Republic v Senior Resident Magistrate Busia, District Land Registrar Busia & District Surveyor Busia Ex-parte Barasa Ekapoloni Auku [2015] KEHC 6555 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

MISC. CIVIL APPLICATION  NO. 57 OF 2004.

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

VERSUS

1.  THE SENIOR  RESIDENT MAGISTRATE, BUSIA

2.  THE DISTRICT  LAND REGISTRAR, BUSIA

3.  THE DISTRICT SURVEYOR, BUSIA……….................................RESPONDENTS.

AND

1.  GRACE  ANYANGO OLANDO

2.  JONATHAN WABALA

3.  HOLY REDEMED  APOSTOLIC MINSTRIES …………..INTERESTED PARTIES.

EX-PARTE ……………………………………………BARASA  EKAPOLONI  AUKU.

J U D G M E N T

BARASA  KAPOLONI AUKU,hereinafter  referred to as the Applicant, filed the notice of motion dated  24th May, 2004 through  M/S. Wycliffe Obwoge Onsongo  Advocate for the following orders;

1.      An order of certiorari to call into this court and quash the order made on 4th December, 2002 in Busia SRM.CC. No.288 of 2000 and the District  Surveyor’s Report  marked  exhibit ‘’D 4’’.

2.      2.  An order  of certiorari to call into this court and quash the decision of the District  (County) Land Registrar  and Surveyor , Busia  creating  an illegal road of access  on the Applicant’s parcel  No. South Teso/Angoromo/1094.

3.      An order of Mandamus to compel the District (County) Land  Registrar  and Surveyor , Busia, to reinstate   the original actual size  0. 08 hectares and position of the Applicant’s  land parcel South  Teso/Angoromo/1094, remove the illegal boundary features and structures elected thereon since the orders of 4th December, 2002  and put the Applicant  to actual possession.

4.      That Applicant be paid costs.

The application is based on the two grounds set out on the notice  of motion, the statutory statement  dated 3rd June, 2003 and filed in Busia H.C. Misc. Application  No. 116 of 2003.  It is also  based on the Applicant’s  affidavit sworn on 4th June, 2003 and filed  also in Busia HC. Misc. App. No. 116 of 2003.

The application names Grace Anyango Olando, Jonathan Wambala  and Holy Redeemed Apostolic  Ministries  as the 1st to  3rd  Interested parties respectively. It also named the Senior Resident Magistrate, District Land Registrar and Surveyor, Busia, as the 1st to 3rd Respondents respectively.

The learned  litigation Counsel, Kisumu, filed two ground of oppositions documents dated 4th September, 2004 and 3rd march, 2005 on behalf  of the Respondents raising  the following issues;

1.      That the application is mischievous and bad in law.

2.      The application herein fails to demonstrate that the decision making process was in any way flawed.

3.      The application is premature.

4.      The application is misconceived and an abuse of the court’s process.

5.      The application is time-barred.

The first  Interested  Party (Grace  Anyango Olando), filed  replying affidavit  through M/S. Ashioya  & co. advocates,  sworn on 31st March, 2014 opposing the application as made in bad faith, defective, waste  of court’s  time, an afterthought  and without merit. She prays that the application be dismissed with costs.

The 2nd Interested Party also filed replying affidavit sworn on 27th August, 2013 through M/S. Omondi & company advocates. He  inter alia depones  that the application is subjudice as there was pending an appeal on the same matter being Busia H.C.C. A No. 1 of 2003. [The Appeal was later decided on 19th February, 2014]. That  no application  to review and or set aside the lower court decision has been preferred.  That  the Applicant had also filed Busia SRM.CC. No 360 of 2000 against the Interested parties. That the application was filed out of time and therefore  incompetent and should be dismissed.

The Applicant filed a further verifying affidavit sworn on 13th May, 2014 stating that the prayers  sought herein will not be affected by the filing  of, and decision in Busia H.C.C.A. No. 1 of 2003. That the  application is not subjudice  as he was not a party to the lower court proceedings. That the application  was not affected by the dismissal of the suit in Busia SRM.CC. No.360 of 2000 as it related to a claim for 95,000/=, general damages, eviction and order to produce documents.

When  the matter came up for hearing on 8th October, 2014, the court directed that counsel to the parties do file their written submissions.   The Exparte Applicant’s  counsel  filed their written submissions dated 24th October, 2014 on the same date.  The counsel for 2nd and 3rd Interested parties  filed their written submissions dated 10th November, 2014 on the 12th November, 2014. Finally the counsel for the 1st Interested Party  filed their written submissions dated 25th November, 2014 on the same date.

