Republic v Government Surveyor, Kajiado County, Director of Survey & Chief Land Registrar Ex Parte Erastus Kibiru Gitonga & Caroline Wanjiku Baaro [2017] KEHC 4277 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

JUDICIAL REVIEW NO. 10 OF 2016

IN THE MATTER OF AN APPLICATION FOR AN ORDER OF MANDAMUS

AND

IN THE MATTER OF THE SUBDIVISION OF KJD/KAPUTEI-NORTH/26134

AND

IN THE MATTER OF LAND REGISTRATION ACT, 2012

BETWEEN

THE REPUBLIC.....................................................................................APPLICANT

VERSUS

THE GOVERNMENT SURVEYOR, KAJIADO COUNTY........1ST RESPONDENT

THE DIRECTOR OF SURVEY..................................................2ND RESPONDENT

CHIEF LAND REGISTRAR.......................................................3RD RESPONDENT

AND

ERASTUS KIBIRU GITONGA

CAROLINE WANJIKU BAARO.....................................EX PARTE APPLICANTS

JUDGEMENT

Introduction

1. By a Notice of Motion dated 2nd August, 2016, the ex parteapplicants herein, seeks the following orders:

1) THAT an order of mandamus be directed to the Respondents jointly and severally, to exercise their statutory mandate of authenticating the division plan relating to KJD/KAPUTIEI-NORTH/26134 by affixing their signature and issuing new numbers thereon as required by law.

2) That an order of mandamus directed to the respondents, jointly and severally to effect the Division of KJD/KAPUTIEI-NORTH/26134 by closing the register relating to it and opening the new registers in respect of the 16 new parcels resulting from the Division, and recording in the new registers all subsisting entries appearing in the closed register.

3) That Alternatively to the forgoing, an order of mandamus directed to the Respondents jointly and severally to issue new numbers for the 16 subdivisions of KJD/KAPUTIEI-NORTH/26134 and cause their registration, subject to payment of the necessary legal fees.

4) That the cost of this suit be payable by the Respondents jointly and severally.

2. The Motion was based on grounds that the applicants are the registered owners of parcel No. KJD/KAPUTIEI-NORTH/26134. That in the year 2015, while exercising their proprietary rights, the Applicants divided the said property into 16 parcels upon all necessary statutory approvals and processes issuing; That the Respondents have been unreasonable and irrational by refusing to register the new numbers to the subdivision; that the Applicants legion attempts to cause the Respondents to issue and register the new numbers to the subdivisions as per the deed plan an mutation forms prepared by the surveyor has borne no fruit.

3. The Motion was supported by an Affidavit sworn by the Applicant’s counsel on 27th July 2017. In it, it is stated that the 1st and 2nd Applicant (CAROLINE WANJIKU BARO and ERASTUS KIBIRU GITONGA) are husband and wife and the registered owners of KJD/KAPUTIEI-NORTH/26134. (CW1 a copy of the Title deed)

4. It is stated that in 2015, while exercising their rights as the proprietor of the parcel KJD/KAPUTIEI-NORTH/26134 caused its sub division into 16 parcels upon all the necessary statutory approvals and processes issuing. (CW2- A copy of the Division plan and Mutation form)

5. It is further deponed that the Applicants have long obtained the consent of the County Land Board to sub divide their parcel of land and Mutation prepared(CW3-Copy of the Land Consent Board)

6. The Applicants contend that attempts to cause the Respondents to authenticate the Division plan, issue and register new numbers to the divisions as per the plan and mutation prepared by their licensed surveyor has borne no fruit.(CW4- A copy of a letter raised by the licensed surveyor on behalf of the Applicants)

7. It is further deponed that the Applicants have been required by persons touting as agents of the Respondents to bribe their way into getting the new numbers issued by demanding large sums of money assessed per division, which requirement the Applicants have refused and condemn and not even an intention to sue has changed the Respondent’s mind. (CW 5- A copy of the Applicant’s Notice of intention to sue)

8. Further that the Respondents have been unreasonable and irrational by refusing to perform a statutory and legal duty that they owe to the Applicants as members of the public pursuant to the survey Act and Land registration Act which has caused the Applicants to suffer loss of user and the economic benefit that the sub division portends.

Determination

9. The Respondents, on their part did not respond to the application. Accordingly, the factual averments made by the applicant were wholly uncontroverted.

10. The scope of the judicial review remedy of Mandamus was the subject of the Court of Appeal decision in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No. 266 of 1996  [1997] eKLR in which the said Court held inter alia as follows:

“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way…These principles mean that an order of mandamus compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done…Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”

11. Similar position was adopted in Shah vs. Attorney General (No. 3) Kampala  HCMC No. 31 of 1969 [1970] EA 543 where Goudie, J expressed himself, inter alia, as follows:

“Mandamusis a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamusis neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature…In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…With regard to the question whether mandamuswill lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so...Mandamusdoes not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of mandamusagainst executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…The court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice.”

