[2005] KEHC 3220 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. 1441 OF 2003

IN THE MATTER OF: AN APPLICATION BY BROOKE BOND KENYA LIMITED AND CARGILL KENYA LIMITED FOR JUDICIAL REVIEW FOR ORDERS OF MANDAMUS CERTIORARI AND PROHIBITION

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IN THE MATTER OF: THE REGISTERED LANDS ACT, CAP. 300 LAWS OF KENYA

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IN THE MATTER OF: BROOKE BOND KENYA LIMITED AND CARGILL KENYA LIMITED

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BROOKE BOND KENYA LIMITED……....……………1ST APPLICANT

CARGILL KENYA LIMITED…………….……………..2ND APPLICANT

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THE CHIEF LAND REGISTRAR……...…………...…1ST RESPONDENT

THE LAND REGISTRAR, MOMBASA LAND

REGISTRATION DISTRICT…………………….…..2ND RESPONDENT

BAHARI (T) COMPANY LIMITED…………..……INTERESTED PARTY

RULING

A. CONTINUING JUDICIAL REVIEW PROCEEDINGS, AND AN INTERLOCUTORY NOTICE OF OBJECT

This is only an interlocutory stage in the continued hearing of an originating motion for judicial review dated 24th November, 2003 and filed on 25th November 2003. On 18th October, 2004 the interested party filed its Notice of Objection dated 16th October, 2004. The content of the Notice of Objection is as follows:

“TAKE NOTICE that at the next hearing of this Miscellaneous Application, the Interested Party will object to the affidavit of Mary Kai filed in Court by the original applicants on their behalf, on the grounds that:

1. The affidavit is sworn by a party against herself, and filed against her by the parties seeking an order against her.

2. The said affidavit has been filed without the leave of the Court.

3. The said affidavit does not constitute the response of the original applicants to the affidavit of Mr. Githii, and cannot be filed in response thereto by them.

4. The said affidavit, which is on official matters, has been sworn by a Government official without any authority from her departmental or ministry head.

5. A government official cannot express a personal view in Court proceedings in opposition to her department’s view, which are represented in Court by the Hon. The Attorney - General.

6. The affidavit has disc losed the collusion between the original applicants and this official.

7. The affidavit is an abuse of the process of this Honourable Court.

8. The affidavit is contrary to the interests of justice and a misuse of the Court’s process.

B. CALLING FOR DEPOSITIONS OF A PARTICULAR GOVERNMENT OFFICER

The main proceedings are centred on the mode of dealing with land title records, in respect of properties situate in Mombasa. It is the conduct of public officials with regard to land title records that is in question; and the purpose of judicial review in this regard is to ensure good and lawful administration by those public officials who are entrusted with the custody and management of property records.

In the course of the hearings in the main proceedings, on 30th March, 2004 counsel for the applicant presented affidavit evidence which was not contradicted, that unknown to the parties in the proceedings, the Interested Party had lodged cautions in the Mombasa Land Office records, against the suit property. The propriety of those cautions and the question of their removal became a matter of contest; and even as this situation persisted, the Land Registrar at Mombasa who had inserted the said cautions in the records, namely Mr. Githii, was, on 2nd April, 2003 transferred to a new station, in Nakuru, being replaced by a new Mombasa Land Registrar, Ms. Mary Kai.

It is strange that twodifferent rulings were written by the two Land Registrars regarding the dispute on cautions lodged against the suit property in Mombasa. When Ms. Kai took over the Land Registry in Mombasa, she found no ruling on file , on the said dispute over cautions; so she wrote a ruling and forwarded the same to the Chief Land Registrar, on 31st July, 2003. She found no basis in the continuation of the said cautions, and she removed those cautions on the day she forwarded her ruling. But then, the Interested Party was shocked by such act on the part ofMs. Kai, because as far as the Interested Party was concerned, there was a ruling by Mr. Githii , which confirmed the continuation of the said cautions. Consequently the Chief Land Registrar became squarely involved in this dispute, as he, on 9th October, 2003 wrote a letter quashing the actions taken by the Mombasa Land Registrar,Ms. Kai. Ms. Kai was ordered to re-register the restrictions.

In judicial review proceedings, it must come be known when Mr. Githiiwrote his ruling preserving the cautions and restrictions; in which file he had formally lodged his ruling; whether he wrote the ruling when he was no longer the Mombasa District Land Registrar. The answer to these questions lies at the very centre of any scheme of lawful administration in the Mombasa Land Office.

