[2017] KEHC 4218 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

JUDICIAL REVIEW APPLICATION NO. 17 OF 2016

IN THE MATTER OF JUDICIAL REVIEW ORDERS OF PROHIBITION, CERTIORARI AND MANDAMUS

PERSUANT TO ORDER 53 OF THE CIVIL PROCEDURE RULES 2010

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF NATIONAL POLICE SERVICE ACT, 2011

AND

IN THE MATTER OF LAND REGISTREATION ACT, 2012

BETWEEN

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

AND

OFFICER COMMANDING NGONG POLICE DIVISION...................................1ST RESPONDENT

THE LAND REGISTRAR, KAJIADO COUNTY LAND REGISTRY..................2ND RESPONDENT

AND

TITUS GETHI NDEGWA..................................................................................INTERESTED PARTY

AND

JUANCO GROUP LIMITED......................................................................EX- PARTE APPLICANT

JUDGMENT

The Applicants case

1. Through an Application dated 21st November 2016 and allowed by this court on 22nd November 2016, the applicant was granted leave to commence Judicial Review proceedings against the Respondents. The main motion for Judicial Review is dated 29th November 2016. In it, the applicant has sought the following orders :-

1. That an order of prohibition directed against the Officer commanding Ngong Police Division, prohibiting him and officers attached to his Division from evicting, blocking or interfering with the Applicant’s quiet possession and use of land parcels numbers Kajiado/Kitengela29410, Kajiado/Kitengela/29412, Kajiado/Kitengela 29413 and Kajiado/Kitengela/29415.

2. That an order of Mandamus to the Kajiado County Land Registry to remove the restrictions filed by one Titus Gethi Ngegwa on land parcels Number Kajiado/Kitengela29410, Kajiado/Kitengela/29412, Kajiado/Kitengela 29413 and Kajiado/Kitengela/29415.

3. An order of Certiorari to bring the High Court for purposes of quashing the restrictions imposed on titles numbers Kajiado/Kitengela29410, Kajiado/Kitengela/29412, Kajiado/Kitengela 29413 and Kajiado/Kitengela/29415 by the 2nd Respondent.

4. Cost of the Application.

2. The Motion was based on grounds that the Applicant is the registered owner of land parcels numbers Kajiado/Kitengela29410, Kajiado/Kitengela/29412, Kajiado/Kitengela 29413 and Kajiado/Kitengela/29415; that the 2nd Respondent has without a just reason issued a restriction against the said parcels of land and has refused to act as per the statutory provisions of the Land Registration Act 2012 and in particular section 76(1)(2)(a)(b)(c) 77(1) 78(1)(2) thereof and that the 1st Respondent has threatened to arrest the Applicant’s employees or agents if they attempt to enter the said parcels of land.

3The Motion was supported by an Affidavit sworn by JUNGHAE WAINAINA, the Chief Executive Officer of the Applicant. The deponent stated that the Applicant is the registered proprietor of the suit property having bought them from the erstwhile proprietor James Njoroge Githu and annexed copies of title deed marked JW1.

4. The Applicant further avers that these parcels were bought after conducting due diligence and confirming that there were no encumbrances in the form of easements or prescription rights registered against the titles and therefore the Applicant was a buyer without Notice of any defects In title or existence of third party claims. It is the Applicants assertion that it took possession of the said parcels and has been in quiet possession until the interested party started interfering with its quiet possession through the use of the 1st Respondent.

5. The Applicant deponed that the Interested Party herein filed a suit in the High Court seeking a temporary injunction against the Applicant from interfering with its treated wooden posts, chain link wire, storage structures and 19 metal gates and further from undertaking any developments of any nature, charging or transferring any parcels of the suit property pending the hearing and final determination of this Application. The interested party also sought for orders that the 1st defendant (the original owner of the suit property) be substituted with his legal representatives in the suit and that the OCPD Ngong Police station do provide security for purposes of implementation of the court orders. A copy of the Application and plaint Marked JW2 was annexed.

