Chita v District Land Registrar – Kilifi & 2 others; Patel (Interested Party); Muita (Third party) [2023] KECA 1521 (KLR)

Chita v District Land Registrar – Kilifi & 2 others; Patel (Interested Party); Muita (Third party) (Civil Appeal E007 of 2021) [2023] KECA 1521 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KECA 1521 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Civil Appeal E007 of 2021

AK Murgor, KI Laibuta & GV Odunga, JJA

December 8, 2023

Between

Chita Ngolo Chita

Appellant

and

District Land Registrar – Kilifi

1st Respondent

District Surveyor – Kilifi

2nd Respondent

District Adjudication Officer - Kilifi

3rd Respondent

and

Indravadan Ashibhai Patel

Interested Party

and

Billy M Muita

Third party

(Being an appeal from the Judgement of Environment and Land Court at Malindi (J. O. Olola, J.) dated and delivered on the 2nd day of October 2020 in E.L.C Petition No. 1 of 2015 Constitutional Petition 1 of 2015 )

Judgment

1. The judgment from which this appeal arises was rendered in determination of the amended petition dated 20th November 2015. In the amended petition, the petitioner prayed for:a.a declaration that the Respondents actions of withholding and/or denying the Petitioner access to the original adjudication record, the Registry Index Map (as in 1984) and or other lands registry records relating to all that area known as Buni/Kisimani Adjudication Section is unlawful and in contravention of the Petitioner’s rights under the Constitution;b.an order compelling the Respondents to follow the law and immediately table before this Honourable Court the procedures it followed to alter the original boundaries in relation to Plots numbers 218, 219, 209, 208, 207 and 210 when creating Plot No 1181 in reference to the original registration records and adjudication of 1984;c.a mandatory order do issue compelling the Respondents to rectify and fix boundaries of Buni/Kisimani 218 measuring approximately 4. 01 Ha (9. 90871 Acres) as per Title issued on 1st October 2009; andd.Any other order for the protection and further preservation of the Applicants fundamental rights under the Constitution as this Court may deem just and convenient to grant.

2. According to the appellant, he is the owner of plot No Buni/Kisimani/218 bordering plot numbers Buni/Kisimani/209, 207, 208 and 219; that some times in 1984, the Respondents created plot No Buni/Kisimani/1181(from the Original plot No 207 and 208) in the name of the interested party; that the interested party made numerous attempts to acquire the appellant’s adjacent plot No 218 but after failing to obtain it resorted to the use of the Provincial Administration to hive off the land; that sometimes in August 2011, the appellant’s elder brother passed on and when he tried to bury him at the family graveyard which falls in the middle of the newly created plot No 1181, he was stopped by the Provincial Administration and was forced to bury him elsewhere; that soon thereafter the appellant was served with suit papers emanating from Kaloleni SRM’s Civil Suit No 271 of 2011 wherein he was named as a defendant.

3. To enable him effectively respond to the suit, the appellant visited the lands office at Kilifi to obtain the original land adjudication record, but the respondents declined to issue him with any documents; that, as a result, he was “handcuffed” and unable to respond effectively to the suit filed against him; that, by their actions aforesaid, the respondents violated the appellant’s rights to access public information and protection from deprivation of property; and that the respondents have treated him in a malicious, partial and discriminatory manner.

4. In opposition to the petition, the respondents filed grounds of opposition dated 18th August 2016 in which they contended that:1. The Petition does not contain the necessary particulars or describe the suit property sufficiently to enable the Respondents respond to the same, and it ought to be struck out for being fatally and incurably defective.

2. The Respondents deny that there is any discrepancy between the Registry Index Map and the actual boundaries on the ground as alleged.

3. The Respondents deny that the petitioner was denied access to the Original Adjudication Record in respect of the suit land, or that he was discriminated as alleged or at all.

4. The Respondents deny that any Constitutional provisions, in particular Article 40 thereof, was contravened or violated by the Respondents.

5. The Respondents deny that the Petitioners are entitled to any of the orders sought in the Petition.

5. Likewise, the interested party opposed the petition vide a replying affidavit sworn by a donee of his power of attorney, Isaac Momanyi Mamboleo, and filed on his behalf on 8th August 2012. According to him, he is the absolute proprietor of all that parcel of land known as Buni/Kisimani/1181; that he has been wrongfully joined in this Petition as his parcel of land does not share a common boundary with the appellant’s parcel of land - Buni/Kisimani/218; that he was compelled to file the suit in the Kaloleni SRM’s Court after the appellant trespassed upon his parcel of land on 16th August 2011 and started digging a grave with the intention of burying his dead relative thereon; that the District Surveyor had already visited the disputed property on 24th June 2010 in the presence of the appellant, and had ascertained the boundaries thereof.

