[2022] KEELC 257 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

JUDICIAL REVIEW NO. E001 OF 2021

REPUBLIC ………..…………………………………………….APPLICANT

VERSUS

SUB-COUNTY LAND ADJUDICATION

OFFICER …….….……….……….…………….…..…………RESPONDENT

CATHERINE MWONJIRU MUTIGA ……..……….INTERESTED PARTY

JOHN KOBIA MUNGANIA …………….………..EXPARTE APPLICANT

JUDGMENT

A. Pleadings

1. By a notice dated 18. 2.2021 the court was asked to call for and quash the proceedings and the decision made by the respondent in A/R Objection No. 3279 relating to LR No. 7040 and 7041 Karama Adjudication Section.

2. The notice of motion was supported by a supporting affidavit sworn on 15. 2.2021, statutory statement of facts dated 11. 1.2021, affidavit verifying the facts sworn on the even dated and the proceedings and decision sought to be quashed dated 23. 11. 2020. The exparte applicant observed that he gathered the subject land in 1970, fenced if off and made extensive development and was recorded the same asParcel No. 7040 Karama Adjudication Sectionmeasuring 0. 60 acres bordering the Parcel No. 7041 belonging to Stephen Mbaabu Mugwika.

3. It was averred that the interested party filed an A/R Objection No. 3279on the parcel claiming that the ex-parte applicant had taken her land based on a false belief that since her land was not enough, the ex-parte applicant must have been the one who took her land.

4. It was averred the A/R objection was duly heard and a decision made on 23. 11. 2020 to the effect that Parcels Nos. 7040 and 7041 to be merged and subdivided equally between the exparte applicant and the (Interested party) which decision the allegedly went beyond the prayers sought both in the interested party’s objection and her evidence.

5. The ex-parte applicant complaint therefore was that the respondents arrived at the decision and in excess of its jurisdiction failed to involve the land committee who though present did not participate in the proceedings.

6. The exparte applicant therefore urged the court to grant the judicial remedy of certiorari, otherwise he was in the danger of losing part of his land through a flawed process. The respondent opposed the notice of motion through grounds of opposition dated 10. 11. 2021 whereas the interested party filed a replying affidavit sworn on 25th April 2021.

7. The respondent opposed the notice of motion for misconstruing the Land Consolidation Act and in particular Section 21 (2). Secondly the respondent blamed the exparte applicant for failing to disclose the grounds of objection in the A/R objection.

8. Third, it was the respondent’s view an order of certiorari was not the most remedy in the circumstances since the efficacious elaborate process of the land consolidation consisted of multiple actors including the committee, and involves a consideration of various issues which the ex-parte applicant, other than making broad and sweeping assertions had failed to demonstrate with sufficient clarity how the impugned process was flawed.

9. Further, the respondent objected to the notice of motion and the prayer for certiorari for it should be approached with a lot of circumspection.

10. Lastly, the respondent averred that the notice of motion was a non-starter as the Land Consolidation Act did not envisage or contemplate the respondent acting in exclusion of the committee hence the notice of motion was incompetent.

11. The interested party opposed the notice of motion on the grounds that the land adjudication officer acted within the law over her complaint on behalf of her husband for encroaching on her land and who found that her land was less in acreage on the ground than what was contained in the record of existing register (RER); that the matter was properly heard by the land adjudication officer together with who fully participated in the proceedings culminating into ruling in her favour; that there was a visit to the locus in quo which, true to her testimony, it was established that her land was less and that the exparte applicant’s land was less than what he was claiming to own hence the only fair and just thing under the circumstances was to determine as it was ruled the land be shared equally; the applicant now seeks to continue encroaching on her land by asking for the stay of the implementation of the decision yet she had found justice at last and there must be an end to litigation.

B. Written Submissions

12. With leave of court, parties opted to canvass the notice of motion through written submissions dated 11. 1.2022, for the exparte applicant, 25. 1.2022 for the respondent and interested parties respectively.

13. The exparte applicant submitted that the interested party had not prayed for the parcels of land to be divided equally given her claim was limited to an alleged encroachment and not a merger. In his view, her evidence and objection was on 0. 60 acres as per the record of existing rights and adjudication records.

14. Further it was submitted that respondent did not visit the land to ascertain the boundaries and if there was any such visit then the same was not reflected in the proceedings. Similarly, it was submitted that though the record indicated the land committee members were present there was no record to show that they fully participated and posed questions to the parties as required under the law.

