[2024] KEELC 3753 (KLR)

Republic v Land Adjudication Committee, Nduu Adjudication Section Kilungu Division, Makueni District & 3 others; Mwongela & another (Exparte Applicants); Joel & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E011 of 2022) [2024] KEELC 3753 (KLR) (24 April 2024) (Judgment)

Neutral citation: [2024] KEELC 3753 (KLR)

Republic of Kenya

In the Environment and Land Court at Makueni

Environment and Land Judicial Review Miscellaneous Application E011 of 2022

TW Murigi, J

April 24, 2024

Between

Republic

Applicant

and

Land Adjudication Committee, Nduu Adjudication Section Kilungu Division, Makueni District

1st Respondent

Land Arbitration Board, Nduu Adjudication Section, Kilungu Division, Makueni District

2nd Respondent

Deputy County Commisioner, Kilungu Sub-County, Makueni County

3rd Respondent

Attorney General

4th Respondent

and

Samuel Matheka Mwongela

Exparte Applicant

Priscillar Minoo Ngunyu

Exparte Applicant

and

Mathew Mati Joel

Interested Party

Land Adjudication Board, Nduu Adjudication Section Kilungu Division,Makueni District

Interested Party

Judgment

1. By a Notice of Motion dated 4th November, 2022 brought under Order 53 Rules 3 (1) and (2) of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law Reform Act, the Ex-parte Applicant Samuel Matheka Mwongela seeks the following orders: -i.THAT this Honourable Court be pleased to issue an order of Certiorari to quash decisions made by the 1st, 2nd and 3rd Respondents on 15th February, 2017, 20th July, 2017 and 10th May, 2022 depriving the Ex-parte Applicant of his land ownership rights over land Parcel Number 1820. The respective case numbers are Nduu/Comm/57859/016, Arb/Nduu/49/17 & Arb/Nduu/51/17 and Land Adjudication Case Number 446/2021. ii.THAT this Honourable Court be pleased to grant a declaration that the Applicant is the rightful and still remains the rightful owner of the subject property unless deprived of the same legally.iii.THAT this Honourable Court be pleased to grant an order of Prohibition directed at the 1st, 2nd and 3rd Respondents from entertaining any further applications from the Interested Parties and/or their agents or personal representatives or assigns over the subject property.iv.THAT this Honourable Court be pleased to grant an order of Prohibition directed at the 2nd Interested Respondent prohibiting any entry of record in the adjudication register conferring ownership of the suit property to the Interested Parties.v.THAT this Honourable Court do issue an order of Mandamus directed at the 2nd Interested Respondent compelling him to make an entry of record in the adjudication register confirming ownership of the property belongs to the Applicant.vi.THAT this Honourable Court be pleased to grant any further orders as it may deem fit to further the ends of justice.vii.THAT costs of this application be borne by the Respondents and the Interested Parties jointly and severally.

2. The application is premised on the grounds appearing on its face and on the Statutory Statement dated 24/8/2022 together with the supporting affidavit of Samuel Matheka Mwongela sworn on even date.

THE APPLICANT’S CASE 3. The Ex-parte Applicant averred that he has been a resident of Nduu Sub location, Kilungu Division for the last seventy-one years. He stated that he is the son and legal heir of the late Mwongela Musomba alias Mwongela Mbuli. He averred that the late Mwongela Mbuli left behind untitled land measuring approximately fifteen acres and that the said property has never been communal land.

4. He further averred that in the late 1970s, neighbouring families attempted to dispossess his family of the suit property. That in a suit instituted in the District Magistrates Court at Kilungu by Mutungi Yumbya and Joel Ngunyu Mutungi against Mwongela Mbuli and Amos Mangoka Mbuli, the court ruled that the 1st Defendant (Mwongela Mbuli) was the bona-fide legal owner of the suit property. That being aggrieved, the Plaintiffs appealed against the ruling in Appeal No. 166/79 but the court upheld the decision.

5. The deponent averred that in the year 2016, the suit property was subjected to adjudication for the purposes of obtaining a title deed thereof. That a survey was done and the suit property was allocated Parcel No. 1747 Map 1B by the Demarcation Officer, Nduu Adjudication Section. That the Interested Parties who are closely related to the 2nd Plaintiff in the earlier suit lodged Case No. Nduu/Comm/57859/016 with the Makueni Land Adjudication Office which was heard on 15/2/2017 and a verdict led to the emergence of Plot Nos. 1747, 1820 and 1821.

6. He stated that Plot No. 1820 was allocated to the Interested Parties despite having utilized the same for over fifty years. That the case was then heard by the Arbitration Board and a decision rendered on 20/7/2017 upheld the decision of the Adjudication Committee.

