[2018] KECA 393 (KLR)

IN THE COURT OF APPEAL

AT MALINDI

(CORAM: KARANJA, KOOME, & MUSINGA, JJ.A.)

CIVIL APPEAL NO. 60 OF 2017

BETWEEN

WATUKU MUTSIEMI WATUKU....................................../1ST APPELLANT

NZOVI MULU KYENGO.....................................................2ND APPELLANT

VERSUS

REPUBLIC...........................................................................1ST RESPONDENT

CABINET SECRETARY, MINISTRY OF LANDS,HOUSING ANDURBAN

DEVELOPMENT.................................................................2ND RESPONDENT

THE DISTRICT LAND ADJUDICATION AND SETTLEMENTOFFICER,

KILIFI................................................................................... 3RD RESPONDENT

THE DISTRICT LAND REGISTRAR, KILIFI................4TH RESPONDENT

THE CHIEF LAND REGISTRAR ....................................5TH RESPONDENT

NGONGO ISIKA..................................................................6TH RESPONDENT

(Appeal against the judgment of the High Court of Kenya at Malindi (Olola, J.)

delivered on 13th July, 2017)in Misc. Application No. 5 of 2016)

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JUDGMENT OF THE COURT

1. By a notice of motion dated 9th August 2016 brought under Order 53 rules 1 (1), (2), (3) 3 and 4 of the Civil Procedure Rules, Section 3 of the Law Reform Act and Sections 7 and 8 of the Judicature Act,the ex-parte applicants (the appellants herein) sought the following orders:

“a. That judicial review orders of certiorari do issue to remove and/or bring into this honourable court and quash the decision of the 1st respondent made on 22nd March 2016 allowing the interested party’s appeal in the appeal case no. 2 of 2015 involving plot Nos. 680 and 681 Kadzonzo/Madzimbani Adjudication Section.

b. That judicial review orders of mandamus do issue, compelling the 2nd, 3rd and 4th respondents to register the ex-parte applicants as owners of plot No. 680 and 681 Kadzonzo/Madzimbani Adjudication Section respectively and consequently issue them with title deeds for the said parcels of land.

c. That judicial review orders of prohibition do issue, prohibiting the 2nd, 3rd and 4th respondents from further acting on the decision of the 1st respondent made on 22nd March 2016 in appeal case No. 2 of 2015 involving plot No. 680 and 681 Kadzonzo/Madzimbani Adjudication Section.

d. That the costs of the judicial review application at the leave stage and at the substantive motion stage be borne by the respondents and the interested party.”

2. It is paramount that we first set out the background of the case that gave rise to the impugned judgment. The dispute in this appeal has had a long history which is well captured in the various documents placed before us and goes back to the year 1999.

3. There existed a land dispute No. LND/KAL/173/99 before the Land Disputes Tribunal at Mariakani, between the appellants’ family, represented by the 2nd appellant, and Isika Tunzi, the late husband of the interested party (6th respondent herein) which was heard by the tribunal on 9th February, 1999. An award was issued in favour of the deceased, Isika Tunzi,to the effect that the unsurveyed suit property that was in dispute belonged to him. The said award was forwarded to the Resident Magistrates’ Court at Kaloleni and judgment in terms of the elders’ award was entered on 7th April, 1999. It appears the appellants did not contest that decision, although the right of appeal within 30 days from the date of entry of the judgment was explained to the parties.

4. About six years after determination of the said dispute, during land adjudication exercise within the area where the subject parcel of land is situated and after the death of Isika Tunzi, the appellants moved Land Officers to demarcate and subdivide the suit land into three portions; Plots Nos. 680 and 681 were allocated to the appellants respectively, while Plot No. 682 was allocated to the family of Isika Tunzi.

5. This gave rise to the Ngongo Isika’s (6th respondent’s) objections against the two allocations in favour of the appellants which he made before the Adjudication Committee vide Land Committee Cases Nos. 13 and 14. The objections were heard and dismissed on 11th April, 2008 by the Adjudication Committee. Following the dismissal of the aforementioned objections, the 6th respondent filed another objection to the Adjudication Board, which rendered its decision on 10th February, 2010.

6. The 6th respondent proceeded to file other objections in 2011 before the Land Adjudication Officer in line with Section 26 of the Land Adjudication Actbeing objection No. 65 and 66 which were also dismissed on 5th December, 2011. Following the dismissals, the 6th respondent filed an appeal to the Minister. The appeal, though filed 18 days outside the statutory period of 60 days, was decided in favour of the 6th respondent. The findings were as follows:

“FINDINGS

1. This land had a court case ruling land dispute no LND/KLN.173/99 OF 27/1/1999 at Mariakani in favour of the appellant, which was not challenged in any other court until the adjudication tribunal cases started.

