[2024] KEELC 6544 (KLR)

Republic v District Land Registrar Narok & another; Koini (Exparte Applicant) (Environment and Land Judicial Review Case E001 of 2024) [2024] KEELC 6544 (KLR) (8 October 2024) (Judgment)

Neutral citation: [2024] KEELC 6544 (KLR)

Republic of Kenya

In the Environment and Land Court at Narok

Environment and Land Judicial Review Case E001 of 2024

CG Mbogo, J

October 8, 2024

In The Matter Of An Application For Judicial Review In The Form Of Certiorari, Prohibition & Mandamus And In The Matter Of The Land Registration Act, Cap 300 And In The Matter Of Articles 25 (c), 27 (1) & (2),47 (1) & 50 (1) Of The Constitution Of Kenya

Between

Republic

Applicant

and

The District Land Registrar Narok

1st Respondent

The Attorney General

2nd Respondent

and

Kingasunye Kipas Koini

Exparte Applicant

Judgment

1. Pursuant to leave granted on 7th February, 2024 the ex parte applicant filed the notice of motion dated 4th March, 2024 expressed to be brought under Section 3A of the Civil Procedure Act, Order 51, Order 53 Rules (3) and (4) of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, Cap 26 seeking the following orders: -a.An order of certiorari to remove into this honourable court and quash the decision of the 1st respondent to remove a lawful caveat entered by the applicant on 4th January, 2024 by the applicant in respect of property known as Land Reference Number Cis-Mara/ Ololulunga/ 101. b.An order of mandamus to compel the 1st respondent to rescind the decision to remove a lawful caveat entered by the applicant on 4th January, 2024 by the applicant in respect of property known as Land Reference Number Cis-Mara/ Ololulunga/ 101. c.An order of prohibition to forbid the 1st respondent from implementing the decision to remove the caveat entered by the applicant on 4th January, 2024 and or dealing in any way whatsoever with the property known as Land Reference Number Cis-Mara/ Ololulunga/ 101.

2. The application is premised on the grounds inter alia that the exparte applicant is the first wife of Samson Kipas Koni who is the registered proprietor of parcel known as Cis-Mara/ Ololulunga/ 101.

3. Further grounds upon which the orders are sought is that the 1st respondent acted ultra vires with no regard to the rules of fair hearing as enshrined under Articles 25 (c), 27 (1), and (2), 47(1) and 50 (1) of the Constitution. Further, that there was abuse of power in contravention of the procedure for removal of a caution provided under Section 73 (2) of the Land Registration Act, Cap 300, irrelevant consideration and illegality, unreasonableness, bad faith, and procedural impropriety.

4. The application is supported by the verifying affidavit of the exparte applicant sworn on even date. The exparte applicant deposed that on 4th January, 2024, and having the knowledge that her husband intended to cause subdivision of the suit property without her knowledge, she placed a caution over the entire land to protect her beneficial interest and the interests of her children. She deposed that vide the letter dated 19th January, 2023(sic), she was summoned by the 1st respondent to appear on 31st January, 2024 for hearing and determination of the caution she had lodged.

5. The ex-parte applicant deposed that at the time the summons was served, she was unwell and she would not have been able to attend the hearing. Further, that her advocate wrote to the 1st respondent informing them of her predicament vide the letter dated 29th January, 2024, and the hearing was deferred to 16th February, 2024. She deposed that the 1st respondent despite the full knowledge of her illness, and despite deferring the date to 16th February, 2024, went ahead and unprocedurally caused the removal of the caution without giving her an opportunity to be heard.

6. The exparte applicant deposed that the actions by the 1st respondent to remove a lawful caution entered on 4th January, 2024 was unlawful and unprocedural. Further, that it is in the best of justice that the orders sought are granted.

7. The substantive motion was canvassed by way of written submissions. The exparte applicant filed her written submissions dated 2nd July, 2024 where she raised two issues for determination as listed below: -a.Whether the 1st respondent illegally and unprocedurally caused the removal of a caution lodged by the ex parte applicant on the parcel of land reference number Cis-Mara/Ololulunga/101. b.Who shall bear costs of the application.

8. On the first issue, the exparte applicant submitted that the action by the 1st respondent to remove the caution was unlawful and unprocedural with no regard to the rules of fair hearing and in total contravention of the law. The exparte applicant submitted that the 1st respondent acted ultra vires and in abuse of power in blatant disregard of the rule of law. She submitted that the 1st respondent was unreasonable, and without giving her a fair hearing proceeded to cause the removal of the caution. She cited bad faith, irrelevant consideration and illegality, procedural impropriety and loss of legitimate expectation as among the grounds which the 1st respondent permitted itself to remove the caution.

9. The respondents did not file a response to the application, and as it is, the motion is unopposed. Be that as it may, it is the duty of this court to check whether there is merit or otherwise in the said application before granting any orders. I have considered the application, the evidence tendered, and the written submissions filed by the exparte applicant. I am of view that the issue for determination is whether the exparte applicant is entitled to the orders of judicial review.

