Skip to content
JudgmentREPUBLIC AND IN THE MATTER OF FRANCIS LERIONKA SAKAJA VS Office of the Land Registrar AND Ministry of Lands and Physical Planning AND 4 Others13 min read

REPUBLIC AND IN THE MATTER OF FRANCIS LERIONKA SAKAJA VS Office of the Land Registrar AND Ministry of Lands and Physical Planning AND 4 Others

Environment and Land Court at Kilgoris Environment and Land Court · · E. M. WASHE, J

JUDGEMENT

  1. The Ex-parte Applicant moved this Honourable Court by way of a Notice of Motion application dated 06.04.2023 (hereinafter referred to as “the present JR”) seeking for the following Orders against the 1st to 5th Respondent herein; -
  2. An order of certiorari to remove to this Honourable Court to be quashed the decision of the land Adjudication and Settlement Officer delivered on November 2022 and backdated judgement issued on the 30.03.2022.
  3. An order of prohibition prohibiting the 1st, 2nd ,3rd,4th and 5th Respondents and the Interested party from interfering in any manner whatsoever with all that parcel of land known as LR.NO.TRANSMARA/MOITA/21.
  4. The Respondents and the Interested party be restrained by themselves, their agents and or servants from interfering with the Applicant’s disputed land in any way whatsoever with that parcel of land known as LR.NO.TRANSMARA/MOITA/21.
  5. The Ex-parte Applicant has supported his prayers on the grounds outlined in the
    Verifying Affidavit dated sworn on the 03.03.2023, the Statement in Support dated 03.03.2023 and the Further Verifying Affidavit sworn on the 06.04.2023.
  6. The summary of the grounds in support of the present JR Application can be summarised as follows; -
  7. The property known as PLOT NO. 21 within MOITA ADJUDICATION SECTION was recorded in the name of the late RAPHAEL KOYIAKI SAKAJA.
  8. Thereafter, the property known as PLOT.21 within MOITA ADJUDICATION SECTION was registered as LR.NO.TRANSMARA/MOITA/21 in the name of late RAPHAEL KOYIAKI SAKAJA and a title deed duly issued in his favour.
  9. However, on the 26.01.2023, the 4th Respondent cancelled the name of the late RAPHAEL KOYIAKI SAKAJA and instead registered the Interested Party herein as the lawful owner of the property known as LR.NO.TRANSMARA/MOITA/21.
  10. Upon seeking for further information, the Ex-parte Applicant discovered that the 1st Respondent cancelled the name of the late RAPHAEL KOYIAKI SAKAJA as the lawful owner and replaced the same with that of the Interested Party by virtue of a letter dated November 2022 from the Offices of the 3rd Respondent.
  11. According to the letter dated November 2022 from the 3rd Respondent, the Interested Party herein had successfully prosecuted a Minister’s Appeal No.92 of 2022 and procured an Order to rectify the Adjudication Record of PLOT.NO.21 within MOITA ADJUDICATION SECTION by removing the name of the late RAPHAEL KOYIAKI SAKAJA and replacing it with that of the Interested Party.
  12. It was on the basis of this determination by the 3rd Respondent that the Title of LR.NO.TRANSMARA/MOITA/21 which had been issued to the late RAPHAEL KOYIAKI SAKAJA was cancelled and re-issued in the name of the Interested Party.
  13. The Ex-parte Applicant was of the considered view that the 1st to 5th Respondents had no powers in law to cancel a Title deed that had been lawfully issued and the late RAPHAAL KOYIAKI SAKAJA had occupied the same for over 27 years.
  14. In addition to the foregoing, the Ex-parte Applicant pleaded that both the Minister’s Appeal No. 92 of 2022 and the purported proceedings undertaken on the 30/03/2022 were time barred therefore null and void from the very beginning.
  15. In essence therefore, the actions by the 1st to 5th Respondents in the manner the purported Minister’s Appeal was registered, heard, determined and/or implemented was contrary to the express provisions of the Land Adjudication Act, Cap 284 and the Land Registration Act, No. 3 of 2012.
  16. In conclusion thereof, the Ex-parte Applicant sought to have the Minister’s proceedings in the Minister’s Appeal No. 92 of 2022 as well as the 3rd Respondent’s letter dated November 2022 quashed and the name of the late RAPHAEL KOYIAKI SAKAJA reinstated in the Green Card of the property known as LR.NO.TRANSMARA/MOITA/21 and the necessary Certificate of Title re-issued in the name of RAPHAEL KOYIAKI SAKAJA.
  17. The present JR Application was duly served on the Respondents and the Interested Party herein.
  18. Of all the Respondents, its only the 2nd Respondent who filed a Replying Affidavit sworn on the 23.10.2023 of which he pleaded as follows; -
  19. The 2nd Respondent stated that according to the Records held by the Land Adjudication Offices, the property known as PLOT.NO.21 within MOITA ADJUDICATION SECTION had an Objection filed against the Adjudication Record and this Objection was registered as Objection No. 19 of 1990.
  20. The Objection No. 19 of 1990 was then heard on its merit and determined on the 14.06.1996 with leave of 60 days to Appeal against it if need be.
  21. However, the Minister’s Appeal No. 92 of 2022 was filed on the 07.03.1997 which was way outside the prescribed period of 60 days from 14.06.1997.
  22. In essence therefore, the 3rd Respondent did not have the jurisdiction to admit, hear and make any determination on the said Minister’s Appeal No. 92 of 2022 for the same was time barred.
  23. In conclusion therefore, the 2nd Respondent supported the Ex-parte Applicant’s prayers contained in the present JR Application.
  24. The Interested Party similarly opposed the present JR Application by filing a Replying Affidavit on the 18.10.2023 on the following grounds; -
  25. The Interested Party stated that he was the person recorded as the beneficial owner of the property known as PLOT NO.21 within MOITA ADJUDICATION SECTION.
  26. According to the Interested Party, the late RAPHAEL KOYIAKI SAKAJA was a neighbour and had been recorded as the owner of the property known as PLOT.NO.7 within MOITA ADJUDICATION SECTION.
  27. However, a boundary dispute arose between the late RAPAHEL KOYIAKI SAKAJA and the Interested Party which led to an Objection being filed by the late RAPHAEL KOYIAKI SAKAJA against the record of PLOT.NO.21 within MOITA ADJUDICATION SECTION in the name of the Interested Party.
  28. After the hearing and determination of the Objection filed by the late RAPHAEL KOYIAKI SAKAJA, the Land Adjudication Officer ruled that the property known as PLOT.NO.21 within MOITA ADJUDICATION SECTION should be recorded in the name of the late RAPHAEL KOYIAKI SAKAJA instead of the Interested Party.
  29. It is on the basis of this determination by the Land Adjudication Officer emanating from the Objection proceedings that led the Interested Party to file an Appeal to the Minister.
  30. The Interested Party was of the view that the 3rd Respondent observed all the procedures and rules of natural justice during the hearing of the Minister’s Appeal and therefore the determination made on the 30.03.2022 was procedural and lawful.
  31. Further to that, the Interested Party pleaded that the Ex-parte Applicant does not have any locus standi to file the present JR Application because he was not the immediate beneficiary of the estate of the late RAPHAEL KOYIAKI SAKAJA keeping in mind that the late RAPHAEL KOYIAKI SAKAJA’s wives were still alive and should have been the ones to complain.
  32. The Interested Party stated that the family of RAPHAEL KOYIAKI SAKAJA was aware that the property known as LR.NO.TRANSMARA/MOITA/21 was the asset of the Interested Party who is also in occupation and had no issue about this fact.
  33. In essence therefore, the Interested Party sought this Honourable Court to dismiss the present JR Application and not temper with the Certificate of Title issued in his favour on the 26.01.2023.
  34. After all the parties filed their pleadings in the present JR Application, the Honourable Court granted leave for the filling of submissions.
  35. Indeed, the Court has perused the pleadings by the Ex-parte Applicant, the 2nd Respondent and the Interested Party as well as the documentary evidence placed before it and the issues for determination are as follows; -

