[2017] KEHC 9579 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JR NO. 87 OF 2016

IN THE MATTER OF AN APPLICATION BY KAVIT HANDA FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION IN RESPECT OF THE DECISION OF THE RESIDENT MAGISTRATE MILIMANI COMMERCIAL COURTS IN CMCC. 7236 OF 2015 DATED 10th DECEMBER 2015

AND

IN THE MATTER OF THE PROPERTY KNOWN AS L.R. NO.209/8000/149 NEW MUTHAIGA, NAIROBI

AND

IN THE MATTER OF ARTICLE 162(2)(b) OF THE CONSTITUTION

AND

IN THE MATTER OF SECTIONS 7, 8 AND 9 OF THE FAIR ADMINISTRATIVE ACT, 2015

AND

IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT, CHAPTER 26 OF THE LAWS OF KENYA

AND

THE REGISTERED TITLES ACT (CAP.281) REPEALED

AND

IN THE MATTER OF THE LAND ACT 2012

AND

AND IN THE MATTER OF THE LAND REGISTRATION ACT 2012 THE LAWS OF KENYA

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

VERSUS

THE HON. RESIDENT MAGISTRATE..........................RESPONDENT

AND

PATRICK MACHARIA NDERITU…...…..1ST INTERESTED PARTY

ANNA NJERI GITANYU....……...……….2ND INTERESTED PARTY

EX PARTE: KAVIT HANDA

JUDGEMENT

Introduction

1. By a Notice of Motion dated 25th February, 2016 the ex parte applicant herein, Kavit Handa, seeks the following orders:

1) That an order of Certiorari do issue to remove into this honourable court and quash:

a. The decision and/or order of the Resident Magistrate’s Court in CMCC 7236 of 2015 dated and/or issued on 10/12/2015;

b. The proceedings before the Resident Magistrate’s Court in CMCC 7235 of 2015.

2) That an order of Prohibition do issue to prohibit the Resident Magistrate from continuing with proceedings in CMCC 7236 of 2015 and/or any other proceedings relating to LR. No. 209/8000/149.

3) That a declaration be issued that the Resident Magistrate has no jurisdiction to hear suit touching on the property whether as it has purported to do or at all.

4) That the costs of and occasioned by this application be provided for.

Ex Parte Applicants’ Case

2. According to the Applicant, he is the duly registered proprietor of the property known as L.R. No.209/8000/149 in New Muthaiga (hereinafter referred to as “the property”) which said property is the subject matter of the impugned proceedings in CMCC. 7236 of 2015 the subject of these Judicial Review proceedings (hereinafter referred to as “the suit”). It was averred by the applicant that he purchased the suit property in the year 2007 and contemporaneously with the purchase thereof which was meant for the occupation by his family (namely my brother’s family), his lawyer and his brother for the purpose of due diligence instructed CB Richard Ellis a firm of professional Valuers to undertake a study and valuation of the property which established that at the time of the purchase the property was valued at Kshs.25,000,000. 00 thought he purchased the same for the sum of Kshs.27,500,000. 00. As a result of further substantial developments thereon, it was averred that the value of the suit property increased.

3. It was the applicant’s case that by dint of being a bona fide purchaser for value he, in 2007, acquired an indefeasible title to the property and the developments thereon having conducted a thorough due diligence of the property. He disclosed that he took physical occupation of the property in the year 2007 and his brother’s family moved into the property the same year and ever since the said property has served as his brother’s family home. He averred the boundary wall was in existence even before he purchased the property and the boundary remained undisturbed until the 19th December 2015.

4. On that date, he was informed by his relatives Mr. R. Madan and Mr. M.M. Madan which information he verily believe to be true that at about 7 a.m. whilst his brother and his family were away for the holidays in Mombasa, a group of over 100 men brandishing machetes and crude weapons invaded the property from the abutting property and pulled down the property’s electric fence, razor wire and stone boundary wall and used the stones from the property’s boundary wall to divert the course of the River Thigiri to run through his property and alter its course having substantially excavated the applicant’s land using mechanized diggers and tractors to create a wide and deep trench for the River to flow.