Therefore, at the end of the hearing of the instant proceedings on 30th February, 2004 I made orders and gave directions as follows:

“Mr. Muiruri, counsel representing the Attorney -General’s Office shall ensure that an affidavit is sworn by Mr. K. Githii of the Lands Office, Nakuru…

“Following service of the affidavit by Mr. Githii, other parties to these proceedings shall have up to 4 th of May, 2004 to file and serve any further affidavits .”

C. RESPONSE OF THE GOVERNMENT OFFICER

On 20th April, 2004 Mr. Kenneth Kariuki Githii the Nakuru District Land Registrar swore a replying affidavit which was filed on 21st April, 2004.

Very briefly,Mr. Githii avers that he was “transferred to Nakuru from Mombasa on or about April 2004 [sic].” He deposes that: “by the time of the said transfer I had some cases or hearings pertaining to land matters”. One of these, he avers, “was a caution hearing pertaining to title Numbers Mombasa Block 1/215, 350 and 449. ” He says he had “by a letter dated 18th February, 2003 requested the cautioners’ Advocates to provide written submission [on] grounds of objection to [the removal of] the caution.” He avers that he also received written submissions from the complainants; and he now had a duty to make a determination. Mr. Githiiavers that when he was transferred to Nakuru he had not yet completed the typing of his findings and therefore he “carried the file to Nakuru to be typed there.” He says he “returned the file and ruling to Mombasa after the typing and the same was to be sent to the parties as required by my [successor?]”.Mr. Githii avers: “…this case was not handed over to my [successor] because whatever had remained was only the typing…” He states that he had “acted properly [and] bona fide, within the powers conferred upon me [by] statute and [those specified] by the Chief Land Registrar.”

D. REACTING TO GOVERNMENT OFFICER’S DEPOSITIONS: THE AFFIDAVIT THAT RAISES THE OBJECTIONS

Although I had, in my directions of 30th February, 2004 allowed other parties to file further affidavits following service of the one byKenneth Kariuki Githii, my attention has at this stage been drawn to only one such response, the supplementary affidavit sworn on 23rd July, 2004 byMary Kai, the Mombasa District Land Registrar, filed on 26th July, 2004. It is precisely this affidavit which is the subject of the Interested Party’s Notice of Objection of 16th October 2004. What is to happen to this affidavit, therefore, must be held in abeyance until I make final orders at the end of this ruling.

It is already quite clear that I had, while hearing the instant proceedings, formed the impression that in the absence of an affidavit fromKenneth Kariuki Githii there would be a large gap in the information such as would assist the Court to see clearly the state of administration in the Mombasa District Lands Office; and the Court needed to have clear view of the happenings in that office because this is a judicial review matter, which is all about regular and lawful conduct of administration.

It follows that I would be constrained to allow reference in Court to Mr. Githii’saffidavit of 20th April, 2004 notwithstanding that counsel for the Applicants in the main proceedings, on 21st October, 2004 filed a Notice of Objection to that very affidavit. From my reading of that notice as filed, it is evident to me that the objection is with regard to matters of form - such as the failure to show the advocate who has drawn and filed the same, as required by Sections 34 and 35 of the Advocates Act (Cap. 16).

The objections to Mary Kai’s supplementary affidavit of 23rd July, 2004 are, in my view, on clear issues of merit, and this accounts for the fact that the entire hearing session of 25th October, 2004 was devoted to the same.

(a) Submissions for the Interested Party

Learned counsel for the Interested Party, Mr. Nowrojee, submitted that since in the main proceedings, there are three orders sought againstMary Kai as a Government officer and as the Land Registrar in charge of Mombasa Land Registration District, she was not in a position to swear an affidavit as she has purported to do, in aid of the applicant’s case. Such an affidavit, counsel submitted, was a manifestation of conflicts of interest, and was also procedurally untenable because the deponent was herself the second respondent in a matter prosecuted by the appe llant who seeks to quash acts of the respondents, and to compel them by orders of Mandamus to perform certain acts to the benefit of the applicants. The applicants are also seeking prohibitory orders against the respondents, and in particular against the Land Registrar for Mombasa District, who is Ms. Mary Kaiherself.

