[2023] KEELC 356 (KLR)

Tebino (Suing as the Administrator & Beneficiary of the Estate of Joseph Martin Wandera Dindi) v County Surveyor, Busia County & another (Environment and Land Judicial Review Case E004 of 2022) [2023] KEELC 356 (KLR) (25 January 2023) (Judgment)

Neutral citation: [2023] KEELC 356 (KLR)

Republic of Kenya

In the Environment and Land Court at Busia

Environment and Land Judicial Review Case E004 of 2022

BN Olao, J

January 25, 2023

IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW FOR ORDERS OF CERTIORAR AND IN THE MATTER OF THE LAW OF SUCCESSION ACT, CAP 160 OF THE LAWS OF KENYA AND IN THE MATTER OF THE LAND REGISTRATION ACT NO. 3 OF 2012 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015 AND IN THE MATTER OF THE PARTITION NOTICE DATED 28TH SEPTEMBER 2022 AND IN THE MATTER OF TITLE NO. BUKHAYO/KISOKO/307 BETWEEN

Between

Mary Connie Tebino (Suing as the Administrator & Beneficiary of the Estate of Joseph Martin Wandera Dindi)

Applicant

and

The County Surveyor, Busia County

1st Respondent

Lucia Makio Ochieng

2nd Respondent

Judgment

1. It is difficult to comprehend why these two siblings MARY CONNIE TEBINO (the Applicant) and LUCIA MAKIO OCHIENG (the 2nd Respondent) are still in the corridors of this Court litigating over the land parcel NO. BUKHAYO/KISOKO/307 (the suit land) long after KIARIE J had confirmed the grant with respect to the Estate of their late father JOSEPH WANDERA DINDI (the deceased). Could it be a case of inflated egos or are they propelled by some other selfish motives other than the desire to distribute the Estate of the deceased? Only the two of them and those hiding under their shadows know better.

2. The Applicant and the 2nd Respondent are the joint Aministratrixes to the Estate of the deceased. They obtained a Grant of Letters of Administration in respect to the said Estate on 12th February 2014 in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. The same was later confirmed by KIARIE J on 26th March 2019. There were only two properties which formed the Estate of the deceased. Among them is the suit land measuring 8. 2 Hectares (20. 25 acres) which was distributed equally among 10 beneficiaries including the Applicant and the 2nd Respondent who are daughters to the deceased but from different houses. Each got 2. 25acres.

3. The record shows that during the pendency of the succession proceedings in the High Court, the 2nd Respondent unilaterally filed an application to be granted a new title deed for the suit land exclusively in her name. This prompted the Applicant to file JUDICIAL REVIEW APPLICATION NO E004 of 2020 seeking the main order that Gazette Notice NO 6470 dated 4th September 2020 and the purported new title for the suit land be cancelled. That order was granted by OMOLLO J on 4th August 2022.

4. On 28th September 2022, the COUNTY SURVEYOR BUSIA (the 1st Respondent herein) addressed a Notice to all the beneficiaries to the Estate of the deceased. Due to it’s relevance in these proceedings, I shall reproduce it in extenso:“REF: PARTITION OF PARCEL BUKHAYO/KISOKO/307 SUCCESSION CAUSE NO 192 OF 2010. ”The subject matter refers. This office once again brings to your notice that this office shall visit the said land parcel for purposes of partitioning to distribute shares to relevant beneficiaries as captured on the certificate of grant. Kindly avail yourselves on 12th October 2022. You are therefore requested to be present at the site to witness the exercise on the material date.GEOFREY KAMADICOUNTY SURVEYORBUSIA COUNTY.”

5. That Notice was not received well by the Applicant. She took the view that the 2nd Respondent was acting unilaterally without informing her as a Co-Administratrix to the Estate of the deceased.

6. Therefore, by a Notice of Motion dated 24th October 2022 and filed herein on 26th October 2022, the Applicant sought the following orders:1. An order of certiorari to remove into this Honorable Court and quash in it’s entirety the partition notice dated 28th September 2022 issued by the 1st Respondent for all that land known as title NO BUKHAYO/KISOKO/307. 2.Costs and other incidentals to be borne by the Respondents and Interested Party.3. Any such order or relief as the Honourable Court may deem just, fit and appropriate in the circumstances of this matter.

7. The application is supported by the grounds on it’s face as well as the statutory statement and verifying affidavit sworn by the Applicant.

