[2018] KEELC 2217 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT KISII

JUDICIAL REVIEW NO. 6 OF 2017

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT N O. 4 OF 2015

AND

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF THE DECISION OF THE NATIONAL LAND COMMISSION CONTAINED IN THE GAZETTE NOTICE DATED NO. 6862 PURPORTING TO DIRECT THE CHIEF LAND REGISTRAR TO REVOKE TITLE TO LAND REFERENCE NO. KISII MUNICIPALITY/BLOCK III/581 OWNED BYTHE EX PARTE APPLICANT

BETWEEN-

REPUBLIC...................................................................................APPLICANT

VERSUS

NATIONAL LAND COMMISSION.............................1ST RESPONDENT

CHIEF LAND REGISTRAR..........................................2ND RESPONDENT

DARAJA MBILI MIXED SECONDARY SCHOOL.. 3RD RESPONDENT

EX PARTE

DORICA ONDIEKI GISEGE

R U L I N G

1. The ex parte applicant on 19th December 2017 was granted leave to apply for orders of certiorari to remove to this court and quash the decision of the National Land Commission purporting to direct the Chief Land Registrar to revoke title No. Kisii Municipality/Block III/581. The applicant was also granted leave to apply for orders of prohibition directed at the National Land Commission prohibiting them from interfering in any manner with the applicant’s proprietorship of land title No. Kisii Municipality/Block III/581. The leave so granted was to operate as a stay and barred implementation of the decision of the National Land Commission carried in Gazettee Notice No. 6862 of 17th July, 2017. The substantive Notice of Motion was directed to be filed within 21 days from the date of grant of the leave.

2. The ex parte applicant filed the substantive Notice of Motion on 16th January 2018 and sought the following orders:-

1. That an order of certiorari be issued removing into this court for the purposes of quashing the decision of the National Land Commission contained in the Gazette Notice No. 6862 dated 17th July 2017 directing the Chief Land registrar to revoke title land reference No. Kisii Municipality/Block III/581, Kisii.

2. That an order of prohibition be issued prohibiting the National Land Commission and the Chief Land Registrar from interfering in any manner whatsoever with the applicant’s proprietorship of the said land reference No. Kisii Municipality/Block III/581, Kisii.

3. Costs be provided for.

The application was grounded on the facts set forth in the statement and verifying affidavit of Dorica Ondieki Gisege accompanying the chamber summons application for leave dated 4th December 2017. The ex parte applicant in support of the application averred that she was the registered proprietor of land parcel Kisii Municipality/Block III/581 following allocation by the County Council of Kisii on 1st July 1996. She stated she paid the sum of kshs. 12,000/= demanded as stand premium by the County Council of Kisii. The applicant further stated that on 17th July 2017 the National Land Commission who were acting on the recommendation of the County Land Management Board Kisii caused Gazettee Notice No. 6862 to be published which indicated that the title No. Kisii Municipality/Block III/581 in the applicant’s name was to be revoked. The applicant impugns the decision by the National Land Commission carried in the said Gazettee Notice arguing that she was not accorded a chance of being heard. She avers she was not given an opportunity to explain how she acquired the suit property. On that account she avers the decision by the National Land Commission was arbitrary and therefore unlawful and the same ought to be quashed by issuing an order of certiorari and prohibition.

3. The Attorney General entered an appearance on behalf of Chief Land Registrar, the 2nd respondent and filed a Notice of Preliminary Objection dated 30th January 2018 on the following grounds:-

1. That the suit is misconceived, frivolous and bad in law.

2. That the suit touches on land that is subject matter in Kisii ELC No. 56 of 2016, Dorcas Gisega -vs- Daraja Mbili Secondary School.

3. That Kisii ELC No. 56 of 2016 is pending and has not been concluded.

The 3rd respondent equally filed a Notice of Preliminary objection dated 26th January 2018 and a replying affidavit sworn on the same date by one Lucia Gwaro, the principal of the 3rd respondent. In support of the preliminary objection, the 3rd respondent contended that the application is defective and the facts adduced in support are deficient, defective and invalid and the orders sought are unwarranted. The 3rd respondent avers that the verifying affidavit contravenes Section 5 of the Oaths and Statutory Declarations Act and cannot be relied upon to support the application. The 3rd respondent additionally contends the applicant’s application constitutes an abuse of the due process of court as against the 3rd respondent.

