[2024] KEELC 13814 (KLR)

Republic v Land Registrar Makueni & 5 others (Environment and Land Judicial Review Case 1 of 2024) [2024] KEELC 13814 (KLR) (11 December 2024) (Judgment)

Neutral citation: [2024] KEELC 13814 (KLR)

Republic of Kenya

In the Environment and Land Court at Makueni

Environment and Land Judicial Review Case 1 of 2024

TW Murigi, J

December 11, 2024

In the matter of an Appilcation by David Matini Mukula (as an administrator of the Estate of Timothy Matini Mukula alia Matini Mukula (Deceased) for an order of Mandamus And In the matter of Section 18 of the Land Registration Act, 2012 And In the Matter of Section 4 of the Fair Administrative Action Act, 2015

Between

Republic

Applicant

and

Land Registrar Makueni

Respondent

and

Victor Mukula

1st Interested Party

Bismarck Munyalo Mukula

2nd Interested Party

Anthony Mukula Munyalo

3rd Interested Party

Oliver Mulwa Munyalo

4th Interested Party

and

David Matini Makula

Exparte

Judgment

1. Pursuant to the leave granted by this court on 29th February, 2024 the ex parte Applicant filed a Notice of Motion dated 13th March, 2024 seeking the following orders:-a.That an order of Mandamus do issue to compel the Respondent to determine and re-establish the boundary of parcel of land known as Mbitini/Iteta/762 vis-a–vis Mbitini/Iteta/921, 435, 436, 1011 and 1009 as mandated by Section 18 of the Land Registration Act.b.That the Interested Parties do meet the costs of this application.

2. The application is premised on the grounds appearing on its face, the statutory statement and the verifying affidavit of David Matini Mukula sworn on even date.

The Applicant’s Case 3. The Applicant averred that he is the legal representative of the estate of Timothy Maini Mukula alias Matini Mukula(deceased), the registered proprietor of land parcel No. Mbitini/Iteta/762.

4. He further averred that a boundary dispute arose between land parcel No. Mbitini/Iteta/762 and the neighbouring parcels of lands known as Mbitini/Iteta/921, 435, 436, 1011 and 1009 belonging to and/or occupied by the Interested Parties herein.

5. He deposed that he had on two occasions petitioned the Respondent to visit the said parcels of land in order to determine and establish the boundaries therein. That on both occasions, the Respondent directed the Applicant to meet the costs towards the said exercise which he did. That despite having issued summons to the occupiers of the neighbouring parcels of land on both occasions, the Respondent failed to determine the dispute on the grounds that the Interested Parties had objected to the exercise being carried out.

6. He contended that failure by the Respondent to determine the dispute is highly prejudicial to him since the Land Registrar is the only body mandated to determine boundary disputes. He asserted that he has a right to fair administrative action in accordance with Section 4 of the Fair Administrative Action Ac,t 2015. In conclusion, he urged the court to allow the application as prayed.

The Interested Parties Case 7. The Interested Parties opposed the application through the affidavit of Victoria Mukula sworn on her own behalf and on behalf of the other Interested Parties.

8. She averred that the application is vexatious and based on fraud and concealment of material facts. She further averred that Plot No. Mbitini/Iteta/762 is ancestral land belonging to their grandfather Mukula Masika and is occupied by three homesteads. She added that both the Applicant and the Interested Parties have equal shares in land parcel No. Mbitini/Iteta/762.

9. She further averred that the late Mukula Masika had three wives and several beneficiaries amongst them the Applicant as well as the Interested Parties. That the Applicant’s father Matini Mukula was her brother together with the 2nd Interested Party while the 3rd and 4th Interested Parties are the sons of the 2nd Interested Party. She further averred that the family dispute revolves around the registration of land parcel No. Mbitini/Iteta/762 in the name of the Applicant’s father as it was done without consensus of the family.

10. The Interested Parties denied owning the adjacent parcels of land and insisted that they are the owners and occupiers of land parcel No. Mbitini/Iteta/762.

11. She further averred that they are not aware of any boundary dispute between their land and the adjacent parcels of land requiring establishment of the boundaries. She insisted that the only dispute was with regards to land parcel No. Mbitini/Iteta/762.