5. The applicant was further informed by the aforementioned relatives that during the said invasion and destruction of the property the said said wanton acts of destruction were overseen by Policemen from Gigiri Police Station. The applicant informed his said relatives to report this matter to the Police.

6. It was the applicant’s contention that the diversion and running of the said River Thigiri through the property will cause irreparable damage to the foundation of the house on the property and might cause rapid subsidence of the earth on which the foundation of the property rests since the River Thigiri now partially flows at the border of the stone foundation of the house itself.

7. It was contended by the applicant that he came to learn on 19th December 2015 that the said acts of destruction of the property’s boundary wall with the electric fence and razor wire thereon as well as the diversion of the River Thigiri’s course were all undertaken on the basis of a Court order issued by the Resident Magistrate’s Court on 10th December 2015. In the said proceedings, the Plaintiffs in CMCC.7236 of 2015 have made reference to their property L.R. No. 209/8000/28 and attached a Certificate of Title in which the Transfer value declared in the Memorial Section of the title was Kshs. 15,000,000. 00 which in any event exceeded the pecuniary jurisdiction of the Subordinate Court.

8. According to the applicant, the proceedings in CMCC. 7236 of 2015 were instituted by Mr. Wiberforce Nyaboga Mariara who had at the material time been suspended from the Roll of Advocates by the Law Society of Kenya’s Disciplinary Committee and was therefore not permitted/suspended from practicing law. Based on his learned counsel’s information, the applicant believed that the aforementioned Advocate was not permitted to practice by law and that the orders which were issued by the Resident Magistrate’s Court were issued without the requisite jurisdiction.

9. The applicant further averred the proceedings before the Resident Magistrate were conducted without affording him a right to be heard as he was resident outside the country in Dubai and was never served with any Pleadings and/or documents. In any event he resides in Dubai, in the United Arab Emirates and I was not in Kenya in December 2015 to enable any service to be effected upon him contrary to the Court Order dated 10th December 2015 which alleged that he had been duly served with an application for an inter partes hearing.

10. It was disclosed that the impugned decision of the Resident Magistrate’s Court has been used by Patrick Macharia Nderitu and Anna Njeri Gitanyu and their servants and/or agents to wantonly exploit and abuse the Court process and abrogate and take away the applicant’s right to property as is enshrined and guaranteed by the Constitution of Kenya. Further, the development on the abutting property has been done and continues to be done without the requisite approvals and/or permits from the National Environment Management Agency (NEMA) approvals and/or from the Water Resources Management Authority.

11. It was contended based on legal advice that the Resident Magistrate’s Court has no jurisdiction to grant any orders as against the Applicant touching on the property which orders could only have been granted by the Environment and Land Court envisaged and set up under Article 162 of the Constitution.

12. In a rejoinder to the response by the interested parties, the ex parte applicant averred that in December 2016 when their advocates applied to peruse the Court file of the impugned proceedings before the Hon. Magistrate in CMCC.7236 of 2015 and upon perusal of the file they noted that no entry had been made by the Lower Court discontinuing the proceedings.

13. Apart from that the same advocates undertook a search over the Interested Parties property and the Registration of the transfer of the interest in land took place on the 23rd of March 2016 well over one month after these proceedings had been instituted.

14. It was therefore his case, based on legal advice that:

a. The purported discontinuance of the proceedings before the lower Court in CMCC.7236 of 2015 is an abuse process;

b. The purported discontinuance of the proceedings before the lower Court in CMCC.7236 of 2015 is an admission that the proceedings before the Lower Court in CMCC.7236 of 2015 were a nullity having been wrongly instituted before a Court without jurisdiction as you cannot withdraw that which could never have been instituted in the first place; and

c. The doctrine of lis pendens bars the transfer of an interest in land and/or registration of the disposal of an interest in land so as to defeat the proceedings which are currently pending in Court especially in this case where the Transfer was registered on 23rd March 2016 well after a month after these Judicial Review proceedings had been instituted.