8. The Applicant’s case is that she and the Respondent are co-Administratrixes of the Estate of the deceased pursuant to a confirmed Grant dated 3rd June 2019 issued in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. An application by one EUGENE OKEMO to revoke the Grant was dismissed. But before the Applicant could proceed to exercise her mandate as per the confirmed Grant, the 2nd Respondent unilaterally filed an application to be granted a new title deed for the suit land in her own name and to the exclusion of all the other beneficiaries to the Estate of the deceased and who is the registered proprietor of the suit land. On 4th September 2020, the BUSIA LAND REGISTRAR at the instigation of the 2nd Respondent caused to be published a Gazette Notice NO 6470 purporting to issue a new title deed for the suit land in the sole names of the 2nd Respondent. The Applicant therefore instituted BUSIA ELC JR NO E004 of 2020 and by a judgement delivered on 4th August 2022, OMOLLO J quashed in its’ entirety the said Gazette Notice.

9. The 2nd Respondent had, once again unilaterally and without the consent of the Applicant as the Co-Administratrix instructed the 1st Respondent to proceed with the sub-division of the suit land on 12th October 2022 vide a Notice dated 28th September 2022. That is notwithstanding the fact that the Applicant and 2nd Respondent are Co-Administratrixes and none of them can deal with the suit land unilaterally. The 2nd Respondent neither sought the consent of the Applicant nor the leave of the Court before instructing the 1st Respondent to proceed with the sub-division of the suit land. Therefore, the 2nd Respondent acted illegally because such instructions can only be issued jointly by the Co-Administratrixes. The instructions to the 1st Respondent were therefore void – ab-initio. It follows therefore that the Notice dated 28th September 2022 by the 1st Respondent was also illegal. And although the 1st Respondent is mandated to conduct survey, sub-divisions or partitions, such mandate can only be exercised legally. The 1st Respondent’s Notice dated 28th September 2022should therefore be quashed.

10. The Applicant filed the following documents in support of this application:1. Copy of the confirmed Grant in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010 in the Estate of JOSEPH MARTIN WANDERA DINDI.2. Copy of the application by EUGENE DINDI OKEMO dated 13th June 2019 seeking to revoke the Grant in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. 3.Ruling by KIARIE J dated 6th October 2020 dismissing the application dated 13th June 2020. 4.Judgment by OMOLLO J dated 4th August 2022 quashing the Gazette Notice No 6470 dated 4th September 2020 and the subsequent new title deed for all that title of land known as BUKHAYO/KISOKO/307.

11. The 1st Respondent did not file any reply to the application.

12. The 2nd Respondent filed a replying affidavit dated 21st November 2022 in opposing the application.

13. She confirmed that she is a Co-Administratrix with the Applicant to the Estate of the deceased pursuant to the confirmed Grant issued in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. That the suit land is the sole physical asset of the suit land and the 2nd Respondent secured the services of the COUNTY LAND REGISTRAR and SURVEYOR to demarcate the suit land as decreed by the SUCCESSION COURT IN BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. That the Applicant should have moved to the SUCCESSION COURT and this matter is sub-judice and this Court should allow the succession process to run it’s cause.

14. The following documents are annexed to the replying affidavit.1. Copy of Grant of Letters of Administration issued in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010 on 12th February 2014. 2.Green Card to the land parcel NO BUKHAYO/KISOKO/307. 3.Confirmed Grant in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. 4.Notice dated 28th September 2022 by the COUNTY SURVEYOR BUSIA addressed to the Applicant, 2nd Respondent and other beneficiaries to the Estate of the deceased.

15. The Applicant filed a supplementary affidavit dated 1st December 2022 in which she rehashed the contents of her previous supporting affidavit. She added that this matter is not sub-judice since the succession proceedings in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010 were finalized. She deponed further that prima facie, she is not opposed to the sub-division of the suit land but that the same must be done legally. She blamed the 2nd Respondent of unbridled hunger to sell off the suit land adding that it is for that reason that she had filed BUSIA HIGH COURT MISCELLANEOUS APPLICATION NO E001 of 2022 to remove and/or strike out the 2nd Respondent from acting as a co-Administratrix to the Estate of the deceased. The following documents were annexed to the supplementary affidavit.1. Copy of application in BUSIA HIGH COURT SUCCESSION CAUSE NO E001 of 2022. 2.Confirmed Grant in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. 3.Ruling by KIARIE J delivered on 6th October 2022 in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. 4.Judgment of OMOLLO J delivered on 4th August 2022 in BUSIA ELC JR NO E004 of 2020. 5.Summons for Revocation of Grant in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. 6.Various correspondences.7. Death certificate of the deceased.

