Republic v Chief Land Adjudication and Settlement Officer – Keiyo District & another [2014] KEHC 7445 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

HMCA NO. 15 OF  2002

REPUBLIC  …...............................................................           APPLICANT

=VERSUS=

THE CHIEF LAND ADJUDICATION AND

SETTLEMENT OFFICER – KEIYO DISTRICT  …...........               RESPONDENT

AND

JOSEPH KIRUI LEKEG  &

WILLIAM KIPLAGAT SAWE  ….....................................             INTERESTED PARTIES

JUDGMENT

The  action before me is for Judicial Review.  Specifically, the relief  sought is one for  PROHIBITION directed against the District Land Adjudication and Settlement Officer of KEIYO DISTRICT,  Prohibiting him from preparing the Register  for the LOWER SEGO ADJUDICATION SECTION.

The  Court has been moved by JOSEPH KURUI LEKEG  and  WILLIAM KIPLAGAT SAWE,  who  are residents of CHANGACH,  within the Keiyo District.

The Primary Complaint lodged by the two (2) gentlemen is that the District Land  Adjudication Officer had wrongly included the Changach area to be a part of  the Sego Adjudication area.  As  far as the two (2) gentlemen  were concerned, Changach was outside  the Sego Adjudication area, and it should remain so.

In the event that Changach was retained within the Sego Adjudication area, the  two (2)  gentlemen fear that  that would result in a loss of their  ancestral Salt Lick, to the Sego Clan.

Such  a loss was seen as a definite foundation for conflicts between the Sego and  the Changach clans.

In order to remedy the situation, the two (2) gentlemen asked this court to prohibit the Land Adjudication Officer  from finalizing the register in which Changach was  included in the Sego Adjudication area.

The District Land Adjudication Settlement Officer, Keiyo District, raised a Preliminary Objection to the action.

The  first reason put forward was that the Applicants  never sought leave of the Court to institute the substantive proceedings.

In any event, the law is said to bar any Court suits, except where the leave of the Adjudication officer had been obtained.

Thirdly,  the Applicants were faulted for also describing  themselves as “Interested parties”, in  their own case.

Finally, the Respondent contended that the proceedings were fatally defective as they failed to disclose any cause of action.

In answer to the claim, the Respondent confirmed that when the process of adjudication commenced, there arose a dispute  between the lower Sego Sub-location and the Changach Sub-location.  That  dispute rose in 1996, resulting in the suspension of all demarcation activities in that area, in August, 1997.

By February, 2001, the Public Barazas failed to resolve  the disputes.  However, the matter was finally resolved when the area Chiefs and Sub-Chiefs worked with the District Officer, to identify the actual boundaries on the ground.

According to AUGUSTUS CHIMALIT,  the District Land Adjudication and Settlement Officer for Keiyo District, all the work that had  hitherto been done outside the declared Adjudication area, were canceled.

The Respondent  issued a Notice of Completion of the Adjudication Register for the lower Sego Adjudication Area on 12th June, 2001.

After the issuance of that Notice, those who felt that their property rights  had been affected, filed  Objection cases in relation to parcels numbered 274, 106, 96, 105, 273, 314, 275, 276 and 178, respectively.

Whilst those objection cases were still pending, the two (2) gentlemen  in this case, instituted these  current proceedings.  They  also sought and obtained an interim order barring the Respondent from undertaking any further work.

Ultimately, when the substantive  action came up for hearing, the parties decided to file their respective written submissions.

The Law firm of Chemitei & Company  Advocates filed submissions for “the Applicants”, whilst Messrs Angu Kitigin & Company Advocates filed submissions for the “ Interested parties”; and  Mr. Joseph Ngumbi, a Litigation Counsel at the office of the Attorney General filed submissions for the Respondent.

I have deemed it necessary to set out the appearances, as above, because, there seems to be some difficulty, in my  considered view, in how the respective lawyers have described themselves.  I  say so because, a look at the case title shows that  the Republic  is the Applicant; the  District Land Adjudication and Settlement Officer for Keiyo  District  is the Respondent; whilst Joseph Kirui Lekeg and William Kiplagat Sawe are named as Interested Parties.

In real terms, Joseph Kirui Lekeg and William Kiplagat Sawe are the Prime Movers of the Litigation before me.  They are not “Interested Parties”.

A person is described as an“Interested Party” when the resolution of the dispute between the two or more protagonists, would have an impact on them too.

Ordinarily, the main protagonists are the Plaintiff and the Defendant; or the Petitioner and the Respondent.  Whilst in Judicial Review Proceedings, the main protagonists are the “ Ex-parte applicant” and the Respondent.

Accordingly, JOSEPH KIRUI LEKEGand  WILLIAM KIPLAGAT SAWE  erred by designating themselves as “ Interested Parties”, whereas they were, (as  a pair), one of the main protagonists in these proceedings.

