[2014] KEHC 2532 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Jr Misc. Civil Application No. 808 Of 2005

IN THE MATTER OF AN APPLICATION BY ISAAC MAINA KAHACHO AND JANE WANJIRU FOR JUDICIAL REVIEW ORDERS IN THE NATURE OF CERTIORARI PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF THE REGISTERED LANDS ACT, CAP 300 LAWS OF KENYA

AND

IN THE MATTER OF DISTRICT MAGISTRATE COURT AT KIGUMO LAND SUCCESSION CASE NO. 38 OF 1972 LAND REGISTRAR-MURANG’A VS GITHAE NDUMBI (DECEASED)

AND

IN THE MATTER OF SENIOR RESIDENT MAGISTRATE’S COURT AT KIGUMO LDT CASE NO. 50 OF 2004 IN RESPECT OF LAND PARCEL NO. LOC.2/MAKOMBOKI/121

AND

IN THE MATER OF REGISTERED LAND ACT TITLES NO. LOC.2/MAKOMBOKI/1329,1330,1331 AND 1332

AND

IN THE MATTER OF NAIROBI HIGH COURT MISCELLANEOUS CIVIL SUIT NO. 266 OF 2005 REPUBLIC VS SENIOR RESIDENT MAGISTRATES AT KIGUMO & 2 OTHERS

EX-PARTE MARY WAIRIMU THUKU

BETWEEN

REPUBLIC……………………………………….....…….……………APPLICANT

AND

LAND REGISTRAR MURANG’A…………......………..........…1ST RESPONDENT

SENIOR RESIDENT MAGISTRATE COURT AT KIGUMO…..2ND RESPONDENT

MARY WAIRIMU THUKU………….…………............……….3RD RESPONDENT

PETER MACHARIA THUKU………………………............…..4TH RESPONDENT

DANSON KAMAU THUKU….…………...........……………....5TH RESPONDENT

JOSEPH MWANGI THUKU…..……………..........………..….6TH RESPONDENT

ELIUD TURU MWANGI…………..…...........…………….……7TH RESPONDENT

EX-PARTE: ISAAC MAINA KAHACHO

JANE WANJIRU

JUDGEMENT

Introduction

By a Notice of Motion dated 14th June, 2005 filed in this Court the same day the ex parte applicants herein, Isaac Maina Kahacho and Jane Wanjiru seek the following orders:

1. That an order of certiorari be issued to bring into the High Court and quash the judgment by consent dated 10th October 1972 in District Magistrate’s Court at Kigumo Land Succession Case No. 38 of 1972 Land Registrar Murang’a vs Githae Ndumbi (deceased).

2. That an order of certiorari be issued to bring into the High Court and quash the Certificate of Succession dated 10th November 1972 issued by the District Magistrate Kigumo in Land Succession Case no. 38 of 1972 in the matter of land parcel No. Loc.2/Makomboki/121 of Githae Ndumbi (deceased).

3. That an order of certiorari be issued to being into High Court and quash the entries in the land register dated 19th and 20th December 1972 in respect of title No. Loc.2/Makomboki/121 allowing Benson Thuku Macharia its registered proprietor.

4. THAT an order of certiorari be issued to bring into the High Court and quash the entry in the land register dated 11th June 2004 and 28 July 2004 in respect of Loc.2/Makomboki/121 showing Mary Wairimu Thuku as its registered proprietor.

5. That an order of certiorari be issued to bring into the High Court and quash the entry in the land register dated 4th October closing title number Loc.2/Makomboki/121 upon its sub-division into title no. 1329-1332.

6. That an order of certiorari be issued to bring into the High Court and quash titles No. L.R. Loc.2/Makomboki/1329, 1330, 1331 and 1332 being sub-divisions of land parcel No. Loc.2/Makomboki/121

7. THAT an order of mandamus be issued to compel the first respondent to issue a title deed/certificate of Registration in respect of Land parcel Loc.2/Makomboki/121 for Githae Ndumbi.

8. That an order of prohibition be issued to restrain the fourth, fifth, sixth and seventh Respondents herein from transferring charging, using, occupying otherwise exercising the rights and privileges of a proprietor in respect of land parcels No. Loc.2/Makomboki/1329, 1330, 1331 and 1332.

9. That the costs of this application be borne by the Respondents.

Ex ParteApplicant’s Case

The application was supported by the verifying affidavit sworn by Isaac Maina Kahacho on 25th May, 2006.

