KEA NDITU AND REPUBLIC VS THE HON. ATTORNEY GENERAL AND THE DEPUTY COUNTY COMMISSIONER, - MWINGI WEST(MIGWANI) SUB-COUNTY AND 2 Others

1. The Ex parte Applicant filed the Notice of Motion application dated      6th August 2022 seeking Judicial Review orders that:-
(a)An order of Certiorari to bring to this court and quash the proceedings of the 2nd respondent decisions or findings of appeal to the minister No 114/1998 and No. 115/1998 delivered on 1st day of March 2022 and issued on the 25th day of July 2022 in its entirety in respect of land parcel No. 409 and 498 Kuysyani Adjudication Section.
(b)An order of prohibition restraining the respondents, interested parties and their subordinates or agents from implementing any decision of 2nd respondent in the appeal to the minister no. 114/1998 and 115/1998 in respect of land parcels No. 409 and 498 Kyusyani Adjudication section delivered on 1st day of March 2022 and issued/supplied on 25.7.2022.
(c)An order of Mandamus compelling the respondents, interested party to register the land parcel no. 409 and 498  Kyusyani Adjudication section to the exparte applicant.
(d)Leave granted do operate as stay restraining the respondents from implementing or executing the decision by the 2nd respondent made and delivered on 1.3.2022.
(e)That cost of this application to be awarded to the applicant.

2. The application is supported by the Applicant’s verifying  affidavit, Statement of Facts, and supplementary affidavit. The parcels of land subject to this litigation are  No. 409 and 498 Kyusyani Adjudication Section within Mwingi West (Migwani) Sub-County of Kitui County.
3. The applicant claims that the demarcation process of Kyusyani Adjudication section within Mwingi West (Migwani) Sub-County commenced in the year 1990 and the suit parcels of land were litigated upon at the  committee, arbitration, objection and appeal to the minister levels. He complains that the decision in the appeal to the Minister heard on 1/3/2022 was unprocedural, the verdict was delayed and on delivered on 25.7.2022 and was not dated. The decision was supplied to the parties upon request from the land office. He stated that the  2nd Respondent was  unfair and mean with the information relating to the verdict.

4.The Applicant holds the view that the appeal to the minister was tainted by illegality, procedural impropriety. He accused the 2nd Respondent of having an ulterior motive or purpose to prejudice the applicant’s legal rights and abused his discretion and powers contrary to the principles enshrined in the Fair Administrative Actions Act No. 4 of 2015.

5. The applicant contends that the 2nd respondent’s decision was a breach of the rules of natural justice, ultra-vires, without jurisdiction abuse and misuse of statutory and constitutional power, malicious, unreasonable, biased, grossly, illegal, oppressive and a breach of the applicants constitutional right to a fair hearing. 

6. The ex parte Applicant swore a verifying affidavit and a supplementary affidavit stating that the demarcation process at Kiusyani/Thaana Nzau adjudication within Mwingi West-Sub County led to the suit parcel of land parcel being demarcated as land No. 409 Kiusyani adjudication section and the parcel was registered under his name.

7. The interested party lodged a claim at the committee where a decision was made to sub-divide the land into two portions given to the parties as follows:
(a)409 Kiusyani Adjudication given to the Applicant.
(b)498 Kiusyani Adjudication given to the Interested Party.

8. Being aggrieved by the decision of the Committee the Applicant appealed to the Arbitration Board and the two parcels were consolidated and given to him. Being aggrieved by the Arbitration Board’s decision, the Interested Party filed an objection where the said parcels were combined and formed one parcel namely No. 409 and the land was awarded to the Interested party.

9. The ex parte Applicant stated that the objection was heard on 18.12.1996 and determined but the decision was passed to the parties on 2.1.1997. He stated that an appeal to the Minister was filed in 1998 outside of the 60 days given for appeals and thus the appeal was time barred. In entertaining the appeal the 2nd respondent acted in excess of his jurisdiction.

10. He further complained that the appeal was pending for 25 years and the delay was not explained and that throughout that time the Applicant was living and using the property.

11. The Applicant claims that the 2nd respondent awarded parcel No. 498 to the interested party and an additional 25 acres were curved from 409 and added to parcel No. 498 and he was given a balance of acreage remaining in parcel No. Kiusyani adjudication 409.

