Samuel Kuntai Tunai v National Land Commission, Chief Land Registrar & Kenya National Highways Authority [2017] KEHC 912 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  644 OF 2017

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF PROHIBITION, CERTIORARI, MANDAMUS AND DECLARATORY ORDERS

AND

IN THE MATTER OF THE LAW REFORM ACT, CHAPTER 26 OF THE LAWS OF KENYA

AND

IN THE MATTER OF ARTICLES 10,20,21(1),40(1),40(3), 40(4),47, 60, 64,68,232(1),232(2)  OF THE CONSTITUTION  OF KENYA

AND

IN THE MATTER OF THE LAND  ACT, NATIONAL  LAND COMMISSION ACT, KENYA ROADS ACT, ENVIRONMENT  AND  LAND COURT ACT

AND

IN THE FAIR ADMINISTRATIVE ACTION ACT

BETWEEN

SAMUEL KUNTAI TUNAI ………………….................................APPLICANT

VERSUS

THE NATIONAL LAND COMMISSION…………………1ST RESPONDENT

CHIEF LAND REGISTRAR ……………………………..2ND RESPONDENT

KENYA NATIONAL HIGHWAYS AUTHORITY………3RD RESPONDENT

RULING ON LEAVE AND STAY

1. This ruling determines the exparte applicant’s chamber summons  dated  2nd  November  2017 seeking leave  of court to  apply for Judicial Review remedies of prohibition, certiorari, mandamus, and declaration, challenging the decision of  the National Land  Commission, the respondent  herein, published  in gazette  notice No. 6865  of  17th July 2017 revoking the applicant’s  title to  land  Reference  No. 209/14434 ( Grant  IR. 89461).

2. The application is supported by the statutory statement, verifying affidavit sworn by Samuel Kuntai Tunai on 2nd November 2017 and annextures thereto.  The main prayers for leave are contained in prayers Nos 3-10 of the chamber summons which include, at prayer 10 thereof, monetary compensation.

3. The applicant claims that  he is the registered proprietor of the  Parcel of land subject of the purported revocation by the respondents at the behest of the Kenya National Highways Authority, the 3rd respondent  herein and that the 1st respondent conduced  proceedings leading  to a decision as per the  gazette notice cited above, revoking the title to the said land  on account  that it was public land  which was  acquired  irregularly, without  first giving the applicant an opportunity to be heard before  arriving at  the  impugned  decision.

4. According to the applicant, National Land Commission has no power to revoke title.  It can only make a finding as to the legality of the title and direct the Land Registrar to revoke.  In this case it is claimed that the respondent NLC violated the  applicant’s right  to be heard  and to a fair  administrative  action as stipulated  in Articles 47,10 and  232 of the Constitution  that enjoin public bodies to observe  Rules of Natural  Justice it  their  deliberations.

5. It is claimed that the decision of the1st respondent at the instigation of the 3rd respondent is illegal.  It is further stated that there  are two other pending  cases JR 523/2017 and JR 557/2017 both touching on a similar  decision  where the  court  did grant  leave  and  stay of  implementation of the  decision to revoke  the  titles  of the  respective  applicants  subject of the same  gazette  notice which is impugned herein.

6. The respondents appeared but did not file any grounds of opposition or replying affidavits.  The  1st respondent  National Land  Commission  was  represented  by Mr Mbuthia  Advocate  whereas the 3rd respondent was represented by Miss Rao advocate who submitted in opposition to the  chamber summons with leave of court  without  filing any opposing  grounds.

7. According to Mr  Mbuthia, what is in dispute  is the compulsory acquisition of  the subject  properties  upon which the  Southern bypass  was constructed  in 2012 and that Section 14(5) of the National Land Commission Act empowers the 1st respondent National Land Commission to review grants or dispositions in land  to determine  their legality.

8. It was contended that leave should not be granted because the application is an abuse of the court process.  That Section 128 of the Land Act and Section 13 of the Environment and Land Court Act are clear on the jurisdiction of Environment and Land Court to hear disputes relating to compulsory acquisition of land.  It  was contended in submission  that  as the land  has already  vested  in the Government,   the  only remedy available to the exparte applicant is to seek for compensation in damages before the  Environment and  Land Court which has the necessary jurisdiction or in accordance  with Sections 112 and 113 of the Land Act on compulsory  acquisition.

9. Mr Mbuthia  submitted that  should this court  grant  leave, then the respondents  will avail the  Hansard  Report of proceedings conducted by the National Land Commission to show that all parties  affected by the impugned  gazette  notice were  invited  to make  representations before National Land Commission took the decision that it did.

10. Counsel submitted that the  claim is for  ownership  of   land and  that he could not fathom how only 3 people  out of  133  persons  claim that they were not heard by the  National Land Commission before a decision was reached.

11. Miss Rao associated herself with submissions by Mr Mbuthia for the 1st respondent contending in addition, that the suit land was compulsorily acquired to construct the Southern bypass which construction was completed in 2012.