15. The respondent submitted the exparte applicant had failed to furnish the grounds under which the objection cases were based contrary to the Land Consolidation Act. Reliance was placed on Kenya Pharmaceutical Association and another -vs- Nairobi City County and 46 other County Governments & another (2017) eKLR on the essence of ellegance and diligence in the identification of the material facts in a cause of action and facts before the court for determination.

16. For an order for certiorari to issue, the respondent submitted there must be a copy of the order or record to be quashed which the exparte applicant had failed to supply. Reliance was placed on Republic -vs- Chairman L.D.T and another exparte William Nyangau Ongwae and 4 others.

17. As relates to ultra vires and the flawed A/R objection process the respondent submitted the exparte applicant had failed to discharge and or table any evidence in line with Sections 107, 108 and 109 of the Evidence Act cap 80 laws of Kenya. Reliance was placed on M’bita Ntiro -vs- Mbae Mwirichia & another (2018) eKLR and Pastoli -vs- Kabale District Local Government Council and others [2008] 2 EA 300. Concerning the provisions of Section 21 (b) of the Land Consolidation Act, the respondent submitted the land adjudication committee was mandated to provide for the needs of the community and any detriment a land owner caused by such setting aside, be divided as equitably as possible between all land owners in the allocation of parcels within the adjudication section. It was submitted that the respondent was guided by the above section and hence did not act ultra vires as alleged or at all.

18. Lastly, it was submitted that certiorari was not the most efficacious remedy since the process of land consolidation involved many stages and officers with expertise in the matter. Further it was submitted if certiorari was allowed, it would mean or was tantamount to opening a pandora’s box, otherwise the exparte applicant should have used the civil route instead of a judicial review.

19. On the part of the interested party, it was submitted in a judicial review, the court was concerned with the process leading to the making of the decision and not to act as a Court of Appeal over the decided and look at the merits of the decision. Reliance was placed on Land Adjudication and Settlement Officer Tigania East Exparte Simon Mugambi Nabea; Alexander Meme Kajoi (IP) (2021) eKLR andMunicipal Council of Mombasa -vs- Republic and Umoja Consultants Ltd (2002) eKLR.

20. To this end the interested party submitted that due process as contained under Section 26 of the Land Consolidation Act was followed since the committee members as provided under Sections 9 (1) and 14 (2) (5) of the land Consolidation Actvisited the locus in quo on 20. 11. 2020 and to do further probing over the issue and worked hand in hand with the respondent.

21. It was therefore submitted that the decision arrived at by the respondent was informed by the above findings and anchored on the powers conferred upon him by Section 21 (2) of the Land Consolidation Act.

22. On whether the interested party was the right party to the proceedings, the interested party submitted though the objection had been filed by her husband, he chose to have her proceed with the objection as his representative in line with Section 13 (1) of the Land Consolidation Act hence the due process was followed and thus the orders sought were not merited.

C. Issues for determination

23. The issues commending themselves for the court’s determination are: -

(i) What are the parameters to be applied in Judicial Review proceedings after 2010 Constitution?

(ii) If the respondent followed the law in handling the AR objection.

(iii) If the proceedings and the decision ought to be quashed for non- compliance with the law.

24. The exparte applicant sought and obtained leave to call for the proceedings and decision made by the 1st respondent inAR Objection No. 3279 concerning Parcel No. 7040 and 7041 Karaa Adjudication Sectionalleged to have been ultra vires, beyond what was sought in the objection by the (interested party) and or arrived at contrary to rules of natural justice.

25. The proceedings and decision complained about were pleaded in paragraphs 6, 7, 8 and the statement of facts ground no. 2 and 3 of the notice of motion and to the affidavit sworn on 11. 1.2021 by John Kobia Mungania verifying the factors. After the leave was granted, the respondent and the interested party were served with the pleadings and proceeded to file grounds of opposition and a replying affidavit respectively.

26. In line with the right to access information under article 35 of the Constitution, Access to Information Act Order 11 and 53 of Civil Procedure Rules,the respondent failed to seek for any more materials or better particulars from the exparte applicant during the case conference. Needless to say, the notice of objection on the basis of the proceedings and the decision was filed before the respondent who proceeded to determine the grounds and found merits in them hence ruling in favour of the interested party.

