Republic v Cabinet Secretary Ministry of Lands Nairobi, County Commissioner Makueni, Land Registrar Makueni, William Velenza Manyala, Benjamin Maweu Manyala Ex-parte Alexander Mutisya Katuvya (Suing on behalf of the Estate of Joseph Katuvya Mavuti) [2018] KEELC 3440 (KLR)

REPUBLIC  OF KENYA

IN THE  ENVIRONMENT AND  LAND COURT

AT MAKUENI

ELC (JR) 11 OF  2017

ALEXANDER  MUTISYA  KATUVYA

(suing   on behalf of the ESTATE OF

JOSEPH  KATUVYA MAVUTI).................................APPLICANT

VERSUS

CABINET SECRETARY

MINISTRY OF LANDS  NAIROBI.....................1ST RESPONDENT

COUNTY COMMISSIONER MAKUENI..........2ND RESPONDENT

LAND REGISTRAR MAKUENI........................3RD RESPONDENT

AND

WILLIAM VELENZA  MANYALA.......1ST INTERESTED PARTY

BENJAMIN MAWEU MANYALA.........2ND INTERESTED PARTY

RULING

1) There is before   me a chamber  summons application expressed to be  brought  under order  53 rules 1 and 2 of the Civil Procedure Rules  for orders that:-

1. That this honourable court be pleased to grant leave to the applicant to apply  for an order of certiorari quashing the decision of the Deputy County Commissioner in Land   Adjudication appeal No. 334  of 1997 concerning  Plot  no. MBOONI/MUTITU/3522.

2. That  this honourable court be pleased to grant leave to the applicant to apply for an order of prohibition directed  to the  respondents restraining  them from implementing the decision  of the Deputy County Commissioner  in Land  Adjudication  Appeal No. 334 of 1997 concerning Plot  No.  MBOONI/MUTITU/3522.

3. That  this hourable Court be pleased to grant leave to the applicant to apply for an order of Mandamus directed to the 3rd respondent compelling him to quash and/or cancel the certificate of title issued to the interest parties herein in implementing of the decision  of the Deputy County Commissioner in Land Adjudication  appeal No. 334 of 1997 concerning  Plot No. MBOONI/MUTITU/3522.

4. Cost of this application be provided for.

2) The application is dated 18th December, 2017 and was filed  in court on the 19th December, 2017 by the  applicant, Alexander Mutisya  Katuvya.

3) The application is predicated on the grounds of its face and is further supported by the statement of facts  dated 18th December, 2017  and  the  verifying affidavit sworn by the applicant on the 18th December, 2017.

4) The application is opposed by the interested  parties vide  the replying affidavit  of Alindan Kioko Valenza filed  in Court on the 23rd  January, 2018.  The replying affidavit is indicated.

5) On the 15th January, 2018, the interested parties filed a preliminary objection on a point of law dated the 11th January, 2018.

6) The grounds in the preliminary objection are that:-

1. The suit is statute  barred as it  offends the mandatory provisions of order 53 rule 2 of the Civil Procedure Rules 2010 in that no leave to file an application  was  sought  to apply for orders of certiorari within 6 months of the judgement as the application is time barred.

2. That the suit is time barred as it offends the mandatory provisions of section 9(3) if the Law Reform Act Chapter 26 in that no leave to file the application was sought within 6 months of the judgment.

3. That the suit is  statute   barred  as it offends  the mandatory  provisions of section 13 of the Environment  and Land Court  Act No. 19 of 2011, in that only the Environment and Land Court has original and appellate jurisdiction to hear and determine all disputes regarding land .

7) On the 18th January, 2018 the court directed that the preliminary objection be disposed off by way of written submissions.  As at the time of writing this ruling, only the applicant had filed his submissions.

8) The applicant’s submissions are that the proposed administrator does  not have locus under the law to defend this  case on behalf   of the estate  of William Velenza  Manyala. The applicant’s  counsel  relies on  the case of Virginia  Edith Wamboi Otieno Vs Joash Ochieng  Ougo and Omollo Siranga [1982-1988] where the court of appeal held that;

“But  an administrator  is not entitled to bring   an action as administrator before he has  taken  out  letters  of administration.  If he does  the action is incompetent   at the date of its inception”

9) In my view  the issues for determination  are :-

1. Whether or not  Alindan Kioko  Valenza has the capacity to defend  this suit

2. Whether  or not there is a prima facie point of law

CAPACITY TO DEFEND SUIT

10. Alindan  Kioko  Valenza has deposed in paragraph  1 of his  replying affidavit that   he has petitioned  the Senior  Resident  Magistrate’s  Court  in Tawa for grant of  letters of administration ad litem.