EXPARTE APPLICANT’S SUBMISSIONS.

1.      That he is the registered proprietor  of South Teso/Angoromo/1094 measuring  0. 08 hectares which he acquired on 25th November, 1986 and the 1st Interested Party  owns South Teso/Angoromo/2292. That the 2nd and 3rd  Interested Parties  owns South Teso/Angoromo/912.

2.      That the Respondents and Interested Parties, on realizing  there was no access road  to serve the 1st Interested Party’s parcel,  purported to redraw the  registry map converting  the Applicant’s entire  parcel of land into an access road without  according  him a hearing contrary  to the rules of natural justice. That orders to quash that decision should issue and referred to the case of Adolf Gitonga Wakahihia –vs- Mwangi Thiongo/KAR1028.

3.      That 1st Interested Party filed Busia SRM.CC. No.288 of 2000, seeking for injunction against the 2nd and 3rd Interested  Parties who stated to the court that the road of access was over the Applicant’s land relying on the report produced as exhibit BK (3) (b). That the Applicant was not notified of the creation of the access road over his land and was not made a party in Busia SRM.CC. No 288 of 2000.

4.      That the 2nd and 3rd Respondents did not produce the real original map and relied on a distorted draft.

5.      That the lower court delivered its judgment on 4th December, 2002 and ordered the demolition of the Applicant’s semi-permanent houses to pave way for the access road to the Interested Parties parcels of land.

6.      That the Respondents acted ultra vives their powers by relying and issuing a report that was contrary to the registry map.  The Applicant referred to the two following decided cases;

a)     Emma Magurusha Mahindra –vs- Dick Albert Osele Gari & Anor Kisumu HCCC. NO. 124 of 2007.

b)     Onyango  Oloo –vs- Attorney General (1986 – 1989)E.A. 456.

Where  the court held that ‘’the rules of natural justice apply to administrative  action in so far as it  affects the rights  of the appellant and appellant’s legitimate  expectation to benefit  from the remission by a release.’’

7.      That the  1st Interested Party’s  contention that the application  is defective and  lacks merit is a technicality  which should not be upheld in view of Article  22(3)  (d)  of the Constitution  which states that;

‘’the court, while  observing the rules of natural justice, shall not be        unreasonably restricted by procedural  technicalities.’’

The counsel further submitted that there is no application filed  to challenge the notice of motion and referred to Busia H.C. Misc. Application  No. 23 of 2011 In the matter an Application  by Samuel  Evoni Stephen.

8.      That section  22 of the Registered  Land Act (repealed)  was not obeyed as he  was not involved in the exercise  resulting  to the creation of the road  of access over his land.

9. That the  application  is not time barred  in view of the decisions in Wilson Osolo –vs- John Ojiambo Ochola & Another [1995] LLR 6084 and The Commissioner of Lands –vs- Hotel Kunste [1995] LLR 6057.

10. That  the application  is not res judicata as section 7  of the Civil Procedure Act  envisages a suit between the same parties over the same subject matter and that  the Applicant was not a party in Busia SRM.CC. No.288 of 2000 and Busia H.C.C .A. No. 1 of 2003.

11. That  the Applicant  was within his rights  to file this application  in view  of section 9 (3)  of the Law  Reform  Act which empowers this court to quash judgments , orders , and decrees of Lower courts, even  where the option of appeal exists. The  counsel  referred to the following decided cases;

a)Bahaji Holding ltd –vs- Abdo Mohammed Bahaji & Co. ltd & Anor [1998] LLR 6537.

b)David  Mugot t/a Manyatta Auctioneers –vs- R [1997] LLR 6204.

c)Commissioner of Lands & Anor –vs- Coastal Aquaculture ltd.

[1996] LLR 6202.

12. That though Applicant  was awarded general damages for wrongful demolition of his premises in his lower court case,  the  case did not deal with the issues  he seeks to be addressed in this application. The counsel further submitted that the decision in Busia HCCA. No. 1 of 2003  only determined  the rights of the Interested  Parties and their respective  parcels of land and has no bearing to this application

13. That sections 27  and 28  of the Registered  Land Act (Repealed) were  breached by the Respondents and Interested parties by their failure to honour the Applicant’s title to his parcel of land. Their action was also contrary to Article 40 of the Constitution which  protects the Applicant’s  right to his property.

14. That the Applicant  moved to court within the six months  of the making of  the decision by filing the application for leave on 4th June, 2003 . That the leave  was granted  and the Applicant filed  this substantive  application within time in accordance  with section 9 (3)  of the Law Reform  Act and Order 53 of the Civil Procedure  Rules.  That  the application should be  granted as prayed.

