Republic v Commissioner of Lands & another; Mulwa (Interested Party); Nguyo (Exparte) [2022] KEELC 3650 (KLR)

Republic v Commissioner of Lands & another; Mulwa (Interested Party); Nguyo (Exparte) (Judicial Review Application 27 of 2020) [2022] KEELC 3650 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEELC 3650 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Judicial Review Application 27 of 2020

A Nyukuri, J

May 18, 2022

In The Matter For Leave To Apply For Orders Of Mandamus And In The Matter Of Kingi Nzyoki Nguyo And In The Matter Of Transfer Of Land Parcel Registration Number Machakos/Mua Hills/203 From Kingi Nzioki Nguyo And John Mulwa Nzioki To Bernard Mutinda Mulwa

Between

Republic

Applicant

and

Commissioner of Lands

1st Respondent

Land Registrar Machakos

2nd Respondent

and

Bernard Mutinda Mulwa

Interested Party

and

Kingi Nzioki Nguyo

Exparte

Ruling

Introduction 1. Vide a chamber summons application dated July 23, 2020, anchored on sections 1A, 1B and 3A of the Civil Procedure Act, Order 53 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and sections 9 and 10 of the Land Registration Act, the ex parte applicant sought for the following orders;a.That leave be granted to the ex parte applicant to apply for orders of Mandamusto issue to the Land Registrar, Machakos County to supply the ex parte applicant with;i.Certified copies of the duly filed application for consent of Land Control Board to transfer land parcel registration number MACHAKOS/MUA HILLS/203, allegedly executed by Kingi Nzioki Nguyo and John Mulwa Nzioki in favour of Bernard Mulwa Nzioki which application led to entry No 4 in the register for MACHAKOS/MUA HILLS.ii.A certified copy of the duly filled out form for transfer of land, for land parcel registration number MACHAKOS/MUA HILLS/203 allegedly executed by Kingi Nzioki Nguyo and John Mulwa Nzioki in favour of Bernard Mulwa Nzioki which led to the disposition of interest exhibited as entry no 4 dated November 13, 2017 in the register for Machakos/Mua Hills.b.That the costs of this application be in the cause.

2. The application is supported by the grounds on its face as well as the supporting affidavit sworn by the ex parte applicant, the statutory statement and the affidavit verifying facts all dated July 23, 2020. The ex parteapplicant averred that John Mulwa Nzioki and himself were registered as tenants in common in respect of parcel No Machakos/Mua Hills/203; that theex parte applicant filed ELC CMCC NO 4 of 2018 for cancellation of title on account of fraud; that the Land Registrar, Machakos County is in possession of copies of the original application for consent of the Land Control Board and transfer forms of the suit property that resulted in entry No 4 on the register thereof; that the ex parte applicant intends to subject the said documents to the scrutiny of a handwriting/fingerprint expert examiner in support of his pending case and therefore the documents ought to be produced by the 2nd respondent.

3. The application was canvassed by way of written submissions and on record are the ex parte applicant’s submissions filed on November 12, which I have considered.

Analysis and determination 4. I have considered the chamber summons application, the supporting affidavit, the statutory statement as well as the verifying affidavit. Order 53 rule 1 sub rule (1) and (2) of the Civil Procedure Rules provides that no application for judicial review orders of Mandamus, prohibition and certiorari shall be made unless leave thereof has been granted; and the application for leave is madeex parte to a judge in chambers and must be accompanied by affidavits verifying the facts and statutory statement.

5. The purpose of an application for leave is to do away with frivolous claims and allow only an application which is proper for the court’s consideration. In the case of Hydro Waterwell (K) Limited v National Water Conservation & Pipeline Corporation (2019)eKLR, the court held that the purpose of leave for judicial review is first to eliminate at an early stage any applications for judicial review which are either hopeless or frivolous and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for consideration.

6. In the instant matter, the applicant has stated that the transfer of the suit property to Bernard Mulwa Nzioki was fraudulently done. He asserts that for the Land Registrar to make entry No 4 in the register of the suit property, he must have been supplied with the original consent of the Land Control Board and a transfer form. He states that he filed Machakos ELC CMCC No 4 of 2018 to claim his land which was fraudulently transferred. It is his position that the original transfer document and consent letter ought to be subjected to the handwriting/fingerprint expert examiner to confirm his averment. He therefore seeks for leave to apply for orders of mandamus to compel the Land Registrar to avail the said documents.

7. Having considered the documents in support of the ex parte applicant’s application. The Land Registrar is presumed to have custody of all documents that result in a new entry in the register. I am therefore, satisfied that the ex parte applicant has made out a prima facie claim against the 2nd respondent and therefore his application is merited as the court ought to consider the substantive application.

8. In the premises I find and hold that the application dated July 23, 2020 has merit and the same is allowed as follows;a.That leave be and is hereby granted to theex parte applicant to apply for orders of Mandamus to issue to the Land Registrar, Machakos County to supply the ex parte applicant with;i.Certified copies of the duly filed application for consent of Land Control Board to transfer land parcel registration number MACHAKOS/MUA HILLS/203, allegedly executed by Kingi Nzioki Nguyo and John Mulwa Nzioki in favour of Bernard Mulwa Nzioki which application led to entry No 4 in the register thereof.ii.A certified copy of the duly filled out form for transfer of land, for land parcel registration number MACHAKOS/MUA HILLS/203 allegedly executed by Kingi Nzioki Nguyo and John Mulwa Nzioki in favour of Bernard Mulwa Nzioki which led to the disposition of interest exhibited as entry no 4 dated November 13, 2017 in the register thereof.b.Theex parteapplicant to file the substantive motion in 21 days of this ruling.c.That the costs of this application shall abide the determination of the substantive motion.

9. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 18THDAY OF MAY 2022 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of;Mr. Mbindyo for the Exparte ApplicantNo appearance for the RespondentsNo appearance for the Interested PartyKevin Kimari – Court Assistant