1.The Ex-parte Applicant seeks several prerogative orders:i.An order of Certiorari to remove to the ELC and quash the Land Register (Green Card) in favour of James Opiyo Opondo and Damaris Akinyi Nondi as well as the title deed for parcel No. Mariakani/Kawala “B”/98 in the names of Damaris Akinyi Nondi.ii.An order of Certiorari to remove to the ELC and quash the Land Adjudication and Settlement Records in the names of James Opiyo Opondo and Damaris Akinyi Nondi regarding the title deed for parcel No. Mariakani/Kawala “B”/98.iii.An order of Mandamus directing the County Land Registrar Kilifi, the Chief Land Registration Officer Kilifi, and the Land Registrar Kilifi to reinstate/restore entries in the land register (Green Card) and other records in the names of Saifudin Abdul Hussein Bhaijibhai and Noordin Abdul Hussein Bhaijee as absolute proprietors of the land parcel No. Mariakani/Kawala/”B”/98iv.An order of Prohibition to issue to prohibit the County Land Registrar, The Chief Land Registrar, Land Registrar, Kilifi, and Land Adjudication and Settlement Officer to remove into this Court and prohibit the Land Registry Kilifi County from issuance and release of title deed relating to land parcel No. Mwanda/Mbalamweni Adjudication Section 1282 until the hearing and determination of this case.v.Any other relief as the court may deem fit.vi.Costs of the application be provided.
2.This matter was canvassed by way of written submissions.
3.The Ex-parte applicant averred that a 1st title was issued in this matter on 3rd November 2014 to the Ex-parte applicant. A subsequent one was issued on January 2020 but backdated on 28th January 2018 in favour of one James Opiyo Opondo who had died on 7th November 2007 and the title was changed to the name of Damaris Akinyi Nondi the 5th respondent on 21st July 2020. The applicant takes issues with the manner the respondents did the transfers without recalling the 1st title and giving the Ex-parte applicant a chance to be heard before a second title was issued hence the prayers sought in the current application. Having died on 7th November 2007, James Opiyo Opondo could not possibly have been registered as the proprietor of this land on 28th January 2014. This would mean the Land Registrar acted in excess of the statutory powers in creating a backdated Green Card and entering his name in the register in 2014 long after his demise.
4.The Ex- parte applicant submitted that the existence of the two titles for the same parcel of land is contrary to public policy, amounts to an abuse of power, and is unreasonable within Wednesbury Principles (Associated Provincial Pictures House v Wednesbury Corporation  1 KB 223.
5.The issue on the title to this land has been litigated in Land Dispute Tribunal Case No. 14 of 2000 between Walter John Odiero and the 2nd applicant Noordin Abdul Hussein Bhaijee whose determination was in favour of the 2nd respondent and the same adopted as the judgment of the court by the Resident Magistrates Court at Kalloleni in Land Award No. 17 of 2001. There was filed Mombasa HCCC No. 100 of 2010, which was transferred to Malindi and allocated ELC Case No. 7 of 2014. There was yet another Land Dispute Tribunal Case No. 19 of 2010. In which the 5th respondent did not succeed,
6.Malindi ELC No.7 of 2014 was heard and finalized in favour of the 5th respondent. An appeal was preferred in Malindi Civil Appeal No. 139 of 2019 the Court of Appeal set aside the orders made in ELC Case No. 7 of 2014. Despite the findings of the Court of Appeal,1st – 5th respondents have failed to recall for cancellation the title held by the 5th respondent.
7.The 1st to 4th respondents contended that the core issue in this matter is the ownership of the suit property between the two titles which is the ‘real’ one.
8.The 1st to 4th respondents are of the view that the threshold to award prerogative orders has not been met. The cases in Municipal Council of Mombasa v Republic, Umoja Consultants Ltd, Nairobi  eKLR, Pastoli v Kabale District Local Government Canal & Others  2 EA 300 at pages 300-304, Kenya National Examination Council v Republic Ex-parte Geofrey Gathenji & 9 Others, Republic v Non – Governmental Organization Ex-parte Linda Bonyo & 4 Others and Philiph Opiyo Sadjah & 5 Others (Interested Parties) eKLR.