12. The deponent maintained that the inclusion of the 3rd and 4th Interested Parties in the judicial review proceedings herein is made in bad faith as their inheritance lies with the 2nd Interested Party. She stated that they are apprehensive that if the order of Mandamus is granted, the Applicant may unlawful subdivide the family land so as to disinherit them and process the title in his name.

13. She went on to state that the Applicant caused land parcel No. Mbitini/Iteta/762 to be registered in the name of his father long after his death and without the family consent. The deponent was of the view that if the court is inclined to grant an order of mandamus, the Applicant should be made to understand that land parcel No. Mbitini/Iteta/762 is rightfully owned by the households in equal rights by virtue of inheritance. In addition, she insisted that an affirmation should be made that Matini Mukula held the suit property in trust for the larger households and that an order of status quo should issue pending the issuance of a grant and subdivision thereof. She admitted that they objected to the establishment of the boundary. In conclusion, she urged the court to dismiss the application with costs.

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

The Ex Parte Applicant’s Submissions 15. The ex Parte Applicant’s filed his submissions dated 8th June 2024.

16. On his behalf, Counsel identified the following issues for the court’s determination:-i.Whether or not the ex parte Applicant petitioned the Respondent for determination of boundary disputes in respect of the parcel of land known as Mbitini/Iteta/672 vis-à-vis 921, 435, 436, 1011 and 1009 as mandated by Section 18 of the Lan Registration Act 2012?ii.Whether or not the Respondent herein is the one who has jurisdiction, obligation and legal mandate to determine and establish boundaries between parcels of land in the County?iii.If the answer to (ii) above is in the affirmative, has the Respondent abdicated, neglected, failed or declined to execute that mandate despite being paid the expenses by the ex parte Applicant?iv.Whether or not the ex parte Applicant is entitled to an order of Mandamus compelling the Respondent to determine and re-establish the boundary of parcel of land known as Mbitini/Iteta/672 vis-à-vis 921, 435, 436, 1011 and 1009?v.Who bears the costs of these proceedings?

17. Counsel submitted that it is not in dispute that the ex parte Applicant had on two occasions petitioned the Respondent to determine the boundary dispute in respect of land parcel No. Mbitini/Iteta/672 vis–a-vis land Parcels Nos. Mbitini/Iteta/921, 435, 436, 101 and 1009.

18. On the second issue, Counsel relied on the provisions of Section 18 and 19 of the Land Registration Act to submit that the Land Registrar is the only body mandated to resolve disputes relating to boundaries of registered land.

19. Counsel submitted that the Respondent abdicated, neglected and failed to execute his mandate despite the Applicant having paid the necessary fees towards the same. To buttress this point, Counsel relied on the following authorities:-1. George Kamau Macharia v Dexka Limited (2019) eKLR 2. Azzuri Properties V Pink Properties Limited (2018) eKLR

3. Republic V Kenya National Examination Council exparte

4. Geoffrey Gathanji Njoroge & 9 other (1997) eKLR

20. On the fourth issue Counsel submitted that the Applicant is entitled to the orders sought since the Respondent has abdicated, neglected and/or failed to perform his statutory duties in accordance with Sections 18 and 19 of the Land Registration Act.

21. On costs, Counsel submitted that the Applicant is entitled to costs since the Interested Parties have necessitated the case due to unfounded objections raised to the Respondent. Counsel argued that determining the boundaries will not affect the issue of ownership as the Interested Parties can move the court if for any reason they believe that they are entitled to ownership over land parcel No. Mbitini/Iteta/762.

22. Concluding his submissions, Counsel urged the court to allow the application as prayed.

INTERESTED PARTIES SUBMISSIONS 23. The Interested Parties filed their submissions dated 31st May 2024.

24. On their behalf Counsel reiterated the contents of the replying affidavit.

25. In addition, Counsel submitted that the Applicant did not notify the owners of the adjacent parcels of land who may be affected by the orders sought. Counsel further submitted that the Interested Parties are not the owners of the adjacent parcels of land and that the said parcels do not have any known boundary dispute with parcel No. 762. He further submitted that the Applicant is the not the registered owner of No 762 and that parcel 1011 was issued in the year 1981 which is out of the limitation period. Concluding his submissions Counsel submitted that the Applicant has not met the threshold for the grant of judicial review order sought and urged the court to dismiss the application with costs.