15. It was his case based on the same advice that the effect of the failure to lodge the Notice of Withdrawal in the lower Court in CMCC.7236 of 2015 is:

a. The Proceedings before the Learned Magistrate are still alive and therefore amenable to the prerogative orders which are to be issued by this Court in the exercise of its powers under section 8 of the Law Reform Act as well as the Constitution; and

b. The Interested Parties are trying to use a red herring (the unfiled Notice of Withdrawal of Proceedings) so as to obfuscate the issues for determination by this Court, namely, the propriety of the proceedings before the Lower Court which the Applicant rightfully contests are a nullity on account of want of jurisdiction as well as a failure to serve process and/or accord a hearing.

16. The applicant averred that having studied and read the Replying Affidavit there was no reference or explanation given regarding the fact that the impugned proceedings before the Lower Court had been instituted and argued by his lawyer a time when he had no valid Practicing Certificate as he had been suspended according to the Law Society of Kenya.

17. It was submitted on behalf of the applicant that in the year 2015, the 1st and 2nd Interested Party instituted proceedings in the Chief Magistrate’s Court in CMCC. No. 7236 of 2015, through their lawyer one Mr. Wilberforce Nyaboga Mariara who at the material time had been suspended. On that score alone, it was submitted the said proceedings were a nullity as had been held by the Court of Appeal in Kenya Power & Lighting Company Limited vs. Chris Mahinda t/A Nyeri Trade Centre [2005] 1 KLR 753.

18. It was submitted that relying upon an allegation that the applicant had been served, the Respondent proceeded to give a mandatory injunction at an interlocutory stage without so much as a single argument being advanced in support of the order she gave on the said date and the drastic consequences it would have which was to have (akin to disposing of the suit). The impugned proceedings and order given in CMCC.7236 of 2015 served as the basis upon which the Ex Parte Applicant’s boundary wall was illegally demolished and his house put at risk once the River Thigiri’s flow was diverted to run against the foundation of his house on 19th December 2015.

19. It was submitted that from the pleadings filed in these Judicial Review proceedings, it is quite clear that at the time of the impugned order as well as the institution of the impugned proceedings the ex parte Applicant was not in the country at the time when the suit was instituted and/or pleadings served. It was the applicant’s case that he was condemned unheard as he was never served with any pleadings and/or given an opportunity to participate in the proceedings before the Court, a very breach of one the very fundamental principles of natural justice audi alteram partem which finds voice in Articles 48 and 50(1) of the Constitution of Kenya 2010. In this respect the applicant relied on Craig vs. Kanseen [1943] 1 All ER 108 at page 113 where Lord Greene M.R. held:

“In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England. To say that an order of that kind is to be treated a mere irregularity, and not something which is affected by a fundamental vice, is an argument which, in my opinion, cannot be sustained. Before I conclude that part of the matter, I must refer shortly to the rules of procedure relating to orders of this kind and state precisely how the order was obtained. The order was drawn up after the production of an affidavit of service sworn by a clerk.”

20. According to the applicant, the Kenyan Court of Appeal has always viewed the making of orders against a party not served with process and/or allowed to participate in the proceedings as very antithesis of natural justice which makes the orders so made a nullity. In this regard he relied on Omega Enterprises (Kenya) Limited vs. Kenya Tourist Development Corporation & Others [1998] eKLR.

21. According to the applicant, it is therefore no surprise that these proceedings in CMCC.7236 of 2015 ought to be quashed as everything that had taken place in that Court had been done without the giving of notice to the Ex Parte Applicant which not only breached the rules of natural justice but also failed to comply with the provisions of Order V Rule 8 of the Civil Procedure Rules 2010 which calls for personal service on the Defendant.

22. It was submitted based on Onyango vs. Attorney General [1986-1989] EA 456 that it is trite law that a breach of the rules of natural justice renders the entire proceedings a nullity.

23. To the applicant, in this case his right to property under Article 40 was summarily taken away by a Court without jurisdiction and without according him a hearing.

24. As regards jurisdiction the applicant relied on Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 and Joseph Karobia Gicheru vs. Michael Gachoki Gicheru [2013] eKLRand submitted that having thus far established that the Learned Magistrate in CMCC.7236 of 2015 gave the orders despite his having never been served with any Court process and the Learned Magistrate gave the said orders without jurisdiction, the Ex parte Applicant is indeed entitled to the order of Certiorari it has sought in its Notice of Motion .