12. Further, that the 1st respondent invited all parties and gave them a chance to be heard before the decision was made.

13. That the application  as drafted  is no different  from a claim for  compensation of land  acquired  compulsorily  hence the  correct remedy is damages since public funds have been utilized  and  owners of land compensated hence it is not  in the public interest to grant leave and  stay.

14. Miss Rao submitted that no prima facie case had been established and that the gazette notice relied on had some missing pages which they will annex if leave is granted.  She urged the court to decline the leave and   stay.

15. In a rejoinder, the applicant’s counsel Mr Kemboy submitted that his client had demonstrated that there is an arguable case.  That his client is challenging the decision to revoke the title to his land and without according him an opportunity to be heard, not a claim for compulsory acquisition.  That there was no basis for invoking the principle of abuse of court process.  That his client had come to court within time and that the submissions by the respondent’s counsels mirror an anticipated defence to the substantive application hence leave and stay should be granted.

DETERMINATION

16. I have carefully considered the exparte applicant’s application for leave and stay of the impugned decision.  I must however  mention that the  prayers sought  pursuant  to the provisions  of the Fair Administrative Action Act, 2015 such as Declarations and  Monetary compensation do not necessarily require leave of  court  to institute  such proceedings.

17. This is so because Order  53 Rule (1) of the Civil Procedure Rules   and Sections  8 and  9  of the Law  Reform Act are  clear that  the only prayers  that would not  be granted without leave of court are certiorari, prohibition and  mandamus.

18. It therefore follows that the prayers for declaration that do not fall within the Law Reform Act and Order 53 of the Civil Procedure Rules do not require leave of this court.

19. The requirement  that leave to apply for the  traditional  Judicial Review remedies of  mandamus, certiorari and prohibitions must be  sought  and  obtained  was explained by a three judge bench namely Mbogholi Msagha, Oguk and Bosire JJ in  Matiba  vs Attorney General Nairobi HCC Miscellaneous Application  790/1993in which the court held that  it is  supposed  to exclude  frivolous  vexatious  or  applications  which  prima facie  appear  to be abuse of the process of the court or those applications  which are  statute  barred.

20. A similar decision was reached in Republic vs  County Council  of Kwale & Another exparte Kondo & 57 Others  Mombasa  HC Mombasa 384/1996and confirmed  by the Court of Appeal  in Mexner & Another vs Attorney General [2005] 2 KLR 189 where the Court of Appeal held that the leave of court is a prerequisite to making a substantive application for judicial review and that the purpose of the leave is to filler  out  frivolous  application hence the granting  of leave of  judicial discretion.

21. In Republic vs Land Disputes Tribunal Court Central Division & Another  exparte  Nzioka [2006] 1 EA 321 Nyamu J held that leave should be granted  if, on the material  available, the court  considers, without  going into the matter indepth, that there is an arguable case for  granting leave and  that leave  stage is a filter whose purpose is to weed out hopeless cases at the earliest  possible time, thus saving the pressure on the courts and  needless  expense  for the applicant  by allowing  malicious  and futile claims to be weeded out or eliminated so as to prevent public bodies being paralyzed for months because of pending  court action which might turn out to be unmeritorious.

i. The above decision was followed by Republic vs The Permanent Secretary Ministry of Planning and National Development exparte Kaimenyi [2006] EA 353.

22. Circumstances  under which  leave may  be granted  to apply for  judicial review  remedies  of certiorari, mandamus and prohibition were enumerated in Mirugi Kariuki vs Attorney General CA70/1991 [1990-1994]  EA 156where  the Court of Appeal  stated

“if the applicant fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the courts would be in error if it granted leave.  The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process.  It enables the court to prevent abuse by busy bodies, cranks and other mischief makers…”

23. And in [Re Bivac International SA (Bureau Veritas [2005] 2 EA 43]the court stated:-

““Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”

24. What emerges from the foregoing is that the grant of leave to commence Judicial Review proceedings is not a mere formality and that leave is not a matter of course.  The applicant must, when applying  for  leave, demonstrate  to the  satisfaction  of the court that he has a prima facie  arguable  case  and that the  court, without  delving  into the details, would be persuaded  that the applicant  could succeed.

25. The court would decline leave where there is delay, or the application is malicious, futile or abuse of the court process or frivolous or vexatious.  The conduct of the applicant will also be considered, leave being discretionary, where there is objection to jurisdiction, the court must take it up at the initial stage and decide upon it before delving into the arguability of the intended proceedings.

26. In this case, the applicant has claimed that a decision was reached to revoke his title contrary to the rules of  natural justice  in that he was never invited to participate in the decision making process to be heard  before  the decision  thereof   was made.  He  also  claims  that in any  event, the 1st respondent in  revoking   the applicant’s title acted illegally because it has no such  powers under  Section 14(5)  of the  National  Land Commission  Act  and  Section 128  of the Land  Act  to revoke   titles  to land  but to review grants and  titles to land and determine the legality  thereof and if found to have been irregularly or illegally  acquired, direct  the Registrar  to revoke.

