Judicial Review Proceedings not limited to Parties to the Suit

Republic v District Land Registrar, Naivasha & another

Ex parte Jane Wangeci Kariuki

Judicial review 1 of 2015

High Court at Naivasha

C Meoli, J

July 22, 2016

Reported By Emma Kinya Mwobobia & Ian Kiptoo

Judicial Review-parties – parties to a judicial review application-late joinder of a partyto the suit - whether the late joinder of the Interested Party was proper-whether judicial review proceedings were limited to the parties to the suit-Civil Procedure Rules, 2010, order 53 rule 6.

Judicial Review–remedies-mandamus-circumstances under which judicial review remedy of mandamus could be granted- where the Respondent had failed to register and transfer the suit property - whether the Court could issue an order of mandamus against the 1st Respondent for failing to register and transfer the suit property.

Judicial Review-jurisdiction – jurisdiction of the judicial review court-nature and scope of the jurisdiction – claim of alleged fraud in the land transaction - whether the Court, being a judicial review court, had jurisdiction to investigate claims of alleged fraud in the transaction.

Brief Facts

The ex parte Applicant entered into an agreement for the sale of the land subject of the suit. Thereafter the purchaser lodged the transfer documents at the District Land Registry for registration of the parcel in the name of the purchaser. The Land Registrar upon scrutinizing and comparing the lodged documents with records held at the registry suspected forgery and commenced internal investigations. Eventually the matter was handed over to the Criminal Investigations Department.

During subsequent investigations, the Interested Party, who also held a title in respect of the suit property, became aware of the suit and filed an application to be enjoined as a party to the suit .

The ex parte Applicant instituted judicial review proceedings against the District Land Registrar seeking an order of mandamus to compel the Respondent to register, transfer and issue a Title Deed for all the parcel subject matter of the suit.

Relevant Provision of the law

Civil Procedure Rules

Order 53 Rule 6

On the hearing of any such motion as aforesaid, any person who desires to be heard in opposition to the motion and appears to the High Court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with the notice or summons, and shall be liable to costs in the discretion of the court if the order should be made.

Civil Procedure Act

Section 3

In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force.

Issues

i. Whether the late joinder of the Interested party in the judicial Review proceedings was proper.

ii. Whether the Court had jurisdiction to set aside orders issued on June 16, 2015.

iii. Whether judicial review proceedings were limited to the parties to the suit.

iv. Whether the Court could issue an order of mandamus against the 1^st Respondent for failing to register and transfer the suit property.

v. Whether the Court, being a judicial review court, had jurisdiction to investigate claims of alleged fraud in the transaction.

Held

1. No specific provision of the law was cited regarding the joinder of the Interested Party. Failure to invoke a particular provision of the law in the circumstances of the case would not defeat the Motion as was urged in the ex parte Applicant’s grounds. At the time of filling the application, the Interested Party was acting in person.  It was trite that technicality would not trump substance and under article 159 2(d) of the Constitution, Courts were expected to guard against undue regard for technicalities. In that context, the Interested Party’s application fell squarely within the provisions of order 53 rule 6 of the Civil Procedure Rules.

2. As one asserting bona fide title to the suit property, the Interested Party was entitled to be enjoined independently of the Respondent. On all accounts, he was unaware of the transactions in dispute, until police investigators contacted him. Thus, he clearly had no notice of the judicial review proceedings before then. It therefore would be a travesty of justice to shut him out; when it appeared that the prior court orders could have adversely affected his title in the disputed property.

3. The Interested Party stood to be directly affected by the orders granted by the Court in terms of order 53 rule 6 of the Civil Procedure Rules.  The fact that the orders were already in force, served to increase the necessity of his enjoinment rather than render it otiose and the prayer for his enjoinment.

4. Failure to attend Court on the hearing date was occasioned by lack of co-ordination in the office of the Attorney General between the respective counsels. It would seem that the Attorney General’s office was stirred into action by the order of mandamus served upon the Respondent. The explanation given by the State Counsel for non-attendance was rather tenuous. The State Counsel’s diary ought to have been tendered by the Attorney General to support their explanation.

5. The ex parte Applicant could not be blamed for the failure to involve the Interested Party because of the nature of the transaction for which registration was sought. However, the Interested Party in all probability stood to suffer prejudice resulting from orders in respect of which he did not get a hearing.