25. Based on Article 162(2) (b) of the Constitution and section 13 of the Environment and Land Court Act of 2011 it was submitted that the jurisdiction to hear disputes of the kind that were presented to the Court in CMCC.7236 of 2015 was not only in direct contravention of the Constitution but the Environment and Land Court Act of 2011.

26. It was averred that since these proceedings were instituted before the coming into force of the Magistrates Court Act 2015, Hon. Chesang had no jurisdiction to give the orders which she gave in CMCC.7236 of 2015 on 10th December 2016). Thus all the proceedings before the Learned Magistrate in that case were a nullity and void ab initio on account of lack and/or want of jurisdiction.

27. In addition, the Lower Court in CMCC. 7236 of 2015 was presided over by Hon. Mrs. Chesang who at all material times was a Resident Magistrate. Her jurisdiction was at all times subject to and emanated from the Magistrates Court Act (Cap.10) now repealed by the Magistrate’s Court Act of 2015 which came into force in January 2016. The Learned Magistrate’s pecuniary jurisdiction was Kshs. 2,000,000(under the Repealed Act which was then in force). What was in dispute before her was a dispute involving a property whose worth was Kshs. 15,000,000 insofar as the Interested Parties are concerned whereas the Ex Parte Applicant’s property value in 2007 was Kshs.27,500,000. 00.

28. It was therefore submitted that whichever way one looks at it, the impugned proceedings and the orders made in the Lower Court in CMCC. 7236 of 2015 were without jurisdiction both from a Constitutional perspective(Article 162(2) or from a Statutory perspective i.e. the Magistrates Courts Act whether one looks at the Courts empowered to hear and determine disputes of the nature before the Learned Magistrate.

29. With respect to the prayer for an order of prohibition the applicant relied on Joram Mwenda Guantai vs. The Chief Magistrate, [2007] 2 EA 170 in which the Court of Appeal held that:

“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...”

30. In the applicant’s view, in this case the Lower Court in CMCC. 7236 of 2015 acted without and/or in excess of jurisdiction and for that reason alone an order of prohibition ought to issue.

31. As regards the allegation that there existed alternative remedy, the applicant relied Zakayo Michugu Kibuange vs. Lydia Kaguna Japeth and 2 Others [2014] eKLR, David Mugo t/a Manyatta Auctioneers vs. Republic, Civil Appeal No. 265 of 1997 and Shah Vershi Dershi & Co. Ltd vs. The Transport Licensing Board (1970) EA 631for the proposition that the existence of an alternative remedy does not preclude the applicant from seeking relief by way judicial review especially in a case such as this where the Court and recourse to which the Respondent is alluding to is a Court without jurisdiction.

32. It was the applicant’s case that this Court is the right forum to challenge the decision of the Respondent and further that it has in so doing invoked the provisions of the Fair Administrative Act of 2015 under which section 11(1)(a) empowers the Court to give declaratory orders. He further relied on Barnard and Others vs. National Dock Labour Board and Another [1953] 1 All E.R. 1113 at p.1119 where Lord Denning L.J. (as he then was) stated:

“I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretion impose on itself, and the court should not, I think, tie its hands in this matter of statutory tribunals. It is axiomatic that, when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law what is to be done? The remedy of certiorari is hedged round by limitations and may not be available. Why, then, should not the court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law.”

33. The Applicant denied the contention that this is an Appeal disguised as a Judicial Review and reiterated that these submissions have clearly established that the Respondent-Learned Magistrate acted: without and/or in excess of jurisdiction. In addition, paragraphs 11 to 19 of these submissions, the ex Parte Applicant has established that he was condemned unheard having never been served with Court process as he was out of the country at all material times.

34. Based on Republic vs. Inspector General of Police & Another Exparte Patrick Macharia Nderitu (2015) eKLR, the ex Parte Applicant prayed that the Court do grant the orders that he has sought in his Notice of Motion dated 25th February 2016.