4. In the replying affidavit, it is deponed that the 3rd respondent is a school that has operated on a disputed property for the last 40 years and presently has a student population of over 1000 students. The 3rd respondent avers that it stands on unalienated public land and it is only about 2009 that the applicant started staking some claim to a portion of the land occupied by the 3rd respondent. The applicant through devious means managed on 10th October 2013 to procure a lease over a portion of the 3rd respondent’s land and obtained a certificate of lease on 17th December 2013. The 3rd respondent avers that the ex parte applicant was aware all along that the land belonged to the 3rd respondent.

5. On or about January 2016 the applicant lodged a complaint with the County Management Board that the 3rd respondent had trespassed onto her land. The County Management Board after investigation formed the opinion that the applicant had not properly acquired the title to the land and recommended the revocation of the title which the National Land Commission was giving effect to vide the impugned Gazette.

6. The applicant not contended with the complaint she made to the County Management Board, opted to institute Kisii ELC Case No. 56 of 2016 as set out under paragraphs 29 to 31 of the 3rd respondent’s replying affidavit which I reproduce hereunder:-

“29. THAT other than the foregoing and despite the fact that the ex parte applicant lodged a complaint with the County Land Management Board, the ex parte applicant herein also proceeded to and filed Civil Proceedings against the 3rd respondent vide Kisii ELC Case No. 56 of 2016, which matter is still pending hearing and determination. Annexed hereto and marked “LG 2(a), (b) and (c)” are copies of the plaint, amended plaint and amended defence and counterclaim relating to the same subject matter.

30. THAT despite the fact that the ex parte applicant had filed and/or lodged the said proceedings, the ex parte applicant herein has failed to disclose the existence of the said proceedings and in this regard, the ex parte applicant is guilty of material non-disclosure.

31. THAT in any event, the ex parte applicant herein is trying to mount and/or lodge a plethora of suits, touching on and/or concerning the same subject matter perhaps with a faint hope of confusing the honourable court into granting conflicting orders. Nevertheless the conduct of the ex parte applicant amounts to abuse of the due process of the court.”

7. In the referred to suit initially filed vide a plaint dated 10th March 2016 but later amended on 9th June 2016 the applicant was the plaintiff and the defendant was “The Chairman, School Management Committee, Daraja Mbili Mixed Secondary School.” In the suit the plaintiff inter alia sought orders for:-

(a) A declaration that the plaintiff is the sole bonafide proprietor of the leasehold interest comprised in the land known as Kisii/ Municipality/ Block III/581.

(b) An order of eviction against the defendant, her agents and/or servants from the land known as Kisii Municipality/Block III/581.

(c) Permanent injunction.

(d) Damages for trespass and/or conversion.

8. Upon being served with the amended plaint the defendant filed an amended statement of defence and counterclaim against the defendant, National Land Commission and the land registrar, Kisii. The 3rd respondent contended that the plaintiff acquired the suit land fraudulently and by the counterclaim sought interalia for:-

a) Declaration that the acquisition, transfer and registration of LR No. Kisii Municipality/Block III/581 in the name of the plaintiff is void and a nullity.

b) An order for nullification and/or cancellation of the letter of allotment, lease, certificate of lease in respect of Kisii Municipality/Block III/581 in favour of the plaintiff and reversion of the title to public utility land reserved for use by the defendant.

c) An order of eviction against the plaintiff, her agents and/or servants from the suit land.

The court on 1st February 2018 directed that the preliminary objection be disposed of first and invited the parties to argue the same by way of written submissions. The parties filed their submissions as directed. The 3rd respondent’s submissions were filed on 12th February 2018. I have considered the submissions filed by the parties which largely have dwelt on the merits of the Notice of Motion.