7. That being aggrieved by the decision, he appealed to the Land Adjudication Officer who overturned the decision of the Arbitration Board vide the ruling dated 24/4/2019. That the Interested Parties appealed against the decision to the Minister vide Case No. 446/2021 which was eventually ruled in their favour vide the decision dated 10/5/2022.

8. The Ex-parte Applicant averred that since inception of the land adjudication proceedings, the Interested Parties have always harassed him using the criminal justice system and the local administration. He argued that the actions by the Interested Parties together with the Respondents are against the doctrine of res judicata.

9. The Ex-parte Applicant averred that the decisions by the Respondents have not only infringed upon his Constitutional right to fair administrative action as guaranteed under Article 47 of the Constitution but also amount to public bodies overstepping their mandate. He urged the court to allow the application as prayed.

THE RESPONDENT’S CASE 10. The 3rd Respondent filed grounds of opposition dated 1/12/2022 citing the following grounds:-i.THAT the application offends Section 29 of the Land Adjudication Act (Cap 284) in that the decision of the Minister to determine an appeal and make any order thereon as he thinks just shall be final.ii.THAT the Ex Parte Applicant went through the procedure for redress provided for in the Land Adjudication Act i.e the Committee stage, Arbitration Board stage, Objection before the Adjudication Officer and finally the Appeal before the Minister as demonstrated by the annexures.iii.THAT a judicial review court 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.iv.THAT the application has not met the threshold for the grant of judicial review orders of Certiorari.v.THAT the application does not meet the grounds set out in Section 7(2) of the Fair Administrative Action Act.vi.THAT this application as drawn is misconceived, mischievous, an afterthought, bad in law and an abuse of the court process hence subject to dismissal.

11. The Respondents opposed the application through the replying affidavit of Japheth Mutua Mutiso, the Principal Land Adjudication and Settlement Officer, Makueni sworn on 19/1/2023. He averred that the Ex-parte Applicant’s case was processed under the established procedure for redress under the Land Adjudication Act as demonstrated by the annexures in the affidavit in support of the judicial review application. He maintained that the Ex-parte Applicant together with the Interested Parties appeared and fully participated in the hearings at all the stages.

12. According to him, judicial review proceedings are concerned with the decision-making process and not with the merits of the decision. He asserted that the application herein has not met the threshold for the grant of judicial review orders and urged the Court to dismiss the application.

THE INTERESTED PARTIES CASE 13. The Interested Parties opposed the application through the replying affidavit of Priscillar Minoo Ngunyu sworn on her own behalf and on behalf of the 2nd Interested Party. She averred that the Ex-parte Applicant’s father did not leave any ascertainable estate since the adjudication process was not complete and no single parcel of land was recorded in his name. She contended that the suit property is approximately 3 acres in size.

14. She averred that the cases in Kilungu Court were not in respect of Plot No. 1820 but for the entire parcel of land which gave rise to Plot Nos. 1747, 1820 and 1821. She further averred that she has been in possession of the suit property since the 1970s to date. According to her, due process was followed in the land adjudication process. She argued that the Ex-parte Applicant appeared and submitted himself to all the stages of hearing and that he never raised the issue of res judicata which is now an afterthought.

15. She further averred that the Respondents did not overstep their mandate since the jurisdiction of ascertaining rights over land in an adjudication section lies with the land adjudication office. She asserted that the cases before Kilungu Law Courts were about encroachment and not ascertainment of rights. She added that no court order was issued to the effect of ownership mandating the Adjudication Officers to adopt it in their duties. She argued that there was no single element to demonstrate that the Ex-parte Applicant’s right to fair administrative action was violated. She urged the Court to dismiss the application with costs.

16. The application was canvassed by way of written submissions.

THE EX PARTE APPLICANT’S SUBMISSIONS 17. The Ex-parte Applicant’s submissions were filed on 27/4/2023. On his behalf, Counsel submitted that judicial review is concerned with the decision-making process and not the merits of the decision. Counsel submitted that the decisions of the Respondents offend the provisions of Sections 60, 64, 65 and 66 of the 1963 Constitution (repealed), Articles 47, 159 (1) (e), 160 (1), 162 and 169 of the 2010 Constitution and Section 4 of the Fair Administrative Action Act. According to Counsel, the decisions of the Respondents are unlawful notwithstanding the Ex-parte Applicant’s participation in the same.