2. Both parties sought for status quo from the relevant offices which were issued to them on the legal point of view, thus Ngongo Isika was to continue using the land, however during adjudication the respondents were issued with numbers overlooking the court ruling.

3. The two parties are not related by blood and therefore cannot share things like land like brothers.

4. The respondents claim to have buried their dead in this land in the early 1950’s but have moved elsewhere where they have erected their homesteads away from this disputed land unlike the appellant who have their dead on this land and are residing on the same.

CONCLUSION

In view of the above findings and other related information provided to this court, the appeal is hereby allowed, Parcels number 680 and 681 to be registered in the name of the appellant, NGONGO ISIKA of ID NO.38862259. ”

7. It is the appellants’ claim that since the 6th respondent failed to file her appeal within 60 days after the determination of her objections before the Land Adjudication Officer on 5th December, 2011 as required under Section 29of theLand Adjudication Act, the Cabinet Secretary, Ministry of Lands, Housing and Urban Development(2nd respondent), acted ultra-vires when he entertained the appeal and thus his decision was a nullity.

8. In her replying affidavit filed on the 27th September, 2016, the 6th respondent contended that the only ground advanced in the appellant’s motion was that the appeal to the Minister was filed out of time, as it turned out that the appellants did not have any issues with the other findings of the court. Her explanation for the delay in filing the appeal was that she filed the appeal 3 days after being supplied with the proceedings and that the delay should be attributed to the tribunal which deliberately took time in typing and compiling the proceedings.

9. The 6th respondent faulted the appellants for disregarding the initial award of the suit land to her deceased husband, which was adopted as a judgment of the Resident Magistrates’ Court in Kaloleni Land Award Case No. 6 of 1999, which had never been set aside.

10. She added that the actions of the Land Adjudication Officers in registering her land in the appellants’ names and the two decisions the appellants had been relying on to claim ownership of the land in question are products of illegality and contempt of court, thus the entire claims by the appellants are a nullity ab initio.

11. Going back to the appellants’ application of 9th August, 2016 that was filed through Kenga & Co. Advocates, the main ground in that application was that the 6th respondent filed her appeal to the Minister out of time, contrary to Section 29 of the Land Adjudication Act. It was argued that since she did not file her appeal within the 60 days prescribed period the 2nd respondent herein acted ultra-vires when he entertained the appeal thus his decision was a nullity.

12. In the aforesaid judicial review matter,Olola, J. upheld the 2nd respondent’s position in stating that the adjudication process was wrong in overlooking an existing decision of the court. The learned Judge expressed himself thus:

“…arising from the foregoing the application before me is a clinical case of an applicant concealing material facts and seeking to wrongly benefit from the court process. To entertain this application would amount to a reward to impunity and according assistance to those in contempt of court.”

13. For reasons stated in his judgment and which shall be examined in due course, the learned Judge proceeded to dismiss the appeal with costs.

14. Being aggrieved by the said judgment, the appellants preferred this appeal. The memorandum of appeal consists of seven (7) grounds of appeal as follows:

“1. The learned judge erred in law and in fact in failing to appreciate Section 29 of the Land Adjudication Act and in particular by ignoring the specific and mandatory provisions of the said Act.

2. The learned judge erred in law and in fact in failing to appreciate the provisions of the Limitation of Actions in particular the 60 days period permissible for filing an appeal after determination of an objection by the Land Adjudication Officer.

3. The learned judge erred in law and in fact by relying on purported land award proceedings being LND/KAL/173 of 1999 which said proceedings did not relate to the two parcels of land but related to Plot No. 682 which was awarded to the interested party’s husband.

4. The learned judge erred in law and in fact by failing to appreciate the fact that the purported proceedings in LND/KAL/173 of 1999 was between the interested party’s husband and the 2nd ex parte applicant and in any event it related to plot No. 682 and that the 1st ex parte applicant was not involved in the matter and thus his parcel of land could not in any way have been the suit land in those proceedings.

5. The learned judge erred in law and in fact by failing to appreciate that the decision by the Minster to hear witnesses at an appeal stage was against the law as it amounted to reopening a determined case.

6. The learned judge erred in law and in fact by not considering the entire evidence before him and in particular by claiming that there was no response to the allegations raised by the interested party of the existence of an award by the Land District Tribunal yet the response is contained in the proceedings and the decisions made by the Adjudication Committee, Land Arbitration Board and the Land Adjudication Officer where findings were made to the effect that the suit property before the tribunal was a different parcel of land, being plot no 682 and not the current suit property.

