[2021] KEELC 4533 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. MISC. CIVIL APPLN. NO. 221 OF 2010

IN THE MATTER OF AN APPLICATION BY FREDRICK NZYOKI MAKAU AND PATRICK KIMEU MAKAU FOR JUDICIAL REVIEW OF ORDERS OF PROHIBITION AND MANDAMUS

IN THE MATTER OF LAW REFORM ACT, CAP 26

IN THE MATTER OF PARCEL NOS. MACHAKOS/MUA HILLS/173, 335 & 336

IN THE MATTER OF ORDER LIII CIVIL PROCEDURE RULES AND ALL OTHER ENABLING PROVISIONS AND PROCEDURES OF LAW

BETWEEN

REPUBLIC

AND

LAND REGISTRAR, MACHAKOS......................................1ST RESPONDENT

ATTORNEY GENERAL........................................................2ND RESPONDENT

VERSUS

RAPHAEL F. K. KILONZO.............................................INTERESTED PARTY

AND

EX-PARTE APPLICANT: FREDRICK NZYOKI MAKAU

PATRICK KIMEU MAKAU

JUDGMENT

1. In the Notice of Motion dated 26th October, 2010, the Ex parte Applicants have prayed for the following orders:

a) That Prohibition directed to the 1st Respondent, its servants and/or agents or others whomsoever from carrying out any further sub-division, replanning, validating or howsoever dealing with parcel No. Machakos/Mua Hills/173 or any other parcels excised therefrom.

b) That Mandamus directed to the 1st Respondent to recall and revoke any Title Deed issued to the Interested Party in respect of any parcel created by the sub-division of Land Parcel Number Machakos/Mua Hills/173.

c) That costs of this Application be provided for.

2. The Application is premised on the Applicants Statutory Statement and the Verifying Affidavit in which they deponed that on 19th January, 2009, the Land Registrar, Machakos, on the advice of the Settlement Department issued to the late Samuel Makau Mwilu a Title Deed in respect to land known as Machakos/Mua Hills/173 measuring approximately 13. 7 Hectares (the suit property).

3. According to the Applicants, the late Samuel Mwilu fenced off the suit property and constructed a dwelling house thereon and that upon the demise of the late Samuel, the High Court in Succession Cause Number 836 of 2008 confirmed the Grant and vested the suit property in the Applicants’ names for the benefit of themselves and the beneficiaries of the Estate of the deceased.

4. It is the deposition of the Applicants that the 1st Respondent sub-divided the suit property into Machakos/Mua Hills/335 and 336 and had parcel number 336 registered in favour of the Interested Party without their permission and without hearing them; that the 1st Respondent did not inform the Applicants of the purported sub-division of the suit property and that the sub-division of the said land was done after the demise of the late Samuel Mwilu.

5. The Applicants deponed that the 1st Respondent wrongfully sub-divided the suit property while purporting to implement a Judgment of the court which was issued on 23rd December, 1987; that the said Judgment was time barred and that the 1st Respondent acted in excess of jurisdiction in registering the sub-divided portion of the suit property in favour of the Interested Party.

6. In her Replying Affidavit, the 1st Respondent deponed that land parcel number Machakos/Mua Hills/173 is registered in favour of Samuel Makau Mwilu; that in Nairobi HCCC No. 722 of 1981, the Machakos Land Registrar was ordered to enter the suit property and have it sub- divided by hiving 12 acres therefrom and that the District Surveyor sub-divided the land into Machakos/Mua Hills/335 and 336.

7. The 1st Respondent deponed that the parcel number Machakos/Mua Hills/336 was transferred to the Interested Party as per the court order; that on 2nd March, 2010, a Title Deed was issued in favour of the Interested Party and that the registration of the said land was done in compliance with the orders of the court.

8. In the Supplementary Affidavit, the Applicant deponed that the court order ceased to be an order after the lapse of 12 years; that the suit property was distributed to the beneficiaries of the Estate of the late Samuel Mwilu and that the Land Registrar did not give the beneficiaries of the said Estate an opportunity to be heard before he sub-divided the said land.

