[2017] KEHC 912 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO. 644 OF 2017

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF PROHIBITION, CERTIORARI, MANDAMUS AND DECLARATORY ORDERS

AND

IN THE MATTER OF THE LAW REFORM ACT, CHAPTER 26 OF THE LAWS OF KENYA

AND

IN THE MATTER OF ARTICLES 10,20,21(1),40(1),40(3), 40(4),47, 60, 64,68,232(1),232(2) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE LAND ACT, NATIONAL LAND COMMISSION ACT, KENYA ROADS ACT, ENVIRONMENT AND LAND COURT ACT

AND

IN THE FAIR ADMINISTRATIVE ACTION ACT

BETWEEN

SAMUEL KUNTAI TUNAI ………………….................................APPLICANT

VERSUS

THE NATIONAL LAND COMMISSION…………………1ST RESPONDENT

CHIEF LAND REGISTRAR ……………………………..2ND RESPONDENT

KENYA NATIONAL HIGHWAYS AUTHORITY………3RD RESPONDENT

RULING ON LEAVE AND STAY

1. This ruling determines the exparte applicant’s chamber summons dated 2nd November 2017 seeking leave of court to apply for Judicial Review remedies of prohibition, certiorari, mandamus, and declaration, challenging the decision of the National Land Commission, the respondent herein, published in gazette notice No. 6865 of 17th July 2017 revoking the applicant’s title to land Reference No. 209/14434 ( Grant IR. 89461).

2. The application is supported by the statutory statement, verifying affidavit sworn by Samuel Kuntai Tunai on 2nd November 2017 and annextures thereto. The main prayers for leave are contained in prayers Nos 3-10 of the chamber summons which include, at prayer 10 thereof, monetary compensation.

3. The applicant claims that he is the registered proprietor of the Parcel of land subject of the purported revocation by the respondents at the behest of the Kenya National Highways Authority, the 3rd respondent herein and that the 1st respondent conduced proceedings leading to a decision as per the gazette notice cited above, revoking the title to the said land on account that it was public land which was acquired irregularly, without first giving the applicant an opportunity to be heard before arriving at the impugned decision.

4. According to the applicant, National Land Commission has no power to revoke title. It can only make a finding as to the legality of the title and direct the Land Registrar to revoke. In this case it is claimed that the respondent NLC violated the applicant’s right to be heard and to a fair administrative action as stipulated in Articles 47,10 and 232 of the Constitution that enjoin public bodies to observe Rules of Natural Justice it their deliberations.

5. It is claimed that the decision of the1st respondent at the instigation of the 3rd respondent is illegal. It is further stated that there are two other pending cases JR 523/2017 and JR 557/2017 both touching on a similar decision where the court did grant leave and stay of implementation of the decision to revoke the titles of the respective applicants subject of the same gazette notice which is impugned herein.

6. The respondents appeared but did not file any grounds of opposition or replying affidavits. The 1st respondent National Land Commission was represented by Mr Mbuthia Advocate whereas the 3rd respondent was represented by Miss Rao advocate who submitted in opposition to the chamber summons with leave of court without filing any opposing grounds.

7. According to Mr Mbuthia, what is in dispute is the compulsory acquisition of the subject properties upon which the Southern bypass was constructed in 2012 and that Section 14(5) of the National Land Commission Act empowers the 1st respondent National Land Commission to review grants or dispositions in land to determine their legality.

8. It was contended that leave should not be granted because the application is an abuse of the court process. That Section 128 of the Land Act and Section 13 of the Environment and Land Court Act are clear on the jurisdiction of Environment and Land Court to hear disputes relating to compulsory acquisition of land. It was contended in submission that as the land has already vested in the Government, the only remedy available to the exparte applicant is to seek for compensation in damages before the Environment and Land Court which has the necessary jurisdiction or in accordance with Sections 112 and 113 of the Land Act on compulsory acquisition.

9. Mr Mbuthia submitted that should this court grant leave, then the respondents will avail the Hansard Report of proceedings conducted by the National Land Commission to show that all parties affected by the impugned gazette notice were invited to make representations before National Land Commission took the decision that it did.

10. Counsel submitted that the claim is for ownership of land and that he could not fathom how only 3 people out of 133 persons claim that they were not heard by the National Land Commission before a decision was reached.

11. Miss Rao associated herself with submissions by Mr Mbuthia for the 1st respondent contending in addition, that the suit land was compulsorily acquired to construct the Southern bypass which construction was completed in 2012.