7. The learned judge erred in law and in fact by dismissing the appellants’ suit in the superior court despite strong evidence tendered for its success.”

15. This Court was urged to allow the appeal and set aside the judgment delivered on 13th July, 2017 and substitute it therefor with an order allowing the appellants’ prayers in the notice of motion dated 9th August, 2016.

16. The appellants and the 6th respondent filed their written submissions and briefly highlighted the same. Learned Counsel, Mr. Kenga, appeared for the appellants while the 6th respondent was represented by learned Counsel, Mr. Mwinzi. There was no appearance for the other respondents. Service of the hearing notice had been effected upon their representative, the office of the Attorney General.

17. In the appellants’ written submissions filed on 23rd February, 2018, counsel opted to condense their grounds of appeal into four grounds. On ground 1 and 2, it was submitted that the question for determination before the learned Judge was whether in entertaining an appeal filed out of time the 2nd respondent was in violation of Section 29 of the Land Adjudication Act, therefore making the appeal a nullity, void ab initio and hence ultra-vires. Their response was in the affirmative.

18. Counsel further submitted that the Land Adjudication Act does not provide for discretion on the Minister or any other institution to entertain an application for leave to enlarge or extend time for further filing of an appeal to the Minister out of time.

19. On grounds 3 and 4, the appellants faulted the learned Judge for misapprehending the facts and/or evidence and acting suo motu by holding that land award LND/KAL/173 of 1999 was relevant to the parties herein. It was their argument that the said award was between Nzovu Mulu, the 2nd appellant and the 6th respondent’s deceased husband, Isika Tunzi; the 1st appellant was not in any way involved.

20. The appellants maintained that it was wrong for the learned Judge to claim that there was no response to the allegations of there having been a tribunal case in respect of the suit premises. According to them, the learned Judge was duty bound to peruse the whole file, not just the 6th respondent’s replying affidavit.

21. They asserted that the 1999 case involved another parcel of land, Plot No. 682 and not the disputed Plots Nos. 680 and 681, hence the learned judge misapprehended the evidence. They referred to the record of appeal on page 25 line 26 in response to whether the 1st appellant appealed against that decision and stated that an appeal was indeed lodged. They further referred to page 30 of the record of appeal which in their view succinctly elucidates that the 1999 case involved a different portion of land.

22. On ground 5, the appellant contended that the appeal to the Minister was done in a manner inconsistent with appeal procedures and did not in any way make reference to the decision of the Land Adjudication Officer. It was their further contention that the appeal was heard in original jurisdiction without reference to grounds of appeal which were lacking and as such the procedure was fatally defective.

23. They opined that the Minister ought to have sat in his appellate jurisdiction. It was their argument that in that appeal fresh evidence was taken, questioning and investigations despite this being an appeal.

24. As regards grounds 6 and 7, the appellants criticized the learned Judge for misapprehending the evidence on record after acting suo motu, and failing to fully appreciate the case. In their view, the learned Judge failed to address the issues falling for determination after noting that a valid land award existed and as such the issues for determination were never addressed and/or heard on merit.

25. The appellants pointed out that judicial review proceedings are not concerned with private rights or merits of a decision, but with the manner in which a decision was arrived at. They argued that since Section 29 of the Land Adjudication Act does not provide for enlargement of time the 2nd respondent, in entertaining the appeal was doing so without jurisdiction.

26. The appellants cited Article 159of theConstitution, stating that the said Article does not donate jurisdiction to any institution where none exists, and since the Land Adjudication Act does not provide jurisdiction to a Minister to entertain an appeal filed out of time, the 2nd respondent’s decision herein was ultra-vires and should therefore not stand.

27. In opposing the appeal, the 6th respondent addressed the Court on four issues. The first one was whether the objections by the 6th respondent herein before the Adjudication Committee and before the Minister were in respect to Plots No. 680 and 681 or a different plot. On this issue, the 6th respondent submitted that the allegation by the appellants in ground 3, 4 and 5 that the plots in dispute before the Adjudication Committee and the Minister were not Plot No. 680 and 681 is a deliberate lie.

28. She affirmed that the 3 plots were created after the demarcation process, when the original parcel of land was subdivided into three portions, Plot Nos. 680 and 681 being registered in the names of the appellants and Plot No. 682 in her favour.

29. The second issue was whether the judgment of the Resident Magistrates’ Court at Kaloleni dated 7th April 1999 subsists and is enforceable against the appellants. She contended that the judgment still subsists, notwithstanding the fact that the original suit property had been demarcated and parts thereof allocated to the appellants. In her view, the subsequent objections before a committee with lesser or equal jurisdiction was irregular and illegal, and was barred by the doctrine of res judicata.