9. The Applicants’ advocate submitted that the Land Registrar, Machakos, in purporting to sub-divide and allocate the property of the deceased Machakos/Mua Hills/173 was acting in a quasi-Judicial capacity and was obligated to follow the rules of natural justice and that the right to be heard is based on the principles that no man shall be condemned unheard.

10. It was submitted that the Applicants, being the administrators of the Estate of Samuel Makau Mwilu, were neither informed of the plans to sub-divide parcel number Machakos/Mua Hills/173 originally registered in the name of Samuel Makau Mwilu (deceased) nor granted a chance to be heard before the Land Registrar Machakos made the decision to sub-divide and reallocate a portion of the suit land to Raphael F.K Kilonzo (Parcel number Machakos/Mua Hills/336).

11. Counsel submitted that the decision of the 1st Respondent to sub-divide the property of the deceased Estate was ultra vires, arbitrary and without and/or in excess of jurisdiction; that it is only a court of law which has power to sub-divide a property of a deceased person; that the deceased died on 15th August, 2005; that the land was transferred on 19th January, 2009 long after the deceased had passed on and that the 1st Respondent had no jurisdiction to transfer the land.

12. It was submitted that the 1st Respondent had no basis whatsoever in law or in fact to sub-divide or reallocate property of a deceased person without a Confirmation of a Grant; that the Applicants are not aware of any Decree in existence and that under Section 4(4) of the Limitation of Actions Act, the 1st Respondent and the Interested Party have no powers to purport to execute a Decree which is time barred over the property of a deceased person.

13. In his submissions, the 1st Respondent’s advocate submitted that the 1st Respondent’s actions were subsequent to the court order of 23rd December, 1987 in Civil Suit Number 722 of 1981; that the 1st Respondent was ordered to register a portion of the suit property measuring 12 acres in favour of the Interested Party and that court orders are never issued in vain.

14. It was submitted that the obedience of a court order is fundamental to the administration of justice and rule of law; that a court order once issued binds all and sundry and that Judicial Review is limited to the decision making process of the authority concerned.

15. The Applicants are seeking for an order of Prohibition directed to the 1st Respondent, its servants and/or agents or others whomsoever from carrying out any further sub-division, replanning, validating or howsoever dealing with parcel No. Machakos/Mua Hills/173 or any other parcels excised therefrom and an order of Mandamus directed to the 1st Respondent to recall and revoke any Title Deed issued to the Interested Party in respect of any parcel created by the sub-division of Land Parcel Number Machakos/Mua Hills/173.

16. The Application is premised on the grounds that the sub-division of the suit property into parcels of land known as Number Machakos/Mua Hills/335 and 336, and the subsequent registration of parcel of land number 336 in favour of the Interested Party was done without giving the Applicants a hearing. More fundamentally, it is the Applicants’ case that the Decree which the 1st Respondent relied on to sub-divide the suit property was nonexistent and that in any event, the said Decree is time barred.

17. It is not in dispute that parcel number Machakos/Mua Hills/173 measuring approximately 13. 7 Hectares (approximately 34. 25 acres) (the suit property) was registered in favour of the late Samuel Makau Mwili. According to the abstract of title, the suit property was registered in favour of the deceased on 19th January, 2009, having been registered in favour of the Settlement Fund Trustees on 15th January, 1991, which is the same day the register was opened.

18. The register shows that on 27th January, 2009, the suit property was sub-divided vide “court order in Civil Suit No. 722 of 1981 in the High Court of Kenya at Nairobi issued on 23rd December, 1987. ” The said sub-division created parcels number 335 and 336, with parcel number 336 measuring approximately 4. 86 Hectares (approximately 12. 15 acres) being transferred to the Interested Party on 22nd March, 2010. The Interested Party was issued with a Title Deed for the said land on 2nd March, 2010.

19. It is the 1st Respondent’s case that the suit property was sub-divided in execution of the order dated 16th November, 1987 and issued on 23rd December, 1987 in Nairobi HCCC No. 722 of 1981. In the said order, the Interested Party was the Plaintiff while the late Samuel Makau Mwilu was the Defendant.

