Abdallah Shikanda Hassan ,Hadija Nanzala Shikanda ,Hawa Mukulo Shikanda ,Athuman Mutuli Shikanda ,Shikanda Abdalla Yusuf ,Abdul Aziz Kombo ,Tabuche Shikanda ,Aisha Asabo Shikanda ,Amina Tabuche Shikanda ,Mariam Musikoyo Shikanda & Khatib Alutseshe Shikanda Through The Republic v District Land Registrar – Kakamega,Mwanamisi M. Shibwabo & Mwanaisha N. Shibwabo [2016] KECA 800 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM : MARAGA, MUSINGA & GATEMBU, JJ.A)

CIVIL APPEAL NO. 71 OF 2014

BETWEEN

ABDALLAH SHIKANDA HASSAN ….. 1ST APPELLANT

HADIJA NANZALA SHIKANDA ……... 2ND APPELLANT

HAWA MUKULO SHIKANDA ……...... 3RD APPELLANT

ATHUMAN MUTULI SHIKANDA ..….... 4TH APPELLANT

SHIKANDA ABDALLA YUSUF ………. 5TH APPELLANT

ABDUL AZIZ KOMBO

TABUCHE SHIKANDA ………………….6TH APPELLANT

AISHA ASABO SHIKANDA ……………7TH APPELLANT

AMINA TABUCHE SHIKANDA ……….8TH APPELLANT

MARIAM MUSIKOYO SHIKANDA ……9TH APPELLANT

KHATIB  ALUTSESHE SHIKANDA …10TH APPELLANT

THROUGH THE REPUBLIC

VERSUS

THE DISTRICT LAND REGISTRAR –

KAKAMEGA …………………………….1ST RESPONDENT

MWANAMISI M. SHIBWABO ........…..  2ND RESPONDENT

MWANAISHA N. SHIBWABO ….....….  3RD RESPONDENT

(An appeal from the ruling and orders of the High Court of Kenya at Kakamega, (Chitembwe, J.) dated 24th July, 2014

in

H.C.J.R. NO. 37 OF 2012)

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JUDGMENT OF THE COURT

This is an appeal from the ruling and order of the High Court at Kakamega, (Chitembwe, J.) given on 24th July  2014 dismissing the appellants’ application for an order of certiorari to quash a report dated 20th January 2012  purporting to determine a boundary dispute.

On 13th June 2012 the appellants obtained leave from   the High Court at Kakamega to apply for an order of certiorari to quash a report dated 20th January 2012 signed by one Nicholas Shiguri on behalf of the District   Surveyor, Kakamega, allegedly determining a boundary dispute between the appellants and the 2nd and 3rd respondents over title numbers S. Wanga/Ekero/3403,   2022, 2024 and 2025. The leave was to operate as a stay of the report pending the hearing and   determination of the substantive motion for judicial    review. On the same day, that is 13th June 2012, the appellants presented the substantive motion for the     order of certiorari.

The grounds in support of that motion, to which  learned counsel for the appellants, Mr. D. Akwala,  referred during the hearing of the appeal before us, were contained in a statement filed with the  application for leave and a verifying affidavit sworn by the 1st appellant.

In summary, the appellants’ case was that parcel TitleNumbers S. Wanga/Ekero/3403, 2022, 2024 and 2025   share a boundary that is clearly demarcated on the     ground; that on 17th January 2012, officials claiming to be from Kakamega District Lands office visited the site  allegedly on instructions of the District Land Registrar and purported to determine a boundary dispute; that   the 1st appellant was not until that date aware that a  boundary dispute had been lodged; that on 20th January  2012, one Nicholas Shiguri of the District Survey Office, Kakamega, authored a report addressed to the Land Registrar, Kakamega, recommending that the 1st appellant should demolish houses allegedly constructed  on the road; and that at no time were the appellants   summoned by the District Land Registrar to express   their views on the alleged boundary dispute and no hearing was ever convened by the District Land    Registrar to hear the parties.

The appellants also contended that the report dated 20th January 2012, by Nicholas Shiguri of the   District Survey Office was a nullity as the statutory  mandate to determine a boundary dispute fell on the    Land Registrar and could   not be delegated.

Given those complaints, counsel for the appellants  submitted that the learned Judge of the High Court erred when he dismissed the appellants’ motion as lacking merit.

On behalf of the 2nd and 3rd respondents, the 2nd respondent swore a replying affidavit in which she  deposed that the appellants were notified of the   survey exercise; that the appellants were represented   by the 1st  appellant during that exercise; and that   Nicholas Shiguri who did the survey exercise was a   government officer of the Ministry of Lands,    Kakamega.

Learned counsel for the 2nd and 3rd respondents, Mr.    Gichaba, submitted that the appellants’ motion was   incompetent and urged us to uphold the decision of   the High Court. According to Mr. Gichaba, there was   evidence that the 1st appellant was present when the site visit was undertaken on 17th January 2012 and the appellants cannot therefore feign ignorance of the   boundary dispute.

As to the competence of the report    sought to be quashed, counsel argued that it was patently clear that   the author of the report, Nicholas Shiguri, was from  the office of District Surveyor and the Land Registrar is  not required to personally attend.