According to the deponent, he is a grandson of Githae Ndumbi,(hereinafter referred to as the deceased) who is deceased by virtue of being a son to Mr. Kahacho Githae, also deceased while the second Applicant, Jane Wanjiru, is his mother and sole widow of his late father. According to him the applicants are the 2nd and 3rd Respondents respectively in Nairobi High Court Civil Suit No. 266 of 2005 which relates to the suit property namely land parcel Fort Hall Loc.2/Makomboki/121 whose registered owner of the said parcel was the deceased prior to the filing of Land Succession Case No. 38 of 1972. The said deceased died on 26th October 1970 at Maji Mazuri in Koibatek District which was then part of Baringo where he was buried in a public cemetery after which he was succeeded by two sons namely Kaguma Githae and Kahacho Githae (the father). The said father however died on 23rd December 1975 at the same Maji Mazuri in Koibatek and was similarly buried at a public cemetery at therein.

It was deposed that on or about 5th September 1972 the Land Registrar Murang’a presented to the District Magistrate Kigumo an application for certificate of Succession in respect of the deceased and Parcel No. Loc.Makomnoki/121 which application was dated 5th September, 1972 and particularised the following as the relatives of the deceased.

i. Benson Thuku Macaria (clan Member)

ii. Kaguma Githae (son)

iii. Benson Kamau (son)

iv. Ndugire Muhoi (brother)

v. Kamau Kiarii (clan member)

vi. Mwangi Njoroge (clan member)

vii Wageche Ndirangu (clan member)

It was deposed that the said application did not include the applicant father although him and Kaguma Githae were the only sons of the deceased. On the other hand Benson Thuku Macharia was not related to the deceased although he finally ended up as heir of the deceased’s land purportedly as a purchaser; Kamau Kiarie and Wageche Ndirangu were brothers to the said Benson Thuku Macharia the alleged clan member and purchaser of the deceased’s land; Ndugire Muhoi and Mwangi Njoroge were clam members and village elder respectively and not step brothers of the said deceased; and Benson Kamau was not a son to the deceased but used to work with Benson Kamau at Amalgamated Saw Mills in Mazi Mazuri of then Baringo District. However, in the consent judgment dated 10th October, 1972 the surname “Githae” was added to his name to justify the reference to him as son to the deceased while his real full name is Benson Kamau Mwangi.

It was contended by the deponent under Section 120 of the Registered Land Act (Cap 300) it was mandatory that for Land Registrar to satisfy himself of the death of the deceased, the proprietor of the land in issue, yet Benson Thuku Macharia and his fellow conspirators used a death certificate issued on 7th August, 1971 which is false in material particulars.

According to the deponent, Mary Wairimu Thuku is the widow of Benson Thuku Macharia (now deceased) the registered owner of Land Parcel No. Loc.2/Makomboki/120 where she lives with her family including the 4th-6th Respondents which land is adjacent to that of the deceased which has never been occupied by anyone or any house erected thereupon to date.

According to the deponent, when the deceased died in 1970 Section 120 of the Registered Land Act (Cap 300) required the court to determine the heirs of a deceased proprietor who had died intestate and was subject to African Customary Law and the said provision, which was subsequently repealed vide Act No. 14 of 1972, applied o the deceased but out of the persons named in the affidavit in support of the application for certification of succession only Kaguma Githae was a heir to the deceased under Kikuyu customary law.

Pursuant to the said application by the Murang’a District Land Registrar the District Magistrate Kigumo issued hearing notices dated 8th September, 1972 to the people mentioned in the application notifying the aforementioned parties that hearing of the suit (Land Succession No. 38 of 1972) was fixed for the 10th October, 1972 and by a letter dated 8th September 1972 addressed to the Chief of Kinyina Location by the District Magistrate Kigumo neither Kaguma Githae nor Benson Thuku Macharia were specified as relatives of the deceased.

According to the information received by the deponent from Kaguma Githae, a son to the deceased, he was neither served with the hearing notice aforementioned nor did he participate in the hearing of 10th October and on 10th October 1972 a judgment by consent was recorded stating inter alia, that parcel No. Loc.2/Makomboki/121 be registered for one Benson Thuku Macharia who bought it from the deceased. In the deponent’s view, the consent judgment dated was entered fraudulent, inter alia because:-

i. The forwarding letter dated 5th September 1972 by Land Registrar Murang’a to the District Magistrate Kigumo was intended to and did deceive the District Magistrate on the relatives of the deceased entitled to inherit the deceased’s land.

ii. None of the heirs of the deceased under Kikuyu Customary Law participated in proceedings in Land Succession Case No. 38 of 1972.