12. The Applicant stated that while the appeal was pending title deeds for the two parcels were issued to him on 30.10.2013. He also lodged civil case 98 of 1997 filed on 16.5.1997 at Mwingi Law Courts. The afforested suit was heard and determined and he was awarded the property and the interested party was ordered to vacate. The suit land parcel No. Thaana Nzau/Kyusyani/409 has also been subject to litigation in Civil Case No. 16 of 2018 between the exparte applicant and the interested which the case has been finalized.

13. The Applicant complained that the 2nd and 3rd Respondents have disregarded the decision of the court holding that the land parcel No. Thaana Nzau/Kyusyani/409 belongs to him.

14. He also stated that the decision by the 2nd Respondent was marred by bias and failure to follow the constitutional principles. He urged the court to find that the appeal to the minister was flawed, inept, unfounded, bad in law, frivolous and abuse of the process arrived at unlawfully and the court should find the same devoid of merit.

    1st  – 3rd Respondent’s Case
15. The Respondents filed grounds of opposition stating that the application is unmerited, misconceived, vexatious, bad in law and an abuse of the process of court. They stated that the 3rd Respondent is mandated under the law to hear such appeals and can delegate such powers/mandate to the 2nd Respondent. Both parties were heard and a determination was made and it was upon the Applicant to follow up and obtain a copy of the decision.

16. They further stated that the Applicant has not demonstrated sufficient cause for which the court can grant the orders sought. The applicant is challenging the merits and not the process and if he is aggrieved by the 2nd respondent’s decision he should file an appeal and not to come for judicial review orders.

    The Interested Party’s Case

17. The Interested Party filed a replying affidavit stating that when she got married to her late husband in 1963, her father-in-law was in use and occupation of land parcel number 498 Kyusyani Adjudication Section. Her late husband occupied the land for over twenty years after his father’s demise.

18. She claims that parcel No. 409 was erroneously recorded as fully belonging to the ex-parte applicant. Her late husband filed a case to the Adjudication Committee and was awarded a portion of parcel number 409 which was demarcated and allocated to him as parcel number 498 Kyusyani Adjudication Section.

19. The ex-parte applicant filed an appeal to the Minister. She claims that the appeal to the minister was heard fairly, and procedurally and each party was granted an opportunity to ventilate their case. It was stated in the Minister’s ruling that she had a vested and legal interest in the parcel and it is only fair that the same remain subdivided.

20. She further claimed that the ex-parte applicant has not demonstrated any procedural failing in the decision by the minister. She claimed that the ex-parte applicant is attempting to use this application as a means to appeal the Minister’s decision yet the said decision is final.

    Submissions by the Ex parte Applicant

21. The Counsel for the ex parte Applicant submitted that the appeal before the Minister was filed out of time and the 2nd Respondent had no jurisdiction to entertain it. The 2nd Respondent was accused of hearing the matter due to ulterior motives prejudicial to the Applicant and of abuse of discretion contrary to the Fair Administrative Actions Act.

22. Counsel submitted on the scope and mandate of the court in judicial review cases and cited the case of Pastoli v. Kabale District Local Government Council & Others (2008) 2 EA 300.

23. Further, it was submitted that the decision of the 2nd Respondent was unfair, unprocedural and against rules of natural justice. It was also submitted that title deeds to the land had already been issued and the matter had been heard and determined by a court of law.

24. The Minister relied on weak, illegal proceedings which led to an incorrect, unsound and illegal decision. The exparte Applicant claims that he was not given an opportunity to be heard. That the 2nd Respondent was not impartial and he failed to properly analyze the case before him.

25. Counsel submitted that the decision of the 2nd Respondent was ultravires since title deeds had been issued and the orders granted would lead to rectification of the register which powers are exercised by courts only under Section 80 (1) of the Land Registration Act. Counsel cited several legal authorities in support of the claim herein.

    Submissions by the Interested Party.

26. Counsel for the Interested Part submitted that the Applicant had not shown that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety as per the cases of Republic v. Attorney General & Another Exparte Joyce Muhoni Michuki (2019) eKLR and Pastoli v Kabale District Local Government Canal & Others (2008) EA 300.

27. Counsel further submitted that judicial review was concerned with the decision-making process and not the merit of the case. They cited the decision of Municipal Council of Mombasa v Republic, Umoja Consultants Ltd in Civil Appeal No. 185 of 2007 (2002) eKLR among other authorities relied on.