6. The Applicant further Avers that the Court heard the Application but declined to grant the orders instead ordering that the parties do maintain the obtaining status quo in regard to the suit properties as at 21st November 2013. A copy of the order markedJW3 was annexed.

7. The deponent further avers that the Interested party deliberately omitted to disclose to the Court that he had without leave of court placed a caution on the property on 29th March 2012 without stating what interest or claim he had on the property and that therefore the status quo order issued by court could not have contemplated the maintenance of a caution which the Court was not aware of.

8. It is the Deponent’s assertion that involvement of the 1st Respondent would only have come in if the order of temporary injunction was issued and that it is an abuse of power conferred upon the 1st Respondent to arrogate himself judicial authority and purport to enforce and supervise a non-existent order.

9. The deponent asserts that as at the time of issuance of the status quo order, the Applicant was in actual and physical possession carrying out activities and therefore the 1st Respondent should not deny the Applicant access and use of the suit property.

10. It is the deponent’s assertion that the 1st Respondent’s officers through the direction of the interested party has been harassing and threatening to arrest employees of the Applicant. That on 1st July 2016 the Interested party visited the Applicant’s property and ordered a tractor hired by the Applicant to cut and bale hay to stop and move out of the property; that on 5th November 2016 the Applicant’s employees were forcefully evicted from the property by the interested party with the assistance of the 1st Respondent and policemen attached to his Division; On 20th October 2016 the interested party hired a gang that unsuccessfully tried to stop the Applicants employees from carrying out activities on the said parcels but returned in the company of the 1st Respondent’s police officers, ordered the employees out of the properties and proceeded to put a padlock on the gate leading to the property. Photographs evidencing the same and marked JW4 were annexed.

11. It is the deponent’s averment that through its advocates on record, it has written a demand letter to the officer Commanding Kiserian Police station wherein the interested party has obtained the assistance of the police. A copy of the letter marked JW5 was annexed. This allegedly caused the interested party to change tactics and seek assistance from the 1st Respondent (OCPD) Ngong who has continually assisted him in harassing the Applicant’s employees without a valid court order.

12. The deponent averred that the interested party caused to be placed a restriction on the said parcels on 29th March 2012 (approximately 5 years from now) which restriction is vague and has no legal claim or otherwise set out against the Applicant. Deponent annexed copies of official searches showing placement of the restrictions marked JW7.

13. The Deponent further averred that upon receipt of the restriction, the 2nd Respondent did not write to the Applicant as required under the law neither did he grant the Applicant a hearing before placing a restriction on the Applicants titles.

14. It is the deponent’s averment that he wrote to the 2nd Respondent on 4th November 2015 requesting the 2nd Respondent to act as required by the law but the letter did not elicit any response.(JW8 is a copy of the letter annexed). The Applicant also wrote another letter of 26th April 2016 to the Chief Land Registrar followed by another one dated 15th September 2016 as a reminder but the letters did not receive any attention or response. (JW9are copies of the letters annexed).

15. The Applicant also deponed that he has written to the interested party’s advocates raising the issues of interference and harassment using state machinery but no reprieve has been received. (JW 10 is a copy of the said letter). It is the deponent’s assertion that he has sought assistance from the office of the ombudsman via a letter dated 15th September 2016 and that the only response he got was an acknowledgment of the letter with no further action (JW11 is a copy of the said letter).

Interested party's case

16. The Interested party filed a Replying Affidavit dated 15th December 2016 sworn by TITUS GETHI NDEGWA and raised preliminary objections on the following points of law;

1. The Court has no jurisdiction to handle or determine matters relating to restrictions placed by the land Registrar as the restrictions can only be removed by the land registrar under s 78 of the Land Registration Act 2012 and that any appeal from the decision of the land Registrar lies with the Environment and Land Court which has exclusive jurisdiction on matters pertaining to land and environment.

