[2022] KEELC 577 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

JR APPLICATION NO.E016 OF 2021

IN THE MATTER OFAN APPLICATION FOR JUDICIAL REVIEW ORDERS OF PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010, FAIR ADMINISTRATIVE ACTION ACT, NO.4 OF 2015, THE LAW REFORM ACT, CAP 26, ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010, AND ALL OTHER ENABLING PROVISIONS AND PROCEDURES OF THE LAW

AND

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

VERSUS

THE CHIEF LAND REGISTAR………………….………………..RESPONDENT

WEST POINTE REALITY LIMITED…………............…INTERESTED PARTY

JENNIFER MUTHONI GATECHA…………...…..……EX-PARTE APPLICANT

JUDGMENT

1. This is the amended Notice of Motion dated 27th October 2021 brought pursuant to leave granted by this court on 11th August 2021.

2. It is brought under Article 47,50(1),165(6) (7) of the Constitution, Section 13, Environment and Land Court Act, Part I-III of the Fair Administrative Action Act No.17 of 2015, Order 53 Rule 1(1),2 of the Civil Procedure Rules,2010 and all other enabling provisions of the law.

3. The Ex-Parte Applicant seeks the following orders;

a) That this Honourable court be pleased to grant a judicial review orders of prohibition, restraining the Chief Land Registtrar and/or anyone claiming under or through his authority including his officers, servants agent or anyone howsoever from commencing, proceeding with and /or continuing with any endorsing in the register, or any way howsoever affecting registration of the transfer instruments in respect of Apartment W1 erected on LR 209/20735 Nairobi to the Ex-parte Applicant.

b) That this Honorable court be pleased to grant a judicial review order of mandamus directing the Chief Land registrar and/or anyone claiming under or through his authority including his officers, servants, agents or anyone howsoever, to reject and return unregistered to the Interested Party, any such unlawfully, irregularly and unfairly lodged transfer instruments in respect of Apartment W1 erected on LR 209/20735 Nairobi to the Ex-parte Applicant.

c) That this Honourable court do grant a judicial review order of certiorari calling up and quashing the decision of the Chief Land Registrar which unlawfully, irregularly and unfairly effected registration of Apartment W1 erected on LR 209/20735 Nairobi to the Ex-parte Applicant, disregarding the formal notices dated 18th June, 2021 and 21st July 2021 from the Ex-parte Applicant.

d) That this Honourable court do grant any other or further reliefs that may deem fit so to grant.

e) That costs of this judicial review proceedings be provided for on a full indemnity basis.

4. The grounds in support are set out on the face of the application and are at paragraphs 1 to 11. The application is further supported by the statutory statement dated 10th August 2021 and the supporting affidavit sworn on 10th August 2021 by the Ex-parte Applicant as well as her supplementary affidavit sworn on 21st September 2021.

5. She deponed that on or about 23rd December 2015,she entered into a (now terminated) sale agreement with the Interested party(the vendor) for the purchase of a 2 bedroom apartment No.W1-erected on LR 209/20735 Nairobi at an agreed purchase price of kshs.8,400,000/=,which agreement stipulated obligations of either party.

6. She further deponed that she proceeded to faithfully discharge her obligations therein including timeously settling the deposit of the purchase, as well as all the accrued closing charges and her bank also issued a professional undertaking for the balance of the purchase price, which has since been withdrawn due to the Interested Party’s default.

7. She deponed that the Interested Party had assumed the obligation to hand over vacant possession of the property with registration in her name on or about 28th February 2018 which date has long passed. She added that on account of repeated breaches ,she was constrained to issue a completion notice dated 27th April 2021 which was duly received and has never been honored to date, and she subsequently terminated the agreement vide a rescinding notice dated 28th May 2021 as amended on 3rd June 2021.

8. She deponed that in an attempt to defeat termination of the sale agreement, the Interested Party irregularly lodged transfer instruments in respect of the suit property for registration in her name. She further deponed that upon learning of the vendors actions, she moved the Respondent through a formal notification and or notice of the illegal and irregularly lodged instruments for registration vide a letter dated 18th June 2021, and another letter dated 21st July 2021 addressed to the Permanent Secretary, Ministry of Lands but both have never been acknowledged nor responded to.

9. She also deponed that continuance with the unlawful, irregular and unfair registration will adversely prejudice her, loading her with a property and possible claims arising from a transaction she lawfully terminated and that the Respondent’s decision is unjustified illegal, irregular and unjustified against her.

10. She deponed that the Respondent failed, refused and neglected to exercise its power under Section 9 and 14(1)(c) of the Land Registration Act, 2012 to reject and /or otherwise decline the registration in respect of Apartment W1 erected on LR 209/20735 Nairobi by allowing registration of the property.

11. The Respondent and the Interested Party did not enter appearance nor participate in these proceedings despite being served.

12. Counsel for the Ex-parte Applicant made oral submissions on 24th November 2021. He largely relied on the Ex-parte Applicants averments in her affidavits.

13. I have considered the Amended notice of motion, the affidavits in support and the oral submissions by counsel.

14. Ground Number 3 states;

“The Applicant entered into a sale agreement with the Interested Party, and on 23rd December 2015; which on account of repeated breaches by the Interested Party the Applicant terminated the same by a rescinding notice dated 28th May 2021 as amended on 3rd June 2021”.

The issue for determination is; whether the Ex parte Applicant has met the grounds for grant of judicial review orders of certiorari and prohibition.

15. In my view, even though these proceedings are not opposed, the Ex-parte Applicant raises matters that would involve fact finding. The court will need to interrogate the sale agreement and make a finding whether the sale between the Exparte Applicant and the Interested Party was terminated. It also has to make a finding of the completion date, whether the Vendor breached the sale agreement, whether the Ex-parte Applicant rescinded the agreement and whether the Respondent effected registration. This would require calling witnesses to testify.

16. In Republic v National Transport & Safety Authority & 10 others Ex parte James Maina Mugo [2015] e KLR, It was held, “It follows therefore 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. The rationale for this is that judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits”

17. In the case of Ransa Company Ltd vs Manca Francesco & 2 Others [2015] e KLR, the Court of Appeal held thus:-

“As we all appreciate, a court sitting on judicial review exercises a sui generis jurisdiction which is very restrictive indeed, in the sense that it principally challenges the process, and other technical issues like excessive jurisdiction, rather than the merits of the case. It is also very restrictive in the nature of the remedies or reliefs available to the parties”.

18. Also in the case of Market Plaza Ltd vs Commissioner for Lands & 3 Others [2019] e KLR the Court of Appeal stated thus:-

“We think that we have said enough to demonstrate that the learned judge properly appreciated the nature of the judicial review proceedings before him and the role of the court in evaluating and weighing the interests of the parties and the public’s interest. He also correctly exercised his discretion in declining to grant orders of judicial review on the grounds that until the issue of validity of title was determined and declaratory orders made”.

19. In conclusion I find merit in this application and the same is dismissed with no orders as to costs.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBITHIS 24TH DAY OF MARCH 2022.

……………………….

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Lusi for the Exparte Applicant

No appearance for the Respondent

No appearance for the Interested Party

Steve - Court Assistant