18. Counsel submitted that under Article 47(1) of the Constitution, an administrative action must be expeditious, efficient, lawful and procedurally fair. Counsel further submitted that the Respondents’ as well as the Interested Parties acted ultra vires by entertaining a matter which had already been determined by a court of competent jurisdiction vide the judgments delivered by Kilungu District Magistrates Court in L.35/1978 and L.166/79.

19. Counsel submitted that the decisions of the Respondents’ do not reflect the input of the Demarcation Officer and the Surveyor yet they are important officers under the Land Adjudication Act. On the basis of the above, Counsel submitted that the Ex-parte Applicant was not accorded a fair hearing.

20. Counsel argued that the Respondents erred in law by entertaining a matter which had already been decided by a court of competent jurisdiction. Counsel further argued that despite being notified by the Ex-parte Applicant of the previous proceedings, the Respondents failed to appreciate the centrality of the doctrine of res judicata in the decision-making process.

21. Counsel submitted that the suit herein meets the threshold for the grant of judicial review orders and urged the Court to allow the application with costs. None of the authorities cited by Counsel were availed for the court’s perusal.

THE RESPONDENT’S SUBMISSIONS 22. The Respondents’ submissions were filed on 2/6/2023. Learned State Counsel submitted that the application herein offends the provisions of Section 29 of the Land Adjudication Act which provides that the Minister’s decision is final.

23. Learned State Counsel submitted that the instant application is challenging the merits of the decision hence it is an appeal disguised as a judicial review application. It was further submitted that the Ex-parte Applicant did not fault the procedure when he won the Objection before the Land Adjudication Officer but found it flawed after the 3rd Respondent delivered a decision in favour of the Interested Parties.

24. Learned State Counsel further submitted that the doctrine of res judicata is not applicable in the instant proceedings since the Ex-parte Applicant chose to submit himself to the jurisdiction of the adjudication process under the Land Adjudication Act and cannot therefore seek the Court’s intervention to overturn those decisions.

25. Learned State Counsel submitted that the 3rd Respondent had the requisite jurisdiction to determine the Appeal before him and that the Ex-parte Applicant was accorded an opportunity to be heard and cross-examine witnesses. Concluding his submissions, Learned State Counsel urged the Court to dismiss the application for failing to meet the legal threshold for the grant of the orders sought. To buttress his submissions, Learned State Counsel relied on the following authorities: -i.Ngari Kiranga v Jerusha Mucogo Kiura & 2 others [2020] eKLR;ii.Republic v Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others [2018] eKLR;iii.Watuku Mutsiemi Watuku & another v Republic & 5 others [2018] eKLRiv.Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR

THE INTERESTED PARTIES SUBMISSIONS 26. The Interested Parties submissions were filed on 6/6/2023. On their behalf, Counsel submitted that Section 10 (i) of the Land Adjudication Act confers mandate upon the Land Adjudication Officer to determine interests in land in an adjudication area. Counsel argued that, the Adjudication Officer was authorized to deal with all matters and dispute arising therefrom once the suit property fell under Nduu Adjudication Section.

27. Counsel further submitted that the Land Adjudication Officer is not bound by the earlier decisions of the Court but the said decisions may be taken into consideration. Counsel submitted that the Ex-parte Applicant’s case has no merit and that the Respondents acted within the jurisdiction conferred upon them by the Land Adjudication Act.

28. To buttress his submissions, Counsel relied on the case of Daniel Musili Nyeki & 49 others v Cabinet Secretary of Lands and Settlement & another; Bernard Malonza Musya & 30 others (Interested Parties) [2021] eKLR.

ANALYSIS AND DETERMINATION 29. Having considered the application, the respective affidavits and the rival submissions, the issue that arises for determination is whether the Ex-parte Applicant is entitled to the judicial review remedies sought.

30. The duty of a Court in Judicial Review proceedings was set out in the case of Pastoli Vs Kabale District Local Government Council and Others (2008) 2 E.A 300 where the court held that:-“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 ….. 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 a 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, 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 ….. 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.’

31. The parameters of Judicial Review were re-affirmed by the Court of Appeal in the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd C.A Civil Appeal No. 185 of 2001 where it was held that:-“Judicial Review is concerned with the decision making process, not with the merits of the decision itself; the Court would concern itself with such issues as to whether the decision maker had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision, the decision maker took into account relevant matters or did take into account irrelevant matters. The Court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself – such as whether there was or there was not sufficient evidence to support the decision.”

32. The Ex-parte Applicant faulted the 3rd Respondent’s decision mainly on the grounds that he exercised non-existent powers when the matter had already been determined by the District Magistrates Court Kilungu vide the judgment dated 30/10/1979 in Civil Case No. L. 35/1978. The Ex-parte Applicant argued that the proceeding before the Respondents were res judicata and a violation to his Constitutional right to fair administrative action.