2. The entire proceedings are in any event fatally defective as the Applicant has omitted to enjoin the Honorable Attorney General in the proceedings as required by Section 12 of the Government proceedings Act.

3. In any event the proceedings are fatally defective as no proceedings against the Government can lie or be instituted until after the expiry of a period of thirty days statutory notice as per section 13(A) (1) of the Government Proceedings Act.

4. The Court cannot restrain a police officer from protecting life and property and from preserving and maintaining public peace and safety as required by section 51(1)(e) and(f) of the National Police Service Act.

5. It is trite law that 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.

17. The Interested party further deponed that the present Application is an abuse of the court process as the proper remedy for the Applicant was to move to the court that is already seized of the matter. Additionally, the Applicant is time barred according to section 9(3) of the Law Reform Act Cap 26 as the restrictions sought to be quashed were registered five years ago.

18. The interested party does not dispute that orders to maintain status quo were issued on 21st November 2013. He however he avers that due to the Applicant’s non compliance of the orders, he filed an application dated 18th September 2014 seeking orders to restrain the Applicant from interfering with the suit properties and on 27th November 2014 the ELC in case No 76 0f 2010 in Nairobi ordered parties to maintain status quo.(TNG 2-A copy of the order).

19. It is the interested party’s case that the present Application is frivolous as it lacks substance; it is vexatious by virtue of the Applicant’s non-disclosure of the existence of ELC No 76 of 2010 Titus Gethi Ngewa Vs James Njoroge & Juanco limited filed in the ELC Court; It is vexatious because filing this Application is causing unnecessary anxiety and expenses for the interested party.

20. Finally the Interested party stated that the Applicant has not come to court with clean hands as he has failed to obey the orders of the Court from which he seeks justice.

1st Respondent’s case.

21. The 1st Respondent filed grounds of opposition against the Application dated 29th November 2016. The grounds of opposition are as follows;

1. That the Application is incompetent and lacks Merit.

2. That the Applicant does not have capacity and Locus Standi to prosecute the instant Judicial Review Application.

3. That the 1st Respondent is a stranger to the instant Application.

4. That the 1st Respondent has been wrongly and maliciously sued in this instant Application.

5. That the Application is otherwise is otherwise an abuse of the process of the court.

Applicant’s Submissions

22. Counsel for the Applicant submitted that the present Application challenge the procedure taken by the 2nd Respondent before registering the restriction. He submitted that the Applicant is the registered owner of the said parcels of land and that he was never heard by the 2nd Respondent before registering a restriction on the suit property in favour of the interested party as required by section 72(1) of the Land Registration Act 2012. Further that the registered owner needs to be notified before placing the restriction and neither was the applicant accorded any hearing nor notified on the placing of the restrictions.

23. Counsel submitted that Section 26 of the Land Registration Act states that ‘’

‘’A certificate of title issued by the Registrar upon Registration or to the purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as the proprietor of the land is the absolute and indefeasible owner subject to encumbrances, easements, restrictions and conditions contained or endorsed in the certificate and the title of that proprietor shall not be subject to challenge.’’

24. Counsel therefore submitted to this court that the 2nd Respondent breached rules of Natural justice and that there was procedural impropriety on the part of the 2nd Respondent and the interested party forcing the Applicant to seek judicial review orders.

25. The Applicant’s counsel directed this court to the decision in R vs the Land Registrar Taita Taveta District and another 2005 Eklr where Murithi J took into consideration the fact that the questions of fraud in the matter were not addressed by the land Registrar before revoking the titles of the Applicant and quashed the land Registrar’s decision. Counsel also referred to Njoroge J’s decision in R Vs District Land Adjudication and settlement officer, Imenti South District Ex Parte Murianki Nkurai & 9 others (2016)eKLR where it was stated that the purpose of Judicial Review proceedings is to ensure that an individual receives fair treatment and not to ensure that the authority after according a fair treatment reaches on a matter which is authorized by law to decide for itself to conclusion.