27. Under section 112 of the Evidence Act, A party who is a custodian of certain facts who fails to disclose or supply them the inference would be that the disclosure would have been injurious to his or her case. – See Kimotho vs KCB 2003 1 E.A 108.

28. In this instance, the respondent was the one who received and or determined the A/R under Sections 6, 7 and 8 of the Fair Administrative Action Act.He is therefore deemed to have known the grounds he was deciding on.

29. Article 47 of the Constitution provides, every person has a right to an administrative action that is expeditious, efficient, lawful reasonable and procedurally fair. Sub Article 2provides, every person likely to be adversely affected by an administrative action has a right to be given written reasons for the action.

30. The Fair Administrative Action Act 2018 is the governing law on administrative action. Section 2 thereof defines an administrative action to include a quasi-judicial made or proposed to be made.

31. Section 3 provides that the Act applies to all state and non-state agencies exercising administrative authority and quasi-judicial authority against any person whose action or omission or decision affects the legal rights or interests of any person to whom such an active or omission or decision relates which under Section 4 has to be expeditious, efficient, lawful, reasonable and procedurally fair.

32. Further, Section 4 provides the parameters that the 1sst respondent as an organ and person covered by the Act must undertake including notification for a review or appeals statement of reasons, notice to cross examine, information/ materials and evidence to be relied upon, an opportunity to be present to be heard, to cross examine and a request for an adjournment.

33. Under Section 4 (5) of Fair Administration Action Actprovides that, the administrator must conform to the principles as set out under Article 47 of the Constitution.

34. Under Sections 5, (2) (b) of the Fair Administrative Action Act it is provided nothing shall limit the power of any person to apply for review of an administrative action or decision by a court of competent jurisdiction in exercise of his right under the Constitution or any written law.

35. Section 6 thereof provides an adversely affected party has a right to be supplied with such information as may be necessary to facilitate his appeal or review proceedings which should be provided not later than 30 days after the request, failure of which there exists a rebuttable presumption that there was no good decision to fail to supply.

36. As regards judicial review, Section 7 thereof grants a right to the aggrieved party to institute judicial review proceedings against the decision and under Section 7 (2) the court has powers to review the decision of made ultra vires; or was biased. It was done without delegation; was against rules of natural justice, was erroneous in fact and in law; was taken with ulterior motive or purpose calculated to prejudice the legal rights of the applicant; it did not consider relevant consideration; was made in bad faith; was not rationally correct, there was an abuse of discretion; it was unreasonable or unfair and amounted to an abuse of power.

37. Further, under Section 9 thereof an application for judicial review has to be made without unreasonable delay pursuant to the original jurisdiction conferred under Article 22 (3) of the Constitution. There is a rider however under Section 9 (2) and 4of Fair Administrative Action Act, that the court shall not review a decision unless the internal mechanism for appeal or review under any written law were first exhausted or only where there are exceptional circumstances and an application has been made for the exemption. Under Section 11 of Fair Administrative Action Act, the court has wide powers for judicial review underSection 8 (1) including declaring rights of parties; restraining the administrator from acting or continuing to act in breach of the duty imposed on it; setting aside the decision compelling; performance; remitting the matter for reconsideration and an award for costs. Section 12 provides also the Act is in addition to and not derogation from the general principles of common law and rules of natural justice.

38. In Gladys Boss Shollei -vs- JSC (2022) eKLR the Supreme Court of Kenya pronounced itself on Articles 47, 48 and 50 of the Constitution as read together with the Fair Administrative Action Act, especially on the supply of copies of the proceedings after the proceedings are closed or the decision delivered. The court held that an aggravated party had the burden of proof to demonstrate he sought for the written reasons which is discharged by prove of a demand letter for the reasons and that the right to access the information could be restricted by legislation. Further, the court held a right to fair hearing under Article 25 (c) of the constitution was a non derogable right on freedom which could not be limited and must therefore be given an expansive and inclusive construction so as to give a right to its effect.

39. Applying above law and the principles the exparte applicant complaint was that the respondent decided a wider dispute than was presented before it by the interested party, gave more remedies than were requested and went beyond the rules of natural justice and hence resulting to loss of his property without a fair hearing. He therefore questioned both the process and the outcome. The respondent opposed the notice of motion on the basis that the exparte applicant failed to take the laid down process under the Land Consolidation Act given that judicial review orders of certiorari was not the most efficacious relief under the circumstances.