Although the 1st respondent, the District Land   Registrar, Kakamega, was served with process in the High Court, he did not participate in the proceedings   before that court. The motion was disposed of by   written submissions. After considering the matter, the      learned Judge delivered the impugned ruling, holding   that there is no requirement that the District Land  Registrar and surveyor must be present personally  whenever a boundary dispute is fixed; that the person    who conducted the survey had been mandated by the  District Land Registrar; that the 1st appellant was present and participated in the fixing of the boundary;  and that if he is not satisfied he is free to engage an        independent surveyor and challenge the report. The   Judge concluded his decision thus:

“Inthe end I do find that the application lacks merit.  The 1st applicant must have received a notice of determination of the boundary.  The person who did the report was mandated by the land registrar and was therefore competent. The Land Registrar acted within his powers as per the law.  There is nothing to quash as the report is lawful. The application is hereby dismissed with costs to the respondents.”

As already indicated, that decision is the subject of the present appeal.

We have considered the appeal and the    submissions by learned counsel. There are two issues  for us to determine. The first is whether due process   was observed in the determination of the boundary  dispute, for if the boundary dispute was determined in contravention of the rules of natural  justice, an order for certiorari would be available. [See the decision of this Court in Kenya National Examination Council vs. Republic Ex parteGeoffrey Gathenji Njoroge and 9 others [1997] eKLR.

The second issue is whether the report that the   appellants sought to quash was indeed the report of   the Land Registrar. In other words, could the  Registrar’s statutory powers to fix boundaries under    the repealed Registered Land Act be delegated?

On the first issue, Section 22 of the repealed  Registered Land Act, Cap 300 provided that:

“22 (1) If the Registrar in his discretion considers it desirable to indicate on a filed plan, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if any interested person makes application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries.

(2) The Registrar shall, after giving all persons appearing by the register to be affected an opportunity of being heard, cause to be defined by survey the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and thereupon the plan shall be deemed to define accurately the boundaries of the parcel.

(3) Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the Director of Surveys, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this section.(Emphasis added).

Those provisions made it mandatory for the Registrar   to “give notice to the owners and occupiers of the land    adjoining the boundaries in question of the intention to      ascertain and fix the boundaries.” There was also a mandatory requirement for the Registrar to give all persons appearing to be affected “an opportunity of   being heard.”

It is common ground that the parcels of land   mentioned share a common boundary. The first  appellant deposed that he only became aware of the   alleged dispute when “officials” claiming to be from  District Lands office, Kakamega, visited the site on 17th January 2012. As we have already indicated, the  appellants’ application for an order of certiorari before  the High Court was served on the Land Registrar. The   Land Registrar did not file any response to the      application and neither did he participate in the         proceedings in the High Court. No notice from the    Land Registrar was exhibited to the replying affidavit of     the 2nd respondent to support the statement in that   affidavit that the appellants “were notified of the surveying  exercise”. The 1st appellant did not deny he was present   when the purported survey was done on 17th January 2012 as indicated in the impugned report dated 20th   January 2012. His presence there does not, in our   view, attest to notice having been given, for he could    well have otherwise been legitimately on his property  when he spotted the “officials” of the Lands office. The   finding by the Judge that, “the 1st applicant [the 1st    appellant] must have received a notice of determination of   the boundary” is with profound respect not supported by any evidence.

Furthermore, there is no evidence whatsoever that   before the impugned report was made the   parties   were accorded an opportunity to be heard by the   Registrar as Section 22(2) of the repealed Registered    Land Act demanded.

In our judgment, the process leading to the impugned   report was flawed and in breach of the principles of   natural justice entrenched in section 22 of the repealed Registered Land Act. For that reason alone, we are  satisfied that the learned Judge erred in declining to grant the order of certiorari.

The last issue is whether the Registrar properly    delegated his authority to determine the boundary         dispute. The power to fix boundaries under Section 22   of the repealed Registered Land Act was conferred on the “Registrar”. Under Section 3 of the same Act        Registrar means the Chief Land Registrar or Deputy   Chief Land Registrar or a Land Registrar or an assistant    Land Registrar authorized to exercise or perform any   particular power  under S. 7(4) of  the same Act.  In     fixing a boundary, the Land Registrar would   therefore   be exercising delegated authority. Whereas    under section 8(a) of the repealed Act the Land   Registrar   could require the production of a plan or   instrument by another person, the determination of    the boundary dispute itself was a matter for the Land  Registrar himself as a delegate of the Chief Land   Registrar to make.  A delegate cannot himself delegate.   The land Registrar could not therefore delegate    delegated authority. There is neither express or   implied authority in the statute for the Land Registrar to have delegated to another person. (See Administrative law by Sir William Wade, 10th   Edition at page 265).

For those reasons, we allow the appeal and set aside    the ruling and orders of the High Court given on 24th  July 2014 in Kakamega Judicial Review case No. 37 of  2012. We substitute the same with an order allowing,   with costs, the appellants’ notice of motion dated 11th June 2012. The appellants shall also have the costs of    the appeal.

Dated at Kisumu this 12th day of February, 2016.

D. K. MARAGA

………………………….

JUDGE OF APPEAL

D. K. MUSINGA

…………………………..

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

…………………………….

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

…………………………

DEPUTY REGSITRAR