28. Counsel also submitted that the threshold for the grant of a writ of mandamus and certiorari had not been met as set out in the case of Republic. V Kenya National Examinations Council, Ex parte Gathenji & 8 Others 1997) eKLR.

29. Further, Counsel the prayer for an order of certiorari is not merited since the 2nd and 3rd Respondents had jurisdiction to hear and determine the appeal to the Minister as provided under Section 29 of the Land Adjudication Act. They further urged the court to find that the filing of an appeal to the Minister out of time is not fatal to the appeal and that the year appearing in the case citation is not necessarily indicative or conclusive of the year of filing as held in Watuku Mutsiemi & Another V Republic (2018) eKLR and Republic V Secretary of Lands & Physical Planning & 2 Others; Eustace Kariuki Mwathi & Another (2020) eKLR.

30. Further, Counsel submitted that the Respondents did not violate the Applicant\'s rights to natural justice,  all parties were given an opportunity to be heard, present evidence and cross-examine the opposing party and their witnesses. They submitted that the parties were effectively summoned for a hearing of the case. Counsel further stated that there was no bias on the part of the Respondents.

    Analysis and Determination

31. The Court has considered the pleadings herein and submissions by Counsel for the parties and is of the view that the issues arising for determination are as hereunder;
A)Whether the appeals to the Minister No. 114 and 115 of 1998 were filed out of time.
B)Whether the ex parte applicant was rightfully issued title deeds to the suit parcels of land
C)Whether the 2nd Respondent failed to take into account the two cases RMCC NO 48 OF 1997 and 16 of 2018
D)Whether the proceedings and decision in the appeal before the 2nd Respondent were unprocedural, unfair, illegal, biased and/or in contravention of the Fair Administrative Actions Act

A)Whether the appeals to the Minister No. 114 and 115 of 1998 were filed out of time

32. Counsel for the ex parte applicant submitted that the decisions in the objection case numbers 35/96 and 15/96 were made on 22nd January 1997 and the appeals to the Minister were both filed in the year 1998 in contravention of the provisions of the Land Adjudication Act Section 29 which states that;
        Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—

33. The court has considered this ground of challenge to the decision of the 2nd Respondent essentially stating that the 2nd Respondent lacked jurisdiction to hear and determine an appeal filed out of time. In the first instance, the court notes that this ground of challenge was not pleaded in the Notice of Motion filed herein, the verifying affidavit and the statutory Statement of Facts.  The said ground was first alluded to in the ex parte applicant supplementary affidavit and in the submissions by Counsel. It is also noted that rules of procedure do not allow the interested Party and the Respondent a right of reply after the ex parte applicant filed the supplementary affidavit in order to clarify the issue.

34. Further, the court has considered the material on record on this issue and is of the view that the Applicant did not place any documentary evidence to demonstrate that the appeal was indeed filed out of time.   The proceedings and decision of the appeal do not indicate when the appeal was filed and whether the applicant challenged the jurisdiction of the Minister on this ground.  The Applicants did not exhibit a copy of the relevant appeals register, the Form of appeal containing the grounds of appeal that was filed by the Appellant or receipt for payment of filing fees. Section 29 of the Land Adjudication Act provides that an appeal is filed by delivering to the Minister an appeal in writing specifying the grounds of appeal.

35.No material was placed before the court on how the appeal numbers are assigned by the Minister.  The only argument by the Applicant to demonstrate that the appeal was filed out of time is the appeal case numbers 114 and 115 of 1998 and that the decision in the objection proceedings was rendered on 22nd January 1997. It was contended that the citation is an indication that the appeal was filed in 1998 and not 1997 when objection proceedings were determined.

36. The court finds that the ex parte applicant\'s contention that the appeal was filed in 1998 negates the contents of the documents he filed and especially the defence filed by the Interested Party in RMCC No. 48 of 1997 on 16th July 1997. Paragraph 3 of the defence states that “ The defendant denies the Plaintiff’s claim and further states that the land belongs to him (deft.) and there is an appeal pending before the Minister”
37. The court agrees with the finding of the Hon. Y.M. Angima J. in Republic v Cabinet Secretary for Lands and Physical Planning & 2 others; Eustace Kariuki Mwathi & another (Interested Parties) [2020] eKLR
        “ The court is unable to accept the Applicants’ argument as sound in law.  The year appearing in the citation of a case is not necessarily indicative or conclusive of the year of filing as at times happens before our courts.  Although the Attorney General conceded that the appeal was filed out of time, there is some evidence in the 1st Interested Party’s replying affidavit to the contrary.  There is a copy of a payment receipt and forwarding letter tending to show that the appeal was not filed out of time.  Even if the court were to find that the appeal was filed out of time an issue would arise as to the legal consequence of such late filing of the appeal.  The Applicants and the Respondents were of the view that such an appeal would be incompetent and that the Minister would have no jurisdiction to entertain it.

