[2023] KEHC 24487 (KLR)

Republic v Office of the Director of Public Prosecutions & 2 others; Kamau (Exparte Applicant); Munyoki (Interested Party) (Judicial Review E006 of 2022) [2023] KEHC 24487 (KLR) (1 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24487 (KLR)

Republic of Kenya

In the High Court at Nakuru

Judicial Review E006 of 2022

SM Mohochi, J

November 1, 2023

Between

Republic

Applicant

and

Office of the Director of Public Prosecutions

1st Respondent

Directorate Criminal Investigation Office Nakuru

2nd Respondent

Attorney General

3rd Respondent

and

Samuel Ngotho Kamau

Exparte Applicant

and

Emmanuel Mwongera Munyoki

Interested Party

Judgment

1. By Notice of Motion Application dated 23rd May 2022 under Order 53 Rule 3(1) of the Civil Procedure Rules, 2010 where the Ex-Parte Applicant seeks the following orders;a.That the Honourable Court be pleased to issue an order of Certiorari against the 1st Respondent’s letter dated 20th March 2022 and an order of Mandamus compelling and or commanding the Respondent’s to supply the applicant with the forensic audit report done on Nakuru Municipality Block 15/801 original title deed and deliver the original title for the parcel known as Nakuru Municipality Block 15/801b.That the Costs of the Notice of Motion and the Chamber Summons dated 11th May, 2022 be borne by the Respondent.

The Grounds 2. The grounds relied upon are in the Affidavit of Samuel N. Kamau, the Ex-Parte Applicant herein annexed to the Chamber Summons Application seeking leave and the statutory statement filed therewith all dated 11th May, 2022. That on or around the year 2020, the 2nd Respondent summoned the Applicant to its offices to present a title and all legal ownership documents for the parcel known as Nakuru Municipality Block 15/801.

3. He was informed that a complaint has been made by the Interested Party. He left the documents with the 2nd Respondent through its officer Mr. Miruka.

4. That vide a letter dated 18th January, 2022, the Ex-Parte Applicant wrote to the 2nd Respondent and demanded to have documents returned to him since there was nothing that was going on and no results of the investigation were ever communicated to the Applicant.

5. The Ex-Parte Applicant avers that he received a letter from the 1st Respondent vide a letter dated 20th March 2022 recommended that the Applicant’s title was fake and had no right to land but admitted to the letter of allotment to being genuine.

6. That the 1st Respondent declared one Mr. Emmanuel Mwongera Munyoki as the owner of parcel of land in question Nakuru Municipality Block 15/801. That no criminal charges were preferred to the Applicant just a verdict that was not even given to the Ex-Parte Applicant.

7. That no investigations were done on the complainant’s title therefore the recommendations done were ultra vires. That the 2nd Responded failed to conduct investigations to come to a just conclusion regarding the complex matter of land hence the decision to declare that the Ex-Parte Applicant did not have any rights to the subject land was excessive of their mandate and jurisdiction.

8. He also avers that the decision by the 1st Respondent is one that ought to have been given by court or the authority that issued the two allotment letters.

The Interested Parties’ Case 9. Emmanuel Mwongera Munyoki, the Interested Party in response to the application filed a Replying Affidavit sworn on 20th August 2022 denying that the Ex-Parte Applicant was the owner of the subject parcel of land Nakuru Municipality Block 15/801 as his title was declared a forgery.

10. He deponed that he discovered in 2019 that someone was trying to make illegal alterations on the record at the lands office and reported to the 2nd Respondent. He avers he was kept on the dark but was eventually informed after inquiry that the Ex-Parte Applicant was the culprit who was trespassing.

11. He deponed to being the original land owner and attached a certificate of search and an original letter of allotment annexed as EMM2. I have perused the file and the said attachments are not on record.

12. The Interested Party deponed that when he approached the 2nd Respondent to investigate fraud on his land he had stayed for long without information until he saw the letter from the 1st Respondent. Authorizing cancellation of the Ex-Parte Applicant’s title

13. That he has been ready and willing to testify in a criminal court.

3rd Respondent’s Case 14. From the record there was no response from the 3rd Respondent but the, 3rd Respondent nevertheless filed a list of documents dated 18th July, 2022 and a witness statement from one PC Miruka.