12. Further, that the 1st respondent invited all parties and gave them a chance to be heard before the decision was made.

13. That the application as drafted is no different from a claim for compensation of land acquired compulsorily hence the correct remedy is damages since public funds have been utilized and owners of land compensated hence it is not in the public interest to grant leave and stay.

14. Miss Rao submitted that no prima facie case had been established and that the gazette notice relied on had some missing pages which they will annex if leave is granted. She urged the court to decline the leave and stay.

15. In a rejoinder, the applicant’s counsel Mr Kemboy submitted that his client had demonstrated that there is an arguable case. That his client is challenging the decision to revoke the title to his land and without according him an opportunity to be heard, not a claim for compulsory acquisition. That there was no basis for invoking the principle of abuse of court process. That his client had come to court within time and that the submissions by the respondent’s counsels mirror an anticipated defence to the substantive application hence leave and stay should be granted.

DETERMINATION

16. I have carefully considered the exparte applicant’s application for leave and stay of the impugned decision. I must however mention that the prayers sought pursuant to the provisions of the Fair Administrative Action Act, 2015 such as Declarations and Monetary compensation do not necessarily require leave of court to institute such proceedings.

17. This is so because Order 53 Rule (1) of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act are clear that the only prayers that would not be granted without leave of court are certiorari, prohibition and mandamus.

18. It therefore follows that the prayers for declaration that do not fall within the Law Reform Act and Order 53 of the Civil Procedure Rules do not require leave of this court.

19. The requirement that leave to apply for the traditional Judicial Review remedies of mandamus, certiorari and prohibitions must be sought and obtained was explained by a three judge bench namely Mbogholi Msagha, Oguk and Bosire JJ in Matiba vs Attorney General Nairobi HCC Miscellaneous Application 790/1993in which the court held that it is supposed to exclude frivolous vexatious or applications which prima facie appear to be abuse of the process of the court or those applications which are statute barred.

20. A similar decision was reached in Republic vs County Council of Kwale & Another exparte Kondo & 57 Others Mombasa HC Mombasa 384/1996and confirmed by the Court of Appeal in Mexner & Another vs Attorney General [2005] 2 KLR 189 where the Court of Appeal held that the leave of court is a prerequisite to making a substantive application for judicial review and that the purpose of the leave is to filler out frivolous application hence the granting of leave of judicial discretion.

21. In Republic vs Land Disputes Tribunal Court Central Division & Another exparte Nzioka [2006] 1 EA 321 Nyamu J held that leave should be granted if, on the material available, the court considers, without going into the matter indepth, that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralyzed for months because of pending court action which might turn out to be unmeritorious.

i. The above decision was followed by Republic vs The Permanent Secretary Ministry of Planning and National Development exparte Kaimenyi [2006] EA 353.

22. Circumstances under which leave may be granted to apply for judicial review remedies of certiorari, mandamus and prohibition were enumerated in Mirugi Kariuki vs Attorney General CA70/1991 [1990-1994] EA 156where the Court of Appeal stated

“if the applicant fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the courts would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the court to prevent abuse by busy bodies, cranks and other mischief makers…”

23. And in [Re Bivac International SA (Bureau Veritas [2005] 2 EA 43]the court stated:-

““Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”

24. What emerges from the foregoing is that the grant of leave to commence Judicial Review proceedings is not a mere formality and that leave is not a matter of course. The applicant must, when applying for leave, demonstrate to the satisfaction of the court that he has a prima facie arguable case and that the court, without delving into the details, would be persuaded that the applicant could succeed.

25. The court would decline leave where there is delay, or the application is malicious, futile or abuse of the court process or frivolous or vexatious. The conduct of the applicant will also be considered, leave being discretionary, where there is objection to jurisdiction, the court must take it up at the initial stage and decide upon it before delving into the arguability of the intended proceedings.

26. In this case, the applicant has claimed that a decision was reached to revoke his title contrary to the rules of natural justice in that he was never invited to participate in the decision making process to be heard before the decision thereof was made. He also claims that in any event, the 1st respondent in revoking the applicant’s title acted illegally because it has no such powers under Section 14(5) of the National Land Commission Act and Section 128 of the Land Act to revoke titles to land but to review grants and titles to land and determine the legality thereof and if found to have been irregularly or illegally acquired, direct the Registrar to revoke.