Counsel considered ex facie objectionable the fact that the said affidavit byMary Kai has been drawn and filed by counsel for the applicants, so that the implication is that she has sworn this affidavit against herself and her public office, but in aid of her opponents , the applicants; and the intention is so that they can obtain orders against the Mombasa District Land Registrar, against the deponent herself. That Mary Kai should make depositions against herself in this manner, counsel submitted, amounted to abuse of process.Counsel submitted that Mary Kaias a serving Government officer ought to have shown her authority to swear the impugned affidavit in her capacity as the Land Registrar in charge of the Mombasa Land Registration District; and she should also have shown her authority to swear on official matters. Counsel considered it improper for this representative of the Chief Land Registrar (1st respondent) to swear an affidavit which nowhere even pretends to have any other person’s authority, and not even the authority of the Chief Land Registrar who is her superior. The effect, counsel submitted, was that the deponent was presuming to swear an affidavit against the position taken by her superior in the instant proceedings.

Learned counsel submitted that Mary Kai as second Respondent in the main proceedings, was already represented by the Attorney -General who also represented the first respondent and who, therefore, was the legal officer with audience in respect of the respondents as one group. Counsel considered it improper that the second respondent should be recognised in Court to have taken a different representation step, through an advocate other than the Attorney-General. He urged that the deponent could not simultaneously act and take steps through both advocates, especially when, as is the case, those advocates are on opposing sides.

Mr. Nowrojee saw impropriety in the fact that while Mr. Githii’sdepositions had been called for by the Court and the follow-up task entrusted to the Attorney-General, the second respondent who is not an employee of the applicants has taken it upon herself to swear an affidavit that, in effect, challenges the Attorney-General’s position. Counsel submitted that an affidavit sworn in these circumstances by Mary Kai, could not be based on purely objective perceptions and could not be non-partisan. Counsel submitted that the deponent, by her affidavit, had sought, in effect, to preempt her own defence without being asked by the Court to do so - as the content of her depositions touch on the very issues in respect of which the Court must give a decision after the hearings are complete. In the words of counsel, “she has shown willingness to assist one party beyond the normal conduct of an assisting official.”

Counsel urged that the affidavit of Mary Kai be struck out, and costs be provided for.

(b) Submissions for the Applicants

Learned counsel, Mr. Regerusought to give a different context to thedepositions made byMary Kai . He remarked that, when the Court suo motu called for an affidavit by Kenneth Kariuki Githii,he had on behalf of the Applicants sought leave to put in a response to such depositions as would come from Mr. Githii. He contended that the two affidavits – that of Githii and that of Mary Kai were, in fact, not partisan and were intended to give only a factual and objective sequence of events. He submitted that the fact of Mary Kai’s affidavit being drawn by the firm of advocates representing the applicants, is not a proper basis for attributing incompetence to the same and calling for its being struck out. Counsel contended that Mary Kai is not speaking for the applicants: “All she is doing is giving a professional narration of t he facts as she knows them. ” Counsel denied that there was any collusion, simply because his firm did prepare the affidavit. In his words:“If there is collusion, it is collusion to tell the truth; and Mary Kai should be commended for telling the truth. ”

Mr. Regerusubmitted that whereas Kenneth Kariuki Githii’s affidavit failed to comply with certain requirements of Sections 34 and 35 of the Advocates Act (Cap. 16) and thus should be struck out, Mary Kai’saffidavit had its origin as the order of the C ourt; and so the authority of the Chief Land Registrar (first Defendant) could not have countermanded the swearing of her affidavit. It was contended that Mary Kaidid not require any other authority to swear her affidavit. Counsel contended that the deponent had not sworn an affidavit against herself, but rather, “Her affidavit is against the suppression of material facts.”

On the relationship between Mary Kai and the State Law Office in the main proceedings,Mr. Regerucontended that the deponent should be differentiated from the Attorney-General, and it should be considered that “she was asked to swear an affidavit by the Court.” He submitted that the impugned affidavit was properly on record and was a proper response to the averments in Mr. Githii’s affidavit. Counsel subsequently remarked that there had been “no specific direction that an affidavit comes from Mary Kai ”; but he went on to state that only Mary Kai had the competence to speak to the issues which had been raised in Mr. Githii’s affidavit. He gave the example of paragraph 11 in Githii’s affidavit, in which he avers that the relevant file had not been handed over to his successor when he left on transfer to Nakuru. Counsel averred that only Mary Kai had the competence to make a deposition on that matter.

