[2011] KEHC 2761 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

MISC. APPLICATION NO. 1 OF 2011

ROSELYNE NAITORE GUCHERA ………………. 1ST EX PARTE APPLICANT

BEATRICE KAARI GUCHERA …………………… 2ND EX PARTE APPLICANT

TRACY MAKENYA GUCHERA …………………… 3RD EX PARTE APPLICANT

WHITNEY KAGENDO GUCHERA …… ………….. 4TH EX PARTE APPLICANT

VERSUS

MUNICIPAL COUNCIL OF MERU ………………… 1ST RESPONDENT

COUNTY COUNCIL OF MERU CENTRAL ……… 2ND RESPONDENT

AND

JOSPHINE KAARICA MUGAMBI ………………… 1ST INTERESTED PARTY

FESTUS GUANTAI MUGAMBI …………………… 2ND INTERESTED PARTY

JUDGMENT

The Notice of Motion dated 18th January 2011 seeks an order of mandamus to be issued against the 1st respondent for the 1st respondent to be compelled to transfer to and register plot number Meru Municipality Block II/81 in the names of:-

1. Roselyne Naitore Guchera

2. Kaari Guchera

3. Tracy Makena Guchera

4. Whitney Kagendo Gucheri

5. Josphine Kaarika Mugambi

6. Festus Guantai Mugambi

The Notice of Motion also sought that an order of mandamus do issue against the 2nd respondent to compel it to transfer plot number Meru County Council Kibirichia Block 16 in the names of the ex parte applicants and Josephine Kaaria Mugambi now deceased. It is stated in the verifying affidavit that by a certificate of confirmation of grant in Meru High Court Succession Number 213 of 1997 the ex parte applicants and the interested parties were awarded various shares of their grandfather’s estate. Amongst the properties awarded to them from that estate was parcel number Meru Municipality Block II/81. On that property whereupon there is a commercial premises earning an income of Kshs. 80,000/= per month. Further, they were awarded parcel number Meru County Council Kibirichia Block 16 which too has a commercial premises built on it. In the verifying affidavit of Beatrice Kaari Guchera the following is to be seen:-

6. That on 18th and 24th August 2010 we paid Kshs. 53,872/= and Kshs 20,000/= respectively to the 1st respondent being the required dues to enable us acquire registration of property (a) above as by court ordered. (Annexed and marked BKG2 is a copy of both receipts).

7. That the relevant authorities approved the transfer transaction as evidenced by the annexed copy marked “BKG3”.

8. That on 18. 8.2010 we also paid to the 2nd respondent Kshs. 2,000/= required for transfer of the property Meru County Council Kibirichia Plot No. 16 and several authorities approved the same, as evidenced by the annexed copy marked “BKG4”.

9. That there is no other remaining requirement on our part, to enable the respondents effectuate the aforesaid grant.

10. That todate the respondents have inexplicably refused to transfer the aforementioned premises as by court ordered, yet there is no stay order in force.

11. That the respondents told me that M/S Maitai Rimita & Co. Advocates for the 2nd interested party in the aforementioned succession cause wrote a letter halting conveyance of the suit premises, but refused to give me a copy thereof.

12. That we have been to the respondents’ offices on several occasions and they have utterly refused to transfer the said premises as by court ordered.

13. That I am acutely aware the respondents have been compromised by the 2nd interested party to frustrate our efforts because the respondents they are (sic) collecting and appropriating rent from Meru Municipality Block 11/81 of over Kshs. 80,000/= per month.

14. That the interested parties would want the said premises remain in our late grandfather’s name so that they continue benefiting at our expense, after strictly instructing the tenants to pay not even a penny to us.

15. That we are orphans and that is why the respondents and interested parties have ganged up colluded and connived at frustrating us because we have no other (sic) to turn to.

16. That 1st interested party has publicly vowed to disinherit us the said prime premises since we are all ladies and according to him we are not entitled to inherit the same, but should instead get married and enjoy our husband’s families’ properties.

The 2nd respondent did not oppose the application. The 1st respondent opposed the application. The town clerk of the 1st respondent swore an affidavit in reply dated 25th March 2011. In that affidavit, he stated:-

3. That the application herein is premature, incompetent and an abuse of the court process.

4. That it’s not true that we have been compromised by any of the parties herein and this allegation is malicious, unwarranted, offensive and unfounded.

5. That the respondents were never parties in the said succession cause and should not therefore be put in the muddle there are in.

6. That it’s impossible to implement the grant as the same is defective in as for plot No Meru Municipality Block 11/81 and Meru Municipality Block 11/8 are concerned.

7. That the respondent cannot be condemned of any refusal to implement the alleged grant because its very clear from the annexed grant that there are omissions and errors and as such the grant cannot therefore be implemented as it is.

