[2014] KEELC 517 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ENVIRONMENTAL AND LAND DIVISION

ELC CIVIL SUIT NO. 599 OF 2013

ROBERT MULI MATOLO…………….……………………..……………................PLAINTIFF

VERSUS

DIRECTOR OF LAND ADJUDICATION ..……………..………….….. ...............DEFENDANT

ROBERT MUTHIANI VULI……………………………………………… INTERESTED PARTIES

PETER NZESYA MAITHYA

RULING

The applicant by a chamber summons application dated 27th August 2012 seeks an order of certiorari to remove unto the High court and quash the decision of the Director of Lands Adjudication and settlement dated 2/8/2012, and the consequential decisions flowing there from of the Chief Land Registrar of 2/8/2012 and of the District Land Registrar dated 16/8/2012 directing the restriction imposed against parcel NO. Makueni/Kivani/1000 be removed to facilitate the issuance of title and re-opening of the road of access. Further the application seeks a prohibition order directed against the aforesaid officers prohibiting them from whatsoever interfering with parcel NO. Makueni/Kivani/1000 and /or adversely, dealing with the land to the detriment or the rights of the applicant and his family members till the Minister’s Appeal NO. 342 of 1989 is heard and determined and in particular, the District Land Registrar Makueni be prohibited from visiting the Land on 29/8/2012 to determine and indicate the proper access road.

The facts on which the applicant’s application is premised are contained and set out in the supporting affidavit sworn by the applicant on 27th August 2012 and the supplementary affidavit sworn on 31/10/2012. The interested parties oppose the application by the applicant on the basis of the facts set out in the replying affidavit and further replying affidavit sworn by Peter Nzesya on 25/10/2012 and 20/8/2013 respectively.

The interested parties on 7/8/2013 gave notice of preliminary objection to the applicant’s application and have taken the preliminary objection on the basis that:

The applicant lacks the locus standi to bring the instant application;

That the application is defective and incompetent;

The application has been overtaken by events in that title has already been issued to Peter Nzesya the interested party and that the same is indefeasible.

That the Chief Land Registrar whose decision is challenged has not been enjoined in the suit and no decision can be made against him when he is not a party.

The decision under challenge has not been annexed to the application.

On the 9th October 2013 the court directed the parties that the preliminary objection be canvassed by way written submissions and Masika Advocate on behalf of the interested parties filed his submissions on 29/10/2013 and Bullo Advovate on behalf of the Applicant filed his submissions in response on 14/11/2013.

This matter arises from Land adjudication exercise that took place in the 1980’s in the Kilungu/Kivani Adjudication section of Machakos District. A dispute touching on Land parcel NO. Kilungu/Kivani/1000 resulting from the adjudication provoked the filing of appeal NO. 342 of 1989 before the Minister of Lands. It is indeed a matter of grave concern that an appeal filed with the Minister more than 20 years ago has apparently not been finally disposed. One has to wonder what has been happening from 1989 when the appeal was lodged and August 2012 when the instant application was instituted/filed in court. The appeal before the Minister was lodged by Philip Kilonzo Moki, Wallace Mutungwa, Matolo and 2 others. Both Philip Kilonzo Moki and Wallace Mutugwa Matolo are deceased, the former having died on 6/4/2006 and the latter on 2/5/2006. The applicant was appointed personal legal representative of Philip Kilonzo Moki on 28/9/2007 and also as personal representative of Wallace Mutugwa Matolo together with Moffat Nzusyo Matolo and Lawrence Kisengeri Matolo on 24/10/2011.

The Applicant has not applied to be substituted as a party in the appeal pending before the Minister (if indeed there is a pending appeal). The appeal to the Minister in the various annextures to the applicant’s supporting affidavit is referred to as Appeal NO. 342 of 1989. In the further affidavit by the applicant under paragraph 2 he states that the Director of Land Adjudication and settlement vide his letter dated 8/1/2013 Marked as RMMIconfirmed the Minister’s Appeal has not been determined. In the letter the appeal is referred to as Land Appeal case NO. 87 of 1995 and not NO. 342 of 1989. This discrepancy has not been explained but as the Minister’s is stated to have been filed in 1989 the court will treat the appeal of 1989 as the correct one.