16. When the application was placed before me on 10th November 2022 pursuant to the grant of leave, I directed that it be canvassed by way of written submissions. Those submissions were subsequently filed both by MR. TEBINO instructed by the firm of TEBINO & ASSOCIATES ADVOCATES for the Applicant and by MR. JUMBA instructed by the firm of BALONGO & COMPANY ADVOCATES for the 2nd Respondent. The 1st Respondent, as I have already mentioned above, did not file any response to the application.

17. I have considered the application, the rival affidavits and the annextures thereto as well as the submissions by counsel.

18. Before I delve into the merits or otherwise of the application, I think I must first determine two issues which go to the jurisdiction of this Court to determine this application. Those issues are:a.Whether this dispute is a matter for the SUCCESSION COURT and;b.Whether infact this application is sub-judice.Those issues have been raised in paragraphs 8 and 9 of the replying affidavit by the 2nd Respondent as follows:8. “That if the Ex-parte (sic) ought to have moved court in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010 for appropriate order.”9. “That this matter is sub-judice and this Honourable Court ought to let the Succession Cause run it’s cause.”Jurisdiction must of course be the first point of call for this Court to decide whether infact it should proceed further. This is because, without jurisdiction, this Court must down its tools – THE OWNERS OF MOTOR VESSEL “LILIAN S” -V- CALTEX OIL KENYA LTD 1989 KLR. I shall therefore consider those jurisdictional issues.

1. IS THIS A MATTER FOR THE SUCCESSION COURT? 19. The dispute before this Court is whether or not to quash the Notice dated 28th September 2022 addressed to the Applicant and the 2nd Respondent inviting them to be present on the suit land on 12th October 2022 for purposes of partitioning it for distribution to the beneficiaries of the deceased’s Estate. That cannot be an issue for determination by the SUCCESSION COURT. The confirmed Grant in respect to the Estate of the deceased was issued on 26th March 2019 by KIARIE J who subsequently dismissed an application by one EUGENE OKEMO DINDI seeking to revoke the same. That brought to an end the function of that Court whose responsibility was to distribute the property of the deceased to the beneficiaries of the Estate and who include the Applicant and the 2nd Respondent. The SUCCESSION COURT became functus officio once the Estate had been distributed as per the confirmed Grant. What is remaining is the transmission of the property of the deceased which is governed by Sections 60 to 67 of the Land Registration Act as well as Sections 49 to 54 of the Land Act which deals with transmissions. Both Acts define the Court as the ENVIRONMENT AND LAND COURT ACT and, following recent amendments, a subordinate court with the necessary pecuniary jurisdiction over the matter in dispute.

20. It follows therefore that the challenge to this Court’s jurisdiction is not well taken and must be rejected.2. IS THIS MATTER SUB-JUDICE?

21. The rule of sub-judice is provided for in Section 6 of the Civil Procedure Act as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” Emphasis mine.As I have already stated above, BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010 came to an end on 25th March 2019 when the confirmed Grant was issued with respect to the Estate of the deceased. The Estate has now been distributed. That case is no longer “pending” as is required by Section 6 of the Civil Procedure Act.

22. The only suit that is pending is BUSIA HIGH COURT MISC. APPLICATION NO E001 of 2022 where the Applicant is seeking orders to remove and/or strike out the Respondent from acting as co-Administratrix of the Estate of the deceased. That issue is not before this Court for it’s determination. It cannot be said therefore that the issues in BUSIA HIGH COURT MISC APPLICATION NO E001 of 2022 and the issues herein are “substantially” the same.

23. The plea of sub-judice is similarly not well taken and is dismissed.

24. Having dispensed with those jurisdictional issues, this court must be guided with, among others, decision in PASTOLI -V- KABALE DISTRICT LOCAL GOVERNMENT COUNCIL & OTHERS 2008 2 EA 300 where it was held:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of law or it’s principles are instances of illegality ... Irrationality is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards .... Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and absent procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”In KURIA & OTHERS -V- ATTORNEY GENERAL 2002 2 KLR 69. It was held that:“So long as the orders by way of judicial review remain the only legally practicable remedies for the control of administrative decisions, and in view of the changing concepts of good governance which demand transparency by any body of persons having legal authority to determine questions affecting the rights of subjects under the obligation for such a body to act judicially, the limits of judicial review shall continue extending so as to meet the changing conditions and demands affecting administrative decisions ....This therefore implies that the limits of judicial review should not be curtailed, but rather should be nurtured and extended in order to meet the changing conditions and demands affecting the decision making process in the contemporary society. The law must develop to cover similar or new situations and the application for judicial review should not be stifled by old decisions and concepts, but must be expensive, innovative and appropriate to cover new areas where they fit.”Further, as was held in MUNICIPAL COUNCIL OF MOMBASA -V- R & UMOJA CONSULTANTS LTD C.A. CIVIL APPEAL NO 185 of 2001:“Judicial review is concerned with the decision making process, not with the merits of the decision itself; the Court would concern itself with such issues as to whether the decision maker had the jurisdiction, whether the person affected by the decision were heard before it was made and whether in making the decision, the decision maker took into account relevant matters or did take into account irrelevant matters. The Court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself as to whether there was or that was not sufficient evidence to support the decision.”