iii. Benson Thuku Macharia who was represented in the letter of 5th September 1972 by the Land Registrar Murang’a as a clan member of the deceased and served with a hearing notice as such was represented in the consent judgment as the proposed buyer of the deceased’s land.

iv. It is not true that Benson Thuku Macharia bought parcel No. Loc.2/Makomboki/121 from the deceased.

v. Benson Kamau who was stated to be a son of the deceased in the letter of Land Registrar Murang’a dated 5th September 1972 was indeed not a son of the deceased and in the Consent Judgment dated 10th October 1972 the surname “Githae” was added to his name to fortify the false representation that he was the son of the deceased.)

vi. Kahacho Githae, the only other son of the deceased besides Kaguma Githae was neither mentioned in the letter of the Land Registrar Murang’a dated 5th September, 1972 nor was he served or participate in the proceedings that led to the consent judgment dated 10th October 1972.

vii. The letter of the District Magistrate Kigumo dated 8th September, 1972 (IMK4) shows that he himself was prixy to the fraudulent scheme between Benson Thuku Macharia and Land Registrar Murang’a to enable the former to fraudulently acquire the deceased’s land.

According to the deponent, consequent upon the Consent Judgment dated 10th October 1972, the District Magistrate Kigumo issued a Certificate of Succession dated 10th November 1972 which named Benson Thuku Macharia as the person entitled to the whole interest of the deceased in title No. Loc.2/Makomboki/121 and as a result thereof Benson Thuku Macharia was registered as the registered owner of parcel No. Fort Hall Loc.2/Makomboki/121 on 19th December 1972.

In the deponent’s vie, the registration of Benson Thuku Macharia as the subject land’s proprietor on 19th December, 1972 purportedly through succession is further evidence that the consent judgment dated 10th October 1972 was fraudulent because a purchase of land under the registered Land Act did not require Benson Thuku Macharia to invoke Section 120 thereof and pretend to be a heir to the estate of the deceased.

However when on 5th September 1994 I applied in Nyeri High Court Misc. Application No. 161 of 1994 Isaac Maina Kahacho –vs- Benson Thuku Macharia for revocation of the grant of the said letters of administration the Respondent Benson Thuku Macharia opposed the said application through a replying affidavit sworn on 24th September 1994 accompanied by a Notice of Preliminary Objection dated 24th September 1994 and upon being advised that the said application was null and void ab initio and based on absolute misapprehension of the law in that:-

i. As a matter of fact Benson Thuku Macharia was not issued with a grant of letters of administration in Land Succession Case No. 38 of 1972 which was misrepresented in the said application as “District Magistrate Court at Kigumo Succession Cause No. 38 of 1972. ”

ii. The said application could not lie under the Succession Act (Cap 160) which came into force in 1981 in respect of land transmitted under Section 120 as that of Githae Ndumbi (deceased).

That as a result of the foregoing, the deponent was instructed by current advocates to withdraw Misc. Application No. 161 of 1994. According to him, the delay in prosecuting Misc. Application No. 161 of 1994 was caused by the fact that the court filed thereof was misplaced around 1999 and has not been found to date.

It was further disclosed that in or about year 2000 the applicants filed District Land Tribunal Case No. 153 of 2000 Isaac Maina Kahacho and Jane Wairimu vs Wairimu Thuku in which the said tribunal delivered its award on 15th September 2004. During the tribunal hearing, the third Respondent herein, Mary Wairimu Thuku produced four “sale agreements” written in Kikuyu language respectively made on 9th April 1970, 31st September 1970, 8th September 1972 and 10th October 1972 and on 3rd December 2004 the Senior Resident Magistrate’s Court at Kigumo LDT case No. 50 of 2004 read the findings and award of Kigumo Land Disputes’ Tribunal and gave the parties 30 days to appeal to the relevant provincial tribunal. However, after the Tribunal made its award and before the same was read by the Resident Magistrates Court at Kigumo on 3rd December 2004, the third Respondent herein, Mary Wairimu Thuku , sub-divided the parcel No. Loc.2/Makomboki/121 into parcel, No. 1329, 1330, 1331 and 1332 and transferred the same as gifts to the 4th to 7th Respondents herein Joseph Mwangi Thuku, Eliud Turu Mwangi, Danson Kamau Thuku and Peter Macharia Thuku.

On 18th February, 2005 Mary Wairimu Thuku, the 3rd Respondent herein, filed Nairobi High Court Misc. Suit No. 26 of 2005 - Republic vs Senior Resident Magistrate’s Court and 2 Others Ex-parte Mary Wairimu Thuku seeking inter-alia the quashing of an unspecified decision of the SRM Court Kigumo in LDT Case No. 50 of 2004 and on 22nd February 2005 the Honourable Mr. Justice Nyamu granted an order that was issued two days later. However, on 25th February 2005 the second Respondent herein made an order in which it made the Award filed by the Land Disputes Tribunal a judgment of that court.