9. The 3rd respondent has argued that the verification affidavit sworn in support of the motion is defective and more so the exhibits annexed to the affidavit are not attested by the Commissioner of Oaths as required and that renders them worthless. Section 5 of the Oaths and statutory Declarations Act, Cap 15 Laws of Kenya provides:-

5. Every Commissioner of Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.

Rule 9 of the Oaths and Statutory Declarations Act provides:

9. All exhibits to affidavit shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.

10. The court has perused the exhibits marked DOG1-7 and notes though the same are marked and sealed with the Commissioner of Oaths stamp they are not attested as required. Without the annextures being attested they cannot qualify to be annextures to the affidavit. In the case of Dr. Solomon Omwega Omache & Another -vs- Zachary O. Ayieko & 2 Others [2016] eKLR this court stated thus concerning unmarked and unsealed exhibits:-

“Although the point was not taken up by the plaintiffs the court has a duty to uphold the sanctity of the record noting that this is a court of record. Before the court is a replying affidavit with annextures which are neither marked nor sealed with the Commissioner’s stamp. Are they really exhibits? I do not think so and they cannot be properly admitted as part of the record. I expunge the exhibits and in effect that renders the replying affidavit incomplete and therefore the same is also for rejection as without the annextures it is valueless.”

11. The situation in the present matter is that the exhibits though marked and embossed with the Commissioner of Oaths stamp there is no attestation. It is the attestation that renders the annexture admissible as an annexture to the affidavit. The attestation is what certifies the annexture to be verified as an annexture to affidavit. Without the attestation the annexture remains a mere piece of paper. In the premises therefore, the annextures to the applicant’s affidavit are inadmissible and I order them to be expunged. I do not think Article 159 (2) (d) of the Constitution which the applicant has invoked can come to her aid. Article 159 (2) (d) of the Constitution was never intended to assist parties who violate the clear provisions of the law. In my view, Section 5 and Rule 9 of the Oaths and Statutory Declarations Act makes provision as to what constitutes a valid affidavit and how annextures to such an affidavit must be dealt with to be valid and therefore admissible.

12. Having expunged the exhibits the affidavit in support of the application is rendered incomplete and worthless. I would have sustained the preliminary objection on that ground alone but the issue of the pending Kisii ELC Case No. 56 of 2016 has equally been brought to my attention such that even if I was to dismiss the Notice of Motion by the applicant, the said suit would still remain pending.

13. While judicial review applications are not intended to question the merits of the decision but rather whether the process leading to the decision was administratively fair, it is my view that the issues identified in Kisii ELC Case No. 56 of 2016 are of such a nature as would require oral evidence to be adduced. The ex parte applicant claims ownership of land parcel Kisii Municipality/Block III/581 and claims the 3rd respondent has trespassed thereon. The 3rd respondent for its part claims it has been on this land for over 40 years and contends the applicant fraudulently acquired title to the suit property and contends that the title ought to be declared null and void and cancelled and the land restored as a public utility. These issues are aptly captured in the pleadings in Kisii ELC Case No. 56 of 2016. It is in that case that the issue of ownership of the suit land can be canvassed and determined.

14. I have considered the matter and it is clear to me that this matter can only be finally adjudicated if the pending case before the Environment and Land Court is heard and finally determined. It is not lost to the court that the National Land Commission decision was made on 17th July 2017 when Kisii ELC Case No. 56 of 2016 was pending before this court the same having been filed in May 2016. Where a matter is pending in court with competent jurisdiction the National Land Commission cannot exercise jurisdiction to deal with the matter unless the parties to the dispute by consent agree to the National Land Commission hearing and determining the matter.

15. In the circumstances and in order to enable the parties to pursue their rights and interests in the pending ELC case the court orders that the parties will observe and maintain the prevailing status quo. The Gazette Notice No. 6862 issued by the National Land Commission on 17th July 2017 in as far as it relates to land parcel Kisii Municipality/ Block III/581 is hereby suspended and revoked and the Notice of Motion herein otherwise stands dismissed.

16. Each party to meet their own costs for the preliminary objection and the application.

RULING DATED, SIGNEDandDELIVERED atKISIIthis27TH DAYofJULY 2018.

J. M. MUTUNGI

JUDGE

In the presence of:

N/A for the ex parte applicant

N/A for the 1st and 2nd respondents

Mr. Ochwangi for the 3rd respondent

Ruth Court Assistant

J. M. MUTUNGI

JUDGE