Republic v Cabinet Secretary, Ministry of Lands and Physical Planning & Attorney General Ex parte Joseph Mutemi Nkuno & Moses Nkuno Makembo; Gerevasio Mugao Nyaga (Interested Party) [2021] KEELC 3679 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT CHUKA

MISC. JUDICIAL REVIEW APPLICATION NO. E004 OF 2021

IN THE MATTER OF: AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW

ORDERS OFCERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF: ARTICLES 40 and 43 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF: ORDER 53 RULES 1, 2, 3 AND 4 OF THE CIVIL PROCEDURE RULES, 2010

AND

IN THE MATTER OF: SECTIONS 8 and 9 0F THE LAW REFORM ACT, CHAPTER 26 LAWS OF KENYA

AND

IN THE MATTER OF: SECTION 7, 10 and 11 0F THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015

AND

IN THE MATTER OF: SECTIONS 29 OF THE LAND ADJUDICATION ACT CAP. 284;

LAND ADJUDICATION RULES 1970 and KAMARANDI ‘B’

ADJUDICATION SECTION – PARCEL NO. 73

AND

IN THE MATTER OF: APPEAL TO THE CABINET SECRETARY

IN-CHARGE OF LANDS AND PHYSICAL PLANNING NO. 103 OF 2018

AND

IN THE MATTER OF: ISSUANCE OF TITLE IN RESPECT OF KAMARANDI ‘B’

ADJUDICATION SECTION – PARCEL NO. 73

BETWEEN

JOSEPH MUTEMI NKUNO.............................................................1ST APPLICANT

MOSES NKUNO MAKEMBO.........................................................2ND APPLICANT

VERSUS

THE CABINET SECRETARY,

MINISTRY OF LANDSAND PHYSICAL PLANNING...........1ST RESPONDENT

THE HON. ATTORNEY GENERAL..........................................2ND RESPONDENT

GEREVASIO MUGAO NYAGA..............................................INTERESTED PARTY

RULING

1. This application seeks the following orders:-

1. THAT the Honourable Court be pleased to certify this application urgent and upon such certification, be pleased to hear the application ex parte in the first instance;

2. THAT this Honourable Court be pleased to grant leave to the Applicants to apply for an Order of Certiorari to bring into this Honourable Court for the purpose of being quashed the decision and award of the 1st Respondent dated 18-11-2020, made and delivered on his/her behalf by the Deputy County Commissioner, Tharaka South Sub-County on the 08-02-2021 relating to Kamarandi ‘B’ Adjudication section – parcel no. 73;

3. THAT this Honourable Court be pleased to grant leave to the Applicants to apply for an Order of prohibitionto prohibit the 1st Respondent by themselves, agents or whomsoever from issuing a title in favour the interested Party in respect of Kamarandi ‘B’ Adjudication section – parcel no. 73 which includes the portion belonging to the 1st Applicant;

4. THAT this Honourable Court be pleased to grant leave to the Applicants to apply for an Order of Mandamus to direct the 1st Respondent to re-demarcate Kamarandi ‘B’ Adjudication section – parcel no. 73, issue a fresh number for the portion belonging to the 1st Applicant, and issue the 1st Applicant with a title for the same;

5. THAT the leave granted to operate as a stay of the of the implementation of the  1st Respondent’s decision and award dated 18-11-2020, until the hearing and determination of the intended Judicial Review proceedings;

2. The application is supported by a statement of facts and verifying affidavit.

3. Miss Kijaru, at the exparte stage, asked the court to grant prayers 2, 3, 4 and 5 in the application.

4. Having considered all relevant issues, the following orders are issued:

a) Prayers 2, 3, 4 and 5 are granted.

b) Costs shall be in the cause.

Written and delivered in Court at Chuka this 19th day of April, 2021 in the presence of:

CA; Ndegwa

Miss Kijaru for the Applicant

P. M. NJOROGE,

JUDGE.