1ST INTERSTED PARTY’S SUBMISSION.

1.      That the Applicant  has not proved that  leave to file the substantive application was obtained before the application was filed. Further  that even if the leave  was obtained, the Applicant  has not proved that the substantive application was filed within the time prescribed.  The counsel  therefore  submits  that in absence of proof on the two issues, the  application is incompetent.

2.      That the report by the Land Registrar  and Surveyor followed a court order to settle an issue of boundary dispute. That  after the report was presented in court, it indicated that  the exparte Applicants structures had extended to the public road. The  court consequently  ordered  the structures  on the public road to be demolished and the Applicant’s application  is devoid of merit so long as  he has not successfully challenged the decision  in Busia PMCC. NO. 288 of 2000.

3.      That the 1st  Interested Party’s  structures were also demolished and she could not be blamed for the report and  the  court’s  decision as she was only a party in the proceedings.

2ND AND 3RD INTERESTED PARTIES  SUBMISSIONS.

1.      That in view  of annexture BKA 2  attached to the Applicant’s  further verifying affidavit, the Lower court’s decision  of 4th December, 2002  was reversed by the High court  in Busia HCCA. No. 1 of 2003  and therefore does not exist to be called to  this court and quashed as prayed in prayer 1.

2.      That judicial review is concerned with the process and legality  of the  decision  or otherwise  and not the merits of the decision. That the Applicant has failed to show how the 1st respondent  exceed its powers in issuing the orders complained of that resulted to the Applicant’s structures  being  demolished to create  the road of access.  The  counsel submitted that what Applicant is questioning is the merit of the judgment   of the trial court which cannot be challenged in a judicial review application. The  counsel referred  to the decided case of Republic  -vs-  Chief  Magistrate court, Nairobi  Milimani Commercial  Courts; Exparte Safaricom ltd., & 2 others Nairobi Misc. App. No. 299 of 2012.

3.      That an error in a decision of a judicial officer cannot be dealt  with through judicial review  but through an appeal or application to review or set aside the decision.  The counsel referred to the decided  case of Republic  -vs-  Chief  Magistrate’s court Nairobi Milimani Commercial  courts.  Exparte safaricom limited & 2 others (Supra).The  counsel therefore submits that the 1st Respondent did not exceed  the powers granted by the law.

4.      That during the hearing in Busia SPM.CC. No.288 of 2000, the  2nd Respondent  testified that there has been a boundary dispute  involving  land parcels  South Teso/Angoromo/1094, 2292 and 912 which  necessitated the redrawing of the boundaries  thereof, That  whether or not the Applicant’s parcel falls within the area indicated in the report  by 2nd and 3rd Respondents is a factual issue  that would require oral and or documentary  evidence to be tendered before  a determination and therefore not subject matter of a judicial review application.  The counsel  referred the court to the decision in Seventh  Day Adventist Church [East Africa] ltd –vs- Permanent Secretary, Ministry  of Nairobi  Metropolitan Development  & AnorNairobi. JR Case No. 112 of 2011

5.      That the 2nd and 3rd Respondents  acted within the powers conferred under section 18 (5), 19  and 20  of the Registered Land Act after  the matter was referred  to them by the court following the parties  failure to have an out of court settlement.  The counsel submits that the 2nd and 3rd Respondents  acted within  their powers.

6.      That if it is true that the Applicant  was not involved  in the proceedings  leading to the report by 2nd  and 3rd Respondents and the court case before the decision  was made,  he should have applied to be enjoined in the suit and thereafter  applied  to have the judgment reversed or set aside as soon as he learnt of the orders.

7.      That the application  is subjudice  Busia HCCA., No 1 of 2003  as both  matters relates to the ownership of the same parcels of land and their boundaries  and reversal of decision in Busia SPM.CC. No. 288 of 2000. That the court should discourage  piecemeal  litigation over  the same subject matter and common prayers.  The counsel referred to the decided case Republic –vs- Natural  Environment Tribunal  Exparte Orbit  Chemicals  Industries  & Anor [2013] eKLR. The counsel further submitted that the Applicant filed Busia  CMCC.NO.360 of 2000  against  the same Respondents and Interested Parties  herein which was dismissed and he filed Busia HCCA. No. 45 of 2011 which  is pending. That the multiplicity of suits dealing with the same issues is likely  to result to contradicting decisions and the court  should stay  this judicial review application to pave way for the other matters to be decided first.