10. In the case of Pastoli versus Kabale District & Others (2008) 2 E.A. 300 the court set out the duty of a court in Judicial Review applications as follows: -“In order to succeed in an application for judicial review, the applicant has to show that the decision or the 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 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 would have made 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.”

11. In the case of Municipal Council of Mombasa versus Republic Umoja Consultants Ltd Civil Appeal No. 185 of 2007 (2002) eKLR the Court of Appeal held that: -“The court would only be concerned with the process leading to the making of the decision and how was the decision arrived at. Did those who made the decision have power i.e. jurisdiction to make it. Were the provisions affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a court of appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself – such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of judicial review.”

12. It is important to remember in every 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 and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power. See Halsbury’s Laws of England 4th Edition Vol (1)(1) Para 60.

13. Section 71 of the Land Registration Act provides that:1. A person who—a.claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;b.is entitled to a licence; orc.has presented a bankruptcy petition against the proprietor of any registered land, lease or charge, may lodge a caution with the registrar forbidding the registration of dispositions of the land, lease or charge concerned and the making of entries affecting the land lease or charge.2. A caution may either—aforbid the registration of dispositions and the making of entries; orb.forbid the registration of dispositions and the making of entries to the extent expressed in the caution.3. A caution shall be in the prescribed form, and the registrar may require the cautioner to support the caution by a statutory declaration.4. The registrar may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument under this Act.5. Subject to this section, the caution shall be registered in the appropriate register.”

14. While Section 72 of the Land Registration Act stipulates that:1. The registrar shall give notice, in writing, of a caution to the proprietor whose land, lease or charge is affected by the caution. (2) A disposition that is inconsistent with the caution shall not be registered while the caution is still registered except with the consent of the cautioner or by the order of the court.”

15. Further, Section 73 of the Land Registration Act states thus: -1. A caution may be withdrawn by the cautioner or removed by order of the court or, subject to subsection (2), by order of the registrar.2The registrar, on the application of any person interested, may serve notice on the cautioner warning the cautioner that the caution will be removed at the expiration of the time stated in the notice.3. If a cautioner has not raised any objection at the expiry of the time stated, the registrar may remove the caution. (4) If the cautioner objects to the removal of the caution, the cautioner shall notify the registrar, in writing, of the objection within the time specified in the notice, and the registrar shall, after giving the parties an opportunity of being heard, make such order as the registrar considers fit, and may in the order provide for the payment of costs.”

16. The exparte applicant herein contended that she placed a caution on the suit property owned by her husband for her benefit and that of her children. She further contended that she was summoned to attend hearing on the removal of caution but she was unable to as a result of sickness wherein she sought for a deferral of the hearing. That the 1st respondent agreed to the deferral of the hearing and the matter was slated for hearing on 16th February, 2024. However, she was surprised to learn that the 1st respondent went ahead and unlawfully removed the said caution, thereby denying her the right to a fair hearing. I have perused the documents relied on in this matter. Indeed, the exparte applicant registered a caution on 4th January, 2024 as evidenced by a copy of the certificate of official search dated 29th January, 2024. Due to a medical report dated 25th January, 2024, the exparte applicant was advised to be on bed rest and she could not attend the hearing. The same appears to have been communicated to the 1st respondent vide the letter dated 29th January, 2024 which bears an illegible stamp acknowledging receipt. However, the caution whether removed or otherwise, appears to have been ‘overtaken by events as registrar already pronounced her decision above.’

17. In the case of Kenya National Examinations Council versus Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No. 266 of 1996 [1997] eKLR the Court of Appeal held inter alia as follows:The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the high court of justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way… These principles mean that an order of mandamus compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done…Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the present appeal the respondents did not apply for an order of certiorari and that is all the court wants to say on that aspect of the matter.

18. From the material supplied before this court, there is enough evidence to show that the 1st respondent indeed acted without jurisdiction, by abusing its powers to deny the exparte applicant the right to a fair hearing as anticipated by the provisions of Section 73 of the Land Registration Act. It is my finding that the exparte applicant has proved her case and the substantive notice of motion dated 4th March, 2024 is hereby allowed in the following terms;i.An order of certiorari is hereby issued to remove and quash the decision of the 1st respondent to remove a lawful caveat entered by the applicant on 4th January, 2024 by the applicant in respect of property known as Land Reference Number Cis-Mara/Ololulunga/101. ii.An order of prohibition to forbid the 1st respondent from implementing the decision to remove the caveat entered by the applicant on 4th January, 2024 and or dealing in any way whatsoever with the property known as Land Reference Number Cis-Mara/ Ololulunga/ 101. iii.The exparte applicant is hereby awarded costs to be borne by the respondents.

It is so ordered.

DATED, SIGNED & DELIVERED VIA EMAIL THIS 8TH DAY OF OCTOBER, 2024. HON. MBOGO C.G.JUDGE08/10/2024. In the presence of: -Mr. Meyoki Pere – C.A