[2024] KEELC 13798 (KLR)

Republic v District Land Registrar, Bondo & 2 others; Kayongo (Exparte Applicant); Owala (Interested Party) (Judicial Review E001 of 2024) [2024] KEELC 13798 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13798 (KLR)

Republic of Kenya

In the Environment and Land Court at Siaya

Judicial Review E001 of 2024

AY Koross, J

December 11, 2024

Between

Republic

Applicant

and

The District Land Registrar, Bondo

1st Respondent

Principal Regional Surveyor, Kisumu

2nd Respondent

The Attorney General

3rd Respondent

and

Monica Atieno Kayongo

Exparte Applicant

and

Eliud Okech Owala

Interested Party

Ruling

Ex parte applicant’s case 1. This ruling seeks to determine the chamber summons (summons) dated 3/02/2024 brought under the provisions of Order 53 of the Civil Procedure Rules and the preliminary objection (PO) by the interested party (IP) against the summons dated 12/04/2024.

2. The exparte applicant seeks several reliefs some of which are spent and the substantive prayers for determination are: -a.That she be granted leave to apply for an order of certiorari to move into this court for purposes of being quashed, the decision of the respondents made and contained in the report of a boundary dispute resolution involving Siaya/Memba/3176, 3177, and 1692. b.That she be granted leave to apply for an order of prohibition to prohibit the respondents from implementing the impugned decision made in the report of a boundary dispute resolution involving Siaya/Memba/3176, 3177, and 1692. c.That she be granted leave to apply for an order of mandamus to compel the respondents to stop the implementation of the impugned decision made and contained in the report of a boundary dispute resolution involving Siaya/Memba/3176, 3177, and 1692. d.That the grant of leave to operate as a stay to stop the implementation of the impugned decision made and contained in the report of a boundary dispute resolution involving Siaya/Memba/3176, 3177, and 1692. e.That the grant of leave to operate as a stay, and as a measure of protection in the interim, that the status quo obtaining regarding the boundaries and contained in the report of a boundary dispute resolution involving Siaya/Memba/3176, 3177, and 1692 be maintained.f.That the Hon. Court does grant such other or further relief as it may deem fit in the circumstances.g.That costs of the application be provided for.

3. The motion is based on the grounds set out on its face and on the statutory statement dated 3/02/2024 and a verifying affidavit that was deposed by the ex parte applicant Monica Ateino Kayongo on 22/02/2024 together with annexures thereto.

4. In summary of the grounds and documents, it is the ex parte applicant’s case that she is the owner of land parcel no. Siaya/Memba/1692 (1692) which she held in trust for her minor son Joseph James Wanjala Kayongo.

5. She avers that it is adjacent to land parcel no. Siaya/Memba/3176 and 3177 that belong to the interested party (IP). These parcels shall jointly hereafter be referred to as (“IPs land”).

6. According to her, she and the IP have been having a long outstanding dispute. She alleges in an arbitral manner, the 1st respondent created an access road that blocked 1692.

7. She states this was not all as the 1st and 2nd respondents have since prepared an impugned report that has the net import of hiving off a portion of 1692.

8. She asserts the process of arriving at the impugned report which was yet to be implemented breached several provisions of the law as envisaged in the Constitution, Land Act, Land Registration Act, Leadership and Integrity Act, and Fair Administrative Action Act.

9. Further according to her, it failed to adhere to the principles of proportionality, legitimate expectation, reasonableness, national values and principles, and good governance.

10. She contends that if the stay of implementation of the report is not granted, the summons will be rendered nugatory hence undermining the rule of law and violating her right to fair administrative action. She states her case is merited and has a high chance of success.

Respondent’s case 11. The respondents who are represented by the 3rd respondent’s principal counsel Mr. Allen Masaka filed a replying affidavit that is deposed by M/s. Diana Wanyama.

12. She asserts on receipt of a complaint from the IP concerning an access road to Siaya/Memba/3176 (3176) and upon him paying the requisite fees, a site visit was slated for 2/05/2023. However, the exercise was unsuccessful and thus deferred to 8/07/2023.

13. It was her averment that the exercise of 8/07/2023 was above board as there was a prior notice to all owners of neighbouring parcels of land which was done through the area chief. She states the government land surveyor and all neighbours attended the exercise including the ex parte applicant’s surveyor Godfrey Nyabega.

