REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT  AT MAKUENI

JUDICIAL REVIEW  3 OF 2017

FORMERLY  MACHAKIOS MISC CIVIL NO. 147 OF 2011

REPUBLIC  -----------------------------------------------------------------------APPLICANT

VERSUS

DISTRICT COMMISSIONER  - MAKUENI -------------------------- RESPONDENT

-AND-

1.  JOSEPH MUTUSE NZUVE  ---------------------------- 1^ST INTERESTED PARTY

2.  HARRISON  NZUVE  KYULE  ---------------------- 2^ND  INTERESTED  PARTY

-AND-

CYRUS MULI KULA(as legal representative  of                                                             

KOLA MATOLO alias KULA  MATOLO) ----------------- EX-PARTE APPLICANT

JUDGMENT

1) There is before me a notice of motion application expressed to be brought under order 53 Rules 3 of the Civil Procedure Rules and Sections 8 And 9 of the Law Reform Act Cap 26 of the Laws of Kenya for orders that:-

1.  THAT  an order of certiorari do issue removing to this Honourable Court for purposes   of being quashed the proceedings and findings   of the District  Commissioner- Makueni in Makueni Minister’s  Land  Appeal Case  No. 48 of 2009, and the same be quashed.

2.  THAT  an order of prohibition do issue prohibiting  the District commissioner – Makueni form implementing and/or causing  to be implemented his findings/decision – made in Makueni Minister’s Land  appeal Case No. 48 of 2009.

3.  THAT costs of these  proceedings be  awarded to the applicant.

2)  The  application is supported by  the statement dated 6^th June, 2011, the verifying affidavit and further verifying  affidavit of Cyrus  Muli Kola sworn  on 6^th June, 2011 and  9^th June, 2011 respectively.

3)  The applicant’s  counsel in her  submissions stated that the main grounds in support of the application are:-

a)  The District  Commissioner acted ultra-vires his mandate as given  under the Land Adjudication Act by purporting to overturn judgments of courts of  competent  jurisdiction by ordering   the taking of  measurements and subdivision of land that had  been  adjudicated upon by the courts   and boundaries duly fixed, and   proceedings to give such land to other people. 

b)  The  District  Commissioner acted without jurisdiction when he purported to “substitute” the long dead appellant, Nzuve  Muitya, with  people  who were not his legal representatives, and   proceeding to hear such people  as if they were parties to the appeal.

c)  The District Commissioner acted in breach of the Rules of Natural Justice and acted without Jurisdiction    when he denied  the deceased (Kola Matolo) an opportunity  to be heard  and to call witness, and proceeded to arbitrarily appoint a surveyor who purported to arbitrarily subdivide   land awarded to the deceased by the courts, and to award such land to other people.

4)  The counsel submitted   that in purporting to substitute  the long dead  Nzuve Muithya  ( who had filed  the appeal) with  persons who had not  been appointed  his legal/personal representations under provisions of the Law of Succession Act, the said  District Commissioner  acted illegally, without jurisdiction and ultra vires  his  mandate under sections  3,47 and 48 of the said Act.  The counsel correctly pointed  out that  jurisdiction  to appoint personal/legal representatives of a deceased person’s estate and to make orders  regarding administration of those estates is vested in the High Court, and in some  cases in the magistrate’s courts.

5)  The  counsel referred the court  to section 3 of the Law of Succession Act   which  defines who a personal representative is and as the duties  of the personal/legal representative set out in section 82 (a) of the   Act.

6)  The counsel submitted that even though the appeal lodged by Nzuve  Muithya  before he died  survived his death, the  same could only be prosecuted/enforced by his  personal/legal  representative appointed by the courts in accordance with the law of Succession Act and as such, the District Commissioner had no power and  jurisdiction to appoint  people to purport to prosecute the appeal.  The counsel termed both  proceedings taken before the District Commissioner or any report written by any person  appointed by him during the appeal proceedings, and the decision of the District Commissioner arising  from such  proceedings as nullity and should be removed to this court and quashed.