40. Section 26 (1) Land Consolidation Act provides that, the decision of the land adjudication officer is final unless an aggrieved party was appealing against an award for compensation.

41. In this instance and as demonstrated above the coming into force of the Constitution of Kenya has dramatically changed the process, the timelines, procedure and remedies available for judicial review since it is now one of the constitutional remedies available to a party filing a constitutional reference suit. See Humphrey Makokhn Nyongesa & another vs communication authority of Kenya & 2 others (2018) eKLR.

42. Therefore, the exparte applicant can elect either to file judicial review under Article 47 and the Fair Administrative Action Actor come under Order 53 Rule 1 Civil Procedure Rules as read together with Section 8 and 9 of the Law Reform Act Cap 26 Laws of Kenya.

43. Section 12 Fair Administrative Action Act, it is provides the under Fair Administrative Action Act 2015 is in addition to and not in derogation from the principles of common law and the rules of natural justice.

44. The court therefore in detemining a judicial review covers more issues and reliefs unlike it was held in before for 2010 by decisions such as Municipal Council of Mombasa supra, Re -vs- Chairman Joshua Charo Kazungu supra and Pastoli -vs- kabala supra. Likewise, under Section 7 of the Land Consolidation Act must be construed with the necessary alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution as provided under Article 262 and schedule of the constitution.

45. In my considered view, therefore, this judicial review application was properly before the court since the procedure for redress of rights contemplated by section 26 of the Land Consolidation Act is Judicial Review and therefore the court has the mandate to find and establish if the respondent followed the law as expounded above to the letter and spirit and reached a correct decision governed by the rules of natural justice, fair hearing and fair administrative action.

46. The exparte applicant laid out the factual material by way of supporting affidavit sworn on 11. 1.2021 and 15. 2.2021 whereas the respondent only filed grounds of opposition dated 10. 11. 2021. On the part of the interested party, she filed a replying affidavit sworn on 28. 4.2021 admitting the facts as set out by the exparte applicant but denied that there was a breach of the law and rules of natural justice given the exparte applicant was present, the land committee members fully participated in the exercise and the parties were heard on merits.

47. Unfortunately, the duty to follow the law is imposed on the respondent and not a party to a decision. These was not rival evidence on oath given by the respondent confirming if indeed there was full compliance with the law and the constitution.

48. Parties are bound by their pleadings and issues flow from pleadings. Written submissions however forceful do not amount to evidence as was held inIEBC -vs- Stephen Mutinda Mule (2014 eKLR and Daniel Toroitich -vs- Mwangi Stephen Murithi (2014) eKLR.

49. In this judicial review, the onus was on the exparte applicant to demonstrate and prove non-compliance with the Land Consolidation Act, the Fair Administrative Actions Act and the constitution.

50. In Peter Kimandiu -vs- Land Adjudication Officer & 5 others [2015] eKLR, the Court of Appeal pronounced itself on the centrality of the land adjudication committee in the Land Consolidation Act unlike the land adjudication act since the committee members are the eyes and ears of the community and guarantors of fairness to ensure that whatever land was taken away, a party who is aggrieved could be given an equivalent portion.

51. In this case it was upon the respondents to demonstrate the proceedings and the decision substantially or fully complied with Section 4 of the Fair Administrative Action Act, as read together with Section 21 of the Land Consolidation Act.

52. There was nothing to show that the issue of monetary compensation was discussed let alone mentioned as the most prudent and fair parameter other than the merger and subsequent equal division of the land to the parties.

53. In my view the factors and reasons for the decision should have been deliberated and discussed with the land adjudication committee members. It could not have been left to the land adjudication officer to unilaterally hear, determine and pronounce the decision. The land adjudication should have also signed and or appended their signatures to the decision.

54. In the circumstances, I find the notice of motion with merits and proceed to call for and hereby quash the proceedings and the decision made by the respondent in A/R objection no. 3279 relating to LR. No. 7040 & 7041 Karama Adjudication section. Costs to the exparte applicant.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS

THIS 30TH DAY OF MARCH, 2022

In presence of:

Kieti for respondent

Miss Muna for interested party

HON. C.K. NZILI

ELC JUDGE