Munywoki Kisese, Morris Muli & Paul M. Kioko v John Maswili Mulwa, Josephat Muema Muia, Grace Musengya Kisilu, Mukulu Kivisi, Sikuku Mailu & Katinda Mailu [2018] KEELC 130 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

ELC MISC APPL. 5 OF 2018

MUNYWOKI KISESE......................................1ST  APPLICANT

MORRIS  MULI...............................................2ND  APPLICANT

PAUL M. KIOKO.............................................3RD  APPLICANT

VERSUS

JOHN MASWILI MULWA..........................1ST RESPONDENT

JOSEPHAT  MUEMA MUIA.....................2ND  RESPONDENT

GRACE  MUSENGYA KISILU..................3RD RESPONDENT

MUKULU KIVISI.......................................4TH  RESPONDENT

SIKUKU MAILU.........................................5TH RESPONDENT

KATINDA  MAILU.....................................6TH RESPONDENT

RULING

1. There  is before me   is a  notice  of motion  application expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Rules and all enabling  provisions of the   law  for order:-

1. That  the respondents  herein be compelled  by an order of this court to deliver to the land Registrar Makueni the original titles to LR, Nos. Nzaui/Mumbuni/210, Nzaui/Mumbuni/211,Nzaui/Mumbuni/214,Nzaui/Mumbuni/212, Nzaui/Kilili/616 and Nzaui/Mumbuni/471 for the purpose of giving  effect to the judgment in Makueni Senior Resident Magistrate’s Court LDTC 39 of 2006 within such timelines as the court may deem fit.

2. That in default  of the said delivery and upon expiry of the said time frame as shall be fixed by court, the land registrar Makueni be compelled to cancel the said titles and rectify the registrar accordance with the judgment issued in Makueni Senior Resident Magistrates court LDTC 39 of 2006.

3. That the costs of the application be provided for.

2. It is  predicated on the grounds on its face and is supported  by the supporting and further affidavits  of MunywokiKisese, the first Applicant herein,  sworn at Makueni on the  31st May, 2018 and 12th July, 2018 respectively. The application itself is dated 31st May, 2018 and was filed in court on even date.

3. The Respondents have opposed the application vide theirgrounds of opposition dated 7th June, 2018 and filed in court on 8th June,2018.   The Respondents have also filed a replying affidavitsworn by John MaswiliMulwa  at Machakos  on the  7th June, 2018.

4. The Respondents grounds of the objection are:-

1. That  the application herein contravenes the terms of the Award of the LDTC 39 OF 2006.

2. That  the Applicants herein are purporting to cancel legal titles deeds through an application.

3. That the Respondents title deeds have never  been challenged in any Court of Law.

4. That the grounds for cancelling title deeds are very clear  but have not been made in the instant case.

5. That the order being enforced  is not  annexed.

6. That the instant application herein should have been filed in LTDC 39 OF  2006.

7. That   the Applicants have included  people  who were not parties  to the  Award  nor  registered owners  of the  titles  being  demanded.

8. That there is an appeal at the Court of Appeal  regarding the parcels herein hence  any purported revocation of titles is likely t render the Appeal nugatory.

9. That  the order   of the tribunal only touched on parcel Nos. 610, 616 and 623

10. That  it is fair that the application be dismissed  with costs.

5. The first Applicant has deposed in paragraphs 3, 4 and 5 of his affidavit that the properties herein were the subject of land dispute in tribunal case no. 26 of 2004 whose award was adopted in Makueni SRMC LDTC No. 39 of 2006.  That the Respondents filed judicial review proceedings in Machakos Misc Civil Application no. 25 of 2006which was subsequently dismissed.   That there are no other proceedings to stop the implementation of the order issued in LDTC 39 of 2006.   The Applicant has further deposed in paragraph 6 that they have visited theLand Registrar seeking   to implement the said order but have been informed that unless the original titles are returned then the implementation cannot be done.

6. In the further  affidavit, the first Applicant has  deposed in paragraphs 5 and 6 that the Respondents  had also filed Makueni ELC 190 and 191 of 2017, which were also equally dismissed for being  res judicata.  That by the time of the dismissal of ELC 190 and 191 of 2017, titles had already been issued to the Respondents. The first Applicant has also deposed in paragraphs 9 and 10 that the orders sought in this application are to ensure that the order of court in LDTC no. 39 of 2006 and ELC 190 and 191 of 2017 are given effect.  That failure to grant the orders sought would render the earlier orders nugatory and of no effect.