20. The order of the court in Nairobi HCCC No. 722 of 1981 directed that the 1st Respondent and the Surveyor to “enter into Plot No. 173 Mua Hills Settlement Scheme and excise Twelve (12) acres of the said plot.”The 1st Respondent was further directed to register the excised 12 acres in the name of the Interested Party herein.

21. It would appear that the Applicants, who are the legal administrators of the Estate of the late Samuel Mwilu were not aware of the existence of the order in the Nairobi suit. I say so because on 7th May, 2010, the suit property was distributed by the court in Machakos Succession Cause No. 836 of 2008 to the heirs of the deceased. Indeed, it would appear that parcel number 173 was the only asset that the deceased had.

22. The Applicants also produced in evidence the Letter of Allotment for plot number 173 in Mua Hills Scheme which was issued to the late Mwilu by the Settlement Fund Trustees on 5th January, 1982. However, as already indicated above, the land was formally registered in favour of the deceased in the year 2009.

23. Although the Applicants have pleaded that the decision of the 1st Respondent was erroneous and ultra vires because they were not heard, it follows that the issue of whether the late Samuel Mwilu or the Applicants were ever heard could only be raised in respect to the order of the court in Nairobi HCCC No. 722 of 1981.

24. Indeed, the 1st Respondent having been directed to sub-divide the suit land and register it in the name of a third party, he was not supposed to hold any other inquiry in respect to the implementation of the said order. All he was required to do was to ascertain that the court order was genuine, and then implement it. So the issue of the Applicants having not been given an opportunity to be heard by the 1st Respondent before sub-dividing the suit property does not arise.

25. If the late Samuel Mwilu was not given an opportunity to be heard before the order of the court was issued in Nairobi HCCC No. 722 of 1981, then the only option the Applicants had was to move the court and set aside the order that was issued in the said case. Other than that, the 1st Respondent was under an obligation to comply with the order of the court without hearing any of the parties affected by the said order.

26. The issue that the 1st Respondent should have interrogated before implementing the order dated 16th November, 1987 was whether the said order could be executed in the year 2010. It is trite that under Section 4 (4) of the Limitation of Actions Act, an action can only be brought upon a Judgment or an order within 12 years from the date of the Judgment or Order. Section 4 (4) of the Act provides as follows:

“An action may not be brought upon a Judgment after the end of twelve years from the date on which the Judgment was delivered, or (where the Judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a Judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”

27. Since the 1st Respondent has admitted that the order of the court is dated 16th November, 1987 and the sub-division of the property of the deceased was done on 27th January, 2009, it follows that the 1st Respondent purported to execute the order of the court after 22 years contrary to provisions of Section 4(4) of the Limitation of Actions Act. The decision of the 1st Respondent was therefore illegal.

28. The common law principles on Judicial Review of administrative action under the head of illegality are applicable in this case. Indeed, under Section 142(1) of the Registered Land Act (repealed), the 1st Respondent has the legal mandate of changing a name or address of any proprietor of land, and where he doesn’t do so due to a mistake or misapprehension of the law on his part, this court can compel him to do so.

29. Furthermore, under Section 143 of the Registered Land Act, the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration)has been obtained, made or omitted by fraud or mistake.

30. Having found that the sub-division of the suit property and registration of parcel of land known as Machakos/Mua Hills/336 in favour of the Interested Party was illegal, I shall, which I hereby do, allow the Applicants’ Notice of Motion dated 26th October, 2010 as follows:

a) An order of Prohibition be and is hereby directed to the 1st Respondent, its servants and/or agents or others whomsoever from carrying out any further sub-division, replanning, validating or howsoever dealing with parcel No. Machakos/Mua Hills/173 or any other parcels excised therefrom.

b) An order of Mandamus be and is hereby issued directed to the 1st Respondent to revoke any Title Deed issued to the Interested Party in respect of any parcel created by the sub-division of Land Parcel Number Machakos/Mua Hills /173.

c) Each party to bear his own costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF JANUARY, 2021.

O.A. ANGOTE

JUDGE