[2023] KEHC 27308 (KLR)

Republic v District Land Registrar, Kajiado & 2 others (Judicial Review Application E003 of 2022) [2023] KEHC 27308 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27308 (KLR)

Republic of Kenya

In the High Court at Kajiado

Judicial Review Application E003 of 2022

SN Mutuku, J

December 13, 2023

AND IN THE MATTER OF SECTIONS 4(1), 7(1)(a) & (b), 7(2), 9 AND 11 OF THE FAIR ADMINISTRATIVE ACTIONS ACT NO 4 OF 2015 AND IN THE MATTER OF THE LAW REFORM ACT, SECTION 8 AND 9 CAP 26 LAWS OF KENYA

Between

Republic

Applicant

and

District Land Registrar, Kajiado

1st Respondent

The District Lands Surveyor, Kajiado

2nd Respondent

Odylia Muhenje

3rd Respondent

Ruling

1. The ex- parte Applicant brought this Chamber Summons under Sections 3A of the Civil Procedure Act (Cap 21 Laws of Kenya), Section 8 and 9 of the Law Reform Act, Order 53 Rule 1(1)(2)(3) and (4), Order 3(1) of the Civil Procedure Rules and all other enabling provisions of the law seeking the following reliefs:i.That the Applicant be granted leave to apply for the judicial review order of Certiorari to remove into this Honourable Court and quash the decision of J.M. Mwambia, Land Registrar, Ngong Land Registry made on 7th March, 2022. ii.That the Applicant be granted leave to apply for the Judicial Review order of Mandamus compelling the 1st Respondent, through the 2nd Respondent, to identify the extents of the boundaries of LR Nos. Ngong/Ngong/38136 & 38137, belonging to the Ex-parte Applicant, and fix the beacons thereon along the common boundary with Ngong/Ngong/38138, belonging to the 3rd Respondent, to conform with the survey map and the registered mutation forms dated 21st September, 2006. iii.That such further and other reliefs issue as this Honourable Court may deem just and expedient to grant.iv.That cost of this application be costs in the cause.

2. The application is premised on the grounds on the face of the application, the annexed affidavit by the ex-parte applicant and further, on the statements of fact both dated 5th April, 2022.

3. The ex parte applicant has advanced a case that he bought the two parcels of land, namely Ngong/Ngong/38136 & 38137 in the year 2007, which were the resultant parcels of Ngong/Ngong/37184; that the subdivision was done on 21st September, 2006 vide duly registered mutation forms showing the extent of the parcels and boundaries thereof, which boundaries were in conformity with the survey map. It is his case that in February, 2022 he wanted to erect a perimeter wall on his land only for the 3rd Respondent to protest that he was encroaching on her land and that he then applied to the 1st Respondent for the determination of the boundary dispute.

4. He has stated that the 1st and 2nd Respondents visited the site and took measurements using handheld GPS and measuring tape and realized that there were errors in the measurements on the ground vis -a vis the registered mutation forms. That on 7th March, 2022, the 1st Respondent made its ruling that both parties are occupying less acreage on the ground compared to the registered area. That therefore they should continue to occupy the parcels as they exist on the ground; that this determination over the boundary dispute failed to consider the existing survey map and mutation forms and that the impugned decision is irredeemably flawed and against the rules of natural justice and therefore this Honourable Court should quash it.

5. The 3rd Respondent through a Replying Affidavit dated 5th October, 2022 stated that she purchased land parcel Ngong/Ngong/38138 sometimes in the year 2006. That the original parcel of land was subdivided in the year 2006 and the measurements determined and beacons placed long before the ex-parte applicant bought his land. It is her case that the ex-parte applicant should have done his due diligence during the purchase of his property. She stated that the ruling issued by the 1st Respondent on 7th March, 2022 showed that both parties had lost acreage because the mutation forms dated 21st September, 2006 did not show the correct size of land that was available on the ground.

6. It was her case that she also purchased her land from the same vendor, Richard Kipaa, and should therefore not be punished for his mistakes and/or those of the then surveyor. That allowing the ex parte applicant’s application as prayed would unfairly punish her. Furthe that, the orders sought are spent since the time for rectification would have been during the survey, and/or during purchase. That the ex parte applicant is seeking to gain through the back door and the same is an abuse of court process. Further, that the suit should be instituted against the vendor of the property and/ or the surveyor who conducted the original demarcation.