8.      That the  application  is said to have been filed  on 24th May, 2004  pursuant  to leave granted  on 3rd May, 2004. That as Civil Procedure  Rules  do not apply in computation of time in judicial review  matters,  the 21 days  within which the application was to be filed was inclusive of the day when leave was granted.   Therefore the counsel submitted  that the 21 days  lapsed  on 23rd May, 2004 and the application  was filed outside the 21 days.

9.      That the statement filed  alongside  the application indicates  that it  was  filed in Busia  H.C. Misc. App. No. 116 of 2003  on 4th June, 2003.  That as the Lower court’s decision  had  been made on 4th  December, 2002 the six months had lapsed by 3rd June, 2003 and this means the application for leave  was filed outside  the six months  window contrary to the then Order LIII  Rule 2  (Now Order 53  Rule 2) of the Civil Procedure  Rules.

10. That the  Applicant has not availed evidence  to show when the  report  of the Land Registrar  he seeks to quash was made and it is therefore impossible to know whether  it had  been made within the six months  of filing the application for leave. The counsel therefore submits that the proceedings herein  are  incompetent  and invalid.

CONCLUSIONS;

1.  That this application  calls for this court to exercise its judicial review jurisdiction and  the provisions of Order 53 of the Civil Procedure Rules and section 9 of the Law Reform Act are relevant.  The provision of Order 53 Rule 2 of CPR requires  applications for leave to file an application for the Order of certiorari to be commenced within a period of six months from the date of the order sought to be called  to the court for quashing. The period of six months is fixed  by the Law Reform Act and Superior courts have  time and again stated that the six months     period cannot be extended  unlike in situations where time for doing something is  fixed  under the Civil Procedure Rules. [see Kimanzi  Mboo –vs- Mulwa E.A.C.A No. 233 of 1996 and Wilson  Osolo –vs- John Ojiambo & Another [1996]eKLR)

2.  That after perusing the court record, I notice that the notice of motion dated 24th May, 2004 was filed  on the same date under receipt number M767795. I also notice that      the application  was filed with the following documents:

a)     Statement dated 3rd June, 2003 and filed on 4th June, 2003. To the statement  is annexed a copy of a plaint dated 25th August, 2000 and defence dated 29th August, 2000 in Busia SRM CC. No. 288 of 2000, copy of the Land Certificate  and register  for land parcel South Teso/Angoromo/1094 in the names of Barasa Kapoloni  Akuku. Also annexed to the statement is copy of the plaint dated 4th October, 2002, in Busia SRM.CC.NO. 360 of 2000 and court order dated 5th March, 2003 issued in the same case.

b)     Affidavit sworn by Barasa Kapoloni Auku, the Applicant, on 4th June, 2000.

3.     That flowing from the finding in (2) above, the   Applicant did not attach or annex  to the application a copy  of the District Land Registrar’s  and Surveyor’s  report containing  the decision to create an access road  on the Applicant’s  Land parcel South Teso/Angoromo/1094 which he seeks to be called into the court and quashed under prayer 2. The  Applicant later filed  a further verifying affidavit  sworn on 13th May,  2014.  Even in this latter affidavit, the copy of the District Land Registrar’s  and Surveyor’s report was not annexed. The provision of Order 53 Rule 2 of the Civil Procedure Rules requires  applications for leave  to be made within six months  of the making  of the order or decision being challenged. The date of the said  Registrar’s and Surveyor’s   report has not been disclosed in the application and in   the absence of such a copy  being annexed, this court cannot tell the date it was made. The court  also notes  that though the Applicant submits that he had applied for and obtained leave to file the substantive application, no copy of the  leave granted was availed to this court.  The court is therefore unable to confirm  whether the leave if any, was obtained within six months from the date the  Registrar’s and Surveyor’s report was made. Further  the  provision  of Order 53  Rule  7 (1)  of the Civil Procedure  Rules  do not allow an Applicant to question  the validity  of an order if he has not lodged  a  copy of the order with the court   or explained his failure  to do so.  The Applicant  herein has not complied  with that  requirement and is therefore estopped from questioning the validity of the report. For  the foregoing reasons, the Applicant’s prayer 2 of challenging the Land    Registrar’s  and Surveyor’s report fails.