Respondent’s Case

35. The Respondent, in opposition to the application filed the following grounds of opposition:

1. That the Notice of motion application is defective has no merit and is based on a misconception of the law.

2. That the impugned proceedings in CMCC 7236 OF 2015 and orders issued on 10TH December 2015 can only be set aside on review or on appeal which the ex-parte applicant has not exhausted.

3. That this court has no jurisdiction to handle this matter. The substratum of the application in its entirety squarely falls within the ambit of section 13 of The Environment & Land Court Act. SeeRepublic v Chairman, National Land Commission & 2 others ex-parte Peter Njore Wakaba & Macharia Kinyanhui [2016] eKLR, Samuel Mutonga Thiru & 8 others vs Colgate Palmolive (East Africa Ltd) {2013} eKLR. Republic v Commissioner of Lands, Cabinet Secretary Ministry of Lands Housing & Urban Development Pamela Mutegi & 5 others Ex-parte Samuel Muciri W’njuguna [2014] eKLR JR 229 OF 2013

4. That the prerogative orders sought here can be granted by the Environment & Land Court courtesy of section 13(7) of the act and declaratory orders are not available in judicial review proceedings. See Khobesh Agencies Limited & 32 others –vs- Minister of Foreign Affairs and International Relations & 4 others (2013) eKLR

5. That the application offends the statutory provisions of section 9(2)(3) of The Fair Administrative Action Act, the legal principles of setting aside an order & exhaustion of alternative dispute resolution mechanisms and the only recourse available to the ex-parte applicants once an order is made is to either set aside on review or on appeal. See Cortec Mining Kenya Limited vs Cabinet Secretary Ministry Of Mining & 9 others {2015} eKLR Mutungi J and Megalith Mining Company Limited vs Hon AG & Cabinet secretary Ministry of Mining, Nrb ELC Misc (JR) Civil Application No 948 of 2015.

6. That the application is an appeal disguised as a judicial review application yet a judicial review court does not sit as an appellate court so as to substitute its views with that of the respondent’s court. The invoking of article 162(2) (b) of the constitution does not in this case correctly fall within parameters of judicial review. Supervisory or any other jurisdiction of the court can only be invoked where it correctly fall within judicial review.See Republic v Director of Public Prosecution & another Ex Parte Chamanlal Vrajlal Kamani & 2 others [2015] eKLR

7. That further to the foregoing, the application offends the principle of alternative dispute resolution. See Speaker of the National Assembly v The Hon James Njenga Karume,Civil application No 92 of 1992 KLR 22{1992}, Peter Oduour Ngoge v Hon. Francis Ole Kaparo, SCPetition 2 of 2012,[para. 29-30],Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others [2014] eKLR.

8. That with the exception of order 53 the provisions of Fair administrative action & articles of the constitution invoked on the face of the substantive motion are not applicable and do not confer jurisdiction on the court to grant the orders sought and render the application wholly incompetent.

Interested Parties’ Case

36. The application was opposed by the interested parties.

37. According to them, the ex parte applicant herein is their neighbour in New Muthaiga where they own LR NO. 209/8000/28, which parcel of land was transferred to James Mwangi Kiru on 23rd March, 2016. Accordingly, the interested parties averred that they have no interest in the suit property which is now registered in the name of James Mwangi Kiru.

38. The interested parties however contended that CMCC No. 7236 of 2015 at the Chief Magistrate Court in Milimani was filed pursuant to the rules made by the former Chief Justice, Dr. Willy Mutunga that authorized Magistrates Courts to hear, determine and grant injunctions on land matters. It was their case that the dispute before the respondent in CMCC No. 7236 of 2015 was over the boundary between their parcel of land on one part and the ex parte applicant’s parcel of land on the second part, and not a land dispute at all and therefore the respondent had jurisdiction to issue the orders she granted. According to them, the respondent only granted them an order to source the assistance of the survey of Kenya to determine the boundary beacons between the two parcels. Upon obtaining the court order complained of, the boundary beacons were pointed out by a surveyor from the survey of Kenya and proper boundary was put in place. Thereafter, the interested parties withdrew CMCC 7236 of 2015 and hence there are no proceedings or interim orders that the ex parte applicant is seeking to have this honourable court quash or prohibit.