15. Directions on how to dispose of the application were issued and parties were to file written submissions. The only submissions on record are the Ex-Parte Applicant’s submissions dated 31st March, 2023.

Applicant’s Submissions 16. The Ex-Parte Applicant submitted that he is entitled to fair administrative action and rules of natural justice when he was told that his title was not genuine. He prayed that the court finds that by failure to be given an opportunity to ventilate his issues breached his right to a fair administrative action under Article 47 of the Constitution.

17. Further, that the decision of the 2nd Responded was ultra vires and that only the Court has the power to cancel a title and not the 2nd Respondent. That on the finding that there was case of double allocation the Respondents ought to have advised him to move to the land court.

18. The Ex-Parte Applicant also submitted that he had a legitimate expectation that he ought to have been called to make representations and comments or be heard on how he acquired the title before his title was declared as not genuine. That the Interested Parties documents should also have been scrutinized before coming to the conclusion that they did.

19. The Ex-Parte Applicant in his submissions placed reliance on the following authorities:a.R. G. Patel vs Laiji Makanji (1957) EA 314. b.Sceneries Limited v National Land Commission (2017) eKLR.c.Msagha vs Chief Justice & 7 Others Nairobi HCMCA No. 1062 of 2005 (2006) 2 KLR.d.Municipal council of Mombasa vs Republic, Umoja Consultants LT Civil Appeal No. 2007(2002) eKLR.e.Kenya Examination Council vs Republic Exparte Geoffrey Gathenji & 9 Others Nairobi Civil Appeal No. 266 of 1996.

Analysis and Determination. 20. The two (2) main questions for determination before me are:-a.Whether the Judicial review in form of the orders of Certiorari and Mandamus are available to the Applicantb.Who will bear the Costs of the application?

21. The court’s jurisdiction is exercised within defined grounds. As stated in the Ugandan case of Pastoli –Vs- Kabale District Local Government Council & Others [2008] 2 EA 300: -“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, on contrary to the provisions of a law or its principles are instances of illegality.……Irrationality is when there is such gross unreasonableness in the decision take or act done, that no reasonable authority, addressing itself to the facts and the law before, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.……Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with professional fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”

22. The Purpose of Judicial Review was set out in the case of Municipal Council of Mombasa…Vs…Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, where the Court of Appeal held that: -“The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e. the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters.These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.

23. The import of the above authorities is that a court of review is concerned only with the process at which a decision was made and the lawfulness of the process arriving at the decision and how the parties to the decision were affected. The role therefore is supervisory. The decision arrived at can therefore be set aside if found that the process was flawed.

24. As to whether the remedies sought are available to the Applicant on Certiorari; The case stems from two allotment letters and two titles.

25. The Ex-Parte Applicant submits that in the process of declaring the Interested Party’s title genuine and his not genuine, he was not accorded a fair administrative process and there was violation of the rules of natural justice.

26. There were investigations by the 2nd Respondent and the 1st Respondent opined that there appears to be a case of double allocation. The 1st Respondent made a recommendation based on the documents presented by the 2nd Respondent that the best approach which is for the first allotment to prevail.

27. It was stated in the 1st Respondent’s letter dated 20th March, 2022 that;“Evidence on record indicate that the two i.e. complainant and the suspect have allotment letters from the Municipal Council. None of the two letters were subjected to forensic Audit to a certain their authenticity.

28. The 1st Respondent in the letter goes on further to state:“When the complaint was made, it is only the suspects title that was subjected to forensic audit……..”

29. That alone is a flawed process. It would have been fare if the scrutiny had been done to all the property documents by both the Applicant and the Interested Party. Why the Interested Party never surrendered his documents for investigations is in question. Why the Interested Party’s documents were never subjected to forensic audit is also a mystery.

30. The Ex-Parte Applicant’s right to be heard were muzzled. The Applicant’s right to adduce and challenge evidence were also muzzled. There was unfairness in the making of the decision by non -observance of the rules of natural justice, there was clearly procedural impropriety in concluding that the Ex-Parte Applicants’ tittle was not genuine as it was stated and went against the provisions of Article 47 of the constitution.