8. That if the grant is implemented as it is it will cause great injustice to the parties and the respondents.

The application was also opposed by the 2nd interested party. He deponed in his replying affidavit that not all parties who are interested in this matter had been served with the application. He however did not state the names of the other interested parties who he alleges had not been involved in this matter. He also did not state the interest of those other parties to the two plots which are the subject of this matter. He stated that he had filed an appeal against the distribution made in Meru High Court Succession Cause No. 213 of 1993. He further stated that some of the plots mentioned in that succession cause were not plots of the deceased. The 2nd interested party’s counsel relied on two authorities. Firstly, he relied on the case Republic vs. Director General of East African Railways Corporation [1977] KLR 194. The holding of that case is as follows:-

“Refusing the application, that mandamus did not lie as a matter of course against a public officer and the court’s discretion would be exercised against the applicant because (1) there being no person de facto in the office of Director-General, it could not properly be said that there had been a failure or refusal by the Director-General to perform a public duty (ii) the applicant had an alternative remedy by seeking satisfaction either from the committee or in any eventual winding up of the corporation, (iii) without there being de facto a Director-General of the corporation there could be no adequate supervision of an order by the court and as the corporation was without funds, any order to make payment would be ineffective; and (iv) where, as here, there were bars on the exercise of the court’s discretion to make an order of mandamus, although the bars were not absolute, the exercise of that discretion in favour of the applicant would constitute judicial interference with the executive arm of government.”

Secondly the 2nd interested party relied on the case Meru HC Misc. Appl. No. 15 of 2010 ex parteAndrew Imeme Mwereria. The High Court in this case refused to issue an order of mandamus because the applicant was seeking to implement an order directed to the land adjudication officer against the land registrar. Both of the two cases that are relied upon by the 2nd interested party are in my view distinguishable from our present case. They both failed for having been directed against persons or entities not in existence or not affected by the order that the applicant was seeking to implement. Those cases are not of assistance to this court. In the case Council of Civil Service Unions vs. Minister for the Civil Service [1985] AC 374 Lord Diplock summarized the grounds for seeking the reversal of an administrative decision by way of judicial review as follows:-

-illegality

-Irrationality (unreasonableness)

-Procedural impropriety

(See Wikipedia web page)

In my view, the failure by the 1st respondent to register plot number Meru Municipality Block II/81 after receiving payment of the rates the consent fee and also having its relevant department give a recommendation for the transfer is irrational. I have noted that the 1st respondent hinges its failure to carry out the transfer on the fact that the grant mentioned a different parcel number to the one the ex parte applicant now seeks to have transferred to the parties in this case. 1st respondent however as correctly argued by the ex parte applicants failed to explain why it had received the transfer fees and other fees from the ex parte applicants and yet had failed to carry out the transfer. That failure as I have stated lacks rationality. Irrationality in Wikipedia web page is stated as:-

“Under Lord Diplock’s classification, a decision is irrational if it is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question would have arrived at it. Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is, whether the decision “makes sense.”

The decision by the 1st respondent to refuse to complete the transfer does not make sense. There is no basis for the refusal to carry out that transfer. In Halsbury’s law of England 4th edition volume II at page 111 it is stated:-

“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.”

The only reason the 1st respondent gave for refusing to carry out the transfer is that it is not mentioned in the grant. That refusal and the reason for the refusal is irrational. The rights of the ex parte applicants and the interested parties to have the transfer effected also emanates from the fact that they applied, paid the necessary fees and their application was recommended by one of the departments of the 1st respondent. On that basis, this court has power to command the 1st respondent to carry out the transfer that has been paid for and recommended by its department. Nothing in my view turns in this case on the argument that the property is registered in a deceased person’s name. The concern of this court is that the application by the ex parte applicants and the interested parties is to have the transfer carried out. It also matters not that one of the parties died after this action was filed. What the 1st respondent will do is to record after the name of that party that she is deceased. I therefore grant the following orders:-

1. An order of mandamus is hereby issued by this court commanding Municipal Council of Meru to transfer and to register plot No. Meru Municipality Block II/81 in the names of:

1. Roselyne Naitore Guchera

2. Kaari Guchera

3. Tracy Makena Guchera

4. Whitney Kagendo Guchera

5. Josphine Kaarika Mugambi (deceased)

6. Festus Guantai Mugambi

2. An order of mandamus is hereby issued by this court commanding County Council of Meru Central to transfer and to register plot No. Meru County Council Kibirichia Block 16 in the names of:-

1. Roselyne Naitore Guchera

2. Kaari Guchera

3. Tracy Makena Guchera

4. Whitney Kagendo Guchera

5. Josphine Kaarika Mugambi (deceased)

3. The 1st respondent shall pay three quarters of the costs of this cause to the ex parte applicants and the 2nd respondent shall pay one quarter of those costs to the ex parte applicant.

Dated, signed and delivered at Meru this 18th day of May 2011.

MARY KASANGO

JUDGE