26. On whether the orders being sought by the Applicant are statute barred, counsel submitted that Order 53 Rule 2 of the Civil Procedure Rules does not limit the time for filing of orders of mandamus to six months. Additionally, limitation of actions as per Order 53 Rule 2 is only limited to an order of certiorari and not mandamus and prohibition. He further submitted that the Actions of harassing the Applicant and its employees are not time barred. He submitted that the 1st Respondents officers started harassing the Applicant in September 2016 while whereas the suit was filed in November 2016.

27. Additionally, counsel submitted that the six months limitation applies only to judgments, orders, decrees, convictions and not all administrative actions. Counsel further proceeded to urge the Court not to close doors for the Applicant who is seeking justice stating that this technicality has been cured by Article 159(2) of the Constitution as oppose to substantive justice. He cited R Vs Kiambu Land Disputes Tribunal & 2 others Vs Ex parte Wambui Chege Macharia & 2 others (2006) eKLR.

28. Finally, on whether the Applicant needed to join the Hon. Attorney General to the proceedings, counsel submitted that Judicial Review proceeding are neither criminal nor civil in nature and that there is therefore no mandatory requirement to serve the Attorney General with a notice due to the special nature of judicial review proceedings and that Section 2(1) is limited to the Civil proceedings against the government. Counsel relied on R Vs Kisumu Lands Officer & Anor [2010] eKLRwhere the court granted Ex-parte Applicant an order of certiorari quashing the Land Registrar’s direction.

Interested Party’s submissions

29. Counsel for the interested party submitted that the court has no jurisdiction to deal with matters relating to restrictions placed by the land Registrar as under Section 78 of the Land Registration Act 2012 this is a preserve of the land Registrar and any appeal from the Registrar’s decision lies with the Environment and Land Court which has exclusive jurisdiction on matters pertaining to Land and Environment. Counsel also submitted it is trite law that where the court is required to make a determination on disputed facts, then that case is not suitable for Judicial Review. Counsel made reference to section 8 & 9 of the Law Reform Act and Order 53 of the Civil Procedure Act.

30. Counsel also submitted that the present Application is an abuse of the Court process as the proper remedy would be to move to the Environment and Land Court which is presently seized of the matter and has exclusive jurisdiction on land matters. In support of this position, counsel cited R Vs Kiambu Land Dispute Tribunal & 2 others Ex-Parte Wambui Chege Macharia and 2 others [2016]Eklr G V Odunga J held;

‘’An issue that goes to jurisdiction cannot, in my view be termed a mere technicality. To the contrary, the issue goes to the root of the matter since without jurisdiction the court has no files but to down its tools. As was held in the Owners of the Motor Vessel ‘’Lilian S Vs Caltex Oil (Kenya) Limited [1989]KLR 1 Nyarangi,JA expressed himself as follows;

Where the Court takes upon itself to exercise a jurisdiction which it does not possess its decision amounts to nothing. Jurisdiction must be acquired before judgment is given… Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.’’

31. It was submitted that Order 53 Rule 2 of the Civil Procedure Act provides that leave for an order for Certiorari shall not be granted unless the Application for leave is made not later than six months after the date of the proceeding, or such shorter period as may be prescribed by an Act and where the proceeding is subject to an appeal and time is limited by law for the bringing of the appeal, the judge may adjourn the Application for leave until the appeal is determined or the time for appealing has expired.

