ALEX KAGWARI MAYOME VS THE AG AND CHEIF LAND REGISTRAR AND 2 Others

1. The Applicant filed the Chamber Summons dated 29th November 2023, seeking the following orders:
1. Spent
2. THAT leave be granted to apply for Judicial Review to issue an order of Certiorari to bring forth into this Court the decision of the DCC, Thagicu dated 26th October 2022 and communicated on 10/08/2023 for the purpose of being quashed and an order of Mandamus to compel the 3rd Respondent to cancel the name of the interested party and register parcel No. Kyuso/Kagundu Tharaka/6680 in the name of the Applicant.
3. THAT the leave granted in (2) above do operate as a stay of the Minister’s decision aforesaid.
2. The Application is supported by the affidavit and statement of facts of the Applicant. The Applicant was the Appellant in the appeal to the Minister No. 193 of 2022 affecting Land Parcel 6680 Tharaka/Kagundu Adjudication Section. She claims that he owned the said land and lived on it peacefully until the area was declared an adjudication section.
3. When adjudication began, the Applicant was declared and registered as the owner of the land. The Interested Party registered a dispute over the land to the Committee, under whose decision he was given the suit land. Being dissatisfied with the Committee’s decision, the Interested Party appealed to the arbitration board, but his case was dismissed.
4. The Interested Party filed an appeal to the Minister No.193 of 2022, which was heard at the Deputy County Commissioner’s office Thagicu on 18th June 2022. During the hearing, the Interested Party had two witnesses, Joel Kamunyu Mwithi and Gerald M. Mutithi, and the respondent had one witness, Reginah Ciakaivere. The Applicant’s complaint is that the Interested Party was allowed to ask the witnesses questions while he was declined the same chance.
5. When the hearing was concluded, the 2nd Respondent did not give them a judgment date but said she would communicate in writing. He stated that, the date was never communicated despite the Applicant’s requests for proceedings by constant checking at the 2nd respondent’s office. Upon writing a letter to the 2nd Respondent requesting to be provided with the proceedings and the decision, the same was not acknowledged nor replied to. He had to write a letter to the Director of Land Adjudication in Nairobi to obtain proceedings and judgment, which he obtained. It was only after he obtained the documents that he realized that the case had been dismissed.
6. The Applicant only came to know that the decision had been given against him when the interested party came and tried to occupy and work the suit land.
7. The Applicant claims that though the decision is dated 26th October 2022, it was communicated to him on 10th August 2023.
8.  The Applicant filed a replying affidavit sworn on 17th February 2024 in response to the Respondent’s preliminary objection stating that the summons application was filed within time because the judgment/decision sought to be quashed was communicated to him on 10/8/2023.

The Respondents’ Preliminary Objection.
9. State Counsel representing the Respondents filed a Notice of Preliminary Objection dated 15th January 2024 on the grounds that the Chamber Summons application herein is statute barred and offends the mandatory provisions of Section 9(2) and (3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules, 2010. They further state that this Honourable Court is divested of jurisdiction to hear and determine this matter since the time for lodging the proceedings has lapsed.

The Interested Party’s Replying Affidavit
10. The Interested Party filed a replying affidavit sworn on 13th September 2024. He deposed that during the adjudication process, the suit property was fraudulently and illegally registered in the name of the Applicant when he is the legal and bonafide owner thereof. As a result and being dissatisfied with the Adjudication officer’s decision, he filed case No. 145 to the Land Adjudication Committee, which awarded him the land. The Applicant appealed to the Arbitration Board, and his case was dismissed. The Applicant filed an Objection, which was again dismissed and the court ordered that the suit property remains registered in his name.
11. The Applicant filed an Appeal to the Minister Number 193 of 2022, which was heard on 18th June 2022, and judgment was delivered on 26th October 2022, dismissing the appeal and directing that the suit property remains registered in the Interested Party’s name.
12. The Interested Party contended that the order of mandamus sought has been overtaken by events since a title deed was issued to him on 12th April 2023. He also faults the Applicant for stating that he was not aware of the Minister’s decision because he could have walked into the Minister’s offices and make enquiries about the matter, which he failed to do.
13. It was deposed that if the Applicant was not satisfied with the decision of the Minister, he could have appealed the decision at the Land and Environment Court and not file for judicial review as he had done in this case.
14. The Interested party also contends that the instant application has been filed out of the six month period from the date the decision was made, contrary to Order 53 rule 2 of the Civil Procedure Rules and stated that the application is without merit and should be dismissed.