4.         That as pointed out in (3)  above, the Applicant  has not availed a copy of the Order  obtained in Busia H.C. Misc . App. No. 116 of 2003, in which  leave to file these  proceedings was said to have been issued.  Whereas l agree with the Applicant’s counsel’s  submissions that the procedure to challenge  leave that has been granted  is  by formally moving  the court, and not by submissions in the substantive application’s  hearing, I am  of the considered view that an Applicant has a duty to   proof  that he/she  indeed obtained  leave before  filing the notice of motion.  In this  case there is no such proof and this court is unable to confirm  whether the  leave  to file the substantive  application was granted  and further whether the substantive  application  was filed  within the prescribed  time. That as confirmed through the  pleadings and submissions filed herein, the  judgment  which Applicant’s seeks to call into this court for quashing  in the first prayer was subject of an appeal in Busia H.C.C.A No. 1 of 2003.  The Applicant annexed a copy of the judgment in the   appeal case  in the further  verifying  affidavit  sworn  on 13th May, 2014.  The court        has had the opportunity  to peruse  the judgment  and noted that after the   Honourable    judge set out the trial  court’s  decision  at paragraph  15  he    held     as follows  at   paragraph 16;

‘’ 16.    I have  to agree with counsel for the Appellants that this decision was erroneous, first, because the court granted relief  and  judgment on the basis of matters not pleaded  (see  Kisumu Civil  Appeal No. 234 of 1999 Evan  Gundo –vs- Naftali  Sule [2002]  KLR)  In addition, there  was no evidence  that could support the  finding of the Trial  court.  There was no evidence that Jonathan acquiesced to or  encouraged Grace to erect structures on his  land.  In other words, Grace  had not acquired  an equity over a  portion  of plot No. 912.  I no doubt  appreciate that decision  reached by the Learned Magistrate was his sence of justice.    However,  what was before  the court was a temporal dispute  requiring the application of property law.  Having  found that  Grace  had trespassed  onto Jonathan’s land parcel 912, the court   had no option but to order for her eviction. That may seem a pertinently  harsh outcome but the law does not allow otherwise.’’

The court  has noted that the copy of the judgment in  Busia HCCA. No. 1 of  2003 attached to the Applicant’s further verifying affidavit of 13th May, 2014  is not  complete as some pages are missing.  I have on my own  volition called for the original appeal  file and seen the original and complete copy of the judgment   delivered  on 19th February, 2014. ] The impact of the judgment in Busia HCCA. No.  1 of 2003 was to clearly set aside the learned trial Magistrates decision in the   judgment delivered on 4th December, 2002 in Busia SRM.CC. No 288 of 2003. As such the decision of 4th December, 2002 do  not legally exist and is therefore     not capable of being called into this court for quashing.  In place  of the orders   of 4th December, 2002 are now the orders issued  by the Honourable judge , in Busia HCCA No. 1 of 2003, on 19th February, 2014 which cannot be subject  of judicial   review jurisdiction of this court.  There is also nothing to  show that the orders of 19th  February,  2014 have been successfully appealed against or reviewed  or that the orders of 4th December, 2002  have been    reinstated from the date they were set  aside on appeal and substituted. For  the above reasons, prayer 1 of the application herein is incapable  of being granted.

5.         That having  found  as  in (4)  above, and further noting that the pleadings  and  submissions filed herein shows that the Applicant  was aware  of the existence of the Busia SRM.CC No 288 of 2000 long before  he filed the judicial review  proceedings, the court is of the considered view that the route to take would have been for  Applicant to apply to  be enjoined  in those proceedings. Alternatively, after the  Applicant  initiated Busia SRM.CC No.360 of 2000, which is subject matter of Busia HCCA. No. 45 of 2011, he  had the option to move the court to consolidate that matter with Busia SRM.CC. No.288 of 2000. This would have accorded him the  opportunity  to participate in both cases and the appeals emanating thereof. The   third option would have been to initiate interested party application  in Busia  HCCA. NO. 1 of 2003.  As  the situation is now, and  in view of the High court  decision of  19th February, 2014 in Busia HCCA. No. 1 of 2003, the Applicant  cannot question the validity  and merit  of the Land Registrar’s  and Surveyor’s  report which was  part of the evidence the Honourable  judge considered.  [see page 7 and 8 of the judgment dated 19th February, 2014 in Busia HCCA. No. 1 of 2003] . For this  reason and considering prayer 3 of the application  would require  evidence to be adduced  before  it is considered, I find the same cannot be granted  in a judicial review application.

6.         That for reasons  set out above, I find no merit in the application  dated 24th May,     2004 and the same is dismissed with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON …26TH DAY OF FEBRUARY, 2015.

IN THE PRESENCE OF;………PRESENT…………….APPLICANTS.

1ST  I.P. PRESENT …RESPONDENTS.

MR. ONSONGO FOR APPLICANT.

MR. ASHIOYA  FOR 1ST I.P.

MR. OMONDI FOR 2ND, & 3RD  I.P

JUDGE.