Determinations

Having considered the foregoing, the submissions made on behalf of the parties and the authorities cited, this is the view I form of the matter.

It was contended that the applicants’ claim is time barred since it was not brought within six months. Sections 9(2) and (3) of the Law Reform Act provides as follows:

(2) Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.

(3) In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

In R. vs. The Judicial Inquiry Into The Goldernberg Affair Ex Parte Hon Mwalulu & Others HCMA No. 1279 of 2004 [2004] eKLR as well asRepublic vs. The Commissioner of Lands Ex Parte Lake Flowers Limited Nairobi HCMISC. Application No. 1235 of 1998, it was held that the 6 months limitation period set out in Order 53 rules 2 & 7 only applies to the specific formal orders mentioned in Order 53 rules 2 and 7 and to nothing else and a decision to alienate or to allocate land is not formal because the commissioner may in most cases issue titles without necessarily identifying the decision.

The phrase “or other proceedings” for the purposes of judicial review has been considered by the Tanzania Court of Appeal in Mobrama Gold Corporation Ltd vs. Minister for Water, Energy and Minerals & Others Dar-Es-Salaam Civil Appeal No. 31 of 1999 [1995-1998] 1 EA 199, in which case the said Court held that the phrase “or other proceedings” has to be construed ejusdem generiswith judgement, order or decree, and conviction as having reference to a judicial or quasi-judicial proceedings as distinct from acts and omissions for which certiorarimay be applied for.

However, even if the six months’ time bar was applicable, it is clear that where the remedy sought is not just limited to an order of certiorari, the whole application cannot be said to be incompetent by that mere fact. The 6 months limitation only applies to application for certiorari for the simple reason that in cases where an order for prohibition is sought it means that the action sought to be prohibited is still continuing while mandamus applies to situations where a public authority has declined to carry out a duty imposed on it. In the premises it is my view that the six months limitation period may not be invoked to bar the applicants from bringing the present proceedings.

However, it must be noted that the nature of judicial review requires parties to approach the Court expeditiously. Expedition in my view is the hallmark of judicial review proceedings and where the Court finds that an applicant has approached the Court after an inordinate delay the Court would still be entitled to decline to grant the orders sought time bar or otherwise notwithstanding. The rational for this is that judicial review deals with administrative actions and such actions ought not to be placed in a status of uncertainty as to whether they would be subject of challenge. I associate myself with the decision in Mureithi & 2 Others (For Mbari Ya Murathimi Clan) vs. Attorney General & 5 Others [2006] 1 KLR 443 where it was held:

“As stated herein it is a requirement of the rule of law that law must be certain and predictable…Thus the advantages of upsetting these ingredients at the altar of individual claims no matter how meritorious are heavily outweighed by the advantages of certainty predictability and stability…I believe one of the pillars of the rule of law which the Court should always uphold is the predictability of law so that individuals and other juristic persons can plan their lives and affairs on the basis of certainty of the applicable law. On this ground also I would not exercise my discretion to grant the relief sought even if it was properly sought and properly grounded because the delay even by the known judicial review standards is inordinate. Limitation in judicial review actions is that of a reasonable time (except as regardscertiorariorders and proceedings set out in order 53 rule 2, which is six months). Reasonable time will in my view vary depending on the reasons for the delay. Where the decision being impugned has been implemented and third parties have come onto the scene the Court should not intervene because speed and promptness are the hallmarks of judicial review. Hardship to third parties should keep the Court away.”

It is therefore clear that prayers 1 and 2 of the instant application are clearly incompetent since they in effect seek to quash decisions made by a Court outside the 6 months limitation period.

Before delving into the merits of the application, it is important to recap the scope of the judicial review jurisdiction.

In Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 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 makers 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.”

In Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR 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 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 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 England4th Edition Vol (1)(1) Para 60.

Judicial review is, therefore, concerned not with private rights or the merits of the decision being challenged but with the decision making process. Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected. See R vs. Secretary of State for Education and Science ex parte Avon County Council (1991) 1 All ER 282, at P. 285.

The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment reaches a decision on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court. See Chief Constable of the North Wales Police vs. Evans (1982) I WLR 1155.

It is clear that that the substance of the applicants’ case is that although they are the rightful heirs of the estate of the deceased, the Respondents fraudulently instituted legal proceedings in which the 3rd to 7th Respondents presented themselves as the heirs of the deceased and consequently deprived the applicants of their right to inherit the estate of the deceased.

In order for the Court to find that the applicants were the heirs of the deceased, it is important that certain factual determinations will have to be made by the Court as to determine whether they are in fact the deceased’s heir before the Court can proceed to determine whether they were entitled to a hearing. The first determination would obviously require viva voce evidence to be adduced since the issue whether or not one qualifies to be the deceased’s heir is a matter of evidence. That is an issue which goes into the question whether or not their claim that they are the grandsons of the deceased are merited and as already stated above this Court in these kind of proceedings does not deal with the merits but the process.

In this application before the Court would be entitled to determine whether the grounds for judicial review exist this Court would have to first determine certain factual issues which are by no means settled in this case. Judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal and the Civil Procedure Act does not apply. It is governed by sections 8 and 9 of the Law Reform Act being the substantive law and Order 53 of the Civil Procedure Rules being the procedural law.

As was held in Sanghani Investment Limited vs. Officer in Charge Nairobi Remand and Allocation Prison [2007] 1 EA 354:

“Section 8 of the Law Reform Act specifically sets out the orders that the High Court can issue in judicial review proceedings and the orders are, mandamus, certiorariand prohibition. A declaration does not fall under the purview of judicial review for the simple reason that the court would require viva voceevidence to be adduced for the determination of the case on the merits before declaring who that owner of the land is. Judicial review on the other hand is only concerned with the reviewing of the decision making process and the evidence is found in the affidavits filed in support of the application…...In cases where the subject matter or the question to be determined involves ownership of land, and the rights to occupy land namely occupation, and disposition, there would be need to allow viva voce evidence and cross-examination of the witnesses which is not available in judicial review proceedings. Even if the respondents had filed documents, they would be copies that would not be sufficient to establish authenticity of the title. The original documents would need to be produced at a full hearing where oral evidence would be adduced……….It may indeed be true that the notice that is impugned is irregular or unlawful and an order of certiorariwould be deserved, but it is not in every case that the court will grant an order of judicial review even though it is deserved….Even if the notice under challenge is quashed, the issue over the ownership of the land still stands and it will require determination by way of filing pleadings and viva voce evidence at another forum preferably the Civil Courts.”

In my view, where the resolution of the dispute before the Court requires the Court to make a determination on disputed issues of fact that is not a suitable case for judicial review.

In this case issues of fraud have been raised by the applicants. Issues such as fraud, forgery and similar wrongdoings are in my view issues which can only be determined during a proper trial and not on conflicting affidavits. It is therefore trite that fraud or negligence as the case may be, is a matter, which, unless the facts and the circumstances are clearly obvious, need oral evidence to establish. See Trust Bank Ltd. & Another vs. Investech Bank Ltd. & 3 Others Civil Application Nos. Nai. 258 and 315 of 1999and Westmont Power Kenya Limited vs. Bosley Frederick & Mohamed Ali T/A Continental Traders & Marketing Civil Application No. Nai. 135 of 2003 [2003] KLR 357.

The applicants herein also seek orders whose effect would be to nullify decisions made in succession proceedings. It is clear that matters dealing with succession are governed by a special legal regime which ought to be adhered to. As was held by Ochieng, J in John Fitzgerald Kennedy Omanga vs. The Postmaster General Postal Corporation of Kenya & 2 Others Nairobi HCMA No. 997 of 2003,for the Court to require the alternative procedure to be exhausted prior to resorting to judicial review is in accord with judicial review being very properly regarded as a remedy of last resort; the applicant however will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate.

It must always be remembered that the decision whether or not to grant judicial review reliefs even if merited is discretionary and where there are other procedures available for the redress of the applicant’s grievances which are equally beneficial and convenient the Court would be reluctant to invoke its judicial review jurisdiction in order to assist an applicant who has decided not to follow the available legal procedures. See Republic vs. Judicial Service Commission ex parte Pareno [2004] 1 KLR 203-209.

In this case the applicants have recourse to the Succession procedure in order to challenge the purported grant of letters of administration and similarly the ordinary civil law jurisdiction to challenge the issue of fraud.

Having considered the instant application, it is my view that the Notice of Motion dated 14th June, 2005 is devoid of merit.

Order

In the premises the Notice of Motion dated 14th June, 2005 is dismissed with costs to the Respondents.

Dated at Nairobi this day 13th day of October, 2014

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Minjire for Mr Kibe Mungai for the Applicant

Mr Mose for Mr Mochere for 3rd to 7th Respondents

Cc Patricia