The Applicant’s Written Submissions
15. It is the Applicant’s submission that while the impugned decision is indicated to have been delivered on 26/10/2022, it was only communicated on 10/8/2023. There is evidence that he sought to know the outcome of the decision earlier but was not issued with the proceedings. The Applicant claims that keeping the decision secret from the Applicant was unfair, unjust and a breach of the rules of natural justice.
16. Regarding the Respondent’s Preliminary objection, the Applicant submits that if the respondent disputes the date that the decision was made known to the Applicant, then this is a factual matter and cannot constitute a preliminary objection, which is meant to be in the nature of a demurrer.
17. Counsel for the Applicant relied on the decision of this same Court in the case of Republic v. Attorney General & 2 others Kayanda ex-parte Mwanzia, where the Applicant became aware of the decision later than the date it was delivered, and the application was held to be filed within time.
18. Counsel for the Applicant also relied on the holding in the case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR), where it was held that a preliminary objection should not be a sword to win a case which should otherwise be decided judicially.

The Respondents’ Submissions
19. State Counsel for the Respondents submitted that the preliminary objection is based on a pure point of law as is required by the standard set in the case of Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd. [1969] E.A. 696.
20. It was also submitted that the applicant seeks to file for orders of judicial review outside of the statutory timelines of Section 9(3) of the Law Reform Act and Order 53(2) of the Civil Procedure Rules, 2010. They submit that the delay is inordinate, unjustifiable and inexcusable, as they relied on the cases of Kibichii Mogotio & 2 others vs. District Land Registrar Baringo(2015)eKLR and Joseph R. Kithinji & 3 others-vs-Rukuriri Tea Factory Company Ltd(2018)eKLR
21. It was further submitted that the Applicant has not availed any evidence that the decision of the 2nd Respondent was actually communicated to him on the 10th of August 2023.

The Interested Party’s Submissions.
22. Counsel for the Interested Party submitted that the application is time-barred and filed contrary to Section 9(3) of the Law Reform Act and Order 53(2) of the Civil Procedure Rules, 2010.
23. Counsel cited the authority in the case of Kibichii Mogotio & 2 others v. District Land Registrar, Baringo(2015)eKLR on applications of this nature being made out of time.
24.  It was further submitted that the order of mandamus has been overtaken by events since a title deed has already been issued to the interested party dated 12th April 2023 and referred to Sections 24 to 26 of the Land Registration Act on a title deed being evidence of ownership. 
25. It was submitted that judicial review is not the appropriate way to seek nullification of the title deed, where the Applicant could have done so by way of an ordinary suit, and they relied on the case of Mwariki Farm Limited v. Land Registrar Nakuru & 2 others(2018)eKLR.
26. It was submitted that if the order of mandamus is issued, it would be tantamount to allowing the deprivation of the interested party’s right to property as guaranteed by Article 40 of the Constitution. It is their submission that litigation must come to an end, and they relied on the decision in the case of Mbugi & another v. Matundio (2024)eKLR and prayed that the matter be dismissed with costs to the interested party.
Analysis and determination
27. The Applicant seeks leave to apply for judicial review orders of certiorari to quash the decision of the 2nd Respondent dated 28/9/2022 and communicated to him on 10/8/2023. The Respondents raised a preliminary objection claiming that the application offends the mandatory provisions of Section 9(2) and (3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules, 2010.
28. The Court has considered the application herein, the replies filed, the preliminary objection and the submissions by Counsel for the parties. The court considers that the issue for determination is whether the application herein is filed out of time and whether the applicants are entitled to the orders sought.
29.  Under Order 53 Rules 1 and 2 of the Civil Procedure Rules, the application herein ought to be made ex parte before the judge in chambers. The said rule states as follows;
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave shall be made ex parte to a judge in chambers and shall be accompanied by
(a)a statement setting out the name and description of the applicant,  the relief sought, and the grounds on which it is sought; and
(b)Affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
(3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as he thinks fit, including cash deposit, bank guarantee or insurance bond from a reputable institution.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise: Provides that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave. Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.
30. An application for leave to file an application for certiorari ought to be filed within six months from the date of the decision sought to be quashed. This is as provided under Section 9(3) of the Law Reform Act which provides that:
“In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
31.  Order 53(1) of the Civil Procedure Rules (2010) provides for leave of court in the filing of an application for judicial review in similar terms as Section 9(3) of the Law Reform Act.
32. A cursory look at the proceedings in the appeal before the 2nd respondent in appeal to the Minister No. 193 of 2022 shows that the appeal was heard on 18/06/2022 and the decision was rendered on 26/10/2022. The Chamber Summons herein dated 29/11/2023 was filed in court on 30/11/2023. This was obviously outside of the time provided under Section 9(3) of the Law Reform Act and Order 53(1) of the Civil Procedure Rules (2010).
33. The Court on 3rd December 2023 directed the Applicants to serve the application herein on the Respondents for hearing inter-partes. Upon service, the Respondents filed a preliminary objection that the application offends the mandatory provisions of Section 9(2) and (3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules, 2010.
34. It is important to deal with the preliminary objection first before dealing with the substantive application. The legal position with regard to preliminary objections has been made graphically clear in the now famous case of Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd. [1969] E.A. 696 where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure points of law. The Learned Judge then elaborated that:-
“A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.  It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion.”
35. The Court is of the view that the preliminary objection raises a mixture of points of law, stemming from statutory provisions and issues of facts that seem to be contested.
36. The Court notes that the Appeal to the Minister No. 193 of 2022 was heard on 18/06/2022, and the decision is shown to have been rendered on 26/10/2022.  The Interested Party in his replying affidavit, stated that it is not true that the applicant was not aware of the Minister’s decision. He contends that the Applicant could have walked into the minister’s office and made inquiries about the decision, which he either did or did not.
37. The Applicant contends in his supporting affidavit that when the hearing was concluded, the DCC did not communicate the date of the judgment to the parties but said that she would communicate in writing. He stated that the said judgment date was not communicated despite requests and constant checking in the office of the DCC. He further stated that he wrote a letter to the DCC, which was not acknowledged or responded to. He stated that it is only when he wrote to the Director of Land Adjudication and Settlement and obtained proceedings and judgment that he realized that the case had been dismissed.
38. The Court notes that after hearing the parties on 18/06/2022, the 2nd Respondent did not indicate on the record of proceedings the date on which the decision was to be rendered. The 2nd Respondent did not file a replying affidavit to rebut the Applicant’s averment that the 2nd Respondent did not give the parties a date when the judgment would be rendered. She also did not deny the fact that the parties were to be informed of the judgment date in writing. The Interested Party’s contention that the Applicant would have known of the judgment date by walking into the offices of the 2nd Respondent does not shed light onto the question of how the parties were to be notified of the date of judgment. He did not inform the court how he got information of the judgment date or indeed how and when he got to know of the 2nd Respondent's decision.
39. The court is of the view that the date on which the 2nd Respondent delivered her decision is a contested fact.  From the facts as stated the court is inclined to believe that the Applicant was not aware of and was not notified of the date of the delivery of the decision/judgment in the Appeal to the Minister case number 193 of 2022 and thus could not have lodged the current proceedings. The court thus finds that the Applicant became aware of the decision/judgment on 10/08/2023 when certified copies were supplied to him.

40. This court has considered the Court of Appeal decision in the case of Dominic Musei Ikombo v Kyule Makau [2019] eKLR where it was found that the six months limitation period under Section 9(3) of the Law Reform Act and Order 53 Rule (2) of the Civil Procedure Rules starts running on the date when the parties become aware of the decision under challenge. The Court stated that;
“This Court has, however, held the view that one can only challenge a decision that is within his/her knowledge. Holding otherwise would be irrational as it would be expecting a party to possess superhuman powers to know the contents of a decision long before it is delivered. It would also create fertile ground for corruption and other underhand maneuvers where a party would collude with the decision maker or their staff intending to frustrate the judicial review process, to hide or otherwise ensure that a decision is not availed to the parties until the statutory 6 months limitation period has expired.
This Court has addressed this point in several decisions and held that the six months should start running from the date the impugned decision is communicated to the affected parties or when they become aware of it. In Republic VS. Kenya National Highways Authority & 2 others ex parte Amica Business Solutions Limited [2016] eKLR, this Court pronounced itself as follows:-
“In our considered view, Order 53 Rule (2) was meant to cover both judicial and quasi-judicial proceedings, where there was a hearing; all affected parties were informed; or were aware of the proceedings and where there was a judgment or decision capable of being disseminated and accessed by all affected parties.” (Emphasis supplied).”
41. From the foregoing, the court is satisfied that the Applicant became aware of the 2nd Respondent’s impugned decision on 10th August 2023 and the Chamber Summons application for leave dated 29th November 2023 was therefore filed within the statutory period. The court thus finds that the Preliminary Objection dated 29/11/2023 has no merit and the same is hereby dismissed.

42. The final orders of this court are that the Applicant’s Chamber Summons dated 29th November 2023 has merit and orders as follows:
1) Leave be, and it is hereby granted to the Applicant to apply for Judicial Review to issue an order of Certiorari to bring forth into this Court the decision of the DCC, Thagicu, dated 26th November 2022 and communicated on 10/08/2023 for the purpose of being quashed.
2) Leave be and is hereby issued to the Applicant to apply for an order of Mandamus to compel the 3rd Respondent to cancel the name of the interested party and register parcel No. Kyuso/Kagundu Tharaka/6680 in the name of the Applicant.
3) THAT the leave granted in (2) above do operate as a stay of further execution of the Minister’s decision aforesaid.
4) The applicant shall file and serve the substantive motion within 21 days from today’s date.
5) Each party to bear their own costs of this application

Delivered, dated and signed at Nyeri this  13th day of  March  2025.