In the preliminary objection the interested party has contended that the applicant had no locus standi to bring the instant suit he having not been substituted as a party in the appeal to the Minister. The interested party further contends that the applicant has not shown he has the authority to bring the suit on behalf of his co-administrators in regard to the estate of Wallace Mutugwa Matolo to file this suit and that the suit is for that reason incompetent. The question does arise whether the appeal before the Minister would continue to survive indefinitely where a party to the appeal dies. The applicant in the present application never sought to be substituted in the appeal before the Minister and it is now over 7 years since the 2 appellants who he seeks to represent in this application died. Under order 24 of the Civil Procedure Rules a party to a suit or appeal who passes away is supposed to be substituted within a period of one year from the date of the death upon an application made on that behalf by the legal representative of the deceased plaintiff or appellant. In case no application is made within the one year period the suit or appeal abates.

An appeal before the Minister is a quasi judicial process and it would be expected that the Civil Procedure Rules would have application particularly in regard to parties to the actions/appeals before the Minister. If no substitution of parties was made in the appeal said to be pending before the Minister the issue arises whether or not the applicant can properly use the pendency of the appeal where he is not a party as a basis to make the present application. Indeed a further issue arises whether or not the appeal before the Minister has not abated. Apart from the 2 appellants who the applicant states he represents the other remaining 2 appellants are also said to be deceased and have no representation either before this court or before the Minister and the applicant cannot purport to represent them since he has not taken out any letters of administration in respect of their estates.

The applicant has in response to the interested party’s objection that he lacks locus to bring this action argued that as the personal legal representative to the estate of the late Philip Kilonzo Moki he has the capacity to bring this action as such and that he does not have to have applied for substitution in the appeal before the Minister. The Applicant further argues that the appeal before the Minister has never been set down for hearing for him to get himself substituted as a party in the appeal.

Whereas there may be no established procedure for conduct of matters arising from the Land Adjudication Act and specifically in regard to appeals before the Minister, my view is that the application of the Civil Procedure Rules is not expressly ousted by the Adjudication Act and it is my view that the Civil Procedure Rules would be applicable with the necessary modifications. A party who files an appeal before the Minister against the decision of an Adjudication officer/committee in my considered view would have the obligation and/or duty to have such an appeal prosecuted and determined by ensuring there is the necessary follow up. Equally where a party to an appeal before the Minister dies their legal/personal representatives have a duty to seek substitution of parties in the appeal to ensure the Appeal is prosecuted. It cannot be possible that an appeal can pend for as long as 20 years as in the present case and that some parties have died and no substitution is made and that a party may wake up after a lull of over 10 years or so and claim there is a pending appeal. Litigation has somehow to have some closure. My view is that the applicant ought to have applied to be substituted as a party in the appeal pending before the Minister to represent the estates of the deceased persons in respect of whom he has obtained letters of administration.

On the facts and circumstances of this matter I am persuaded that the applicant lacks a Locus Standi to bring this application and/would uphold the preliminary objection on that ground.

The interested party also took objection on the ground that the application was defective in form and substance for failure to enjoin the Director of Land Adjudication and/or the Chief Land Registrar whose decisions are sought to be quashed. The interested party has submitted that the failure to enjoin the Chief Land Registrar, director of Land Adjudication and the District Land Registrar, Makueni was fatal and rendered the application incompetent. The application by the applicant does not cite any of these as a party and it is their decision that the application seeks to have quashed. The interested party referred the court to the case ELCTRORAL COMMISSION OF KENYA 92002) KLR 487 where Hon. Justice Ringera ( as he then was ) while upholding the view that applications for prerogative orders should be made in the name of the correct parties observed thus:-

“ Last but not least, the objection that the application is made in the name of the wrong person is well merited. In Farmers Bus Service & others –vs- The Transport Licensing appeal Tribunal 1959 EA 779, the East African court of Appeal held that prerogative orders are issued in the name of the crown and the applications for such orders must be correctly instituted. On Kenya’s assumption of Republican status on 12th December, 1964 the place of the crown in all legal proceedings was taken by the Republic, accordingly. The orders of certionari, mandamus or prohibition now issue in the name of the Republic and applications therefore are made in the name of the Republic at the instance of the person affected by the act or omission in issue. In the premises, the proper format of the substantive motion for mandamus would have been-

‘’ The upshot of my consideration of the grounds of the objection taken is that I find the motion to be completely muddled in form and thus incompetent and also misconceived in substance. Accordingly, the preliminary objection thereto is sustained and it is consequently ordered that the motion be struck out with costs to the respondent’’.