39. It was their position that the respondent never made any unprocedural decision that this court will exercise its constitutional obligation to quash. In any case they contended that all the issues raised by the ex parte applicant if true, are errors on the face of the lower courts record and/or orders, which can be raised before the Chief Magistrates for review.

40. It was their position that they sought and obtained approval from Water Recourses Management Authority to use the riparian land between the river in issue and their former land now registered in the name of James Mwangi Kiru.

41. While the interested parties admitted that it was them who filed the suit in issue before the lower, obtained orders and brought down the part of the perimeter wall between the applicant’s land and Mwangi Kiru’s land, they reiterated that they transferred the land more specifically known as LR No. 209/8000/28 to James Mwangi Kiru, who should be the interested party and not themselves.

42. To them, this is devoid of merit and should be dismissed with costs.

43. The interested parties reiterated these positions in their submissions.

Determination

44. I have taken into account the foregoing as well as the submissions filled herein.

45. In this case the application is opposed on the basis that the applicant ought to have sought the alternative remedies available before invoking this Court’s jurisdiction. Section 9(2), (3) and (4) of the Fair Administrative Action Act, No. 4 of 2015 provides:

(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).

(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.

46. It is however my view that the onus was upon the applicant to satisfy the Court that he ought to be exempted from resorting to the available remedies. This was the position adopted by the Court of Appeal in Republic vs. National Environment Management Authority [2011] eKLR, where the Court held that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted. The Court of Appeal had this to say at page 15 and 16 of its judgment,

“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal process, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it. – see for example R v BIRMINGHAM CITY COUNCIL, ex parte FERRERO LTD case. The Learned judge , in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute with respect we agree with the judge.”

47. Therefore as was stated by Nyamu, J (as he then was) in Republic vs. The Commissioner of Lands Ex parte Lake Flowers Limited Nairobi HCMISC. Application No. 1235 of 1998:

“Availability of other remedies is no bar to the granting of the judicial review relief but can however be an important factor in exercising the discretion whether or not to grant the relief...”

48. This Court in Republic vs. Ministry of Interior and Coordination of National Government and Another ex parte ZTE Judicial Review Case No. 441 of 2013 held that:

“…one must not lose sight of the fact that the decision whether or not to grant judicial review orders is an exercise of judicial discretion and as was held by Ochieng, J in John Fitzgerald Kennedy Omanga vs. The Postmaster General Postal Corporation of Kenya & 2 Others Nairobi HCMA No. 997 of 2003,for the Court to require the alternative procedure to be exhausted prior to resorting to judicial review is in accord with judicial review being very properly regarded as a remedy of last resort though the applicant will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate. Therefore, unless due to the inherent nature of the remedy provided under the statute to resort thereto would be less convenient or otherwise less appropriate, parties ought to follow the procedure provided for under the statute.”

49. There is now a chain of authorities from the High Court as well as the Court of Appeal that where a statute has provided a remedy to a party, this Court must exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute. This principle was well articulated by the Court of Appeal in Speaker of National Assembly vs. Njenga Karume [2008] 1 KLR 425, where it held that;

“Irrespective of the practical difficulties enumerated...these should not in our view be used as a justification for circumventing the statutory procedure...In our view, there is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear constitutional provisions and statutory provisions.”

50. It is now a ‘cardinal principle that, save in the most exceptional circumstances the judicial review jurisdiction would not be exercised and the court must not exercise it where there exist alternative remedy. In Re Preston [1985] AC 835 at 825D Lord Scarmanwas of the view that a remedy by judicial review should not be made available where an alternative remedy existed and should only be made as a last resort.

51. It is therefore my view that the ex parte applicant’s contention that he could bypass the available alternative remedies on his way to this Court cannot be accepted unless he shows that those remedies are less convenient or otherwise less appropriate as compared to judicial review remedies. However discomfort alone cannot be a basis for bypassing the said remedies.