11. In the  case of  Rajesh  Pronjivan Chudasama Vs Sailesh Pronjivan  Chodasama  Civil Appeal No. 30 of 2013, the Court of Appeal sitting in Mombasa  expressed  itself  as follows;

“A litigant is clothed with locus standi, upon obtaining a limited or a full grant of letters of administrator in cases of intestate succession”

12. The learned  judges  of appeal, Okwengu, Makhandia  and Sichale JJA agreed with the  sentiments expressed in Virginia  Edith Wamboi Otieno Vs Joash Ochieng Ougo & Omollo Siranga  (Nyarangi , Platt and Gachohi JJA)

13. Evidently, Alandan Kioko Valenza is  without the limited grant and as such he has no locus standi. Guided by the  two Court of Appeal decisions, it is clear that the  preliminary objection has no  merits. The interested  party cannot  purport  to approach the court on the basis of  that  which  he does not have. i.e grant of letters of administration ad litem.

PRIMA FACIE POINT OF LAW

14. The  case of Mukisa Biscuit Manufacturing  Co. Ltd Vs West  End Distributors Ltd [1969] EA 696 sets  out the nature and basis of what a preliminary objection is.  In the above case, the court  held  as follows;

“… a preliminary objection consists of a point of law which has been  pleaded, or which  arises by clear implication out of the pleadings and which if argued as a preliminary point of  law may dispose of the suit (emphasis mine)

15. The application for  leave to institute  judicial review  proceedings  raises a clear  point of law namely whether  it has been brought  within  the time  prescribed by statute .

16. The decision  sought  to be quashed in the event leave is granted is that of the Deputy County Commissioner in land adjudication appeal  number 334 of  1997 concerning   plot   number  Mbooni/Mutitu/3522 which  is annexture AMK5.  It was delivered  on 11th November, 2015.

17.  Section 9(3) of the Law Reform Act Chapter 26 of the Laws of Kenya Provides as follows ;

In  the  case of application for an  order of certiorari  to remove any judgement, order, decree, conviction or other proceedings for the purpose of  its being  quashed, leave   shall  not be granted unless the application for leave is made not later  than six months after the date of  that judgement, order , decree, conviction or other proceeding or such shorter period as may be  prescribed under any  written law; and where that judgement, order, decree, conviction or other proceedings is subject to appeal, and a time is limited by  law for the bringing of the appeal, the court or judge may adjourn the  application  for leave until the appeal is determined or the time for appealing has expired.

18. Order 53, Rule 2 of the Civil Procedure Rules 2010 states as follows;

Leave shall not be granted to apply for an order of certiorari to remove any judgement, order, decree, conviction or other proceeding  for  the purpose of its being quashed, unless the application for leave is made  not  later  than six  months  after the date of the proceedings or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of appeal, the judge may adjourn the application for leave until the   appeal is determined or the  time  for appealing has expired.

19. In the  case of Milka Nyambura  Wanderi & Another Vs Principal Magistrate’s Court, Murang’a & 4 others [2014] e KLR  the Court of Appeal  sitting in Nyeri (Visram, Gatembu, Odek JJ.A)  affirmed a High Court decision which stated as follows:-

“ the court finds  that the application for leave is  time barred as it was made more than six months after the decision sought to be quashed.  I agree with the argument by the interested party that judicial review orders operate within certain confines of specified laws which must be strictly  followed. Failure   to follow this time limits deprives  the judicial review remedies.”

20. In the application before me, it is clear that the same is time barred as it was made more than six months after the decision  sought to be quashed was made. Persuaded by Milka  Nyambura  case, the application for leave must fail.

21. Arising  from the reasons that I have given herein above, the preliminary objection is hereby dismissed.  I also decline to grant leave for judicial review remedies.  It is so ordered .

Signed, delivered and dated at Makueni   this   23rd day of  April,   2018

MBOGO ,C.G

JUDGE

In the presence of;

Mr.  Hassan holding brief for Mrs Mutua for the interested party

No appearance    for the  Ex-parte applicant

Mr. Kwemboi Court Assistant .

MBOGO C.G , JUDGE

23/4/2018