14. Additionally, she avers there was full compliance with Section 87 of the Land Registration Act as all parties were given an opportunity to be heard and the process was a success.

IP’s case 15. In opposition, by the law firm of M/s. Yonga Odhiambo & Associates, the PO raised the following points of law: -a.The ex parte applicant did not comply with Section 86 of the Land Registration Act which required him to obtain leave before approaching court.b.The ex parte applicant has failed to provide the basis for seeking judicial review.

16. Further, several affidavits were filed by different persons ostensibly supporting the IP’s case. There was a replying affidavit by Richard Agwenge who described himself as the IP’s caretaker, a supporting affidavit by Daniel Odindo Obuong who described himself as a village elder, and Eunice Adhiambo Owandho who described herself as the previous owner of the IP’s land whose mother parcel is Siaya/Memba/1690 (1690).

17. That is not all, there were also affidavits of Deacons Otieno Otunge who describes himself as a former chief of Bar Opuk, George Oginga Omullo an alleged caretaker of the IP, and Patrick Opiyo who described himself as the IP’s surveyor.

18. These affidavits were all sworn on 12/09/2024 and all raised matters of evidence.

19. Richard Agwenge’s affidavit asserts the ex parte applicant could not purport to make claims on behalf of 3rd parties, notice to resolve a boundary dispute was duly issued by the 1st respondent, 1692 had not been hived off and to the contrary, the ex parte applicant had attempted to create a new boundary.

20. According to him, the alleged wrongs proffered by the ex-parte applicant were vague and did not disclose the injuries or persons she represents. According to him, the 1st respondent’s conduct was fair as notices were issued, all parties participated therein and the 1st respondent rendered its decision. Further, he contends the acts complained about had been implemented and overtaken by events.

21. Daniel Odindo Obuong states Moses Oduor Mbeda who is the assistant chief, gave him instructions to deliver a letter from the 1st respondent concerning the boundary dispute and that he duly served as required.

22. He avers he was present during the dispute resolution date of 14/09/2023 in which the 1st and 2nd respondents sought to resolve the boundary dispute between 1692 and IPs land. According to him, the process was fair.

23. He asserts another letter dated 10/11/2023 was issued to him by the assistant chief summoning owners of various parcels of land and the contents thereof informed the landowners of a beaconing exercise. He states this was carried out.

24. Eunice Adhiambo Owandho asserts that summons for hearing of the boundary dispute were issued on time and she was present during the exercise of 14/09/2024 and the ex-parte applicant too was in attendance together with her counsel and surveyor. Further, on a subsequent date, the 1st and 2nd respondents invited them for a beaconing exercise.

25. Deacons Otieno Otunge states on the fateful day of 14/09/2023, he was present, and he knows the ex-parte applicant took part in the process. He contends the 1st respondent requested persons to pick up the report from its offices and a further beaconing exercise was conducted. His averments were reiterated by George Oginga Omullo.

26. Patrick Opiyo contends he was present during the date of 14/09/2024 and just like the other deponents, he asserts that the process was above board as it followed the chief land registrar's directives on boundary disputes.

Parties’ submissions 27. The ex parte applicant’s law firm on record M/s. Oduol Achar & Co. Advocates filed written submissions dated 5/06/2024. The 1st- 3rd respondents counsel M/s. Omondi filed hers dated 18/06/2024.

28. Despite the court giving specific directions on 5/06/2024 for counsels to file written submissions of not more than 5 pages, in defiance of the court order, the law firm of M/s. Yonga Odhiambo & Co. Advocates who are on record for the IP filed 10 pager submissions. On that basis, the IP’s submissions will not be considered. See the Supreme Court of Kenya Decision of Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others [2023] KESC 69 (KLR).

29. Upon identifying and considering the issues for determination, this ruling shall later on in its analysis and determination, consider the ex parte applicant’s and respondent’s counsels' arguments on the particular issue and also bear in mind the provisions of law and judicial precedents that they have both relied upon to buttress their respective arguments.

Issues for determination 30. I have carefully considered the motion, affidavits, PO, ex parte applicant’s and respondents' rival submissions and provisions of law and judicial precedents relied upon to advance their arguments and it is the considered view of this court that the following issues arise for determination: -a.Whether the PO met the legal threshold.b.Whether the grounds of the PO are merited.c.Whether the chamber summons is merited.