52. Ordinarily a party aggrieved by ex parte orders in particular where he is alleging non-service ought to move the Court that issued the same t have the orders set aside before applying for judicial review. In this case it is however contended that the proceedings in which the orders were issued were withdrawn. In those circumstances, without reviving the said proceedings, it would be inappropriate to send back the applicant to the proceedings which were withdrawn.

53. What then happens where orders were issued in withdrawn proceedings? In Commercial Exchange Limited and Another vs. Barclays Bank of Kenya Ltd. Civil Appeal No. 136 of 1996,the Court of Appeal held that the discontinuance of a suit does not affect consent orders already made in that suit. In fact the law is clear that even in cases where the Tribunal whose decision is under challenge has ceased to exist by operation of the law, its decisions can still be challenged in judicial review proceedings. That was the position of the Court of Appeal in David Mugo T/A Manyatta Auctioneers vs. Republic Civil Appeal No. 265 of 1997 in which the Court held that if a new Act replaces an old one and sets a new body without a saving provision, the old body ceases to exist. However, where the body has ceased to exist but its decision is still enforceable, certiorari must issue to quash or nullify it.

54. The applicant’s case is that the Respondent had no jurisdiction to entertain the matter before it as the value of the property in question surpassed the respondent’s pecuniary jurisdiction. In my view, in determining whether or not a court has jurisdiction the Court must look at the cause of action that was before the court whose decision is being challenged. In this case the interested parties have contended that the issue was not the value of the land but an issue revolving around a boundary. If that was the position and that contention is not denied, the value of the property in question was irrelevant in so far as the jurisdiction was concerned since there was no claim by the interested parties for which a value could be attached. See Lewis Fernandes vs. Joseph & Another (1919-1921) 8 EACA.

55. It was contended that in light of Article 162(2) (b) of the Constitution and section 13 of the Environment and Land Court Act of 2011 the Respondent had no jurisdiction to deal with the dispute before it. The issue whether Magistrates’ Courts have the jurisdiction to deal with land matters has now been put to rest at least in so far as the Court of Appeal is concerned in Civil Appeal No. 287 of 2016 - The Law Society of Kenya, Nairobi Branch vs. Malindi Law Society & Others in which it was held that:

“We are unable to construe that Article as limiting the power ofParliament to confer jurisdiction, on the courts already established by the Constitution under Article 169(1)(a), (b) and

(c). Article 169(2) provides that Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause 169(1). A distinction should thus be drawn between the power given to Parliament under the Constitution to establish courts, which in this case is restricted, and the power to confer jurisdiction on courts. It is acknowledged in the preamble to the Magistrates?Courts Act, that it is an Act of Parliament to give effect to Article 169(1)(a) of the Constitution “to confer jurisdiction, functions and powers on the magistrates' courts”. We do not consider that in doing so, Parliament in any way exceeded its mandate or acted ultra vires…In our view, conferring jurisdiction on magistrates?courts to hear and determine does not diminish the specialization of the specialized courts considering that appeals from the magistrates’ courts over those matters lie with the specialized courts…although under Article 162 (2) of the Constitution Parliament is mandated to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and environment and the use and occupation of, and title, to land, that in itself does not confer an exclusive jurisdiction to those specialized courts to hear and determine the specified types of cases. However, as already stated, Article 165 (5) is clear that the High Court has no jurisdiction in respect of matters falling within the jurisdiction of the specialized courts. Whereas Parliament is empowered to enact legislation to confer jurisdiction to the Magistrate’s courts to hear and determine disputes stipulated under Article 162 (2) of the Constitution, it cannot establish a Superior Court or confer upon a Superior Court jurisdiction to hear employment and labour relations cases and environment and land cases.”

56. It is therefore my view that that issue nolonger falls for determination.

57. It was further contended by the applicant that the orders issued against him were issued without him being afforded an opportunity of being heard. This contention has not been seriously contested either by the Respondent or the interested parties.

