courts by Article 162(2)(b) of the Constitution and Section 13 of the ELC Act. In addition, Section 150 of the Land Act and Section 101 of the Land Registration Act gives the Environment and Land Court jurisdiction to hear and determine disputes relating to land under the two statutes.

30. The Respondents have argued that the 1st respondent acted within its mandate under the National Land Commission Act and the Land Act to mediate land disputes. The mandate of the National land Commission which is established at Article 67(1) of the Constitution of Kenya as provided at Article 62(2) and (3) thereof is to administer public land on behalf of the national or county governments. One of the functions of the National Land Commission as set out at Article 67(2)(f) and replicated at Section 5(1)(f) of its parent statute is ‘to encourage the application of traditional dispute resolution mechanisms in land conflicts’. Section 4(2)(g) and (m) also encourages the use of ADR by the Commission in settling land disputes. However, nowhere in the Constitution, the Land Act or the parent Act of the NLC is it stated that the Commission may delegate such a function to the Deputy County Commissioner, or indeed anyone acting under him, or even the provincial administration under which they serve.

31. As held in the case of “Samuel Kamau Macharia (Supra), a court’s jurisdiction must flow either from the Constitution or the legislation or both. From the Constitution and the relevant statutes, it is only the Environment and Land Court and selected Magistrates courts that can hear, determine and make orders in respect to land disputes. There is no corresponding or delegated jurisdiction donated to the office of the Deputy County Commissioner or those working under him to determine land related disputes. The 1st Respondent therefore had no power to arbitrate on matters involving title to land or give such order to a party to transfer his land thereby parting with possession thereto.

32. The 1st Respondent also purported to issue orders which I interpret to be in the nature of adverse possession. In the report dated 17th October, 2023 the 1st Respondent made a finding that the complainant’s alleged stay on the land for over 20 years pointed to the ex-parte Applicant’s acceptance of the Complainant’s ownership. By this statement, the 1st Respondent appears to have made a legal finding on a question that had not been presented before him for determination, that is, the issue of adverse possession. Such a finding can only be issued by this court as it has sole jurisdiction to determine matters of adverse possession, and the 1st Respondent clearly had no authority to make such a finding. For reason that the deliberations and decision by the office of the 1st Respondent were done by an entity that did not have the jurisdiction to do so, as a consequence, the same is ultra vires, null and void.

33. Another ground under which orders of judicial review can be issued is that of irrationality, which the ex-parte Applicant herein raised. On this ground I am persuasively guided by the case of Esther Victoria Wanjiku Mahoro vs Mary Wambui Githinji & 3 others (2021) eKLR, where the court held as follows:-“Further, circumstances under which orders of Judicial Review can be issued were elaborated by Justice Kasule in the Uganda case of Pastoli …Vs..Kabale District Local Government Canal & Others (2008) 2EA 300 at pages 300-304. ‘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.…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…’.”

34. According to De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 7th Edition at paragraph 11-036 on page 602, a decision is irrational if it lacks ostensible logic or comprehensible justification. Further, that although the terms irrationality and un-reasonableness are these days used interchangeably, irrationality is only one facet of unreasonableness. Therefore, a decision is said to be irrational in the strict sense of that term if it is unreasoned, it is in logic or comprehensible justification.

35. In this suit, the complainant presented to the 1st Respondent a claim for 1½ Acres of land from the ex-parte Applicant herein. At the hearing, the size of the land could not be ascertained because Pauline Singoei who sold him the land could not tell the size of land she had purchased and later sold to Mr. Seroney. When, the ground visit was conducted, it was determined that the land that Pauline Singoei had purchased was 1. 4 Acres. However, relying on the report by the Area Chief, Kiplombe Location, the 1st Respondent made an award for the 1. 5 Acres claimed without sufficient proof.

36. It must be noted that the suit parcel of land can be traced to one Kipsang Bore, who purchased a portion measuring 1 Acre from the ex-parte Applicant herein, which size the ex-parte Applicant did not dispute selling to Pauline Singoei. There is no indication where the additional 0. 5 Acre that Mr. Seroney was claiming came from or that Kipsang Bore actually purchased additional land from the ex-parte Applicant herein. Yet despite this, the 1st Respondent still went ahead to award the size of 1½ Acres claimed. That aside, there is no link between the ex-parte Applicant and the said Jonah Seroney since there is no agreement linking Pauline Singoei, his predecessor in title, to the ex-parte Applicant herein. For these reasons, the 1st Respondent’s decision also fails the rationality test.

37. Nevertheless, I find that the ex-parte Applicant’s claim that he was not afforded a hearing is unsubstantiated. From the annexures presented to the court herein, the ex-parte Applicant was aware of the proceedings and was in attendance. What cannot be denied though, is that the 1st Respondent had no jurisdiction to conduct the said proceedings which resulted in an illegal and irrational decision.

38. Again as regards an order of prohibition, it is an order from the high court or courts of equal status to it, directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention with the law. An order of prohibition cannot issue in respect of decisions already made. Khamoni J. explained In the Matter of an Application for Judicial Review and for the Orders of Certiorari, Prohibition and Mandamus & Others vs The County Council of Narok & 9 Others [2009] KEHC 2108 (KLR), explained:-“It follows that prayer (b) seeks to apply the remedy of “prohibition” in a manner that remedy is not lawfully available and that is something not acceptable by this court. Prohibition prevents an action before the action takes place and has no time for dealing with consequences of the prohibited action which consequences never come to exist anyway. In other words prohibition issues to prevent a future event. It does not issue to correct a wrong decision already made and cannot issue to correct anything wrong the Respondent has done in the events complained of in this matter.”

39. In the instant suit, the ex-parte Applicant does not seek prohibition against the determination already made by the 1st Respondent. Instead, he seeks the order of prohibition against future interference by the 1st Respondent over his right to peaceful ownership of the suit land. As found above the 1st Respondent has no jurisdiction to handle disputes relating to use, occupation and title to land. Any continued proceedings and/or deliberations on the dispute herein or at all would be illegal and without the requisite jurisdiction and in contravention of existing law. The ex-parte Applicant is therefore entitled to the order of prohibition sought against any such continued deliberations relating to the suit property herein.

40. Consequently, this Honourable Court is satisfied that the ex-Parte Applicant’s Notice of Motion application dated 7th May, 2024 is merited. Accordingly, the same is allowed in the following terms: -a.An order of Certirari is hereby issued to remove into this honourable court and quash the decision and/or the resolution of the 1st Respondent dated 17th October, 2023 regarding Title No. Kiplombe/kiplombe Block 2 (kipsang Suge) 44. b.An order of Prohibition is hereby issued to cease all actions by the 1st Respondent in interfering with the ex-parte Applicant (sic) right to peaceful ownership of land Kiplombe/kiplombe Block 2 (kipsang Suge) 44. c.The Respondents shall bear the costs of this suit.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JANUARY 2025J. M ONYANGOJUDGEIn the virtual presence of :Miss Kiptoo for Mr Ruto for the ApplicantNo appearance for the RespondentCourt Assistant - Hinga