7)  The  counsel  ended  her submissions  by correctly stating  that decisions/judgments of courts of competent jurisdiction can only be overturned by higher courts on appeal, or by the courts giving  such  judgments upon successful application for  review.  The counsel submitted that a quasi judicial body cannot purport to overturn a court’s judgement. She said that this is clearly stated in the relevant  statues, which  include the Civil Procedure Act, the Judicature Act, the Constitution of Kenya and  Appellate Jurisdiction Act, among others and opined that the notice  of motion dated 21^st June, 2011 is merited and, therefore, it should be allowed as prayed.

8)  The counsel for the 1^st and the 2^nd  interested  parties, M/S J.A Makau & Co. Advocates  submissions were  on three grounds  namely;-

a)  That  the applicant  was present during  the proceedings before the District  Commissioner,

b)  That  the District Commissioner  did not supersede the  jurisdiction  of the courts when determining  the said appeal before him and

c)  That the proceedings before  the District Commissioner are special proceedings and the District Commissioner need not have substituted the deceased appellant Nzuve Maithya in accordance  with the Law of Succession Act.

9)  On the first ground, the counsel submitted  that appeal  number 48/2009 dated  10^th June, 2010 shows  that the Exparte  applicant was present during the appeal  before the District Commissioner. The counsel went on to submit that  rules of fair trial   and natural  justice were followed since he was allowed to testify and call witnesses to defend their case.

10)  On ground  two, the counsel submitted that the District Commissioner did not  supercede his powers in overruling a competent court of law but strictly exercised his powers as provided by the consent  and direction of the High Court referred the matter  to a parcel of  elders.

11)    On ground three, the counsel cited Machakos High Court  Misc Application  number 63/2004 – Republic   Vs the Special District   Commissioner where Lenaola , J as he then was , stated inter alia.

“… that proceedings  under the Land adjudication Act, Cap 284 are special proceedings within the context of the Act …  I wholly  agree with the interested parties that although Ndumbi Nzeki died after his success in the committee stage, it would defeat the purpose  of proceedings under the  relevant  customary law if the  parties that are affected by one  decision  to first  go to  a court of law  and obtain letter of administration and expect  to meet the time limits set  by the Land Adjudication Act.  In any event, the Exparte applicant fully participated in the proceeded from inception and the challenge raised now is in bad faith…”

12)    The counsel submitted that the Exparte applicant  did not  raise  any objections  to the  participation  of the  1^st and 2^nd  interested  parties during the appeal before the District Commissioner. The counsel added that the ex parte applicant was present during the   proceedings and has only cried wolf now because the District commissioner did not rule in his favour. The counsel went on to submit that  from the proceedings the Exparte Applicant  fully  participated in them  and never raised  any issue  as to legality of the participation of the 1^st and  2^nd  interested  parties. He never challenged the capacity   of the interested parties and the challenge now is made purely to obtain advantage.

13)    Justice Mutungi  had  a chance  to address   his  mind on  a similar that was before  Justice Lenaola the same issue  in the case of Roberts Muli Matolo  V Dircetor  of Land Adjudication & 2 others in  Nairobi ELC No.  599/13.  The  judge observed,

“ An appeal  before  the minister is quasi  judicial process and it  would be expected that the Civil  Procedure  Rules, would  have application particularly in regard to parties of the actions/appeals before  the minister”

The judge further observed

“… Where a party to an appeal before the minister dies their legal/personal representatives have a duty to seek substitution of the parties in the appeal to ensure that the appeal  is prosecuted”

14)    I fully associate myself with Justice  Mutunga   and I hold  that a personal  representatives of a deceased person as defined in section 3 of the Law of Succession Act can only be appointed by the High Court and in some cases by the magistrate’s courts  despite the fact that proceedings under  the  Land Adjudication Act Cap 284 are special  proceedings within  the context of the Act. 

15)  Mr.  Antony M Mulekyo Advocate for  the 3^rd interested  party submitted that the District Commissioner acted in breach of the constitutional  right of access to  justice and also  the right to fair hearing as provided in Article 50 of the Constitution when he denied the  respondents has   an opportunity  to be heard an appeal.