58. Majanja, J in Ikon Prints Media Company Limited vs. Kenya National Highways Authority & 2 Others [2014] eKLR expressed himself as hereunder:

“The right of a person to receive a fair notice of alleged breach before adverse action has been anchored in the ancient prerogative writs which are the cornerstone of modern judicial review. The right to receive fair notice as a requirement for fair administrative action has been emphasised in several cases predating the Constitution among them David Onyango Oloo v Attorney General [1987] KLR 210 and De Souza v Tanga Town Council [1961] EA 377. The Constitution has however brought about a transformation of the legal system. The rules of natural justice including the requirement of notice are no longer left within the realm of common law principles, they are now anchored in the Constitution whose intent is to promote the rule of law as a national value under Article 10(2) of the Constitution and to cure the culture of arbitrariness inherent in our administrative processes. Therefore, even in the absence of an express statutory requirement for notice, such a right to receive notice must be implied.”

59. In arriving at his decision the Learned Judge cited with approval the decision of the Court of Appeal in Geothermal Development Company Limited vs. Attorney General & 3 Others, NRB Petition 352 of 2012 [2013] eKLR,where the court noted that a key component of due process is notice and observed that:

“As a component of due process, it is important that a party has reasonable opportunity to knowthe basis of allegations against it. Elementary justice and the law demands that a person be given full information on the case against him and given reasonable opportunity to present a response. This right is not limited only in cases of a hearing as in the case of a court or before a tribunal, but when taking administrative actions as well….. Hilary Delany in his book, Judicial Review of Administrative Action, Thomson Reuters 2nd edition, at page 272, notes that, “Even where no actual hearing is to held in relation to the making of an administrative or quasi-judicial decision, an individual may be entitled to be informed that a decision which will have adverse consequences for him may be taken and to notification of the possible consequences of the decision.”

60. Just like Majanja, J in the above matter, I hold the view that due process is also implicit in the provisions of Article 40 of the Constitution which prohibits arbitrary taking of property and that this case, is firmly founded on violation of Article 47(1) which provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

61. I also associate myself with the position of the Court of Appeal in Omega Enterprises (Kenya) Limited vs Kenya Tourist Development Corporation & Others [1998] eKLR where the Court expressed itself as hereunder:

“In the instant appeal, the appellant was never a party to the first Respondent Company’s suit against the second and third Respondent Company’s in which the ex parte order of 18th December, 1992 was made by the superior court quite clearly in defiance of Order XXXIX rule 3(1) of the Rules. Subsequent inter partes hearing on 11th January, 1993 of the first Respondent Company’s Chamber Summons referred to earlier in this judgment was without any reference to the appellant whose interests after 18th December, 1992 would be affected by the first Respondent Company’s litigation against the second and third Respondent Companies. Hence, the order of the superior court dated 15th January, 1993 …was illegal, invalid and of no effect and the confirmation of the certainly irregular ex parte injunction order of 18th December, 1992 which was to continue until the determination of the substantive suit was, as it affected the interests of and without the appellant being given an opportunity to be heard, clearly in breach of the rules of natural justice and attracts ex debito justitiae the right to have it set aside….”

62. As the rules of natural justice were not adhered to by the Respondent in arriving at its decision in Nairobi Resident Magistrate’s Court in CMCC 7236 of 2015 dated and/or issued on 10th December 2015, that decision cannot be sustained.

63. In my view as at the time these proceedings were commenced, the suit property had not been transferred to a third party who in any event was not a party to the proceedings being challenged, it is my view that the non-joinder of the person who subsequently acquired interest in the suit property cannot be fatal to these proceedings. In any event this Court has not determined the merits of the case but restricted itself to the process that led to the impugned proceedings and decisions.

Order

64. In the premises I hereby issue an order of certiorari removing into this Court for the purposes of being quashed and quashing the proceedings in Nairobi Resident Magistrate’s Court in CMCC 7236 of 2015 as well as the order dated and/or issued on 10th December 2015.

65. As the suit in which the said proceedings were undertaken and the order made has been withdrawn, it is nolonger necessary to issue an order of prohibition.

66. As the failure to effect service was occasioned by the interested parties, they shall bear the costs of the applicant in these proceedings.

67. It is so ordered.

Dated at Nairobi this 7th day of November, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Barasa for Mr Muchiri for the applicant

CA Ooko