6. Notice to the widest possible number of parties of judicial review proceedings lay at the heart of order 53 of the Civil Procedure Rules and was particularly underscored in rules 3(1) to (4). Furthermore, order 53 rule 6 of the Civil Procedure Rules had opened a window for leave to be granted to proper persons to be heard, notwithstanding the fact that they had not been served with the notice or Summons. Those provisions clearly indicated that judicial review proceedings were not necessarily limited to the parties to the suit but that the door was open to other different categories of people, including all those directly affected and other proper persons.

7. The widest participation of persons was emphasised while fully conscious of the ex parte Applicant’s assertions that she was the legal registered owner of the suit property, and that, no person had challenged her claim to the suit property prior to the orders being made. However, she could not use as a shield nondescript notices of change of user published in a newspaper and her private correspondence to shut the door against the participation of and challenge by a party who clearly stood to be directly affected by orders made therein.

8. Order 53 of the Civil Procedure Rules was a self-contained order intended to provide for different situations relating to the exercise of judicial review jurisdiction by the Court. There was no provision however for the setting aside of an order, made ex parte, in the Court’s exercise of jurisdiction thereunder. Neither the Interested Party nor the Respondent had invoked any legal provision in support of the prayer for setting aside of the court orders. That jurisdiction was implied from the provisions of rules 3 and 6 of Order 53 and was the Court’s inherent jurisdiction.

9. Nothing contained in Part VI of the Law Reform Act or Order 53 of the Civil Procedure Rules excluded the application of section 3 and 3A of the Civil Procedure Act to proceedings brought under Order 53 of the Civil Procedure Rules. Section 3 of the Civil Procedure Act was particularly apt considering that order 53 of the Civil Procedure Rules conferred a special jurisdiction on the Court.

10. The impugned prior orders of the Court were issued without any input by the Interested Party who stood to be adversely affected if the orders were to remain in force without having opportunity to be heard.  That was by far a more compelling reason in support of the setting aside of the orders than the rather flimsy explanation offered by the Respondent who at any rate had no personal interest in the suit property.

11. Blunders would continue to be made, blunders by counsel and by parties.  The Court had always to look to doing justice to the parties. The stakes in the litigation were high not only because of the value of the suit property, but also its impact on public law administration calling into question as it did the integrity of public records held in the Respondent’s registry.  For those reasons, the Respondent’s plea was to be heard on the substantive application with a little more sympathy their unconvincing explanation notwithstanding.

 12. By the time the Interested Party made his appearance in court with the application, much water had gone under the bridge. The emphasis laid in order 53 of the Civil Procedure Rules on notice to different categories of people, even non-parties in some cases, spoke to the nature of judicial review proceedings.

13. Judicial review was a public law remedy and more often than not, the Court had to balance the rights of individuals against the public interest. It could therefore not be disputed that the Interested Party would no doubt have appeared to oppose the substantive Motion had he had notice thereof. It was the alleged fraudulent nature of the contested transactions that was the reason proffered by both the Interested Party and the Respondent in supporting the prayer for setting aside of the orders and for the dismissal of the substantive Motion.

 14. The parameters of judicial review were wide and would possibly continue to expand to meet different situations. The Court’s jurisdiction was exercised within broad but well defined grounds.  In order to succeed in an application for Judicial Review, the Applicant had to show that the decision or act complained of was tainted with illegality, irrationality and procedural impropriety. 

15. By alleging that malice was the motive behind the delayed action by the Respondent, the Applicant was by and large asserting procedural impropriety against the Respondent that she had not acted fairly in respect of the conveyance in contestation.  Although it seemed that the Respondent, perhaps out of prudence, did not announce her fears regarding the transfer document to the ex parte Applicant until the matter came to court, her explanation was reasonable. It was based on the latent and patent defects in the transactions as outlined in the Respondents’ affidavits and supported by the annexures thereto. As a public officer, the Respondent was entitled to assure herself of the bona fides of the contended conveyance before acting.

16. The affidavit by the ex parte Applicant curiously failed to address directly the claims of ownership by the Interested Party or his affidavit and annexures, even though by the date of swearing, the Notice of Motion by the Interested Party seeking to set aside was already filed. The ex parte Applicant appeared to dismiss the value of the investigations outlined by the Respondent. In order to go along with such an argument and therefore compel the transfer, the Court would have disregarded public interest, a linch pin of the exercise of judicial review jurisdiction of the Court. 

17. The underlying principle was that the crown could not be stopped from exercising its powers whether given in a statute or common law when it was doing so in proper exercise of its duty to act to the public good, even though that might have worked some injustice or unfairness to the private individual. It could however, be stopped when it was not properly exercising its powers but was misusing them and if it did misuse them in circumstances which worked injustice of unfairness to the individual without a contravening benefit to the public.

18. The Respondent had delayed in effecting the transfer, but had explained the cause of delay. However, the ex parte Applicant had been charged with a criminal case in connection with the impugned transaction, she was innocent until proven guilty. However, the Court would be questioning the merits of the decision by the Respondent and by extension the Director of Public Prosecutions if it were to order, nonetheless that the transfer be effected. That would not be in public interest and would particularly be prejudicial to the Interested Party. A transfer of immoveable property was not as easily reversed as the ex parte Applicant touted it to be.

19. The Respondent was exercising her discretion under the relevant statutes and the Court could not second-guess her wisdom in deciding that an inquiry was necessary before effecting the contested transfer. As a public officer, she was expected to act with probity and to exercise her discretion in a judicious manner.

 20. The Respondent deferred effecting the disputed conveyance pending investigation, initially internal and later by the Criminal Investigations Department. In her words, she would be perpetrating an illegality by effecting the conveyance in the circumstances of the case.  The Court could not compel her to go ahead and effect the transfer. In her discretion, the Respondent might or might not have approved a conveyance. Unless it was shown that her demurral was purely based on malice, which had been effectively discounted, the Court would be slow to issue an order of mandamus.

21. On the face of the alleged fraudulent transaction, there were some glaring documentary discrepancies that required an answer, in respect of the title of the ex parte Applicant and even the records held at the registry of the Respondent.  Those were issues that would be thrashed out in the criminal trial once the ex parte Applicant was arrested or surrendered herself to the Court.

22. The rule regarding the proper exercise of discretion by a public body, was that any action to be taken had to be justified by positive law. A public body had heritage of legal rights which it enjoyed for its own sake, at every turn, all of its dealings constituted the fulfillment of duties which it owed to others; indeed it existed for no other purpose. However, in every such instance and no doubt many others where a public body asserted claims or defences in court, it did so, if it acted in good faith, only to indicate the better performance of the duties for whose merit it existed.

23. Allegations of abuse of power for collateral purposes, as made by the ex parte Applicant, had been blunted by the appearance of the Interested Party who asserted to be the bona fide owner of the suit property since 1996. There were allegations that the ex parte Applicant’s title was tainted with fraud, which she denied, while saying nothing directly concerning the asserted claim by the Interested Party to the suit property.

24. No court ought to have enforced an illegal contract or allowed itself to be made the instrument of enforcing obligations alleged to have arisen out of a contract or transaction which was illegal. If the illegality was duly brought to the notice of the Court, and if the person invoking the aid of the Court was himself implicated in the illegality, it did not matter whether or not the Defendant had pleaded the illegality. If the evidence adduced proved the illegality, the Court would not assist him.

25. The Court had to allow for investigations to be carried out regarding such alleged fraud as the judicial review procedure was not suited for investigating such claims to conclusion. Judicial review was not concerned with private rights or merits of the impugned decision but to ensure that individuals were given fair treatment by the authorities to whom he was subject. The final determination, based on tested evidence regarding the fraud alleged against the ex parte Applicant by the Respondent and the Interested Party had to be made in appropriate proceedings.

26. Section 142 and 143 of the Registered Land Act (repealed), provided for correction of records by the Land Registrar and the cancellation by the Court of titles acquired through fraud respectively. The fact that the ex parte Applicant was currently a fugitive from justice and had failed to answer in any substantive way the assertion to title by the Interested Party created some doubts in her alleged bona fide. Be that as it may, the judicial review process was not the forum for the final adjudication of the questions raised by the defects highlighted in the ex parte Applicant’s alleged title to the suit property.  The Court’s jurisdiction under order 53 of the Civil Procedure Rules and the Law Reform Act did not envisage an order for the cancellation of titles or issuance of declarations.

Application partly allowed; Costs to the Respondent and Interested Party