31. The 1st Respondent is also accused of acting ultra vires. In the said letter, the 1st Respondent goes ahead and recommended that the Applicant loses his rights to the title as well as the rates paid to the land that“…..I recommend that the best approach which is for the first allotment in favour of the complainant to prevail. There will be no need to apply for cancellation of the suspect’s title since it is not genuine. The suspect therefore loses right to the said land and all the rates he paid at the council. This can be taken as enough remedy as against the suspect.”

32. Certainly, we have different authorities that deal with different matters. The powers of the 1st Respondent are constitutionally and statutorily provided for under Article 157 (10) of the Constitution and Section 6 (b) of the Office of the Director of Public Prosecution Act, which provides that the DPP shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or function, shall not be under the direction or control of any person or authority.

33. This court can therefore intervene in circumstances where it is evident that the 1st Respondent acted unlawfully by abusing the legal process as provided for under Article 157 (11) and Section 4 of the DPP Act.

34. It is trite that a judicial or quasi-judicial tribunal, such as the Respondent herein has no inherent powers. In Choitram vs. Mystery Model Hair Salon [1972] EA 525, Madan, J (as he then was) was of the view that, since powers must be expressly conferred, they cannot be a matter of implication. Similarly, in Gullamhussein Sunderji Virji vs. Punja Lila and Another HCMCA No. 9 of 1959 [1959] EA 734, it was held that Rent Restriction Board being a creation of statute neither the Board nor its chairman has any inherent powers but only those expressly conferred on them. Therefore, neither the 1st Respondent nor the 2nd Respondent has inherent powers and must operate within the strictures of the law.

35. In this case the 1st Respondent made the decision not to prosecute the Ex-Parte Applicant from criminal charges as she felt the issue stemmed out if a double allocation of property. As to whether which Allotment was genuine or not? and as to whether to declare the allotment a as genuine was beyond the constitutional mandate of the 1st Respondent?

36. This court recalls the sentiments expressed by this court in the case of Republic v Cabinet Secretary Ministry of Interior & Co-ordination of National Government & 6 others Ex-parte Africa Centre for Open Governance & 7 others [2017] eKLR where the court held that;“Accordingly, if it is proved that in purporting to exercise the powers donated to him by law a public officer has gone out of control or has exceeded the legal parameters and criteria set out for the exercise of his jurisdiction, the leash of the supervisory jurisdiction of the High Court must be activated and invoked”

37. The matter at hand is in itself a civil matter and not a matter in the backyard of the 1st Respondent. Our courts at the various levels and relevant jurisdictions have the wherewithal to determine which of the two titles is genuine and who loses their proprietary rights and not the 1st Respondent.

38. As to who can cancel a title in the nature of the present case was determined In Kisumu Misc No. 80 of 2008 Republic v Kisumu District Lands Officer & Another [2010] eKLR where the Court held:“it is clear that it is only the Court that can cancel or amend if where the Court is of the view that registration has been obtained, made or omitted through fraud or mistake and only where it is not a first registration”.

39. Furthermore, it was for the Respondents to prove that the Interested Party had a legitimate title and that the Ex-Parte Applicant’s tittle was not genuine before a court of competent jurisdiction. This is not the forum for any further inquiry into the matter that would be the purview of the Environment and Land and Court.

40. The 1st Respondent’s power is within the confines of criminal proceedings. I am convinced that the 1st Respondent did indeed act outside its constitutional mandate.

41. The Ex-Parte Applicant submits that the complaint was never judiciously and diligently investigated by the Respondents as required by the law, that the Respondents never conducted clear and unbiased assessment of fact since he was never called to interrogate the Interested Party’s evidence or challenge the decisions made by the Respondents. It is clear that the decision was irrational and clouded in mystery because there was no communication prior to the decision.