On the other hand, it does  appear to this court that the  two (2) gentlemen,  JOSEPH KIRUI LEKEG  and WILLIAM KIPLAGAT SAWE, had  chosen  to describe themselves as “Interested Parties,” because  they were not prosecuting the claims  for their personal benefits.  I say so because the firm of Angu Kitigin& Company Advocates  wrote to the Learned Registrar of the High Court on  8th June, 2005, making it clear that his  clients were the following clans, who occupy the Lower Sego Adjudication area:

(a) Kaptegenui;

(b) Kapkobil;

(c) Kapchepkek;

(d) Kapsogom;  and

(e) Koikwo.

Secondly, the Chief of Kibargoi Location wrote to the Senior Land Adjudication Officer of Elgeyo-Marakwet on 1st May, 1993, listing some 18 persons who were affected by the dispute in issue. Joseph Lekeg and William Sawe are on that list of 18 people.

Those particulars appear to  suggest that  the two (2) gentlemen had instituted these proceedings for themselves, as well as  for other persons.

If that was the intention, then there should have been a Representative action, in which all persons concerned were named.

The two (2) gentlemen erred, by instituting these, apparently, Representative proceedings  without following the appropriate procedure.

Even if the proceedings were to succeed, the benefit  of such success could not  trickle down to other persons  who were not parties to the case.

The  converse is equally true; that if the proceedings were to fail, the court could not  condemn  the  un-named persons to pay the costs of the case.

It is common ground that on 12th June, 2001,  the Respondent issued a Notice of Completion of the Adjudication Register.

The  Applicants thereafter lodged Objections to the Register, on 10th August, 2001.  The  said objections, together with other objections, were in relation to  a total of eleven (11) specific parcels of land.

As  those parcels of land had been allocated to  persons whom  the objectors  claim to have no legal rights thereto, that implies that each objector knew  exactly who he needed to take action against, to reclaim his land.

As  the Applicants (together with the other objectors)  had taken the step of lodging their objections, it implied that when they later instituted these Judicial Review proceedings, they now had 2 sets of legal  proceedings running simultaneously.

Whilst  the existence of a particular relief is not a bar to the institution of Judicial Review Proceedings, it is definitely  wrong for a party to have two  or more sets of proceedings  at the same time, in relation  to the same subject matter,  and against the same person or persons.

In this case, if the Applicants or the other objectors  succeeded  in their respective objections, they would not require  to prosecute  these judicial Review proceedings.

On the other hand, if the Applicants failed in their  objection proceedings, it would be wrong to thereafter give  them a second bite at the  cherry, by permitting them to thereafter prosecute these Judicial Review proceedings.

In effect, I find and hold that it is an abuse of the process of the court, for the Applicants to canvass  the two (2)  sets of action, simultaneously, or consecutively.

If the said proceedings went  on parallel to each  other, there would be a real danger that the decisions of the respective decision-making bodies, could be inconsistent.  If  that were to happen, the Justice System would be brought  into  disrepute.

On the issue of Jurisdiction, there is no doubt at all that the High Court has unlimited Original Jurisdiction in Criminal and Civil matters.

Furthermore, Article 159 (1) (d) of the Constitution of the Republic of Kenya enjoins  the Courts and  tribunals exercising judicial authority to administer justice without undue regard to procedural technicalities.

Nonetheless, that does not  mean that lawyers and their  clients  can completely ignore the rules of practice  and  procedure which have been put  in place, to assist  in the  efficient and orderly administration of  justice.

Systems and orderliness enhance the administration of justice.  Therefore, it is only fair and just that parties be encouraged  to abide by the rules of  procedure and practice.  However, I also  acknowledge that substantive  justice should not be sacrificed at the alter of technicalities.

The Applicants  assert that the respondent went beyond its mandate in the demarcation process.  They  say that they were condemned unheard.

Assuming that the Applicants  were right, that  could  have given them the right to seek an order to quash the decision made by the Respondent.  However, the Applicants' only prayer is for  an order of Prohibition.  Specifically, they seek orders  to prohibit the Respondent from preparing the Register for the Lower Sego Adjudication Section.

As the Respondent did issue a Notice of Completion of the Adjudication Register for the lower Sego Adjudication Section on 12th June, 2001,  I hold that the remedy sought is no longer available to the Applicants.  They  are trying to lock the stable after the horse has  bolted.  It is too late in the day to undo that which had already been done.  They  cannot stop the publication of the Register after the event.

Accordingly, the claim herein has no merit.  It is  dismissed.  Joseph Kirui Lekeg and William Kiplagat Sawewill pay the costs   to the Respondent.

Finally, and for the avoidance of any doubt, this determination  is not a bar to the prosecution of the Objections which the Applicants and other persons had lodged against specific parcels of land.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET,

THIS   17TH   DAY OF  JANUARY,  2014.

FRED A. OCHIENG

JUDGE