[2017] KEHC 6063 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 632 OF 2016

IN THE MATER OF AN APPLICATION BY SATELITTE INDUSTRIAL SUPPLIES LIMITED

FOR LEAVE TO APPLY FOR ORDERS OF PROHIBITION AND CERITORARI

AND

IN THE MATTER OF ARTICLES 40, 47 AND 67(2) OF THE CONSTITUTION

AND

IN THE MATTER OF SECTIONS 7, 8, 9 AND 11 OF THE FAIR ADMINISTRATIVE ACTION ACT,

SECTIONS 8AND 9 OF THE LAW REFORM ACT AND ORDER 53 CIVIL PROCEDURE RULES.

BETWEEN

SATELITTE INDUSTRIAL SUPPLIES LIMITED......................................APPLICANT

VERSUS

NATIONAL LAND COMMISSION........................................................RESPONDENT

RULING ON LEAVE AND STAY

1. This matter was filed under certificate of urgency vide a chamber summons dated 15th December 2016 by Satelite Industrial Estates Limited, seeking leave of court to institute Judicial Review proceedings/orders for :

a. Certiorari to move into this court and quash the decision of the National Land Commission to call for a public hearing for purposes of review of the grant and disposition of the title comprised in property known as LR No. 209/13539/42 or any other private land;

b. Prohibition retraining the respondent NATIONAL LAND COMMISSION from calling or conducting any hearing or review in respect of the property known as LR No. 209/13539/42 or any other private property;

c. A declaration that the National Land Commission has no jurisdiction to deal with land that has acquired the status of private land pursuant to Article 62 as read with Article 64 of the Constitution and it is only the Environment and Land Court that has jurisdiction to investigate and determine the legality of such title;

d. An order that there be a stay of any further proceedings and implementation of any decision by the respondent as a result of any hearing or meeting held by the respondent pursuant to the public notice advertised on the National Dailies of 28th October 2016 or any other forum;

e. That the grant of leave do operate as a stay of any further proceedings in respect of LR No. 209/13539/42 and further public hearings and implementation of decisions if the National Land Commission pursuant to such hearings in respect of private land;

f. The costs of the application be provided for.

2. The court after considering the certificate or urgency, found no urgency involved and directed that the application be served upon the respondent National Land Commission for interpartes mention on 23th January 2017 together with JR 635/2016 which had also come up the same day for similar orders.

3. When the matter came up on 23rd January 2017 the respondent appeared through Mr Mbuthia who sought for 7 days to file a replying affidavit which he had prepared.

4. The court granted the respondent 7 days to file a response to the application but by 15th February 2017 when the matter came up for interpartes hearing, there was still no response to the application. Mr Murunga holding brief for Mr Mbuthia for the National Land Commission informed the court that Mr Mbuthia was in Lamu on official duties and that he needed 7 more days to file a reply, as the National Land Commission had completed the digitization of documents the previous day hence the required documents had been traced. The application for adjournment was opposed by Mr Njenga counsel for the applicant on account of procrastination on the part of the respondent and the court disallowed the adjournment sought. Mr Njenga was allowed to proceed and urge the application for leave and stay. He submitted, replying on the statutory statement and verifying affidavit filed.

5. According to Mr Njenga counsel for the applicant, the respondent National Land Commission has no mandate to review private land dispositions yet that is what it had embarked on as shown by the advertisement notice to the public signed by Professor Muhammed A.Swazuri issued in the Daily Newspaper annexed (date not clear but shows 28/2016 item No. 100 on the 2nd page (29). Mr Njenga relied on the authorities filed on 15th December 2016 namely: JR. No. 117/2016; Republic vs National Land Commission Exparte Cecilia Chepkoech Leting & 2 Others; Nairobi Permanent Markets Society & Others V Salima Enterprises & Others [1995-98] 1 EA232;Bwambale & Another v Matte & Others [2005] 2 EA 49; Moya Drift Farm Ltd v Theuri [1973] EA 118; Choitram V Mystery Model Hair Saloon [1972] EA 525; among other cases all totaling 19 in number, to support his arguments that the National Land Commission has no jurisdiction to conduct any inquiry or review is unconstitutional and ultra vires its mandate. Counsel therefore sought orders of leave and that the leave granted to operate as stay of implementation of the notice calling for public hearings.

6. Mr Murunga holding brief for Mr Mbuthia had no submission to make so he left it to court.

7. The applicant’s application is supported by grounds, statutory statement and a detailed verifying affidavit sworn by Simon Kamuiru on 15th December 2016 who deposes that he is the Director of the applicant and that the applicant is the registered owner of LR 209/13539/42 which is private land hence National Land Commission is precluded by law and the Constitution from carrying out any inquiry of review of title or disposition in private land and that there has never been a finding by a competent court that the suit land had been unlawfully or irregularly acquired hence the National Land Commission was acting ultra vires and against the Rules of Natural Justice among many other accusations. He prayed for the orders sought.