33. It is not in dispute that the 3rd Respondent had the power to hear and determine Appeal Case No. 446 of 2021 in accordance with Section 29 of the Land Adjudication Act. Under paragraph 14 of the Applicant’s affidavit in support of the application, it is clear that the suit property fell under Nduu Adjudication Section. It is crystal clear that the Land Adjudication Officer was vested with powers to hear and determine all disputes in relation to interests in land within Nduu Adjudication Section.

34. Article 47(1) and (2) of the Constitution provides as follows;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

35. The above provision is echoed in Article 50(1) of the Constitution and Section 4(3)(b) of the Fair Administrative Action Act. It is clear from the above provisions that the tribunal or authority entrusted with the mandate of making decisions must act in a fair manner. Procedural fairness is a Constitutional requirement in administrative actions.

36. The Ex parte Applicant gave an elaborate background of the Appeal before the Minister. He averred that the dispute in respect of the suit property was first heard by the Land Adjudication Committee which decided that the disputed land belonged to Kavoi and that parcel No. 1747 should remain with Samuel Matheka Mwongela while Priscillar Minoo Ngunyu and Japheth Maweu were to be issued with new numbers. That the dispute was then heard and determined by the Arbitration Board on 20/07/2017 in favour of the Interested Parties.

37. The Ex Parte Applicant appealed against the decision to the Land Adjudication Officer who in his decision allowed the Objection and awarded him Plot No 1820.

38. According to the evidence presented by the parties herein, it is apparent that the Appeal before the Minister emanated from the decision of the Land Adjudication Officer made on 24/04/2019.

39. I have perused the proceedings and findings in Minister’s Appeal Case No. 446 of 2021 conducted before the Deputy County Commissioner Kilungu Sub County. In the Appeal before the Minister, the Ex parte Applicant was the Respondent while the Interested Parties were the Appellants. From the proceedings, the Appellant’s witnesses are listed as Japheth Maweu Kilonzo and Alice Syukwaa Mwongela while the Respondent witness is listed as Johnson Wambua Maundu. Both parties were recorded as having been sworn and gave evidence. It is evident that they participated in the proceedings by giving evidence, cross examination and calling witnesses.

40. The Applicant gave his testimony and was allowed to cross-examine the Appellant’s witnesses. He fully participated in the proceedings before the Minister. The Deputy County Commissioner who was hearing the Appeal took the evidence of the parties and the witnesses who were present during the hearing date. The Minister allowed the Appeal in part and ordered that Plot No. 1820 be recorded in the name of Priscillar Minoo Ngunyu and the name of the Respondent to be deleted from the records while Plot No. 1822 to remain the property of the 2nd Respondent James Maweu Mutungi as recorded.

41. Section 10 (1) of the Land Adjudication Act outlines the general powers of an Adjudication Officer as follows: -‘(1) The adjudication officer shall have jurisdiction in all claims made under this Act relating to interests in land in the adjudication area, with power to determine any question that needs to be determined in connexion with such claims, and for that purpose he shall be legally competent to administer oaths and to issue summonses, notices or orders requiring the attendance of such persons or the production of such documents as he may consider necessary for the carrying out of the adjudication.’

42. The powers of the Land Adjudication Officer are further elaborated under Section 12 (1) of the Land Adjudication Act as follows: -‘(1) In the hearing of any objection or petition made in writing, the adjudication officer shall make or cause to be made a record of the proceedings, and shall, so far as is practicable, follow the procedure directed to be observed in the hearing of civil suits, save that in his absolute discretion he may admit evidence which would not be admissible in a court of law, and may use evidence adduced in another claim or contained in any official record, and may call evidence of his own accord.’

43. In regards to suits that were instituted before the establishment of an Adjudication Section, Section 30 (2) of the Land Adjudication Act provides as follows: -‘(2) Where any such proceedings were begun before the publication of the notice under section 5 of this Act, they shall be discontinued, unless the adjudication officer, having regard to the stage which the proceedings have reached, otherwise directs.’

44. From the above provisions of the law, it is clear that the powers to determine interests in land within an Adjudication Section rest squarely with the Land Adjudication Officer and that is why Section 29 of the Land Adjudication Act contemplates finality of disputes which have been determined as per the outlined procedures under the Act.