38. In the court’s view this ground of challenge to the 2nd Respondent’s decision has no merit.

B)Whether the ex parte applicant was rightfully issued with title deeds to the suit parcels of land.

39. The ex parte applicant contended that the title deed to the suit properties was issued to him on 30th October 2013. He exhibited title deeds for LR. THAANA/NZAU/KYUSYANI/409 measuring 51.26 Ha and LR. THAANA/NZAU/KYUSYANI/498 measuring 5.19 Ha . He contends that on the strength of the two title deeds, filed two suits RMCC NO 48 of 1997 and 16 of 2018 claiming ownership and seeking general damages and eviction of the Interested Party from the two parcels of land. Judgement was entered in his favour in the two suits. He contends that the 2nd Respondent ought to have considered that the two title deeds had been issued and he had two judgments entered in his favour.

40. The decision in the Objection proceedings was made on 22nd January 1997 while Mwingi RMCC No. 48 of 1997 was filed on 16th May 1997 and the two title deeds were issued on 30th October 2013. The said title deeds were issued when the appeal to the Minister was pending. As stated earlier, the defence filed by the Interested Party in RMCC No. 48 of 1997 shows that at the time of obtaining the title deeds, the ex parte applicant was aware that the appeal to the Minister had been filed and was pending since the same was mentioned in the defence.

41. The Land Adjudication Act CAP 284 Laws of Kenya provides for the procedure to be followed after a decision in objection proceedings is made. Under Section 26. Section 27(3) provides that:
“When all objections have been determined and the time for appeal under section 29 of this Act has expired, the adjudication officer shall send the adjudication register to the Director of Land Adjudication together with particulars of all determinations of objections and the Director shall—
(a) alter the duplicate adjudication register accordingly; and then
(b) certify on the adjudication register and the duplicate adjudication register that it has become final subject to the outstanding appeals; and
(c) forward the adjudication register to the Chief Land Registrar together with a list of the appeals.”

42. The meaning of the above provision is that after objections have been determined, the adjudication register becomes final subject to any outstanding appeal to the Minister. Section 28 provides that:
“Upon receiving the adjudication register under section 27 of this Act, the Chief Land Registrar shall cause registrations to be effected in accordance with the adjudication register: Provided that, where the land is affected by an appeal under section 29 of this Act, a restriction shall be made and registered in respect of that land expressed to endure until the determination of the appeal, and on such determination, the register shall if necessary be altered in accordance with the determination.”

43. It is thus the position of the law that issuance of the title deeds to the ex parte applicant when the appeal to the Minister was pending was in contravention of the provisions of Section 28 of the Land Adjudication Act. The Chief Land Registrar was expected to cause registration to be effected in accordance with the adjudication register in favour of the ex parte Applicant but accompanied by a restriction. The said section envisages registration only subject to alteration to reflect the decision of the appeal to the minister. The said section does not, in the court’s view, envisage the issuance of a title deed where an appeal to the Minister is pending.

44. the question is whether the issuance of a title deed, as was done in this case and the filing of the two suits, vitiated the proceedings before the Minister. To begin with, the court notes that the question of the title deed having been issued to the ex parte applicant was not raised during the hearing of the appeal to the Minister. The said issue is also not raised as an issue in the Notice of Motion herein, the Statement of Facts relied on and the supporting affidavit. The said issue was raised by the ex parte applicant in the supplementary affidavit and in submissions.

45. The Court has considered the provisions of Sections 27, 28 and 29 of the Land Adjudication Act and is of the view that the issuance of the title deed before the hearing of the appeal to the minister does not prevent the said appeal from being heard and determined as provided under Section 29. It is noted that no provision of the law was cited by the ex parte applicant to support the contention that the said hearing ought to have been stopped. There is also no evidence to show that the issuance of the title deeds and the filing, hearing and determination of the two suits was known to the 2nd Respondent or that it was brought to his attention before the hearing proceeded.

