[2004] KEHC 476 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL MISC. APPLICATION NO 104 OF 1998

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

THE DIRECTOR OF LAND

AND SETTLEMENT

ATTORNEY GENERAL ::::::::::::::::: RESPONDENT

EX – PARTE – KITHOKOI NZUVE

R U L I N G

The application dated 10. 5.2001 is an amended Notice of Motion brought under Order 53 Civil Procedure Rules seeking orders of Certiorari and mandamus against the Honourable the Attorney General, the Director of Land Adjudication and Settlement. The Notice of Motion came up for hearing but the interested party preferred to argue the preliminary objection dated 19. 5.2001.

In the Notice of Motion the order sought to be quashed was made on 7. 9.1994. That is the decision of the District Land Adjudication and Settlement officer in which he demarcated the boundary between land parcels 354 and 355 which was marked by two trees. The letter containing the said order is marked as KM1 annexed to applicant’s affidavit. The interested party contends that the applicant was time barred because application for leave was granted on 20. 11. 1998 which is over 4 years and such application should have been brought within 6 months as per provisions of order 53 Rule 2 Civil Procedure Rules.The other decision sought to be quashed is that dated 7. 7.1998 which is made by the Senior Land Adjudication and Settlement Officer restoring the boundary between the plots 354 and 355 which had been replanted on 1. 9.1994. The officer is of the view that the alleged decision made on 7. 7.1998 is not a decision but a restoration of the boundary and that only one decision was made, that is on 7. 9.1994 and the application is therefore incompetent. Mr. Omirera appearing for the State associated himself with this line of argument.

The applicant contends that the decision of 7. 9.1994 and that of 7. 7.1998 form one continuous transaction and since the last one was made on 7. 7.1998 the application was not time barred. I have considered the contents of the 2 annextures KM1 and 2 and in my view only one decision was made on 7. 9.1994. The letter of 7. 7.1998 was only directing the officer to restore the boundary which had been decided upon on 7. 9.1994 and destroyed by one of the parties. It was not a continuous process of decision making. Nothing new was decided upon on 7. 7.1998. That being the case I do agree with interested party that the decision made on 7. 7.1998 should have been quashed within 6 months and this application seeking orders of certiorari to have that decision quashed is time barred.

It is worth noting at this stage that under Order 53, there is no time limit within which the court can be moved to grant orders of mandamus or prohibition. The time limit of 6 months is only applicable to orders of certiorari.The time had lapsed only in respect of the prayer for orders of certiorari. If the orders of certiorari cannot be issued can the order of mandamus issue in respect of prayer 2 and 3 of the application? The decision of 7. 9.1994 overturned the decision of 20. 5.1992 made by Kibwezi Divisional Land Adjudication and Settlement Officer as it dealt with the same boundary issue between plots 354 and 355. The decision is annexed to applicant’s affidavit as KM4. the applicant wants the District Adjudication Officer to respect and honour that decision of 1992 but that cannot be since the decision of 7. 9.1994 now supersedes the one of 1992. The applicant is also asking that the District Adjudication Officer be compelled to reinstate the boundary to that made in 1992 but that cannot be since the decision of 7. 9.1994 is still in existence not set aside or quashed. It follows that if the order of certiorari can not be issued then those of mandamus cannot also issue as the latter is based on the former.

Mr. Omirera submitted that the provisions of the Land Adjudication Act Cap 284 are not applicable because the land in question is not under an Adjudication Section but governed by Agricultural Act Cap 318 and that the decision made should have been challenged. Counsel did not refer the court` to any provisions of the Agricultural Act. This matter had been filed in court vide annexture KM5 – copy of plaint and was withdrawn by consent of the parties on the basis that it fell under the Adjudication Act and it was indeed referred to the Adjudication officer who dealt with the matter and reached a decision annexture KM 4 which was never challenged as to who had jurisdiction. That objection raised by respondents must fail.

I do find merit in the objection raised by interested party as considered above, the application is incompetent and is hereby struck out with costs to respondents and interested party.

Dated, read and delivered at Machakos this 27th day of April, 2004.

R. V. WENDOH

JUDGE