9.The 1st to 4th respondent contended that the 1st respondent placed a restriction on the suit property under Section 76 of the Land Registration Act pending the verification of Civil Appeal No. 139 of 2019. The applicant needed to move the court to remove the restriction and desist from filing this suit.
10.The 5th respondent submitted similarly to what the 1st to 4th respondents stated adding that the applicant is taking a shortcut to have the ownership of the suit property determined in favour of the Ex-parte applicant. The threshold for an award of prerogative orders has not been met. The case of Civil Service Union v Minister for Civil Service AC 374 at 401 D, quoted with approval in Republic v Cabinet Secretary National Treasury & Another Ex-parte Car Importers Association of Kenya  eKLR is quoted.
11.The 5th respondent is of the view that because there are two titles over one property the court needs to do an investigation (a hearing) to determine who the ‘real’ title holder is. That cannot be achieved through Judicial Review. The cases in Seventh-day Adventist Church Ltd vs Permanent Secretary Ministry of Nairobi Metropolitan Development & Another eKLR , Hurbert L. Martin & 2 Others v Margaret J. Kamar & 5 Others  eKLR, Munyu Maina v Hiram Gathiha Maina eKLR and Republic v Commissioner of Land & Another Ex-parte Jimmy Mutinda eKLR.
12.The 5th respondent also submitted that the time within which to seek JR orders lapsed. It has been more than 6 months since the titles were issued. The case of Republic v Council of Legal Education & Another Ex-parte Sabiha Kassamia & Another eKLR, addressed the issue of timelines within which to seek JR orders.
13.After reviewing the materials and submissions placed before me the issues that fall for the determination of this Court are whether the application has met the threshold for grant of orders in the nature of JR and who should bear costs.
14.In the case of Republic v Cabinet Secretary National Treasury & Another Ex-parte Car Importers Association of Kenya  eKLR the Court had this to say:
15.We have two titles. The court needs to check how the two titles were obtained. Each party needs to tender evidence to show how he/she acquired the title; the court goes to the root of the titles and determines who amongst the two has the ‘real title’. That is the province of the civil jurisdiction of the ELC and not Judicial Review. This has been determined by this court in a thread of decisions see for instance Seventh-day Adventist Church Ltd vs Permanent Secretary Ministry of Nairobi Metropolitan Development & Another  eKLR:
16.In Hurbert L. Martin & 2 Others v Margaret J. Kamar & 5 Others  eKLR, Munyu Maina v Hiram Gathiha Maina eKLR the Court held:
17.The Court of Appeal in the case of Munyu Maina vs. Hiram Gathiha Maina  eKLR, held as follows:
18.I can see parties have been wrangling over the ownership of the suit property with the most significant case going all the way to the Court of Appeal in Malindi Civil Appeal No 139 of 2019 – reported as Bhaijee & another v Nondi & another (Civil Appeal 139 of 2019)  KECA 119 (KLR) (18 February 2022) (Judgment) Court had this to say:
19.From the foregoing the Court of Appeal never decided the appeal and determined which title is real between the parties. It questioned the process of acquisition and adjudication. It found this Court (Olola J.) was prematurely moved. The parties had to go to the drawing board and start the process afresh. Certainly, the JR process cannot be the panacea. It will further complicate the issues.
20.It has been stated that the Court was moved well outside the time within which to file JR the case in Republic v Council of Legal Education & Another Ex-parte Sabiha Kassamia & Another eKLR is cited where the Court stated:
21.From the record six months had lapsed since the two titles were issued that is in 2014. It is a fringe issue here. I need not belabor on it.
22.The upshot is that the motion dated 8th of February 2023 is hereby dismissed with costs.