Analysis and Determination 31. The issues that were earlier identified in this ruling shall be dealt with shortly in a seriatim manner.

a. Whether the PO met the legal threshold. 32. The case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (Supra) has long settled the principle of POs. A PO must be on a point of law and it is premised on the assumption that all the facts pleaded by the other side are correct. On page 700 paragraphs D-F of this decision, Law JA had this to say:“...A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

33. Ms. Omondi did not address me on the PO and neither did the ex parte applicant’s counsel deal with this limb in the submissions. In the PO, The IP raised 2 points of law.

34. The first one was that Section 86 of the Land Registration Act required the ex parte applicant to first obtain leave before seeking judicial review. Disclosures were not made as to who ought to grant such leave.

35If this court were to proceed to hear and adjudicate the matter when it lacks jurisdiction, its decision would be null and void. Therefore, I find this ground meets the threshold of Mukisa (Supra).

36. The second one was that the ex-parte applicant had failed to postulate grounds that would warrant the grant of judicial review. Undoubtedly, this ground invites this court to confer to the ex parte applicant’s pleadings including evidence to ascertain her grounds.

37. This ground points to matters of facts that are liable to be contested, calls for the adduction of evidence to prove it, and consequently, I find it does not meet the threshold of Mukisa (Supra). Having failed to meet the threshold, the court will not proceed further on this issue.

b. Whether the grounds of the PO are merited. 38. The jurisdiction of this court to deal with prerogative reliefs on matters dealing with land and environment including environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals, natural resources, community, private and public land is found in Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act (ELC Act).

39. Several laws allow the ex parte applicant to approach this court and seek judicial review orders and these are Articles 23 and 47 of the Constitution, Section 7 of the Fair Administrative Action Act, and Sections 8 and 9 of the Law Reform Act whose procedures are provided for by Order 53 of the Civil Procedure Rules. These provisions read: -Articles 23 (1) and 47 of the Constitution of Kenya:“23. Authority of courts to uphold and enforce the Bill of Rights(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.”“47. Fair administrative action:(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)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.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.”Section 7 of the Fair Administrative Action Act:“(1)Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to–(a)a court in accordance with section 8; or(b)a tribunal in exercise of its jurisdiction conferred in that regard under any written law.”Section 8 (1) of the Law Reform Act:“The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari.”

40. By legal architecture, the legal pathways anticipated under the Constitution and Fair Administrative Action Act do not require a litigant to seek leave before approaching the court but that is not so when a litigant seeks prerogative orders under Sections 8 and 9 of the Law Reform Act as they have to seek leave as anticipated by Order 53 Rule 1 of the Civil Procedure Rules.

41. To buttress this, I echo the sentiments expressed by Mutungi J in his recent decision of Njagi v Muchiri & another (Judicial Review E006 of 2023) [2024] KEELC 1812 (KLR) (12 April 2024) (Ruling) whereby the learned judge highlighted on these procedures thus: -“As a consequence of the above analogy, this Court notes that our jurisdiction has two Judicial Review processes that co-exists, that is the common law prerogative writs and Constitutional Judicial Review. Sections 8 and 9 of the Law Reform Act were not repealed upon the promulgation of the Constitution and hence Order 53 of the CPR exists and runs alongside Article 23 and 47 of the Constitution of Kenya. As a consequence, where an Applicant anchors his Judicial Review application on the constitution, he is not required to seek for leave.”

42. The section of the law that counsel alleges divested this court’s jurisdiction is Section 86 of the Land Registration Act which states: -“(1)If any question arises with regard to the exercise of any power or the performance of any duty conferred or imposed on the Registrar by this Act, the Registrar or any aggrieved person shall state a case for the opinion of the Court, and thereupon the Court shall give its opinion, which shall be binding upon the parties.(2)The Rules Committee shall make rules on the procedures to be followed by the Registrar or an aggrieved person under subsection (1).”

43. The ex parte applicant’s counsel submits this court has jurisdiction to handle judicial review matters and I must agree with him. Upon closely reading Section 86 of the Land Registration Act, it is my understanding of this provision of law that judicial review and leave thereof as filed herein is one of the ways contemplated by this provision of law.