(c) The Position of the Respondents

Learned counsel,Mr. Muiruri who represented the Attorney-General, stated that the respondents were not opposed to the Notice of Objection filed and argued for the Interested Party. He adopted the objections and urged the Court to strike out the affidavit of Mary Kai. Counsel, after perusing the proceedings of 7th July, 2004 remarked, I believe correctly, that no specific order had been made placing a duty on Mary Kaito swear any affidavit . He then remarked: “The deponent purports to make the affidavit in her capacity as District Land Registrar, Mombasa, but does not pretend to do so with the authority of that office”.Mr. Muiruri supported the sixth ground raised by the Interested Party, that the affidavit discloses an element of collusion between the applicants and the deponent; he further stated that the first respondent had raised these points. (d) The Interested Party’s Reply On the basis of this Court’s orders and directions of 30th March, 2004 and 7th July, 2004 Mr. Nowrojee submitted that there was hardly any Court requirement or authority for Mary Kai to swear an affidavit in response to that sworn by Kenneth Kariuki Githii. Counsel submitted that since Mr. Githii’s depositions were specifically called for by the Court, on 30th March, 2004, had there been need to give such directions with regard to Mary Kai , similar directions would have been given. And if this would have been necessary, then the natural course would have been for the Court to ask Mr. Muiruri of the Attorney-General’s Office to arrange for Ms. Kai to swear an affidavit. Counsel submitted that the Applicant lacked an answer on this point, and urged that the competence of Mary Kai as a deponent was beside the point: the question was about abuse of process . Counsel submitted that the very notion of Mary Kai responding to the affidavit by Kenneth Kariuki Githii would suggest that Ms. Kai’s response is the Applicant’s response. Counsel made reference to paragraphs 9, 10, 11 and 12 of Mary Kai’s affidavit which he considered to be mere opinions; and that paragraph 9 thereof did indeed contain a prejudicial remark. Mr. Nowrojee submitted that neither competence nor admissibility was in this matter a relevant consideration, and the question of truth in the impugned affidavit was not relevant; rather the whole question is abuse of process.

E. FINAL ANALYSIS, ORDERS AND DIRECTIONS

The question coming before me at this interlocutory stage in the main judicial review proceedings, may well be one of first impression. I suspect this because the highly learned submissions made, sought no reliance on case law . The question is a clear-cut one: Is it tenable in legal practice that a public officer named as a joint respondent alongside her superiors, and all of them jointly represented by the State Law Office, can independently make and file depositions with a definite bearing on the essential gravamen in the proceedings, through the applicant’s counsel on record?

This question of law lies at the bottom of the very substantial issues of merit raised by the Interested Party in its Notice of Objection of 16th October, 2004. The question should be accommodated in some mode of settlement, because it has certain elements that should not be subject to extempore variation from case to case.

In the formulation of the legal question I have referred to the dictates of legal practice. This must refer to the correct legal principles to guide the Court as it performs its constitutional mandate, which is to render justice between parties involved in a dispute. I am therefore concerned with guiding principles of law to lead the Court to a just resolution of matters in dispute.

Learned counsel for the Interested Party submitted that it would be a distortion of the recognised mode of trial which enables the Court to arrive at just results, if parties named as respondents, by purely informal arrangements, conducted themselves as if they had changed their status, with one of the co-respondents now assisting the applicant to prosecute his application more effectively. Mary Kai’s affidavit, which is drawn and filed by counsel for the applicants, sets out to respond to the affidavit of her predecessor as Mombasa Land Registrar, which was put in as part of the respondents’ dossier. She states in paragraph 2 of the affidavit:: “In response to paragraphs 6,7,8,9,10,11 and 13 of the said affidavit [ofKenneth Kariuki Githii ] I state as follows…”

In the course of Mary Kai’s depositions, contradictions clearly begin to emerge in the overall presentation of the respondents’ evidence – a matter that, for basic professional reasons, must be of grave concern to the Attorney-General who has the conduct of the entirety of the respondents’ case. Is this right, as a mode of conduct of a party’s case in Court? While it is obviously the case that among a group of joint respondents in judicial proceedings, conflicting information may be in the custody of the different respondents, is it necessary for the purpose of the determination of the questions before the Court, that such conflicts be formally ventilated? I do not think so; and this is the relevance of learned counsel, Mr. Nowrojee’s concern to protect the process of the Court. In this process the Court addresses the mutually-opposed positions of the parties, and by the mode of examination and the submissions adopted on each side,the truth emerges by an analytical process , and it has come to be accepted that this mode of trial will lead to just decisions by the Court.