16)  The counsel cited  the case of Onyango Oloo vs Attorney General [1986 – 1989] EA 456 (successfully quoted in Registrar of Government  Lands & 3  others Ex-parte John  Njugi Gathumbi [2014] eKLR .   In Onyango’s case it was held ,

 “ the principle of natural   justice applies where ordinary people would reasonable  expect those making decisions which will affect others  to act fairly and they cannot   act  fairly and be seen to have acted fairly without  giving an opportunity to be heard… There is a presumption in the interpretation of statutes that rules of natural  justice will apply and therefore the authority is required to act fairly and so to apply  the principle of natural justice … to “consider” is  to look at attentively or  carefully,  to think or deliberate on, to take into account,  to attend  to, to regard as , to think, hold the opinion… “consider” implies looking at the whole matter before reaching a conclusion ...”

17)    The  counsel pointed  out  that the District Commissioner  acted against the rules of natural  justice by adopting as part of his findings a surveyor’s report prepared  arbitrarily and   without   hearing  parties to the dispute on the existing  boundaries  fixed by the  court.

18)    The counsel  went  on  to submit that the District Commissioner’s decision  was tainted  with illegality in purporting to overturn  decisions of courts of competent jurisdiction and acted beyond  the authority conferred  upon him and therefore  arrived at a wrong  decision.  The counsel cited the case of Republic  Vs Permanent secretary  of Housing & Another (2014) eKLR which sets out the broad grounds on which the court exercises   its Judicial Review jurisdiction were restated  where  the court cited with approval the Ugandan Case of Pastoli Vs Kabate District Local Government Council  and  others[2008]2 EA 300 where  it was held;

“In order to succeed  in an application for Judicial review, the applicant   has to show  that the decision or act  complained  of is  tainted with illegality, irrationality and procedural impropriety… illegality is when the decision  making authority commits an error  of law in the process of taking or making the act, the subject of the compliant.   Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality”

19)    The counsel further referred the court to the case of Republic Vs  Kenya  Revenue  Authority Expartes  Yaya Towers Limited [2008] eKLR where the court explained what substantive ultra vires is by  using the case of Westminister Corporation Vs London and Northwestern Rail Co.(1905) Ac 426 at Page  430   where  Lord Macnaughten stated follows;

“ It is  well settled that a public  body vested   with statutory powers such as those conferred upon the corporation must take  care not to exceed or to abuse its powers.  It must keep the limits of authority committed to it.  It must act in good faith and must act reasonably…”

20)    The counsel further submitted that the Ex parte applicant has  mischievously omitted to tell the court that the said parcels of land No.s 815 and 2062 are jointly owned by Kola Matolo  and the husband of the 3^rd  interested party,  Maweu Matolo, who are brothers.  The counsel  went on to submit that the Exparte  applicant has also omitted to  tell the court that the said land  was divided between the two brothers by the Kamba  Amutei Clan  and  that in doing so, the applicant has misled the court  concerning the ownership of the said   suit  property. The counsel invited the court to take into account the fact that land plots Nos. 815 and 2062 are jointly owned by Kola Matolo and Maweu Matolo in making its determination in this suit.

21)    For this court to act as the 3^rd interested party requested, this would amount to exceeding the scope of Judicial Review.  It is not for this court to substitute the decision that is sought to be impugned with its on decision for that is not what judicial Review is all about. I will, therefore, decline  the prayer by the third interested party.

22)    Having read the submissions filed, my finding is that  the District commissioner  acted  illegally and without jurisdiction as he had no authority   to purport to appoint personal legal representatives of the estate of Nzuve Muithya.  The power to appoint such personal/legal representatives vests in the High Court and in some cases in the magistrates courts.  As such the   proceedings before the District Commissioner or any report written by any person appointed by him during the appeal proceedings and the decision arising from such proceeding are nullity. I also  hold that   the District Commissioner lacked authority to  purport to overturn the decisions/judgments of court of competent jurisdiction.                                                                                                                                                                                                                                                                                                                                                                                                       

23)    Arising    from the foregoing, I hereby proceed to grant   prayers 1, 2 and   3    of the notice of  motion application dated 21^st June, 2011 and filed  in court on 22^nd June 2011.                

Signed, Dated and Delivered on this 13^th  Day of December, 2017     

-----------------------------

MBOGO C.G

JUDGE

13/12/2017

Before  Mbogo C.G

Mr Kwemboi  Court Assistant

Ms Watta  holding brief for Mrs Nzei  for the  Exparte  applicant present

-----------------------------

MBOGO C.G

JUDGE