44. This provision has not divested this court’s jurisdiction to handle judicial review matters and it appears the IP misapprehended this provision of law as he should have read it alongside all the provisions of law that have donated power to this court to handle judicial review cases. Thus, it is obvious he misconstrued the law. I find this ground of the PO is not merited. I also find I have jurisdiction to entertain the matter that is before me.

c. Whether the chamber summons is merited. 45. On matters of procedure and as earlier highlighted, when handling summons such as this one that seeks leave to institute judicial review proceedings, courts draw guidance from Order 53 Rule 1 of the Civil Procedure Rules.

46. In the submissions, M/s Omondi addressed her mind on the merits of the anticipated substantive notice of motion that is yet to be filed. Whereas, the ex parte applicant’s counsel contends the ex parte applicant’s case is merited and arguable hence leave should be granted.

47. To buttress his argument, counsel relies on several authorities including the case of [2019] KEELC 3121 (KLR) (media neutral citation). I have looked at all of them and they all dealt with the substantive hearing of judicial review proceedings and not leave.

48. The decision of Republic v Ethics and Anti-Corruption Commission & Director of Criminal Investigations; Mike Mbuvi Sonko & Director of Public Prosecution (Interested Parties) Ex parte Paul Ndonye Musyimi [2020] KEHC 9172 (KLR) which this court relies upon summarized the guiding principles for leave to institute judicial review proceedings thus:-“42. Guided by the above authorities , it is incumbent upon the applicant to prove to the satisfaction of the court that;

a.The application is not frivolous or vexatious nor does it amount to an abuse of court process.b.That there is a prima facie case for further interrogation or that there is an arguable case based on the materials placed before courtc.Whether the orders sought are likely to create uncertainty or ambiguity to any administrative action taken by any public body.”

49. The burden to show that the grant of leave is deserving lies with the ex parte applicant and at the leave stage, the court does not profoundly probe the evidence but rather, conducts a brief perusal of the evidence before arriving at a conclusion.

50. The report that is the subject of judicial review is undated and the addressee is not disclosed. Still, it urges the 1st respondent to ignore the mode of measurement used by the other surveyors and instead use submissions of the parties for purposes of determining the dispute. The ex-parte applicant has questioned how this report came to be.

51. A cursory glance of the evidence on record shows several boundary dispute hearings that statutorily fall within the 1st respondent’s docket were to be conducted on various dates.

52. From my understanding of the ex-parte applicant’s case, she is aggrieved as to how the decision in the report was arrived at and not how the boundary dispute hearings were conducted.

53. Therefore, I find the leave sought is merited. Since the relief on mandamus does not compel the respondents to carry out any legal duty, I find it is not merited. The current status of 1692 and the IPs land are unknown and an order of maintenance of the status quo is appropriate.

54It is trite law costs follow the event and costs shall abide by the outcome of the substantive hearing of the judicial review proceedings. In the end, I hereby issue the following final orders: -a.That leave is hereby granted to the ex parte applicant to apply for an order of certiorari to move into this court for purposes of being quashed, the decision of the respondents made and contained in the report of a boundary dispute resolution involving Siaya/Memba/3176, 3177, and 1692. b.That leave is hereby granted to the ex parte applicant to apply an order of prohibition to prohibit the respondents from implementing the impugned decision made in the report of a boundary dispute resolution involving Siaya/Memba/3176, 3177, and 1692. c.That the status quo obtaining over land parcels no. Siaya/Memba/3176, 3177, and 1692 that are prevailing at the date of issuance of this ruling be maintained.d.The applicant shall file and serve the substantive motion within 14 days of today’s date.e.The respondents and IP shall file and serve their responses to the substantive notice of motion within 14 days of service.f.The matter will be mentioned to confirm compliance on 10/02/2025. g.Costs shall abide by the outcome of the substantive judicial review proceedings.Orders accordingly.

DELIVERED AND DATED AT SIAYA THIS 11TH DAY OF DECEMBER 2024. HON. A. Y. KOROSSJUDGE11/12/2024Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:In the Presence of:Mr. Oduol for the ex-parte applicantMr. Gichobi h/b for Miss Essendi for the respondentsMr. Que for the interested partyC/A – Ishmael Orwa