6. In support of his case, the appellant called four witnesses at the trial. According to the appellant, who testified as PW1, he is the registered owner of the parcel of land known as Buni/Kisimani/218 measuring 4. 01Ha; that land adjudication was done in their area in 1984, although they were not issued with titles until the 1st October 2009 when he obtained his own title deed; that, after sometime, the interested party went to their area claiming to have bought land and started putting up structures on the land using the appellant’s land as an access; that, a short while later, the appellant received a letter dated 26th June 2012 asking the District Surveyor (the 2nd Respondent) to give a report on the land; that, subsequently, the boundary beacons were removed and placed inside PW1’s land; and that, upon receiving the Survey Report, he went to the Lands Office and asked for the documents, but was not given. He urged the Court to give it back to him.

7. On cross-examination, the appellant conceded that he had not produced documents to demonstrate that he had sought any help from any Government agency; that survey by the Provincial Surveyor was carried out in his presence following an application agreed on by the consent of the parties in the suit; that, even though the survey report showed that his land was 4. 01 Ha, it did not take into account the portion he had been cultivating before; that he did not agree with the report of the Provincial Surveyor dated 7th August 2013; that his parcel is adjacent to plot numbers 207, 209 and 219; that plot numbers 207 and 208 were amalgamated into plot No 1181; and that he was not accusing the respondents of refusing to give him the map of the area since his surveyor had used the map.

8. PW2- Ronald Chita, an elder brother to the appellant, supported the appellant’s position that the interested party had taken the appellant’s land, and that he had since fenced it with a wall. He urged the court to have the boundary of the appellant’s land revert to where it was before. However, in cross-examination, PW2 testified that he did not know how much of the appellant’s land had been taken away by the interested party. While asserting that he was the proprietor of plot No 219, he denied taking away a portion of the Petitioner’s land.

9. PW3 - Edward Marenye Kiguru, a Licenced Land Surveyor based at Mombasa, told the Court that he was instructed by the appellant’s Advocates in June 2016 to survey the disputed property; that he carried out the survey and filed a report dated 5th July 2016; that, according to his report, plot No 218 measures only 1. 81Ha thereby leaving a discrepancy of 2. 20 Ha; that the land is therefore smaller on the ground compared to what appears on the title; that he had not gone to the ground himself and that, instead, his associate one Dennis Malembeka, who is not a Licensed Surveyor, had prepared the report; and that, when the survey was done, they had not given any notice to the interested party as required under the Survey Act.

10. PW4 - Khamisi Mzuya Chai, the appellant’s neighbour, told the court that they used to live on plot No 207, but that his father sold the land; that, prior to the sale, there was no dispute on the boundary, although he later heard that there was a dispute over the land; and that the appellant was being defrauded of his land.

11. On their part, the respondents called as DW1 Athman Chiro Mboka, a surveyor based at the District Survey Office, Kilifi. According to him, he was familiar with the matter in dispute, and was aware of the creation of plot No 1181 as their office had participated in its creation; that plot No 1181, which measured 3. 96Ha, was created from the original plot No 207 measuring 2. 48 Ha and plot No 208 measuring 1. 48 Ha; that their office never received any formal complaint in regard to the discrepancy on the sizes of the plots; that it was plot No 218 which had encroached on other plots; that their office is only the custodian of maps, and that the Registry Index Map (RIM) was kept instead at the District Survey Office; and that their office did not decline to avail the RIM to the appellant.

12. DW1 further testified that, where a parcel of land has a dispute with a neighbouring one, the concerned officers would visit the ground and resolve it, and that what is on the ground is what would be placed on the record. However, he was unaware if the relevant offices had visited the ground in this case.

13. The 1st interested party was represented by the donee of his power of attorney, Isaack Momanyi Mamboleo. The witness told the court that the interested party bought the two pieces of land from one Betty Wavinya Mulumba; that the two plots were later amalgamated into plot No 1181; that, on 16th August 2011, he was called by a caretaker and told that there were people digging a grave on the interested party’s parcel of land, and that the appellant was one of them; that the matter was reported at Kaloleni Police Station; that the said interested party also sought an order of injunction in Kaloleni SRMCC No 271 of 2011 against the appellant; and that, although the orders were issued, the case was later stayed pending the conclusion of this matter.