25. It must also be remembered that with the promulgation of the 2010 Constitution, the frontiers of Judicial Review have now been expanded. Article 47(1) of the Constitution provides that:47 (1) “Every person has the right to administrative action that is expeditious, efficient, lawful reasonable and procedurally fair.”In the case of INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC) – V- NATIONAL SUPER ALLIANCE (NASA) KENYA & OTHERS 2017 eKLR the SUPREME COURT said:“In our considered view presently, judicial review has constitutional underpinning in Articles 22 and 23 as read with Article 47 of the Constitution as operationalized through the provisions of the Fair Administrative Action Act. The Common Law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and rules is a procedure for applying for remedies under the common law and the Law Reform Act. These common law remedies are now part of the constitutional remedies that the High Court can grant under Article 23(3)(c) and (f) of the Constitution. The fusion of Common Law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. A party is at liberty to choose the common law order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both ... we hold that Kenya has one and not two mutually exclusive systems for judicial review. The common law and statutory judicial review are complementary and mutually non-exclusive judicial review approaches.” Emphasis mine.

26. Guided by all the above, it is common ground that the Applicant and the 2nd Respondent are the joint Co-Administratrixes of the Estate of the deceased. The confirmed grant speaks for itself and this must also have been within the knowledge of the 1st Respondent and that it is why it addressed the Notice dated 28th September 2022 to both of them including to the other beneficiaries. It is the Applicant’s case that her Co-Administratrix, the 2nd Respondent, unilaterally and without her consent instructed the BUSIA COUNTY SURVEYOR to proceed with the sub-division and partitioning of the suit land. The 1st Respondent did not file any reply to rebut those assertions. However, the 2nd Respondent did not deny it. Infact, she admitted that allegation when she deponed in paragraph 6 of her replying affidavit as follows:6: “That the interested party and other beneficiaries procured the services of COUNTY LAND REGISTRAR AND SURVEYOR to demarcate the parcel as decreed by Court.”The party referred to above as the Interested Party is infact the 2nd Respondent. She was impleaded as the 2nd Respondent in the Notice of Motion but for some un-known reasons, when she filed her replying affidavit dated 21st November 2022, she referred to herself as an Interested Party. She has not denied the averment by the Applicant that she (Applicant) was not consulted when the offices at the LAND REGISTRAR and SURVEYOR were approached to partition the suit land. She has indeed admitted having procured the services of those offices for that exercise. However, as a Co-Administratrix, she could not unilaterally make that decision without the consent and knowledge of the Applicant. Where a joint administration is granted to two persons, they become one administrator. One cannot act without the other. In that regard, I adopt the words of MUSYOKA J in the case of ESTATE OF MOKAKHA IDRIS KHASABULI (DECEASED) 2019 eKLR where the judge said at paragraph 8 that:“It must be stated that even though there are four administrators in place, in law there is only one administrator or representation to the estate of the deceased. The four administrators hold one grant which appoints all four of them as administrators. None of them holds a grant which makes them the sole administrators of the estate. Since there is only one administrators, and not four, it behoves the four administration to act as one with regard to managing the estate of the deceased. Responsibilities and duties must be shared. They must agree on the management of the assets. They must take a common stand on the expense of administration and on the settlement of liabilities and debts and other outgoings. It should not be the business of one or a section of the administrators to make decisions on behalf of the estate, that falls upon all four of them.” Emphasis mine.The Applicant has deponed in paragraph 9 of her statement that:“... the 2nd Respondent has once again unilaterally and without the joint consent of the Applicant as the Co-Administrator instructed the 1st Respondent to proceed with sub-division petition of the suit property herein on the 12th October 2022 vide Notice dated 28th September 2022. ”The 1st Respondent did not deny the above averment. Indeed it chose to give these proceedings wide berth thus confirming that it was only the 2nd Respondent who instructed him to partition the suit land in accordance with the distribution of the Estate as per the confirmed Grant. There is no doubt that the Land Registrar and the 1st Respondent have a public duty to ensure that the suit land is partitioned as decreed in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. Indeed that decree will not be executed unless the Land Registrar and the 1st Respondent perform that duty as mandated by the law. However, in doing so, the Land Registrar and the 1st Respondent must act fairly and within the law. The 1st Respondent must have been served with the Confirmed Grant issued in BUSIA HIGH COURT SUCCESSION CAUSE NO 192 of 2010. It was therefore aware that there were two Administratrixes mandated to distribute the Estate of the deceased and that the Applicant was one of them. However, in issuing the Notice dated 28th September 2022, the 1st Respondent, as is now clear, only took instructions from the 2nd Respondent. That was procedurally unfair and even though the Notice was also addressed to the Applicant, she should have been involved in all the processes that led to the issuance of that Notice.