12. In Mureithi & 2 Others vs. Attorney General & 4 Others [2006] 1 KLR (E&L) 707 it was held:

“A mandamus issues to enforce a duty the performance of which is imperative and not optional or discretionary…The order of mandamus is of a most extensive remedial nature, and is, in form, of justice, directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing thereon specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific remedy for enforcing that right and it may issue in cases, where although there is an alternative legal remedy yet the mode of redress is less convenient, beneficial and effectual.”

13. It is succinctly clear that a person seeking an order of mandamus must satisfy the Court that the action he seeks to compel the respondent to perform is a duty which the respondent is under a duty whether at common law or by statute to perform. Where there is no such a duty or it is not clear to the Court that such a duty exists the Court would be reluctant to grant such an order.

14. In the present case Section 32 of Survey Act Cap 299 Laws of Kenya Provides for the Authentication of plans and provides as follows,

’’ No land shall be deemed to have been surveyed or resurveyed until the plan thereof has been authenticated by the signature ofthe Director or of a Government surveyor authorized in writing by the Director in that behalf, or by the affixing of the seal of the Survey of Kenya.”

15. Directoris defined in section 2 of the above act as“Director” means the Director of Surveys appointed under section 3 of this Act;

16. On the other hand a Government Surveyor is defined under Section 2 of the aforementioned act to mean any officer of the Survey Department of the Government who is authorized by the Director to perform any survey duty under this Act.

17. Section 7 of the Land Registration Act No. 3 of 2012 provides that,

“There shall be maintained, in each registration unit, a land registry in which there shall be kept—

(a) ……..

(b) the cadastral map;

18. The aforementioned act provides under section 16(2) that “whenever the boundary of a parcel is altered on the cadastral map, the parcel number shall be cancelled and the parcel shall be given a new number.”

19. Subsection (4) further provides that“any rectification to the cadastral map in accordance with this section shall be notified to the Registrar by the submission of the rectified cadastral map and all the approvals that necessitated the amendments.”

20. In this case the applicants have averred, which averments have not been controverted by the Respondents that they have made several requests through their licensed surveyor vide a letter dated 19th November 2015(annexture CWB 4) addressed to the 1st respondent in which he was forwarding the mutation survey for parcel No. KAJIADO/ KAPUTIEI- NORTH/26134 for checking and numbering.

21. It is further the applicants contention that since the mutation was forwarded to the 1st respondent no action had been taken by the himself or appointed or authorized agents to act on the aforementioned request but instead the respondents have been approached by persons touting as agents of the respondents to bribe their way into getting new numbers issued by offering large sums of money.

22. The court observes that the respondents failed to attend court on 23rd August 2016 for mention despite being served with the suit papers, This court further observes that the respondents  failed to respond to the letter issued by this honourable court on 10th November 2016 requiring them to reply to the suit papers as filed by the applicants.

23. The respondents further failed to attend court on 12th October 2016 despite being served with a hearing notice by the applicants on 1st September 2016. The respondents also failed to appear in court on 26th June 2017 despite being summoned by this honourable court. On the hearing of the substantive motion on 28th June 2017, the respondents failed to similarly attend court.

24. Therefore having heard counsel for the ex-parte applicants and gone through the affidavit evidence as presented by the applicants and in absence of evidence by the respondents to rebut the evidence of the applicants, I see no reason for failure of the respondents to undertake their statutory obligation to register new numbers to the sub division as per the deed plan and mutation prepared by the ex parte applicants surveyor and that failure invites the intervention of this Court since section 7(2)(f) of the Fair Administrative Action Act, 2015 empowers this Court to review administrative action or decision where there is an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law.

25. Further Article 47 of the Constitution as read with section 4(1) of the said Act provides that every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. Accordingly, in the exercise of its administrative powers, the Respondent is expected to do so expeditiously and without unreasonable delay.

26. Pursuant to section 11(1)(f) of the aforesaid Act, this Court has the power to compel the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right, as is the case herein.

Disposition and Order

27. It follows that I find merit in this application and I proceed to make the following orders;

a) An order of mandamus is hereby issued directing the Respondents jointly and severally, to exercise their statutory mandate of authenticating the division plan relating to KJD/KAPUTIEI-NORTH/26134 by affixing their signature and issuing new numbers thereon as required by law.

b) An order of mandamus is hereby issued compelling the Respondents jointly and severally to effect the division of KJD/KAPUTIEI-NORTH/26134 by closing the register relating to it and opening new registers in respect of the 16 new parcels resulting from the division and recording in the new registers all entries appearing in the closed register

c) An order of mandamus is hereby issued compelling the respondents jointly and severally to issue new numbers for the 16 subdivisions of KJD/KAPUTIEI-NORTH/26134 and cause their registration, subject to payment of the necessary official fee.

d) That the respondents do file a report in court within 30 days to ensure compliance with the said orders

e) That costs of this application be payable by the respondents jointly and severally

Dated, delivered and signed at Kajiado this 14th day of July, 2017

………………………………………………….

R. Nyakundi J

JUDGE

In the presence of:

Mr. Gitonga for Applicant

Mr. Mateli Court Assistant

Respondents - absent