14. It was disclosed that, after the appellant filed this matter, the parties agreed by consent that a surveyor visits the land; that the survey report later filed in court showed that the interested party’s land does not in any way border the appellant’s land; that there is plot No 209 between the appellant’s land and that of the interested party; and that, although the interested party tried to buy the adjacent plot No 219, the appellant objected to the sale.

15. After hearing the evidence, the learned judge, (Olola, J.) rendered his judgement in which he found that, by a consent in writing dated 26th November 2012 and recorded in court on 7th December 2012by learned counsel for the appellant, the respondents and the interested parties, the parties herein agreed that the Provincial Surveyor, Coast region, ascertains and fixes the boundaries of plot No Buni/Kisimani/218, and that the Provincial Surveyor and the District Land Registrar, Kilifi do file a report to the Court within 90-days; and that, in compliance with the said orders, the Provincial Surveyor visited the parcels of land in dispute on 7th August 2013 and proceeded to prepare his report dated 19th August 2013, which report was subsequently filed on 23rd August 2013.

16. According to the learned judge, although the appellant’s main contention was that he was denied access to the original adjudication records, the Registry Index Map as in 1984 and other land registry records relating to the suit property, other than the Registry Map (RIM) which was specified in his pleadings, the appellant did not specify what other records he required, and it remained unclear to the court what the appellant meant by the “original adjudication records” and “other land records.” He further noted that the appellant, when questioned by his own Advocates as to the nature of the other documents, he stated in re-examination that there was nothing else he had asked for other than the Registry Index Map. The court found that there was no evidence placed before it showing that the said map was requested for by the appellant and noted that, in cross-examination, the appellant conceded that he did not produce any document to show that he had sought help. Neither did he make any complaint in writing to the Lands Office. The court referred to the evidence of DW1 to the effect that, though the RIM is a document obtained from the surveys office on payment of the requisite fee, no request for the same or complaint was received in regard to the RIM for the area in dispute from the appellant.

17. In view of the foregoing, the learned judge found that, in the absence of any request for any document, the appellant could not blame the respondents or any other person for failing to supply him, or for denying him access to documents which he had not requested for in the first place. As regards the prayer compelling the respondents to rectify and fix the boundary particularly in respect of the appellant’s parcel number Buni/Kisimani/218, the learned judge found that, in light of survey report filed pursuant to the consent of the parties herein, the appellant did not demonstrate the existence of any boundary dispute between himself and the interested party since plot No 1181 was an amalgamation of two plots numbers 207 and 208, which were adjacent to the appellant’s parcel; that a dispute over the boundaries arose when the interested party moved to purchase the said parcels; that the dispute was subjected to the relevant offices, and that the boundaries were subsequently verified as per the findings of the Provincial Surveyor in his said report; that the report produced by the appellant three years down the line was not helpful to him; that the said report showed that there was a plot No 209 between the appellant’s plot No 218 and the interested party’s plot No 1181; that the appellant had not sued the owner of plot No 209 who, according to his survey report, is his immediate neighbour; that the report as was not prepared by a licenced surveyor as by law required since, its author, Dennis Malembeka, was neither licensed nor authorized to undertake survey work; and that the report could not be relied upon by the court particularly as PW3 conceded that he neither went to the ground nor prepared the same.

18. In the learned judge’s view, the appellant had issues with the land adjudication done in the area in 1984, and hence his request for information on the RIM for that year as well as the adjudication records; that, under section 26 of the Land Adjudication Act, an objection relating to the adjudication register ought to have been raised within 60 days of the completion thereof; that no explanation was given as to why this was not done until the year 2011 when the petition was filed; that, while the appellant claimed that his rights under Article 40 of the Constitution have been violated, the learned judge was unable to find the manner his rights were breached by either the respondents or the interested party.

19. In the result, it was found that the appellant completely failed to specify with precision in his pleadings and testimony how his constitutional rights were infringed, and that the amended petition not only failed to meet the legal threshold for a constitutional petition, but also failed to disclose any cause of action against the respondents and the interested party. The petition was dismissed with costs.