Determination

8. In deciding whether or not to grant leave to institute Judicial Review proceedings, the court is not to delve into the depths of the merits of the intended proceedings. What the applicant is required to show the court is that the application is not frivolous or vexatious or that the same is not an abuse of the court process or that the application is not statute barred.

9. Leave should, as a rule, be granted if, on the material available, the court considers, without going into the depths of the matter, that there is a prima facie arguable case.

10. Leave stage, as has been stated over and over, 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 paralysed for months because of pending court action which might turn out to be unmeritorious. These are principles espoused in Matiba V Attorney General Nairobi HCC Miscellaneous Application No. 790/1993, Republic V LDT Court Central Division & Another Exparte Nzioka [2006] 1 EA 321; Republic vs The Permanent Secretary Ministry of Planning and National Development Exparte Kaimenyi [2006] 1 EA 353 among others that have applied the above decisions, including Republic Vs County Council of Kwale & Another exparte Kondo & 57 Others Mombasa HC Miscellaneous Application 384/1996 [Waki J).

11. The Court of Appeal in Mirugi Kariuki Vs Attorney General CA 70/91 [1990-1994] EA 156[1992] KLR 8 set the yardstick for grant of leave when it stated, inter alia:

“……….if he 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 court 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 others mischief makers……In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders….clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under Section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.” [emphasis added] See also Republic vs Communications Commission of Kenya & 2 Others Exparte EA Televisions Network Ltd CA 175 of 2000[2001] KLR 82.

12. In ReBivac International SA (Bureau Veritas [2005] 2 EA 43, the court stated inter alia:

“ Application for leave to apply for orders of Judicial Review are normally exparte and such an application does restrict the court to threshold issues namely whether the applicant has an arguable case, and whether leave is granted, the same should operate as stay……….”

13. In the instant case, and in the absence of any rebuttal to the grounds and depositions by the applicant that the land in issue is private land and that therefore the respondent National Land Commission has no jurisdiction to review the title/disposition thereof, this court finds that the applicant’s case discloses an arguable prima facie issue for investigation and determination by the court at the substantive stage. This is not to say that the case must succeed.

14. Accordingly, I find that the application for leave is merited and I therefore allow it as prayed, granting the applicant leave to institute Judicial Review proceedings as sought in prayer Nos. 2a,b and c of the chamber summons dated 15th December 2016. The substantive motion to be filed and served upon the respondent National Land Commission and upon any other person complainant or claiming any interest in LR No. 209/13539/42 within 21 days from the date hereof.

15. On the second limb to this application that leave so granted do operate as stay of any further proceedings and implementation of any decision made by the respondent as a result of any hearing or meeting held by the respondent pursuant to the public notice advertised in the National Dailies s of 28th October 2016 or any other forum; and or that the leave granted do operate as stay of any further proceedings in respect of LR No. 209/13539/42 and further public hearings and implementation of decisions of the National Land Commission pursuant to such hearings in respect of private land; it is equally important to note that just as grant of leave is in the discretion of the court which discretion must be exercised judiciously, stay in Judicial Review proceedings is equally an exercise of judicial discretion. Stay is not automatic.

16. Furthermore, it is not in every case where leave is granted to apply for Judicial Review that stay would be granted. Under Order 53 Rule 1 of the Civil Procedure Rules, the court granting leave can order for stay of implementation of the impugned decision, in applications for certiorari and prohibition, not in mandamus. Further where the decision ought to be quashed has been implemented leave sought would not operate as stay( see Maraga J in Taib A. Taib v The Minister of Local Government & Others Mombasa HC Miscellaneous Application 158 of 2006.

17. In this case, I am satisfied on the material placed before me that unless stay is not granted, the applicant shall be rendered a mere pious explorer in the judicial process and therefore if his application is successful at the substantive stage, then the orders issued shall be nugatory and a mere academic exercise would have been carried out. The applicant will have to file fresh application for Judicial Review which will be a great inconvenience and an expensive exercise.

18. Accordingly, I exercise my discretion and grant to the applicant stay orders sought in prayer 2(d) and 3 of the chamber summons dated 15th December 2016, costs shall be in the cause.

19. The applicant to file written submissions and serve within 10 days upon which the respondent shall file and serve response and written submissions within 10 days from the date of service. Mention on 28th March 2017 to fix a date for highlighting of submissions.

Dated, signed and delivered at Nairobi this 27th day of February, 2017.

R.E. ABURILI

JUDGE