7. The 3rd Respondent states that, upon the advice of counsel, the application offends the doctrine of exhaustion of statutory mechanisms and hence it lacks jurisdiction since the ex parte applicant was allowed 30-day period to appeal the 1st Respondent’s decision. That the ex parte applicant has not produced sufficient evidence to show that the matter brought before this Court meets the threshold for judicial review that is illegality, irrationality and procedural impropriety. That it is in the interest of justice, the rule of law and equity to have the application dismissed.

Analysis and Determination 8. This court directed that the Application be canvassed through written submissions. Both parties have filed their submissions, the ex parte Applicant’s submissions are dated 26th January, 2023 and those by the 3rd Respondent are dated 16th October, 2023. Each party has identified issues for determination.

9. I will not reproduce the submissions of the parties in this ruling and the reasons behind this will become clear. I have read the application, the grounds in support of the same, the Replying Affidavit in opposition and the submissions of the parties. It became apparent to me that the issue of jurisdiction of this court to handle this matter must be settled first. None of the parties has addressed that issue, although it is apparent that from the heading of the pleadings of the parties, they were aware that this matter belongs to another court. I have decided to address the issue of jurisdiction first.

10. The jurisdiction of the High Court is spelt out by Article 165 of theConstitution. Under Article 165 (5) of the constitution provides that:The High Court shall not have jurisdiction in respect of matters—(a)……………. or(b)falling within the jurisdiction of the courts contemplated in Article 162 (2).

11. The Courts contemplated in Article 162 (2) of the Constitution are the Environment and Land Court as well as the Employment and Labour Relations Act as clearly provided under that Article that:(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; and(b)the environment and the use and occupation of, and title to, land.

12. The Jurisdiction of the Environment and Land Court, as per Article 162 (3) of the Constitution is provided under Section 3(1) (2) (a) and (e) of the Environmental and Land Act which provides that:(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use and planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.

13. As stated above, it is clear to my mind, that the ex parte Applicant intended to bring this matter before the ELC as can be seen from his submissions which have quoted the provision of section 13 of the Environment and Land Act when addressing the jurisdiction of the court to handle this matter. I also note that the heading on their pleadings reads “Environmental and Land Court at Kajiado.”

14. In Judicial Review Miscellaneous Application 7 of 2017 - Sustainable Energy Systems Limited v Kenya Forest Service [2017] eKLR, the court addressed the issue of jurisdiction as follows:“The architecture of the constitution has asserted the basic structure of our courts and legal system. The power of judicial review has been vested in both the high court and courts under Article 165 (2) and (3) of the Constitution. On matters pertaining to environment and the use and occupation of land was expressly ordered to be done by the Environment and Land Court. It is not open to the high court to issue award in the nature of certiorari, prohibition or mandamus on matters arising out of the jurisdiction specifically reserved for the ELC. The power conferred under Article 162 (a) (b) together with the corresponding jurisdiction as established by parliament in the respective statutory provisions is exercisable only by such courts.”

15. The Supreme Court also dealt with the issue of jurisdiction of courts in Samwel Macharia & Another v Kenya Commercial Bank & 2 Others Application No. 2 of 2012 eKLR where it was held that:“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. 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.”

16. I have considered this matter. The two main reliefs sought in this application are clearly spelt out to the effect that the ex parte applicant seeks orders of Certiorari to remove into this court and quash the decision of the Land Registrar, Ngong Land Registry and Mandamus to compel the 1st Respondent, through the 2nd Respondent, to identify the extents of the boundaries of LR Nos. Ngong/Ngong/38136 & 38137, belonging to the Ex-parte Applicant, and fix the beacons thereon along the common boundary with Ngong/Ngong/38138, belonging to the 3rd Respondent, to conform with the survey map and the registered mutation forms dated 21st September, 2006.

17. It is clear that the issue is boundaries. An issue that is the preserve of the ELC. This application therefore is in the wrong court. This court is not clothed with the requisite jurisdiction to determine this matter. The ELC is the correct court to litigate this matter.

18. Consequently, this matter cannot proceed. In the name of substantive justice, I will and do hereby transfer this matter to the ELC, Kajiado for determination. The Deputy Registrar of this court is directed to urgently place this file before the Presiding Judge of the ELC Kajiado to issue directions on how this matter shall proceed.

19. Orders shall issue accordingly.

20. Before ending this determination, I need to point out that the 2010 Constitution and the legislation made thereunder should now be clear to all, specifically the advocates representing litigants in court so as to advise their clients appropriately. They ought to know which matters belong to the High Court and which matters are for the Courts of equal status to the High Court. This will minimize the cost of doing litigation for the parties they represent.

DATED, SIGNED AND DELIVERED THIS 13TH DAY OF DECEMBER 2023. S. N. MUTUKUJUDGE