20. It was that dismissal that aggrieved the appellant and provoked this appeal in which the appellant contends that the learned trial court erred in finding that the survey report dated 19th August 2013 conclusively determined the boundary dispute and discrepancy in acreage between the appellant and the interested party; that the learned judge erred in failing to find that the appellant’s land was encroached on and/or hived off by the interested party despite clear admission by the 2nd respondent that there was a disparity in acreage and discrepancy of at least 30% after amalgamation of the interested party’s property; that the trial court erred by holding that the appellant’s request to be supplied with the original adjudication records and Registry Index Map as at 1984 amounted to an objection relating to adjudication register; that the trial court erred in dismissing the appellant’s petition on a technicality despite clear admission of anomalies in the acreage; that the boundaries ought to be fixed between the appellant’s and the interested party’s plots; that the trial court erred in finding that the appellant’s constant physical visits to the respondents’ offices to request for information and the frustrations meted upon him did not amount to violation of the appellant’s constitutional rights; that the trial court erred by dismissing the appellant’s private surveyor’s report on the grounds that it was a replica of the one done by the unlicensed surveyor when the latter was not produced as the appellant’s evidence; that the trial court erred by failing to recognize the factual background prior to the amalgamation of the interested party’s property and subsequent encroachment of the appellant’s land by the interested party; that it was an error to find that there were no existing boundary disputes and acreage discrepancy in the suit premises; and that the learned judge erred in arriving at a decision that was wholly against the weight of evidence, the law and justice.

21. He sought to have the impugned judgement set aside and the petition allowed as prayed with costs. In the alternative, he requested that the matter be remitted to any judge other than Olola, J. to hear and determine the petition afresh.

22. We heard the appeal via this court’s GoTo Meeting virtual platform on 20th September 2023 when learned counsel, Ms. Murage appeared for the appellant, learned counsel Ms. Lutta appeared for the 1st, 2nd and 3rd respondents, and learned counsel Mr. Oluga appeared for the interested parties.

23. The appellant filed his submissions dated 31st January 2023 through the firm of Gikandi & Company, Advocates, which submissions were highlighted orally before us by Ms. Murage. According to the appellant, the genesis of these proceedings was the refusal of his requests despite several visits to Kilifi Lands Registry by the appellant in search of the original Registry Index Map used in the 1984 adjudication process that captured the boundaries originally placed during the adjudication process; that the said document was required by the appellant to enable him defend himself in Mariakani SRMCC No 271 of 2011 in which the interested party had sued the appellant for trespass; that the said document was to eventually resolve the boundary dispute between the appellant and the interested party; that the respondents declined and/or ignored to heed the appellant’s said request; and that it was the said refusal that led to the filing of the petition in the High Court.

24. It was submitted that, from the evidence adduced, it was clear that the interested party found the appellant on the suit land; that, from the evidence of PW3, a highly qualified surveyor, the actual size of plot 218 is no longer 4. 01ha, but is smaller on the ground; that from the evidence, after the said amalgamation, the interested party’s plot which ought to have measured 4. 44Ha, it became 4. 46Ha and, as a result, the appellant lost part of his land; that the trial court erred in relying on the survey report prepared and dated 19th August 2023 as setting the correct version of the acreage with regard to the two neighbouring plots Buni/Kisimani/218 and Buni/Kisimani/1181; and that the respondents failed to avail in court the Registry Index Map which would have shown clearly the boundaries between the two plots.

25. In this regard, the appellant relied on Timsales Limited v Harun Thuo Ndungu [2010] KLR for the proposition that, when a party is in possession of information relevant to an issue in court but fails to adduce it, it is to be assumed that the information would have been prejudicial to him or her. Further reliance was placed on this Court’s decision in Munyu Maina v Hiram Gathiha Maina [2013] KLR, highlighting the principle that the holder of a title cannot just wave it at the court, but that he or she has a duty of explaining the root of that title.

26. According to the appellant, the trial court erred in dismissing the constitutional issue raised by him with regard to being supplied with those documents since the respondents are state organs and state officers upon whom a duty is placed by Articles 10, 35 and 47 of the Constitution to act in a transparent, accountable and credible manner. In this regard, the appellant cited the decision of the Supreme Court in Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others [2013] KLR for the proposition that the right to information implies entitlement by the citizen to information, as well as the duty on the State with regard to provision of information.