30. The third issue is whether after the judgment by the Kaloleni Resident Magistrates’ Court, the Adjudication Committee had jurisdiction to entertain the dispute again over the same property. She submitted that once the land award was adopted as a judgment of the court, the appellants could only have appealed against that judgment.

31. She faulted the appellants for asking this Court to shut its eyes and not consider the illegalities aforesaid. The 6th respondent maintained that the appellants lodged a judicial review application before the High Court which had a duty to look at the entire decision making process. She applauded the High Court, for analyzing and evaluating all the proceedings and decisions made and correctly arriving at the conclusion that there was clear contempt of court.

32. Lastly was the issue of whether the parties in the appeal herein are the same parties in the proceedings below. The 6th respondent submitted that the appellants are brothers; and that their pursuit of the suit land was on the premise that the land initially belonged to their deceased father. In any event, the 2nd appellant was all along a party to all the past suits.

33. This is a first appeal, and that being so, we are required to re evaluate the evidence on record and arrive at our own independent findings and conclusions of the matter. It is for that reason that we have attempted to briefly summarize the facts forming the background to this dispute.

34. We think that the first and perhaps the main issue for determination is whether the learned Judge was wrong in finding that the Tribunal’s decision adopted as an order of the Resident Magistrates’ Court remains valid and binding to date. It is a well settled principle of law that the High Court has supervisory powers over inferior tribunals and other public bodies or persons in discharge of their quasi-judicial functions.

35. The appellants in the suit before the High Court had mainly prayed for orders, inter alia, declaring the award by the Minister a nullity, and an order that they be registered as the owners of the disputed parcels of land.

36. The learned Judge found that the subsequent decision by the Land Adjudication Officers to demarcate the suit land and register the same in the names of the appellants six years after the death of the 6th respondent’s husband amounted to an attempt to subvert the course of justice. In the foregoing it is our considered view that the learned Judge was right in finding that the Demarcation Officer had wrongfully subdivided the original parcel of land into three plots and allocated two of them to the appellants which was against the court’s decision. In so doing, the appellants and the Demarcation Officer disregarded a court finding that had not been set aside.

37. Coming to the issue of whether the decision of the 2nd respondent was ultra vires, unfair, biased or tainted with illegality, the appeal in issue was filed under Section 29of theLand Adjudication Act. It was a final appeal under the Land Adjudication process, subject only to the judicial review jurisdiction of the High Court. It was therefore not an avenue for an appeal on the merits of the case.

38. The appellants contend that because the Land Adjudication Officer had already demarcated and allocated the land in their favour, the 2nd respondent acted in excess of his jurisdiction in cancelling their registration as proprietors of the two plots. The evidence on record reveals that the appellants had knowledge of the Resident Magistrates’ Court that had not been appealed against. A person who has knowledge of an existing court order and chooses to disregard it cannot proceed to court to seek the court’s aid in perpetuating an illegality. As the maxim goes, he who comes to equity must come with clean hands. It matters not that the 1st appellant was not a party to initial land dispute that gave rise to the aforesaid judgment. His brother or relative, the 2nd appellant, had filed the claim before the Land Disputes Tribunal for and on behalf of their family as against the 6th respondent’s deceased husband. The land in dispute was the same one that was subdivided to give rise to the two parcels in dispute, Plots Nos. 680 and 681, as well as Plot No. 682.

39. The appellant’s main concern is the fact that the 6th respondent filed the appeal before the Minister out of time. We are satisfied that the delay by the 6th respondent in filing an appeal to the Minister did not occasion any prejudice to the appellants. In any event, the issue of filing the appeal out of time ought to have been raised at the earliest time possible before the 2nd respondent. That was not done.

40. In a nutshell, when the complaints of the appellants are considered as a whole, it is evident that the appellants are aggrieved by the merits of the decision of the 2nd respondent. They had little to do with the decision making process. This was, in effect, an appeal disguised as a judicial review application. They were aggrieved because the 2nd respondent overturned the earlier decisions which were in their favour. In our opinion, judicial review remedies were not available in those circumstances.

41. We are satisfied that the learned Judge properly directed his mind to the pleadings and evidence on record and arrived at the correctdecision. We find no merit in the appeal. Accordingly, the appeal fails and is dismissed with costs to the 6th respondent.

Dated and delivered at Mombasa on this 26th day of July, 2018.

W. KARANJA

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JUDGE OF APPEAL

M. K. KOOME

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JUDGE OF APPEAL

D.K. MUSINGA

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR