[2024] KEELC 13944 (KLR)

Republic v Land Registrar - Thika; Ngigi & 10 others (Interested Parties); Njonjo (Exparte Applicant) (Environment and Land Judicial Review Case 1 of 2023) [2024] KEELC 13944 (KLR) (11 December 2024) (Judgment)

Neutral citation: [2024] KEELC 13944 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Judicial Review Case 1 of 2023

BM Eboso, J

December 11, 2024

Between

Republic

Applicant

and

The Land Registrar - Thika

Respondent

and

Mary Wanjiru Ngigi

Interested Party

Peter Mwaura Ngigi

Interested Party

Mary Wanjiru Ngigi

Interested Party

Wilson Murimu Njuru

Interested Party

Josphat Thuo Ndirangu

Interested Party

Mary Wangari Karogi

Interested Party

Eva Muthoni Wangungu

Interested Party

Kenneth Mawira Gachira

Interested Party

Zipporah Wambui Magua

Interested Party

Samuel Njoora Kondo

Interested Party

Gichuki Thiongo

Interested Party

and

Peter Kinyanjui Njonjo

Exparte Applicant

Judgment

1. Through a judicial review motion dated 16/1/2023, Peter Kinyanjui Njonjo [the ex-parte applicant] seeks the following verbatim reliefs: 1. That this Honourable Court be pleased to issue an order of certiorari to remove to the court the record and quash the proceedings, ruling and the award of the Land Registrar, Thika District Registry directing the compensation of the proprietor of land parcel Thika Municipality Block 19/1303 by the proprietors of land parcels Thika Municipality Block 19/1302 and Thika Municipality Block 19/1304.

2. That the Honourable court be pleased to find and direct the Land Registrar Thika Land Registry to rectify the Registry Index Map in relation to land parcels Thika Municipality Block 19/1296, 1299, 1300, 1303 1304, 1307, 1308 and 1310 to conform with the status on the ground.

3. That this Honourable court be pleased to make such orders as it may deem fit and just in relation to the District Surveyor’s finding in his report dated 8th July 2022.

2. The application was premised on the grounds outlined in the motion; in the supporting and supplementary affidavits; and in the statutory statement. It was canvassed through written submissions dated 18/1/2024. The case of the ex-parte applicant is that he owns land parcel number Thika Municipality Block 19/1304. He resides and works in the United States of America. He was never invited for the boundary determination exercise that culminated in the impugned ruling/ award.

3. The ex-parte applicant contends that he was not aware of the impugned proceedings and ruling/ award until November 2022 when the 8th interested party’s advocates dropped a letter dated 10/8/2022 at his construction site. His attorney, Lillian Njeri Njonjo, received the letter together with the attachments and contacted him. He then decided to challenge the proceedings and the ruling/award through the present judicial review proceedings.

4. The exparte applicant contends that prior to the impugned proceedings and ruling/ award, the Land Registrar [the respondent] conducted a “ground survey” during which he found that parcel numbers 1302 and 1303 had encroached onto the ex-parte applicant’s land but since the two parcels had been developed, the respondent “opted” that there were to be conformity “to the arrangement on the ground since about 6 linear parcels had all been developed outside their Registry Index Map (the RIM) fixtures. He adds that the Surveyor in the findings in the record relating to the impugned ruling, established that 8 parcels were at variance with the RIM, implying that there was need for the RIM to be amended.

5. The ex-parte applicant faults the respondent for condemning him to compensate the owner of parcel number 1303 without concurrently directing that he too be compensated by the owner of parcel number 1307 (sic).

6. The respondent filed a replying affidavit dated 25/1/2024, sworn by Reynard Kilonzo Ngila. He deposed that through the Area Chief, he received two boundary disputes involving the owners of land parcel number 1303 and the two abutting parcels. He added that through the Area Chief, he invited all the affected parties to the hearing of the dispute. It was his evidence that notices relating to hearing were served by the Area Chief.

7. The respondent further deposed that he received a report dated 8/7/2022 from the National Government Surveyor, Thika Survey Office, in which the surveyor noted that:a.The surveyed ground boundaries for parcel numbers 1299,1300,1302,1304 and 1308 differed with the boundaries indicated in the RIM in terms of shape and distances.b.The said five parcels were developed with permanent structures.c.The five parcels were all fenced with “a stone wall”.d.Parcel numbers 1296, 1299, 1300 and 303 encroach on the road reserve.

8. He added that based on the surveyor’s report, the respondent prepared the impugned ruling dated 18/7/2022 in which he noted that because permanent structures encroached on parcel number 1303, the registered owners of parcel number 1300 and 1304 were to financially compensate the registered owner of parcel number 1303, the registered owners of parcel number 1300 and 1304 were to financially compensate the registered owner of parcel number 1303 or alternatively, the said owners were to remove the encroaching structures. He added that the Land Registrar’s recommendations were made “in the spirit of alternative dispute resolution”, emphasizing that the respondent gave an alternative to the parties who did not agree with the recommendation. Lastly, he deposed that the respondent did not make recommendations relating to other parcels that suffered encroachment because the respective owners had not initiated any boundary dispute.

9. The respondent urged the court to reject the application, emphasizing that the order of certiorari was unmerited and the order of mandamus was unavailable in the circumstances of this dispute.

10. The 8th interested party opposed the application through a replying affidavit dated 27/2/2024. His case was that the exparte applicant participated in all sessions convened by the holder of his power of attorney, adding that he was represented by the surveyor on the material day. He added that an order of mandamus was not available in these proceedings. The 8th interested party elected not to file written submissions.

11. The court has considered the application, the responses to the application, and the submissions that were tendered on the application. The following are the key issues that fall for determination in the application: (i) Whether the ex-parte applicant was duly served with a notice relating to the hearing of the boundary dispute; (ii) Whether the Land Registrar exceeded his statutory mandate in making recommendations that required the ex-parte applicant to compensate the owner of parcel number 1303; (iii) Whether an order of mandamus requiring the Land Registrar to amend the Registry Index Map is available in these proceedings; and (iv) What order should be made in relation to costs of this suit. I will dispose the four issues sequentially in the above order.

12. Was the ex-parte applicant duly served with a notice relating to the hearing of the boundary dispute? The ex-parte applicant contends that he works and resides in the United States of America. He further contends that he was never served with a hearing notice, adding that he did not participate in the hearing of the dispute because he was not aware of the hearing. The Land Registrar filed a replying affidavit. His position was that service of hearing notice was effected by the Area Chief. The Area Chief did not swear an affidavit to place before court evidence of service of a hearing notice on the ex-parte applicant.

13. Secondly, whereas the 8th interested party contended that the ex-parte applicant was represented during all the sessions convened by the Land Registrar to hear the dispute, the latter made reference to only one session that involved hearing of the dispute. Neither the Land Registrar nor the 8th respondent exhibited the proceedings in which the ex-parte applicant was allegedly represented. The impugned ruling is quiet on the coram at the hearing of the dispute. If indeed the ex-parte applicant was represented as alleged by the 8th interested party, the proceedings bearing the coram should have been captured and exhibited.

14. The burden to prove service of a hearing notice lay on the Land Registrar and on the party alleging that there was service [see Section 107 of the Evidence Act]. Regrettably, that burden has not been discharged. Consequently, it is the finding of this court that the ex-parte applicant was not served with a notice relating to the hearing of the boundary dispute.

15. Did the Land Registrar exceed his statutory mandate in making recommendations that required the ex-parte applicant to compensate the owner of parcel number 1303? The Land Registrar was invited to ascertain and fix boundaries under Sections 18 and 19 of the Land Registration Act. The two sections provide as follows:“18. Boundaries(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. Fixed boundaries(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.”

16. The statute does not vest in the Land Registrar jurisdiction to order or recommend monetary compensation. If Parliament wanted to vest that jurisdiction in the Land Registrar, it could have done so. Clearly, the Land Registrar exceeded his mandate by venturing into the realm of monetary compensation. It is not surprising that he did not specify the quantum. It is also not surprising that whereas he acknowledged that the encroachment affected 8 properties, he condemned proprietors of two properties to compensate the proprietor of parcel number 1303 but said nothing about the encroachment that those two properties were suffering. Suffice it to state that, the Land Registrar exceeded his statutory mandate. That is the finding of the court on the second issue.

17. Is the relief of mandamus requiring the Land Registrar to amend the RIM available in these proceedings? The writ of mandamus is normally issued to compel a public officer to perform a duty imposed on him by law. Secondly, the writ of mandamus is not available in instances where there is a more efficacious remedy.

18. The dispute that culminated in these proceedings was a boundary dispute. There is no record of the proceedings that took place before the Land Registrar. Indeed, there is no record of the evidence that was rendered by the parties who attended at the hearing of the boundary dispute. Put differently, the court has no proper evidence on which to issue the order of mandamus.

19. The view the court takes is that, should the ex-parte applicant wish to pursue a rectification of the RIM, the proper platform is a normal civil suit, commenced by way of plaint, involving the proprietors of all the affected parcels. Put differently, given the circumstances of this judicial review proceedings, I do not think the order of mandamus is available.

20. On costs, taking into account the fact that these are judicial review proceedings and there is no evidence to suggest that the errors committed by the Land Registrar were deliberate, parties will bear their respective costs of the suit.

21. For the above reasons, the judicial review motion dated 16/1/2023 partially succeeds only in terms of prayer 1. Prayers 2 and 3 are declined. Parties shall bear their respective costs of the motion.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 11TH DAY OF DECEMBER 2024B M EBOSOJUDGEIn the Presence of: -Mr Irungu for the Ex-parte applicantMr Njoroge for the Interested PartyCourt Assistant: Melita