27. It was alleged that the National Land Commission directed revocation of titles not for the Registrar to revoke.

28. Contrary  to what  the  respondents  claim/contend, the applicant  never and  has not  claimed  ownership of land or  compensation  for compulsory  compensation of his land  as stipulated  in Sections  112 and  113  of the Land  Act.  It is not in every  case that  the term “title to land” is  mentioned  that it  must be  construed  to mean  that  the claim  is over  ownership, use, occupation or title  to land.

29. The right  to fair administrative  action as stipulated  in the Fair  Administration Action Act, 2015 and Article 47 of the Constitution as read with Article 165(6) and (7) of the Constitution empower this court to  intervene  in matters  where there  is  allegations of such  breach  of those specific  rights.  There is nothing on record to demonstrate that this court will be usurping powers or jurisdiction of the Environment and  Land Court  if it  hears  and  determines a matter  where the  subject  is land  but not a claim for  the use, occupation or  title  to that  land.

30. The act of revocation and the process  by which revocation of title to land is done  under Section 14(2) of the  National Land Commission Act  is an administrative  action as  stipulated  in Section  2 of the  Fair  Administration Action Act, 2015  and  the High Court  is  given  the  power under  that Act, to review  administrative  decisions of public  and  non-public  bodies.

31. It follows that the attempt by the respondents to oust the  jurisdiction  of  this court  by claiming that  the  claim  is over ownership of the land or that it has to do with compulsory  acquisition is farfetched and  misguided.  It is aimed at diverting the attention of this court  from doing justice to the parties.

32. The applicant  claims that before  the decision to revoke  his title  was made by National Land Commission, he  was  never invited  to attend  a hearing  and  be  heard.  Further, that the revocation was an illegality because the National Land Commission has no power to revoke title to land.

33. The respondents filed no affidavits but their advocates submitted from the bar that a hearing was conducted and that there is a Hansard report showing participation by the applicant.

34. In my view, the  above  differing  positions disclose  an arguable  case that calls for indepth investigation by the court to determine whether the National Land Commission has jurisdiction to revoke titles and whether the applicant was accorded an opportunity  to be  heard before  the decision  to revoke  his title   was made, since  there is  no dispute  that the title  in  issue  is in his name.

35. Accordingly, I find and hold that the application for leave to apply is not farfetched.  It is merited.

36. I grant the applicant leave   to institute Judicial Review proceedings as prayed for in the chamber summons respecting the prayer for mandamus, certiorari and prohibition. The applicant is at liberty to include in the substantive motion any other prayers where leave is not mandatory as stipulated in the Fair Administration Action Act, 2015.  The motion to be filed and served within 21 days from todate.

37. On the prayer  that the  leave  so granted  do operate  as stay of  the order and or decision of the National Land Commission contained in the gazette  notice  No. 6885  dated  17th July  2017  in respect of LR No. 209/14434 (Grant IR No. 89461) registered  in the applicant’s name, I note  that the decision  to revoke  the  title  has  already  been made  and  a caveat placed  on the  title by  the Registrar of Titles  claiming  an interest  under  Section 65(1) of Registration  of Titles Act Cap 281 Repealed  and under  Section 76  of the Land  Registration Act  No.3 of 2012,  on  29th August  2017.

38. A caveat though outdated owing to the changed land regime, having been lodged on the title after revocation thereof, it would be superfluous to grant stay of the decision, which has already been made.

39. If the court hears the parties and finds that the process leading  to the revocation  of the title  was  flawed  and or that the  act of  revoking the title is illegal or done outside National Land Commission’s  powers, nothing stops the court  from quashing  that decision. Land is not a movable property like motor vehicles which can be dismantled.  There is  nothing  on record  to show that the bypass  (Southern)  was  constructed  on the said land as the applicant has not claimed that the 3rd respondent  has trespassed onto the land without colour  of right which would then divert this court  of jurisdiction  to hear  and  determine  the dispute.

40. The  moment  leave to  apply is  granted, any interested  party is  put on notice of the challenge to any action that  would in  effect render the  final outcome of these proceedings  a paper judgment  should  the applicant  ultimately  be successful.

41. However, in this case, I see no danger of the proceedings being rendered nugatory should stay be declined.

42. In the cited cases, there was no evidence of a caveat lodged prior to instituting Judicial Review proceedings unlike in this case. A caveat prohibits dealings on the title. It is sufficient   prohibition to protect interests of all parties concerned now that it is lodged by the custodian of the very title, the Registrar of Titles.

43. For that reason, I order that the status quo prevailing shall remain until these proceedings are heard and determined interpartes.

44. Costs shall be in the main cause.

Dated, signed and delivered in open court at Nairobi, this 21st day of November, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Ogonjo h/b for Mr Kemboy for the exparte applicant

Mr Mbuthia for the 1st Respondent

Mr Riro h/b for Miss Rao for the 3rd Respondent

NA for 2nd Respondent

CA: George