27. It was submitted that the trial court ought to have considered the best way of doing justice to the parties instead of leaving the appellant and the interested party locked up in a dispute, since the appellant had prayed for a specific order seeking to compel the respondents to rectify and fix the boundaries of Buni/Kisimani/218. Based on the case of Standard Chartered Bank Kenya Ltd & another v Intercom Services Ltd and 4 others [2004] eKLR as cited in Ndishu & another v Muriungi [2022] KEHC 2 KLR, it was submitted that when a court of law fails to determine any issue left to the court to determine, the resultant judgement cannot be considered as safe and reliable.

28. Based on those submissions, we were urged to either determine the matter with finality or remit the same to the trial court to be heard and determined by any other judge possessed of jurisdiction to do so other than Olola, J.

29. On their part, the respondents relied entirely on their written submissions dated 1st February 2023 drawn and filed by the Hon. Attorney General.

30. According to the respondents, there was no evidence that the appellant requested for the documents alleged to have been denied him. Yet, pursuant to section 107 of the Evidence Act, as expounded in M’bita Ntiro v Mbae Mwirichia & another [2018] eKLR, placed the burden to do so on him; that under section 8 of the Access to Information Act, the information must be requested in writing; and that, in this case, the appellant admitted that he had not written any letters requesting for the information. In this regard, the respondents relied on the decisions in Katiba Institute v President’s Delivery Unit & 3 others [2017] eKLR and Nehemiah Stone Bic Misiani (Suing on his behalf and on behalf of the general public) v Board of Management – Eberege Primary School & another [2021] eKLR, in which the court was emphatic on the need for a written request either in English or in Kiswahili, providing details and sufficient particulars for the public officer or any other official to understand what information is requested; that a mere visit to an office does not constitute a request for information as envisaged under Article 35 of the Constitution as read with section 8 of the Access to Information Act.

31. As regards the allegation of violation of the right to property, it was submitted that the appellant did not state with precision what was violated; that the issue of ascertainment of the boundary between plot 218 and 1181 was, by consent, referred to the Provincial Surveyor, who visited the land and carried out the boundary verification exercise; that the report showed that the boundary between the appellant and the interested party was well maintained and demarcated with sisal and conforms with the Preliminary Index Diagram (PID), but that there was no physical demarcations between plots 218 and 209; that the measurement of plot 218 was 4. 01 as confirmed by the appellant; that the appellant’s contention was with respect to the parcel he was cultivating before the adjudication process in 1984; that, in that event, he ought to have complied with section 26 of the Land Adjudication Act and lodged an objection to the adjudication register.

32. On the need to plead with precision the manner in which the alleged violations were occasioned, the respondents relied on Anarita Karimi Njeru v Republic (No 1) (1979) KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. The respondents prayed that the appeal be dismissed and based, on the decision in Peter Muruiki Ngure v Equity Bank (K) Ltd [2018] KLR, the appellant should bear the costs of the appeal.

33. The interested party filed his submissions dated 6th February 2023 through the firm of Oluga & Co, Advocates. Apart from reiterating the respondents' submissions, the interested party noted that, following the objection made to the report by Dennis Malembeka on the basis that the author was not a licensed surveyor, the appellant filed another report purportedly by Edward Kiguru, which was an exact replica of Malembeka’s report, including the date and reference number, save for the letterhead and the name of the author. It was further noted that, unlike the Provincial Surveyor who visited the plots in the presence of the parties, the other reports were either undertaken by unlicensed surveyor or by those who did not visit the plots, or visited the plots in the absence of the parties. According to the interested party, the Provincial Surveyor’s report conclusively determined the boundary dispute; that the two reports filed showed that there was a plot No 209 between the appellant’s plot No 218 and the interested party’s plot No 1181, and yet the owner of plot 209 was not sued.

34. The interested party urged us to dismiss the appeal with costs.

35. We have considered the issues raised before us in this first appeal in which our duty, as set out by this court in Selle & another v Associated Motor Boat Co. Ltd & others (1968) EA 123, is to reconsider the evidence, evaluate it and draw our own conclusion of facts and law. We will only depart from the factual findings by the trial court if they were not based on evidence on record; where the said Court is shown to have acted on the wrong principles of law as was held in Jabane v Olenja (1986) KLR 661; or where its discretion was exercised injudiciously as was held in Mbogo & another v Shah (1968) EA 93.