32. Counsel proceeded to submit that section 9(3) gives a limitation of six months from the date of the judgment in bringing an Application for an order of Certiorari. He therefore proceeded to state that in this case, the restrictions sought to be quashed were registered on 29th March 2012 and the ex-parte’s Application is therefore time barred as the restrictions were placed five years ago. Counsel citedR V Kiambu Land Dispute Tribunal & 2 others Ex parte Wambui Chege Macharia & 2 others[2016]Eklr GV ODUNGA J invoked the following from Raila Odinga & 6 others Vs. Nairobi City Council Nairobi HCC No. 899 of 1993;[1990-1994],it was held:

‘’Order 53 contains the procedural rules made in pursuance of Section 9 (1) of the Law Reform Act, Section 9 (2) of that Act states that the rules made under subsection 1 may prescribe that an Application for mandamus, prohibition and certiorari shall be made within six months or such other short period as may be prescribed. Thus it will be seen that on one hand S 9(2) of the Act enjoins that the court may make rules prescribing that Application for mandamus, prohibition and certiorari shall be made within six months or such shorter period as may be prescribed by the rules. On the other hand O 53 rule (2)(1) which is a procedural rule made under that very section states that the Court may for good reason extend the period of six months. The Rules of the court made under the Act cannot defeat or override the clear provisions of S 9(2) of the Act. An Act of parliament cannot be amended by subsidiary legislation. The Parliament in its wisdom has imposed this absolute period of six months and it is the parliament alone which can amend it. The court’s duty is to give effect to the law as it exists. Thus that part of Order 53 rule 7 as amended by legal Notice No 164 of 1997 which reads ‘’unless the High Court considers that there is good reason for extending the period within which the Application shall be made’’ is ultra vires section 9(2) of the Act. Thus an Application for Judicial Review, may it be an order of mandamus, prohibition or certiorari should be made promptly and on any event within a maximum period of six months from the date when the ground for application arose…

33. It is therefore the Counsel’s submission that the present Application is incompetent and should be struck out as the Application was filed on 22nd November 2016 yet the restrictions on the suit property seeking to be quashed were registered on 29th March 2012; which is after the expiry of the six months prescribed period.

34. Counsel also submitted that the entire proceedings are fatally defective as the applicant failed to enjoin the Attorney General as required by S 12 of the Government proceedings Act. Counsel cited the case ofJames Orengo Vs the Attorney General & Anor [2007]eKL where Alnashir Visram J held that;

In the Hudson Case, where the issue of incompetence of the suit was not even pleaded in the statement of defence, Ringera J (as he was then ) stated:

Section 13 A of the Government Proceeding Act is in clear mandatory terms that do not admit of any excuses or exemptions. Its plan meaning to my mind is that no proceedings against the government under the Government Proceedings Act can lie or be instituted before the statutory Notice has been given and expired.

Determination

35. The main issue in the preliminary objection is that this court has no jurisdiction to entertain this Application.

36. I am alive to the case of Lillian 'S' [1989] KLR 1(as submitted by counsel for the interested party)in which this Court succinctly set out the principles and context for determination of jurisdiction. Nyarangi, JA stated, inter alia:-

“Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

37. What provisions of the law then govern the jurisdiction of this Court to grant the above orders in comparison to those governing the Environment and Land Court?

38. Article 165(3) of the Constitution provides as follows:

(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

………………

(e) any other jurisdiction, original or appellate, conferred on it by legislation.

39. Article 165(5)(6) and (7) thereof on the other hand provides:

(5) The High Court shall not have jurisdiction in respect of matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or

(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

40. In dealing with a similar issue, Odunga J in Republic v Chairman, National Land Commission & 2 others ex-parte Peter Njore Wakaba & Macharia Kinyanhui [2016] eKLRstated as follow;

‘’It is now trite law that the High Court in the exercise of its judicial review jurisdiction exercises neither a criminal jurisdiction nor a civil one since the powers of the High Court to grant judicial review remedies is sui generis. See Commissioner of Lands vs. Kunste Hotels Ltd (1995-1998) 1 EA 1.

Therefore in exercising its judicial review jurisdiction the High Court does not exercise the powers conferred upon it under Article 165(3)(a) but rather the powers conferred upon it under Article 165(3)(e) as read with Article 165(6) and (7) of the Constitution.