27. It was alleged that the National Land Commission directed revocation of titles not for the Registrar to revoke.

28. Contrary to what the respondents claim/contend, the applicant never and has not claimed ownership of land or compensation for compulsory compensation of his land as stipulated in Sections 112 and 113 of the Land Act. It is not in every case that the term “title to land” is mentioned that it must be construed to mean that the claim is over ownership, use, occupation or title to land.

29. The right to fair administrative action as stipulated in the Fair Administration Action Act, 2015 and Article 47 of the Constitution as read with Article 165(6) and (7) of the Constitution empower this court to intervene in matters where there is allegations of such breach of those specific rights. There is nothing on record to demonstrate that this court will be usurping powers or jurisdiction of the Environment and Land Court if it hears and determines a matter where the subject is land but not a claim for the use, occupation or title to that land.

30. The act of revocation and the process by which revocation of title to land is done under Section 14(2) of the National Land Commission Act is an administrative action as stipulated in Section 2 of the Fair Administration Action Act, 2015 and the High Court is given the power under that Act, to review administrative decisions of public and non-public bodies.

31. It follows that the attempt by the respondents to oust the jurisdiction of this court by claiming that the claim is over ownership of the land or that it has to do with compulsory acquisition is farfetched and misguided. It is aimed at diverting the attention of this court from doing justice to the parties.

32. The applicant claims that before the decision to revoke his title was made by National Land Commission, he was never invited to attend a hearing and be heard. Further, that the revocation was an illegality because the National Land Commission has no power to revoke title to land.

33. The respondents filed no affidavits but their advocates submitted from the bar that a hearing was conducted and that there is a Hansard report showing participation by the applicant.

34. In my view, the above differing positions disclose an arguable case that calls for indepth investigation by the court to determine whether the National Land Commission has jurisdiction to revoke titles and whether the applicant was accorded an opportunity to be heard before the decision to revoke his title was made, since there is no dispute that the title in issue is in his name.

35. Accordingly, I find and hold that the application for leave to apply is not farfetched. It is merited.

36. I grant the applicant leave to institute Judicial Review proceedings as prayed for in the chamber summons respecting the prayer for mandamus, certiorari and prohibition. The applicant is at liberty to include in the substantive motion any other prayers where leave is not mandatory as stipulated in the Fair Administration Action Act, 2015. The motion to be filed and served within 21 days from todate.

37. On the prayer that the leave so granted do operate as stay of the order and or decision of the National Land Commission contained in the gazette notice No. 6885 dated 17th July 2017 in respect of LR No. 209/14434 (Grant IR No. 89461) registered in the applicant’s name, I note that the decision to revoke the title has already been made and a caveat placed on the title by the Registrar of Titles claiming an interest under Section 65(1) of Registration of Titles Act Cap 281 Repealed and under Section 76 of the Land Registration Act No.3 of 2012, on 29th August 2017.

38. A caveat though outdated owing to the changed land regime, having been lodged on the title after revocation thereof, it would be superfluous to grant stay of the decision, which has already been made.

39. If the court hears the parties and finds that the process leading to the revocation of the title was flawed and or that the act of revoking the title is illegal or done outside National Land Commission’s powers, nothing stops the court from quashing that decision. Land is not a movable property like motor vehicles which can be dismantled. There is nothing on record to show that the bypass (Southern) was constructed on the said land as the applicant has not claimed that the 3rd respondent has trespassed onto the land without colour of right which would then divert this court of jurisdiction to hear and determine the dispute.

40. The moment leave to apply is granted, any interested party is put on notice of the challenge to any action that would in effect render the final outcome of these proceedings a paper judgment should the applicant ultimately be successful.

41. However, in this case, I see no danger of the proceedings being rendered nugatory should stay be declined.

42. In the cited cases, there was no evidence of a caveat lodged prior to instituting Judicial Review proceedings unlike in this case. A caveat prohibits dealings on the title. It is sufficient prohibition to protect interests of all parties concerned now that it is lodged by the custodian of the very title, the Registrar of Titles.

43. For that reason, I order that the status quo prevailing shall remain until these proceedings are heard and determined interpartes.

44. Costs shall be in the main cause.

Dated, signed and delivered in open court at Nairobi, this 21st day of November, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Ogonjo h/b for Mr Kemboy for the exparte applicant

Mr Mbuthia for the 1st Respondent

Mr Riro h/b for Miss Rao for the 3rd Respondent

NA for 2nd Respondent

CA: George