36. Before we consider the issues raised in this appeal, we wish to remind the parties that the term “interested party” as was used in describing Indravadan Ashibhai Patel as well as “third party”” as used in describing Billy M. Muita, have no place in the Rules of this Court. While parties may well be described as interested parties or third parties in the lower courts, in this Court, the parties are either applicants and respondents or appellants and respondents, and the concept of interested parties is not contemplated by our Rules which, when dealing with the procedure before the Court, are self contained and unless otherwise expressly provided, do not permit of the importation of other procedures that may be expressly or otherwise permitted in other courts.

37. This is a classic case of how parties mutate their case from what was initially brought before the court to a totally different cause under the guise of an amendment. The appellant approached the trial court vide a constitutional petition seeking an order compelling the respondents to furnish him with information that would have enabled him to affectively defend himself in Kaloleni SRM’s Civil Suit No 271 of 2011 in which he was sued by the interested party for trespass. That suit is yet to be determined since, and rightly so, it was stayed pending the hearing and determination of the appellant’s petition. However, instead of pursuing what was purely a constitutional grievance touching on his right to access to information pursuant to Article 35 of the Constitution, the appellant went off on a tangent and, through an amendment, mutated his case into a land dispute. Such disputes are, ordinarily in the realm of ordinary civil suits and ought not to be litigated as constitutional issues. In Minister of Home Affairs v Bickle & others (1985) L.R.C. Cost.755, Georges, CJ held that:“It is an established practice that where a matter can be disposed off without recourse to the Constitution, the Constitution should not be involved at all...Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.”

38. As held by the Supreme Court in Erad Suppliers & General Contractors Ltd. v National Cereals & Produce Board Petition No 5 of 2012:“...our Bill of Rights is robust. It has been hailed as one of the best in any constitution in the world. Our courts must interpret it with all the liberalism they can marshal. However, not every pain can be addressed through the Bill of Rights and alleged violations thereof.”

39. An issue revolving around boundary dispute or trespass to land does not, in our view, pass the constitutional muster in order to be litigated as constitutional petition.

40. We will therefore confine ourselves to the issue that was properly before the trial court. All parties, including the appellant, appreciate that the appellant’s initial sojourn to the court was to seek information from the respondents in order to enable him defend himself in Mariakani SRMCC No 271 of 2011.

41. The right of access to information is protected under Article 35 of the Constitution of Kenya, 2010 pursuant to which the Access to Information Act, 2016 was enacted. However, any person interested in receiving information from the State, such as the appellant herein, is required to make an application to access such information as provided by the Access to Information Act, 2016 under which section 8 (1) provides as follows:1. An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested. 2. Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs.

3. The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request.

42. In this case the appellant admitted that he never made any written request for the information he was seeking. He however, contended that he visited the offices of the Kilifi Land Registry several times to obtain the said information but was not furnished with it. Subsection (2) of section 8 of the Access to Information Act clearly provides for situations where an applicant for information is unable to make a written request. In this case, there was no evidence that the appellant was unable to make a written request. He simply did not make one. Since the respondents denied that such a written request was made, it was upon the appellant to prove, that he was unable to do so and that he made such a request formally to the respondents or, that he was unable to formally do so. The appellant failed to demonstrate taking any such action and therefore, his petition seeking to compel the respondents to provide him with the said information was, in our respectful view, rightly dismissed by the learned judge.

43. A provision of law that prescribes the manner in which to approach certain institutions cannot, in our view, be termed as mere technicality as submitted by the appellant. In this case, and as expressly stated in section 8(1) above, the need for a written request either in English or in Kiswahili providing details and sufficient particulars for the public officer or any other official is meant to enable the officer or department concerned to understand what information is being requested. It is an enabling provision and not a mere technicality. In this case, the appellant claimed he was denied access to “the original adjudication records, the Registry Index Map as in 1984 and other land registry records relating to the suit property”. It is clear that the law sought to pre-empt precisely such requests when it expressly stated that the request be in writing. How else is an officer supposed to know what “other land registry records” entail without the same being precisely set out? It is our considered view, without proof that the information was properly requested, the petition was prematurely brought.

44. Having pronounced ourselves on that issue we consider that the other issues dealt with by the learned trial Judge were extraneous to the germane issue that was before the trial court. In the premises, we find no merit in this appeal which we hereby dismiss with costs. Orders accordingly.

DATED AND DELIVERED AT MALINDI THIS 8TH DAY OF DECEMBER, 2023A.K. MURGOR..................JUDGE OF APPEALDR K.I. LAIBUTA..................JUDGE OF APPEALG.V. ODUNGA..................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR