[2017] KEHC 3446 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JR. MISCELLANEOUS APPLICATION NO. 239 OF 2014

IN THE MATTER OF AN APPLICATION FOR ORDERS OF MANDAMUS

AND

IN THE MATTER OF THE LAND REGISTRATION ACT (CAP 300) LAWS OF KENYA

AND

IN THE MATTER OF PARCEL OF LAND TITLE NUMBER GITHUNGURI/GIATHIEKO/412

AND

IN THE MATTER OF THE LAW REFORM ACT, CHAPTER 26 OF THE LAWS OF KENYA

BETWEEN

REPUBLIC …………………………...…….. APPLICANT

VERSUS

KIAMBU COUNTY REGISTRAR…….1ST RESPONDENT

KIAMBU COUNTY SURVEYOR…… 2ND RESPONDENT

AND

KARIUKI MAREGA………...…1ST INTERESTED PARTY

PETER MUNGAI MAREGA

(AKA GIKUIYU MAREGA).......2ND INTERESTED PARTY

EX PARTE - STEPHEN WANYOIKE KINUTHIA

RULING

Introduction

1. On 23rd July 2014, this Court issued an order of mandamus compelling the Respondents to determine, ascertain and/or fix the boundaries of parcel of land Title Number Githunguri/Giathieko/412. Subsequently, on 19th September, 2014, a consent was entered herein in the presence of Mr. Kago for the ex parte applicant and Miss Githaiga for proposed the Respondent in which the said parties agreed that the interested parties be joined to the suit; that the survey which was scheduled for 23rd September, 2014 pursuant to the said judgement proceeds; that in addition to the determination of the boundaries of the parcel No. Githunguri/Giathieko /412 the Respondent would also fix and point out boundaries of LR Nos No. Githunguri/Giathieko /377 and 468; that the Respondents file their report on the survey exercise within 14 days from the date of the thereof; that the matter would be mentioned on 14th October, 2014 for further orders; and that the status quo in respect of the said properties would be maintained.

2. However following the hearing of the Notice of Motion dated 24th February, 2016 by the interested parties herein, this Court on 22nd day of May 2017, set aside the consent order recorded herein on 19th September, 2014. The consequence of that decision is that seek that the order of order of mandamus compelling the Respondents to determine, ascertain and/or fix the boundaries of parcel of land Title Number Githunguri/Giathieko/412 is still in force while the orders issued by consent subsequent thereto nolonger exist.

3. By a Motion on Notice dated 29th May, 2017, the ex parte applicant herein now seeks the following orders:

1. THATthe Honourable court be pleased to Review the orders made on 22nd May 2017 setting aside the executed Consent Orders dated 19th September 2014 being the enhancement of the Judgement and Decree of this court.

2. THATthe Honourable Court be pleased to re-instate the Judgement and consequential Decree made by this court on 23rd July 2014.

3. THATthe Honourable Court be pleased to order the Interested Parties to peaceably vacate L. R. No. Githunguri/ Giathieko/412 within two weeks from the date of the order failure to which they be forcibly evicted under Administrative security.

4. THATThe costs of this application and suit be provided for.

4. The application was based on the following grounds:

1. THAT this Honourable Court did pass a Judgement and issue a Decree on 23rd July 2014 directing the District Land Surveyor and the Kiambu County Land Registrar to re-establish the beacons and relineate the boundary pertaining to L.R. Githunguri/ Giathieko/ 412.

2. THAT the said Decree was enhanced by consent of all the parties on 19th September 2014 in that the District Land Surveyor and the Kiambu County Land Registrar were now to re-establish the beacons and relineate the boundary pertaining to L.R. Githunguri/ Giathieko/ 412, 373 and 468 if at all and file a report in court.

3. THAT the District Land Surveyor and the Kiambu County Land Registrar undertook the exercise on 29th September 2014 and filed a report dated 7th November 2014.

4. THAT the Interested Parties have now violated the Status Quo by destroying and removing the re-established beacons established pursuant to the Judgement and Decree of this Honourable Court and further have erected semi- permanent houses within the unlawfully trespassed upon suit land with the help of this Honourable Court when it ordered the removal of the fence delineating the re- establishment of beacons along the boundary between L.R. No. Githunguri/Giathieko/412 and Githunguri/Giathieko/373.

5. According to the applicant, who swore the affidavit in support, from the said ruling, it is evident that several mistakes and misrepresentation of facts are manifest in the said ruling occasioning the court to arrive at an erroneous decision to the detriment of the exparte applicant and the course of justice.

6. After setting out what was in his view the history of these proceedings, the ex parte applicant averred that as Land Title Number Githunguri/ Giathieko/ 412 has never been nullified by any court of competent jurisdiction the Court should order the Interested Parties to avail any order nullifying the said Title evidence of which is the Report from District Lands Surveyor and the Kiambu County Lands Registrar dated 7th November 2014.

7. According to his belief, the Consent Agreement of 19th September 2014 was a result an earlier consent judgment and decree of this court given on 23rd July 2014. He averred that the enhancement of the Judgment and decree given on 24th July 2014 was solely occasioned by the interested parties who were present in court. It was contended that the prayers in the application of Notice of Motion dated 24th February 2016 had already been heard and determined and were thus Res Judicata.

8. According to the applicant, from the ruling dated 9th February 2016, the court declined to set aside the Judgment and Decree dated 23rd July 2014 because review of the Judgment and Decree would Defeat the purpose of the suit to re-establish the beacons of the land Parcel Githunguri/ Giathieko/ 412 that had already been executed.