42. As to whether the remedies sought are available to the Applicant on Mandamus, the Ex-Parte Applicant seeks an order of Mandamus to compel the Respondents: -a.to supply him with the forensic audit report done on Nakuru/Municipality Block 15/801 andb.deliver to the Ex-Parte Applicant the original title of Nakuru/Municipality Block 15/801 registered in his name.

43. In Republic –Vs- Kenya National Examination Council exparte Gathenji & Others Civil Appeal No. 266 of 1996, the court observed“……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 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 or no specific legal remedy for enforcing the right; and in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.……These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and that where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect that duty to be performed…….”

44. Therefore, order of Mandamus is issued to a public body or authority to compel it to perform a duty that it has failed to perform, to a party which a has a legal or legitimate right to that duty.

45. The Ex-Parte Applicant also submits that he would require the forensic report in case there was a land case to be filed.

46. It is evident that the decision to summon the Ex-Parte Applicant was within the powers vested in the 2nd Respondent. Section 35 of the National Police Service Act No. 11A of 2011 allows the Director of Criminal Investigation to undertake forensic analysis while undertaking investigations where a complaint has been lodged as provided by law.

47. Upon conclusion of the investigations by the 2nd Respondent, the file was transmitted to the 1st Respondent, the 1st Respondent made a decision not to charge the Ex-Parte Applicant in line with Article 157 of the Constitution. As to what was in those investigations is not subject of a dispute before this court. The preparation and subsequent submission of the forensic report is not what is being challenged here.

48. Under Article 35 of the constitution, the Ex-Parte Applicant has a right to be supplied and or to access information held by the state with an elaborate procedure provided for under the Freedom of Information Act as well as the Fair Administrative Action Act. Be that as it may, there is a legal framework on how that information is to be accessed or used which in this instance has not been utilized. The 1st and 2nd Respondents have not denied him access to the forensic report and on perusing the record, I do not see where the Applicant has sought the forensic report .

49. Similarly, going by the court record, already the Ex-Parte Applicant has been supplied with documents by the 3rd Respondent. The Applicant has not demonstrated why the court should compel the Respondents to provide something that has not been sought and denied. It is not for the Court in judicial review proceedings to direct the 2nd Respondent on what to do in the circumstances of what is sought.

50. As to whether the documents for Nakuru Municipality Block 15/801 booked with the 2nd Respondent should be released to the Applicant, the Ex-Parte Applicant has submitted that he was summoned by the 2nd Respondent and advised to report with his ownership documents. That the documents were booked by the 2nd Respondent and from the list of documents availed by the 3rd Respondent, the documents were the subject of the investigations.

51. On the face of it, there is an ownership dispute in respect of the title and the legitimacy of the Ex-Parte Applicant’s documents vis a vis those of the interested Party and even the records held at the land’s registry.

52. All I can say is that there are areas that require evidence before anyone can make a determination as to who between the Ex-Parte Applicant and the Interested Party is the legal owner of the subject property. This court cannot decipher how two titles could be issued in respect of the same piece of land since it is not clothed with the jurisdiction and neither can the Respondents.

53. From the letter of the 1st Respondent, it has been confirmed that the aspect of fraud is missing and is a case of double allocation. I do not see what the 2nd Respondent would need the Ex-Parte Applicant’s documents for if criminal proceedings would not be preferred against the Ex-Parte Applicant.

54. The Ownership dispute relating to land parcel number Nakuru Municipality Block 15/801between the Ex-Parte Applicant and interested party can be well ventilated before the Environment and Land Court.

55. Accordingly, I allow the Ex-Parte Applicant’s Notice of Motion in the following terms;a.An Order of Certiorari is hereby issued to quash the decision made by the 1st Respondent on the 20th March 2022 recommending that the Ex-Parte Applicant that the Applicant loses his rights to the title as well as the rates paid to the land parcel number Nakuru Municipality Block 15/801. b.An Order of Mandamus is hereby issued directed at the 2nd Respondent to forthwith surrender to the Ex-Parte Applicant the title and all legal ownership documents for the parcel known as Nakuru Municipality Block 15/801. c.There will be no orders as to costs.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 1ST DAY OF NOVEMBER 2023. MOHOCHI S.M.JUDGE OF THE HIGH COURT