If the case of the two respondents must stand or fall together, and the professional conduct thereof is in the hands of the Attorney-General, is it conceivable that the self-same Attorney-General could be preparing supporting evidence through one respondent which is in conflict with the evidence coming through another respondent? I do not think so, as that would obviously render the Attorney-General’s position professionally embarrassing; and indeed it would also have the effect of embarrassing the trial process.

The respondents are Government officers, and this is the basis upon which the Attorney-General has the conduct of their case. The first respondent is the senior of the two respondents, and he has authority to give directions to the second respondent. Is it tenable that the second respondent can adduce evidence which has the clear effect of weakening the position of the first respondent? This cannot be so, given in particular the fact that it is the professional duty of the Attorney-General to conduct to the best advantage the total case of the respondents.

Suppose Mary Kai’s evidence proved highly beneficial to the applicants, would the applicants not thereby be specially empowered to obtain the compelling and prohibitory judicial review orders sought against both respondents? Certainly. And so the effect is that the whole scheme of the trial process loses its essential elements that have been received from the common law tradition.

An important aspect of the submissions made for the Interested Party is that in regular conduct of administration,Mary Kaias the Mombasa District Land Registrar and serving under the authority of the Chief Land Registrar, should have shown the official capacity and the proper authorisation by virtue of which she was proffering evidence, not through the office of the Attorney-General, but through counsel on record for the applicants. I would, with respect, agree with this submission, especially as it underlines a significant dimension of good administration which is the direct concern of all judicial review proceedings.

Learned counsel for the applicants,Mr. Njoroge Regeruset store by two elements as justifying Mary Kai’ssupplementary affidavit: (a) Court’s orders as the origin of the affidavit; and (b) the need to obtain truthful information from the most knowledgeable witness on the relevant matter. As regards the first of these, a careful perusal of the Court record has shown that while orders had been made creating a liberty for parties to respond to Kenneth Kariuki Githii’s affidavit, there had been no mention of Mary Kai as a person who should make depositions. The effect is that the selection of deponents following the filing of Githii’s affidavit, was left to the parties and to the professional advice of their counsel on record. Learned counsel, Mr. Nowrojee submitted that the selection ofMary Kaias a deponent in these circumstances was improper, as it led to serious conflicts of interest which could only compromise the process of resolution of the issues in dispute. I think it is clear that this perception was a valid one and is to be upheld.

Learned counsel, Mr. Regeru also justifiedMary Kai’s affidavit on the basis that it would lead to the truth , in important matters of fact relevant to the main proceedings. That may be so, but I think this would be at a price too high, in terms of the established mode of play of the trial process in the common law tradition. It has been recognised that the motions of that process will invariably lead to the substantial truth, and will be good enough for ensuring that justice is done.

It is the case, of course, that truth is the crucial value that leads the Court to a just determination of matters in dispute. But different paths to the truth do exist. One of them is cross-examination of a deponent on his depositions: and the applicant could very well have resorted to this method.

Therefore, I must hold, and render as a direction on a question of law, that -

It is not tenable in legal practice that a public officer named as a joint respondent alongside her superiors, can independently make and file depositions through the applicant’s counsel on record, save in such special circumstances as may have been considered by the Court and a different, specific order made.

As exceptions to the general rule do not apply, on the facts before me, I must order that the affidavit of Mary Kai sworn on 23rd July, 2003 and filed on 26th July, 2004 be struck out; and the costs in this regard shall be borne by the applicants in any event.

Orders accordingly

I will direct herby that counsel come before the Duty Judge on Wednesday, 26th January, 2005 at 9. 00 a.m. for mention and allocation of an early date for continued hearing of the part-heard Judicial Review proceedings.

DATED and DELIVERED at Nairobi this 21st day of January, 2005.

J.B. OJWANG

JUDGE

Coram: Ojwang, J

Court clerk: Mwangi

For the Applicants: Mr. Njoroge Regeru, instructed by M/s. Njoroge Regeru & Co.

Advocates

For the Respondents: Mr. Muiruri, instructed by the Honourable the Attorney-

General

For the Interested Party: Mr. Nowrojee, instructed by M/s. Anjarwalla & Khana

Advocates