45. The judgment in Kilungu District Magistrates Court Land Case No. 35 of 1978 dated 30/10/19 shows that the Plaintiffs Mutungi Yumbyua and Joel Ngunyu Mutungi had sued the Defendant Mwongela Mbuli and Amos Mangoka Mbuli for entering and working on his Kisesi without his consent. The Learned Magistrate stated in part as follows:“Consequently, I am convinced that the defendants have in fact not encroached on the plaintiffs’ land but they are using a ngundu rightly belonging to them. I see that they are not claiming the plaintiffs’ kisesi. The defendants will therefore be entitled to judgment with costs for separation of their ngundu from the kisesi of the plaintiffs as prayed for in C.C.L. 48/79 and I so order.”

46. It is clear from the above finding that the judgment of the subordinate court did not fully determine the interests in the suit property. In fact, the court alluded to a process of separation of both the Ex-parte Applicant’s and the Interested Parties’ interests in the land which was eventually done in 2016 with the establishment of Nduu Adjudication Section and the subsequent demarcation exercise.

47. The Ex Parte Applicant contended that the Respondents decisions offends the doctrine of res judicata as the dispute had been determined by a court of competent jurisdiction.While endorsing the findings of the Court of Appeal in Timotheo Makenge v Manunga Ngochi [1979] eKLR that the rules of res judicata are not applicable in adjudication proceedings, the Court held as follows in Daniel Musili Nyeki & 49 others v Cabinet Secretary of Lands & Settlement & another; Bernard Malonza Musya & 30 others (Interested Parties) [2021] eKLR: -“However, the Court noted limitations in the applicability of the doctrine and stated that it is arguable if the doctrine of Res Judicata is applicable to proceedings under the Land Adjudication Act;“It is also arguable that the principles of res judicata have no bearing on disputes under the Act, except to the extent of showing whether a claimant has a bona fide claim or not. Section 18 of the Act makes it clear that existing boundaries can be altered and adjusted. This would not be possible if the rules of res judicata were strictly applied. In my view, interests in land within an adjudication area previously recognised by Courts are not binding in land adjudication proceedings, and are only relevant as a factor to be taken into account. Where the interest relates to disputed clan land, the question of the over-riding interest in that land is in my view an open question,”I am bound by the above finding of the Court of Appeal that interests in land within an adjudication area previously recognised by Courts are not binding in land adjudication proceedings, and are only relevant as a factor to be taken into account. I find that the Land Adjudication Officer did consider the judgement of the court while rendering a detailed judgement in which he referred to the judgement and rulings of the court both in the Magistrates Court and the High Court.”

48. The record shows that throughout the adjudication proceedings, the parties herein made reference to Kilungu Civil Case No. L.35/1978. At page 8 of the 3rd Respondent’s decision, produced as Exhibit (PKK9) consideration was made of the court’s decision being a relevant factor to the proceedings.

49. The purpose of judicial review is not to review the decision but the decision making process. This was stipulated by the Court of Appeal in the case of Republic Vs Kenya Revenue Authority Exparte Yaya Towers Limited (2008) eKLR, where it was held 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….”

50. Similarly, in Republic Vs Secretary of the Firearms Licensing Board & 2 Others Ex parte Senator Johnstone Muthama [2018] eKLR it was held, inter alia, that:“The purpose of the remedy of judicial review is therefore to ensure that an individual is given fair treatment by the authority to which he or she has been subjected, and it is not part of the purpose to substitute the opinion of an individual judge for that of the authority constituted by law to decide the matter in question. As was held in Republic Vs. Kenya Revenue Authority Ex parte Yaya Towers Limited, (2008) eKLR, 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.”

51. There is no evidence to demonstrate that the Minister took into account irrelevant considerations or that he failed to take into account relevant considerations in the appeal. The Court would hardly intervene unless it is clearly demonstrated that the decision maker acted upon no evidence, or that he took into account irrelevant considerations and omitted the relevant factors. The Applicant has not demonstrated that such was case in the instant application.

52. In my view, when the complaints of the Applicant are considered as a whole, it would appear that the Applicant is in reality aggrieved by the merits of the decision of the 3rd Respondent. They have nothing to do with the decision making process. This was, in effect, an appeal disguised as a judicial review application. The Applicant was aggrieved because the 3rd Respondent overturned the earlier decision which was in his favour.

53. In my opinion, a judicial review remedy would not be available in these circumstances.

54. From the foregoing, I find that the Ex Parte Applicant has not met the threshold for the grant of the orders sought.Accordingly, I find that the Notice of Motion dated 4th November 2022 is devoid of merit and the same is hereby dismissed with costs.

.…………………………………………HON. T. MURIGIJUDGEJUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 24THDAY OF APRIL, 2024. IN THE PRESENCE OF:Kenani for the bEx Parte ApplicantCourt assistant Alfred.7MKN JDT ELC JR MISC. APP. NO. E011 OF 2022