Analysis And Determination 26. Having considered the application, the respective affidavits and the rival submissions, the only issue that arises for determination is whether the Applicant has established grounds to warrant the grant of an order of mandamus.

27. Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty. Mandamus is a judicial command requiring the performance of a specified duty, which has not been performed.

28. Mandamus is a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist. The court has to weigh one thing against another to see whether the remedy is the most efficacious in the circumstances obtaining.

29. In the case of R vs Kenya National Examination Council ex parte Gathengi & 8 Others (1997) eKLR the Court of Appeal stated 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 and 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”.

30. The test for granting mandamus was eloquently set out in Apotex Inc. vs. Canada (Attorney General). The position was reiterated in Dragan vs. Canada (Minister of Citizenship and Immigration) (2003) FCA 139 which listed eight factors that must be present for the writ to issue as follows:-i.There must be a public legal duty to act;ii.The duty must be owed to the Applicants;iii.There must be a clear right to the performance of that duty, meaning that:a.The Applicants have satisfied all conditions precedent; andb.There must have been:I.A prior demand for performance;II.A reasonable time to comply with the demand, unless there was outright refusal; andIII.An express refusal, or an implied refusal through unreasonable delay;(iv)) No other adequate remedy is available to the Applicants;(v)The Order sought must be of some practical value or effect;(vi)There is no equitable bar to the relief sought;(vii)On a balance of convenience, mandamus should lie.

31. Firstly, the Applicants must demonstrate that there exists a public legal duty to act. The Applicant contended that the Respondent is the only body mandated to determine boundary disputes related to registered lands. To buttress this point, the Applicant relied on the provisions of Section 18 and 19 of the Land Registration Act which provides as follows:- 18. (1)Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.(2)The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.(3)Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: Provided that where all the boundaries are defined under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, Cap. 299.

19. (1)If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries. (2) The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel. (3) Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this section.

32. It is clear from the above provisions that the Respondent is the one with the mandate to resolve boundary disputes and to establish and/or re-establish boundaries. It is not in dispute that the Applicant had petitioned the Respondent to determine the boundary dispute on two occasions. The Applicant produced a copy of the title for land parcel No. Mbitini/Iteta/762 to show that it is registered in the name of Matini Mukula. He also produced the letter dated 11/09/2023and 26/10/2023 by the Land Registrar notifying the Interested Parties of the hearing of the boundary dispute.

33. The Interested Parties on the other hand insisted that there is no boundary dispute between land parcel No. Mbitini/Iteta/762 and the adjacent parcels of land. They denied the allegations that they are the owners and or occupiers of the adjacent parcels of land and insisted that the Applicant ought to have joined the owners in the proceedings herein.

34. From the foregoing, it is crystal clear that after the Applicant petitioned the Land Registrar to determine the boundary dispute, he notified the Interested Parties on the dates when the dispute would be resolved.

35. The Applicant lamented that despite having paid the necessary fees towards the said exercise, the Respondent neglected, abdicated and failed to perform his duty as mandated by the law. The Applicant contended that the continued inaction by the Respondent has prejudiced his right to fair administrative action.

36. The record shows that upon receipt of the notice by the Respondent, the Interested Parties opposed the survey exercise on the grounds that some extended families of the deceased were not consulted. They denied the allegations that they are the owners and/or occupiers of the adjacent parcels of land. From the foregoing it is clear that the Land Registrar did not abdicate in his duty but was rather stopped by the Interested Parties from conducting the exercise. The Applicant has not demonstrated to the satisfaction of the court that the Interested Parties are the owners of the adjacent parcels of land and hence the court cannot issue orders in vacuum.

37. In the end, I find that the Applicant has not met the threshold for the grant of an order of Mandamus.

38. Accordingly, the application dated 13th March, 2024 is hereby dismissed. As the parties herein are closely related, I direct that each party bears its own costs.

….…………………………………..HON. T. MURIGIJUDGEJUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 11THDAY OF DECEMBER, 2024. IN THE PRESENCE OF:Mulandi for the Interested PartiesMathura for the Applicant.