The position Ringera Judge took in the Welamondi case (supra) had previously been taken by the court of Appeal in the case of MAHAJA –VS- KHUTWALO (1983) KLR553 where at page 564 the Judges held thus:-

“ In all English authorities on certiorari, both before and after the introduction of the Judicial review procedure, the Tribunal or other body whose decision is sought to be removed into the High court, has been made a party to the application’’

In the same case, the court of appeal Judges at page 565 stated thus:-

“ leaving aside, however, the title of the proceedings, it is my view essential that the tribunal or person whose decision is impugned, whether or not that tribunal or person constitutes a court should if not named in the title of the proceedings at least be served and have an opportunity to being heard’’.

The decision impugned in these proceedings was made by the Chief Land Registrar and given effect by the District Land Registrar Makueni. These persons were not made parties to the proceedings. The applicant in response to this objection submitted that the omission to include the Chief Land Registrar and District Land Registrar is not fatal and argued that as they were served they ought to have applied to be enjoined in the proceedings as parties. The Applicant further asserts that the omission was a mere procedural technicality which should not stand on the path of the administration of substantial justice and cites Article 159 (2) (d) of the constitution which enjoins the courts to administer justice without undue regard to technicalities.

For my part I am not prepared to hold that the failure to substantively name the affected parties is a mere procedural technicality. It is the main reason the application is before the court and it is their decision that is under challenge and unless they are made substantive parties to the proceedings they are not afforded an appropriate opportunity to explain and/or defend their decisions. Article 159 (2) (d) could not have been intended to wash away and/or do away with well trodden and established procedures and it is my view that in the case of applications for prerogative orders the affected institutions and/or persons ought to be made parties in the proceedings where their decisions are in issue. I would sustain the objection on this ground.

The interested party has finally submitted that the order of prohibition sought by the applicant in this case cannot be granted as the act sought to be prohibited has already taken place. The Chief Land Registrar and the district Land Registrar have acted and title to the suit land Makueni/Kivani/1000 has already been issued and hence the orders sought have been overtaken by events. The interested party has referred the court to the case of KENYA NATIONAL EXAMINATIONS COUNCIL AND THE REPUBLIC EXPARTE, GEOFFREY GATHENJI NJOROGE & 9 OTHERSwhere the court of appeal while ex-expressing their views in a situation where the orders sought had been overtaken by events Expressed themselves thus:-

“In such an event it would be that it would be idle for the council to contend that it has its own statute and the High court ought not to intervene, the High court would be entitled indeed duty – bound to intervene. That is why it is said prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High court would be obliged to prohibit it from acting contrary to the rules where a decision has been made whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made, it can only prevent the making of a contemplated decision…………..

‘’The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That is our understanding is the efficacy and scope of an order of prohibition’’.

The applicant while responding to the submission by the interested party on the question whether or not the relief sought has been overtaken by events submits that the interested party had confused the reliefs sought. On prohibition the applicant argues the District Land Registrar is yet to visit the site to open the road of access and he can therefore be prohibited from doing so. Further on certiorari the applicant argues the orders and decision of the Director of Lands Adjudication dated 2/8/2012 directing the title to be issued can be quashed. The Chief Land Registrar made a decision directing the District Land Registrar to remove the restriction and issue a title. The applicant submits that the decision is quashable.

From the evidence on record it is not clear whether the chief Land Registrar’s directive to remove the restriction was acted upon by the District Land Registrar and a title issued as claimed by the interested party. If it was, then the orders sought would have been over taken by events since even the site visit would henceforth follow the event as the provisions of the Land Registration Act of 2012 would govern the fixing of boundaries and roads of access once the issue of ownership and title is settled. However as the decision on the preliminary objection does not turn on this issue as I have already held the applicant lacks any Locus Standi and that the application is fatally defective and therefore incompetent, I will not pronounce my decision on the last issue as it is not abundantly clear to me what the actual state of affair is as regards the removal of the restriction and issuance of the title to the interested party.

For the reasons that I have given in the body of the ruling I sustain the preliminary objection taken by the interested party and I accordingly order the application by the applicant struck out with costs to the interested parties.

Ruling dated and delivered at Nairobi this 21st day of…February 2014.

J.M. MUTUNGI

JUDGE

In the presence of:

……………………………………………APPLICANT

…………………………………………… DEFENDANT