27. More fundamentally, the power to partition land is vested in the Land Registrar. Section 22(2) of the Land Registration Act provides that:“Upon the application of a proprietor of a parcel for the division of that parcel into two or more parcels, and authentication of the cadastral map, the Registrar shall effect the division by closing the register relating to the parcel and opening new registers in respect of the new parcels resulting from the division, and recording in the new registers all subsisting entries appearing in the closed register.”It is also clear from Section 94 of the same Act which deals with land held in common that the power to partition land occupied by tenants in common is vested in the Land Registrar. Of course the Land Registrar would ordinarily work together with the County Surveyor in the exercise of partitioning the suit land. It is strange, however, that the Notice dated 28th September 2022 emanated from the office of the County Surveyor and not the Land Registrar as required in law. There is therefore both procedural unfairness and illegality on the part of the 1st Respondent in issuing the Notice dated 28th September 2022.

28. Counsel for the 2nd Respondent suggest that the Applicant moved to court too soon and should have waited for the exercise of partitioning the suit land to be completed. This is how counsel has submitted in the last paragraph of his submissions:“We further submit that this Court of law ought not to interfere with functions of other arms of Government unless they are manifestly unfair and unprocedural. The ex-parte applicant ought to have waited for the conclusion of the exercise for him (sic) to raise judicial review.”

29. It is clear that what the Applicant seeks from this Court is an order of certiorari to quash the Notice dated 28th September 2022 and issued by the 1st Respondent. Once that Notice was issued, the Applicant need not have waited until the same had been executed as counsel for the 2nd Respondent appears to suggest. The 2nd Respondent having already made the decision to partition the suit land as conveyed in the said Notice, nothing stopped the Applicant from promptly moving to this Court seeking the orders herein. That decision having been already made, the remedy of judicial review seeking an order of Certiorari to quash the Notice dated 28th September 2022 was quite in order. Certiorari deals with decisions already made and the Court will intervene if satisfied that the decision complained about was arrived at in a manner that was procedurally unfair and illegal which is what has happened in this case.

30. I am persuaded, having considered the evidence herein, that the Applicant has established that she is entitled to the orders sought in the Notice of Motion.

31. Before I make the final orders in disposal of this matter, and as I stated at the beginning of this judgement, the main protagonists in this dispute are siblings. They are the Co-Administratrixes of the Estate of the deceased and are therefore obliged to act as a team. That means that they must strive to set aside any personal differences between them for the benefit of their late father’s Estate. The other beneficiaries are looking upto them and as they squabble in Courts. The Estate risks being depleted while the beneficiaries continue to suffer. I don’t think that is what their later father expected of them.

32. Finally, I commend to them the following verse from the Book of PHILIPIANS 2:3-4:“Do nothing from selfishness or conceit but in humility count others better than yourselves. Let each of you look not only to his own interests, but also to the interests of others.”

33. Ultimately therefore and having considered all the evidence herein there shall be judgment for the Applicant in the following terms:1. An order of Certiorari is hereby issued calling into this Honourable Court for quashing the Notice dated 28th September 2022 and issued by the 1st Respondent.2. As the main protagonists herein are siblings, each shall bear their own costs.

BOAZ N. OLAOJUDGE25TH JANUARY 2023JUDGMENT DATED, SIGNED AND DELIVERED ON THIS 25TH DAY OF JANUARY 2023 BY WAY OF ELECTRONIC MAIL AS WAS ADVISED TO THE PARTIES ON 6TH DECEMBER 2022. RIGHT OF APPEAL.BOAZ N. OLAOJUDGE**25TH JANUARY 2023