7. The Respondents through the replying affidavit of the first Respondent   have contended inparagraph 1of their replying  affidavit that the application is an abuse of the court process  and that it is one of the many applications that have been made  in this court.  In paragraph 4, the first Applicanthas deposed that the decree of the tribunal is clear on what ought to be done as can be seen from annexture JMM 1.

8. In  paragraph 6 of the  replying  affidavit , the  first  Respondent has deposed  that it is shocking   that the Applicants are purporting  to enforce  Misc Civil Application no. 257 of  2006 and not  the award  of the Tribunal.

9. In his submissions, the counsel for the Applicants submitted that section 3A of the Civil Procedure Act states that nothing shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

10. The counsel added that court orders cannot be and are not issued in vain. The counsel cited the case of Ann WokiKaranja V NdichuchMuragani[2013]e KLR where the court stated that the express reading of the decree confirms the clear meaning of the original award and  the original judgement  and decree of the lower court  adopted  them. The counsel added that the order was issued by court of competent jurisdiction and the Respondents did not challenge the award of the court of law.

11. On the other  hand, the counsel for the Respondents submitted that the award of  the Tribunal  was adopted as judgment of the court on the 11th October, 2006 and issued on the 16th August, 2012 read as follows:-

“ that  being  a land Dispute Tribunal case no.  26 of 2004 in respect of plots nos. Nzaui/Kilili/610, Nzavi/Kilili/616, Nzaui/Kilili 623, the same having  been heard and determined  and upon  confirmation of the decisions as judgment  of this court

IS IT HEREBY DECREED

That  the Makueni  District Surveyor to redraw the boundary betweenland parcels nos. Nzaui/Kilili/ 610, Nzaui/Kilil/616 and Nzaui/Kilili/623 as provided  in no. 3 of the observations of the tribunal and follow the marks on the ground as stated thereof

That the claimant’s costs are to be borne by the objectors”

12. The counsel further submitted that the decree relates to only 3 parcels   namely 610, 616 and 623 and that the District Surveyor was to redraw boundary between them.

13. The counsel wondered why the Applicants are varying the terms of the saidorders.  He added that an order for cancellation of title deeds is a substantive order that should be brought by way of a suit (plaint) and not a miscellaneous application.

14. Having read the application  together with the supporting and further   affidavits as well as the replying  affidavit  and the grounds of objection and having  read the submissions that were filed by the counsel  on record, my finding is as follows;

Firstly, under the Land Disputes Tribunal Act chapter 302A of the Laws of  Kenya  (now  repealed)   the limitation  of the jurisdiction  of the  Disputes Tribunal is set out as hereunder:-

“Section 3(1) subject to this Act, all cases of  a civil nature involving a dispute  to

a) The division of, or the determination of boundaries  to land, including land held in common.

b) A claim to occupy as work land; or

c) Trespass to land, shall be heard and  determined by a tribunal established under  section 4”

15. It follows therefore that the tribunal could only make its determination based on the jurisdiction donated to it by the said section 3.  That jurisdiction did not extend to cancellation of title deeds.  The Applicants herein have not annexed the decree that was issued by the Principal Magistrate’s court in LDTC 39 of 2006.  A perusal of the award by the tribunal’s proceedings annexed as MK1 in paragraph 3 of the Applicant’s further affidavit shows that the tribunal only dealt with the issue of drawing of the boundary in respect of Nzaui/Kilili/610, 616 and 623.

16. Secondly, based on the foregoing, the Applicants herein should enforce the decree that was issued in Makueni LDTC 39  of 2006.  The same did not provide for cancellation of title deeds.  It is   the marking of the boundaries   that was to determinewhether therewill be need to rectify the respective title deeds so as to comply with their acreages. To that extent, therefore, I am in agreement with the Respondents’ counsel that the application in misconceived so long as it seeks to enforce that which was not awarded in Land Disputes Tribunal Case no.  26 of 2004 and adopted as judgement of the court in Makueni LDTC no. 39 of 2006.  I, therefore, hold that the application has no merits and same is dismissed with costs to the Respondents. It is   so ordered.

SIGNED, DATEDandDELIVEREDatMAKUENIthis26TH NOVEMBER, 2018.

MBOGO C.G

JUDGE

IN THE  PRESENCE OF ;

Ms Kyalo for the Applicants

Mr. Hassan holding brief for Mr. Tamata for the Respondents

Mr. Kwemboi Court Assistant

MBOGO C.G, JUDGE

26/11/2018