46. This court dealt with the same issue in the case of Republic v Deputy County Commissioner, Kitui West Subcounty; Malonza (Exparte) (Miscellaneous Civil Application 10 of 2021) [2022] KEELC 2723 (KLR) (23 June 2022) (Judgment) where the court found that the Deputy County Commissioner Kitui West Sub-County had jurisdiction to hear and determine the appeal before him notwithstanding that the title deed to the suit land had been issued.

47. This court followed the Court of Appeal decision in Euton Njuki Makungo v Republic & 2 others [2014] eKLR which held as follows;
“The appellant contends that because the Registrar of Lands had already issued a title deed in favour of Mwaniki Mwige; the 2nd respondent acted in excess of jurisdiction to cancel the title which had been issued as a first registration. The disputed parcel of land was within an adjudication area and at the time when the Registrar purportedly issued the title deed, appeal to the Minister was pending. The evidence on record reveals that the appellant and the registered proprietor had knowledge that appeal to the Minister was pending. A person who has knowledge of a pending appeal cannot come to court and submit that because there were no restrictions entered in the register, he could deal with the land as he pleases. He who comes to equity must come with clean hands. The appellant and the registered proprietor knew there was a pending appeal and the disputed parcel of land was still undergoing the adjudication process. We find that the 2nd respondent had jurisdiction to hear the appeal relating to the parcel of land. In the case of R – v- Lancashire County Council Ex p Gayer, (1980) 1 WLR 1024 it was stated that courts should be acutely conscious that they do not usurp the role of the administrator by assuming the task of deciding how resources are to be allocated as between competing claims. We adopt the above dicta in R –v- Lachashire County Council Ex p Gayer, (supra) and observe that it is not the duty of the Registrar of Land to determine adjudication disputes; the evidence on record is clear that an appeal to the Minister was pending and the Registrar had no jurisdiction to issue the title deed in favour of Mwaniki Mwige while the appeal was pending. The disputed property was still subject to the adjudication process and the action by the Registrar was null and void. It is our view that the judicial remedy of certiorari was neither created nor established to settle ownership disputes, nor to create and confer title to land and the learned Judge did not err in declining to grant the order for certiorari.”

48. The court finds that the decision of the 2nd Respondent is not vitiated by the issuance of the title deed to the suit land before hearing and determination of the appeal filed before him.

C)Whether the 2nd Respondent failed to take into account the two cases RMCC NO 48 OF 1997 and 16 of 2018.
49. It is noted that the ex parte applicant and the Interested Party were present and proceeded with the hearing before the 2nd Respondent and none of them mentioned the existence of the two suits in court.

50.With regard to the issue of whether the 2nd Respondent considered the decisions in the two cases mentioned above, the court has considered the fact that the two cases were filed subsequent to the decision of the Adjudication and Settlement Officer in the objection cases. They therefore did not form the record of the proceedings before the Land Adjudication dispute resolution bodies that was forwarded to the 2nd Respondent. Further, the proceedings before the 2nd Respondent do not show that the said cases were brought to his attention and thus the question of whether or not the cases ought to have been considered does not arise.

D)Whether the proceedings and decision in the appeal before the 2nd Respondent were unprocedural, unfair, illegal, biased and/or in contravention of the Fair Administrative Actions Act
51. The ex parte Applicant contends that his right to a fair hearing was violated by failure by the 2nd Respondent to record his evidence, to follow the right procedure for hearing appeals to the Minister, failing to take into consideration documents relating to court cases and in failing to allow the applicant to call evidence and witnesses. The Applicant further claimed that the 2nd Respondent failed to consider that he has been living on the suit land and has developed the same.

52. The court follows the view that the Minister’s Appeal is an appeal like any other and the court or quasi-judicial authority is expected to consider the previous record before arriving at its own decision. The Minister or the Deputy County Commissioner in this case had the mandate to consider the grounds of appeal, previous evidence tendered, take fresh evidence, if necessary and finally make his own determination as he deems just and fair as provided under Section 29 of the Land Adjudication Act.

53. The court has considered the record of proceedings and decision of the 2nd Respondent. The Appellant/Interested Party is noted as having presented a witness and the witness testified and was cross-examined by the ex parte applicant.  The Ex parte Applicant/Respondent in the Minister’s appeal on the other hand did not present a witness. The 2nd Respondent heard the Appellant/Interested Party herein and she was cross-examined by the ex parte Applicant and the 2nd Respondent. The Respondent was heard and was cross-examined by the Appellant and the 2nd Respondent.

54. It is noted that the ex parte applicant did not produce before the 2nd Respondent the court documents in the two suits he claims ought to have been considered. What he did was give evidence and seek to rely on the evidence he gave during the Land Adjudication Tribunal proceedings. Nothing prevented him from producing the said court documents for consideration.

55. The findings of the 2nd Respondent show that the suit parcels of land were visited on 2nd November 2021. Examination of the proceedings, findings and decision of the 2nd Respondent shows that he took into account the proceeding, findings and decisions before the Land Adjudication Committee, the Arbitration Board and the objection proceedings before the Land Adjudication and Settlement Officer. The 2nd Respondent further took the evidence of the two parties and considered it in arriving at his decision. He also considered the findings and observations during the visit to the suit parcels of land.

56. The mandate of the Minister in conducting an appeal under Section 29 of the Land Adjudication Act was set out in the case of  Republic vs Special District Commissioner & another Machakos Civil Miscellaneous 124 of 2004 [2006] eKLR where it was held that;
“In conclusion on this issue, this court sees a clear procedure laid down by Section 29(1) aforesaid to be followed when a District Commissioner is conducting and determining an appeal under the Section. That is to say, the District Commissioner will receive a written appeal containing grounds of appeal together with the Land Adjudication Officer’s record and will then determine the appeal upon those grounds of appeal. It would be unreasonable to think that the Legislature intended that the aggrieved party would file the grounds of appeal to the Minister without those grounds being intended to serve any purpose in helping the District Commissioner arrive at a fair and just decision. In that regard, I am aware of the prevailing popular procedure under which the District Commissioner, before he makes his decision, records fresh evidence from the parties and their witnesses. Such procedure has all along been tolerated on the basis that Section 29 (1) aforementioned gives the District Commissioner freedom to use any lawful method to arrive at his decision. While I am not presently prepared to state that the recording of fresh evidence is not authorized by the Act, I am on the other hand clear in my mind that the District Commissioner will not choose to rely on such freshly recorded evidence alone without regard to the grounds of appeal filed by the appellant. That is to say, that the evidence he records should be considered along with the evidence in the District Land Adjudication Officer’s records of proceedings and ruling that is appealed from, and on which the grounds of appeal arise. On the other hand, my understanding of Section 29 (1) aforesaid, is that there is no part of that section that authorizes the taking of fresh evidence by the District Commissioner before he arrives at the decision. This means that he has open room to do so and is in fact expected to rely on those records to come to his decision except where he needs particular additional evidence for clarification.”

57. The above findings were also considered in the case of Matwanga Kilonzo v District Commissioner, Kitui & Another [2021] eKLR where it was held that:
“The Minister’s mandate under Section 29 of the Act is to consider the grounds of appeal raised by any person appealing against the decision of the Land Adjudication Officer, and upon considering the record of the Land Adjudication Officer, arrive at an independent decision. Indeed, just like what happens in an appellate court, the Minister need not take fresh evidence while dealing with the appeal, although he may do so to seek clarification on certain issues. However, he must consider the grounds of appeal and the evidence that was adduced before the Land Adjudication Officer before making his decision.”

58. From the foregoing it is clear that the 2nd Respondent followed the procedure laid down by the Land Adjudication Act and the legal authorities cited. The decision arrived at was thus not unprocedural, unfair, illegal, biased and/or in contravention of the Fair Administrative Actions Act.
E)Who will bear the costs of this suit$1
59. The court concludes that the ex parte Applicant has failed to prove the grounds relied on in the application dated  16th August 2022. Ordinarily, the costs of the suit would be awarded to the successful party. However, in this case, the court has considered the delay between the time of filing the appeal to the Minister and the hearing and determination of the same from 1997 to 2021 in not awarding costs to the Respondent.

60. The Court finds that the application dated  16th August 2022 has no merit and the same is hereby dismissed with costs to the Interested Party.
Dated, Signed and Delivered at Kitui this 26th Day of  September  2024

L. G. KIMANI
JUDGE
Judgement read in open Court and virtually in the presence of
Munyasya holding brief for Mbaluka for the Ex parte Applicant
No attendance for the Respondents
Gathoni for the Interested Party