However, the High Court’s power and authority is derived from the Constitution and where the Constitution limits the jurisdiction of the High Court, that limit is legal and proper. In my view by specifically creating the Courts with the status of the High Court to deal with employment and labour relations disputes on one hand and environment and land disputes on the other, the people of Kenya appreciated the importance of these specialised Courts.

41. Article 165(5)(b) of the Constitution limits the jurisdiction of the High Court in determining issues which fall within the jurisdiction of the courts contemplated in Article 162(2).(Environment & Land Court and the Employment and Labour relations Court).

42. Section 13 of the Environment and Land Court Act states as follows;

(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—

(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

(b) relating to compulsory acquisition of land;

(c) relating to land administration and management;

(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and

(e) any other dispute relating to environment and land.

(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.

(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

(5) Deleted by Act No. 12 of 2012, Sch.

(6) Deleted by Act No. 12 of 2012, Sch.

(7) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including—

(a) interim or permanent preservation orders including injunctions;

(b) prerogative orders;

(c) award of damages;

(d) compensation;

(e) specific performance;

(g) restitution;

(h) declaration; or

(i) costs.

43. The current issue revolves around a decision made to place restrictions on the Applicants pieces of land. This restriction has a direct effect on the use of land and therefore this issue falls squarely under the jurisdiction of the Environment and Land Court. As seen above, section 13 gives the ELC Court the jurisdiction to determine the subject of this Application.

44. The Applicant herein is aware of the fact that there is an ongoing case in the ELC Court with respect to the suit property and he in fact has been enjoined as a party to the suit. The issues therefore raised in this Application would have been satisfactorily dealt with in the ongoing case. It would not be prudent to entertain this matter while there is a Court of competent jurisdiction which would deal with the issue at hand on its merits. As held in Nairobi High Court Petition No. 613 of 2014 – Patrick Musimba vs. The National Land Commission and Others:

“…it would be ridiculous and fundamentally wrong, in our view, for any court to adopt a separationalistic view or approach and insist on splitting issues between the Courts where a court is properly seized with a matter but a constitutional issue not within its obvious exclusive jurisdiction is raised.”

45. The reliefs sought by the Applicant arise out of a determination of the issues falling within the said provisions which basically deal with interests in land. In my view the applicant’s contended right to be heard stem from the pending determination of their interest in the suit property. The issues being raised about harassment by the police can be determined by the ELC court by making a simple Application by the Applicant herein.

46. It would therefore not be proper for this Court to assume jurisdiction when other Constitutional organs have been bestowed with the jurisdiction to entertain the same as was the position taken in Peter Oduor Ngoge vs. Hon. Francis Ole Kaparo, SC Petition 2 of 2012,[para. 29-30] where it was held:

“The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals...In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court...Consequently, this Court recognises that all courts have the constitutional competence to hear and determine matters that fall within their jurisdictions and the Supreme Court not being vested with ‘general’ original jurisdiction but only exclusive original jurisdiction in presidential petitions, will only hear those matters once they reach it through the laid down hierarchical framework”.

47. The same view was expressed in Constitutional Petition Number 359 of 2013 Diana Kethi Kilonzo vs. IEBC and 2 Others in which it was held that:

“We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities.”

48. The upshot of this is that these proceedings cannot be entertained by this court as the Environment and Land Court is a court of competent jurisdiction in which this matter can be heard and determined in its merits as there is already an ongoing case with respect to the interests in the suit property.

Order

(1) The Application dated 29th November 2016 is dismissed.

(2) No orders as to cost

It is so ordered.

DATED, DELIVERED AND SIGNED AT KAJIADO THIS 19TH DAY OF JULY, 2017

R NYAKUNDI

JUDGE

Delivered in the presence of:

Mr. Akula for the 1st respondent

Ms Mutuku for Githii for the applicant

Mr. Maina for the applicant – absent

Mr. Mateli Court Assistant