9. The applicant averred that the reason as to why Advocate Waithaka Wachira sent Miss. Githaiga to hold his brief was because at an earlier court hearing he had misled the Honourable court by informing the court that Land Parcel Title Githunguri/ Giathieko/ 412 does not exist as it had been cancelled by a Decree of this Honourable court. The court demanded to be shown the Order of which no such Order was in existence as evidenced by the Report from the District Land Surveyor, Kiambu County dated 7th November 2014.

Interested Party’s Case

10. The application was opposed by the interested party.

11. According to the interested party, the applicant has been in the habit of filing numerous interlocutory applications to cloud the issues revolving around this matter. Accordingly this Court was urged not to make determinations which have already been made by other courts.

12. It was the interested party’s case that the averments made by the ex parte applicant are false.

Determinations

13. I have considered the foregoing.

14. I must agree with the interested parties that the manner in which the parties herein and their respective counsel have conducted these proceedings amount to a gross abuse of the Court process.

15. The parties herein have perfected the art of making several and with due respect totally unnecessary applications based on misconception of both the pleadings and the orders issued by this Court. As a result this Court is being inundated by several un-useful applications resulting in the parties herein hogging unto themselves the limited time available for the Courts to resolve disputes thereby denying other litigants their fair portion of the judicial resources.

16. As was held by the Court of Appeal in Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others Civil Appeal No. 25 of 2002 [2009] KLR 229:

“A court of law would not be entitled in our view to abdicate its cardinal role of making a determination. Section 57(8) contemplates a speedy process to have the rights of both the caveator and caveatee determined and not a protracted trial. In our view, the often quoted principle that a party should have his day in court should not be taken literally. He should have his day only when there is something to hear. No party should have a right to squander judicial time. Hearing time should be allocated by the court on a need basis and not as a matter of routine. Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice…We approve and adopt the principles so ably expressed by both Lord Roskil and Lord Templeman in the case of ASHMORE v CORP OF LLOYDS [1992] 2 ALL E.R 486at page 488 where Lord Roskil states:

“It is the trial judge who has control of the proceedings. It is part of his duty to identify crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judges’ time as is necessary for the proper determination of the relevant issues.”

At page 493 of the same case Lord Templeman delivered himself thus:

…“an expectation that the trial would proceed to a conclusion upon the evidence to be produced is not a legitimate expectation. The only legitimate expectation of any plaintiff is to receive justice. Justice can only be achieved by assisting the judge.”

…….

In the case of FREMAR CONSTRUCTION CO LTD v MWAKISITI NAVI SHAH 2005 e KLRat page 6 where the Court said:-

“Trials are not merely held to glorify the hallowed principle that disputes ought to be heard and determined on oral evidence in open court. Unless a trial is on discernible issues it would be farcical to waste judicial time on it.”

…..In our view he, knowingly and dishonestly used the legal process to accomplish an ulterior purpose to that of the court process, which is to protect the interests of justice… The 1st respondent and Mr Church did manifestly exploit the process whereas it was in our view clear to them that they lacked good faith in instituting the Originating Summons thereby causing prejudice and delay. The action was also wanting in bona fides and was oppressive to the appellant. All these in our view constitute abuse of process.”

17. This was the position adopted by Nyamu, J in Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008] KLR 728 when he expressed himself as follows:

“In the long run in the interest of the overriding objectives of case management, no group of litigants no matter how privileged are entitled to more judicial time than any other. Judicial time is an expensive resource which must be apportioned fairly to the entire spectrum of the work in the Court. Every file is important. For Courts to continually inspire confidence of the Court users and litigants, they must have a very sharp sense of proportionality, fairness and equity in the allocation of judicial time.”

18. When the ex parte applicant initiated these proceedings vide the Motion dated 23rd June, 2014, he only sought one substantive order. That prayer was in the following terms:

“That this Honourable court be pleased to grant an order of Mandamus to compel the respondents to determine, ascertain, and /or fix the boundaries to Land Title Number Githunguri/ Giathieko/ 412 in accordance with the Land Registration Act (Cap 300) Laws of Kenya and in particular sections 18 and 19 thereof as well as the Survey Act Cap 299 Laws of Kenya with the assistance of the OCS Githunguri and the Chief Ngewa Location within such duration and subject to such conditions this Honourable Court may deem just.”

19. By its judgement dated 23rd July, 2014, this Court issued an order of mandamus compelling the Respondents to determine, ascertain and/or fix the boundaries of parcel of land Title Number Githunguri/Giathieko/412 as provided in the Land Registration Act as read with the Surveys Act.

20. As I stated hereinabove, that decision still stands as what was set aside was the subsequent consent order. In effect the substantial relief which brought the applicant to Court and which was granted has not been disturbed.

21. In these proceedings the applicant, it seems, wants to transform these proceedings into a claim for land. This Court’s jurisdiction is restricted to determining the process rather than merits of the parties’ claims. If, as I understand it, the applicant is desirous of obtaining orders that would give him the subject land, he can either institute civil proceedings before the Environment and Land Court or if, as he contends, there are decisions favourable to him, execute the same.

22. Having obtained the relief that he was seeking before this Court, the applicant cannot now seek the Court to grant him a different relief occasioned by a consent order which this Court found was a candidate for setting side. If the applicant is unhappy with the order setting aside the consent his only recourse lies in an appeal.

23. I must point out that an order issued in an application seeking to set aside a consent is ordinarily in the nature of a review and under Order 45 rule 6 of the Civil Procedure Rules, this Court is barred from reviewing an order made on review.

24. In the premises this application is misconceived and grossly incompetent.

25. It is hereby dismissed with costs to the interested party.

26. It is so ordered.

Dated at Nairobi this 2nd day of October, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Arendi for Mr Kimere for the applicant

CA Ooko