ISSUE NO.1- WHETHER OR NOT THE EX-PARTE APPLICANT HEREIN HAS LOCUS TO INSTITUTE THE PRESENT JR APPLICATION ON BEHALF OF THE ESTATE OF RAPHAEL KOYIAKI SAKAJA

ISSUE NO.2- WAS THE ADMISSION OF THE INTERESTED PARTY’S APPEAL TO THE 3RD RESPONDENT WITHIN THE PRESCRIBED TIME UNDER THE LAND ADJUDICATION ACT, CAP 284?

ISSUE NO. 3- DID THE 3RD RESPONDENT HAVE JURISDICTION TO ADMIT AND ENTERTAIN THE INTERESTED PARTY’S APPEAL NO.92 OF 2022 UNDER THE LAND ADJUDICATION ACT, CAP 284?

ISSUE NO. 4- WAS THE 3RD RESPONDENT LEGALLY CAPABLE OF CANCELLING THE CERTIFICATE OF TITLE RELATING TO THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/21 IN THE NAME OF THE LATE RAPHAEL KOYIAKI SAKAJA?

ISSUE NO.5- IS THE EX-PARTE APPLICANT ENTITLED TO THE PRAYERS SOUGHT IN THE PRESENT JR APPLICATION?

ISSUE NO.6- WHO BEARS THE COSTS OF THE PRESENT JR APPLICATION?

  1. The Court having identified the above-mentioned issues for determination, the same will now be discussed hereinbelow.

ISSUE NO.1- WHETHER OR NOT THE EX-PARTE APPLICANT HEREIN HAS LOCUS TO INSTITUTE THE PRESENT JR APPLICATION ON BEHALF OF THE ESTATE OF RAPHAEL KOYIAKI SAKAJA.

  1. The first issue for determination is whether or not the Ex-parte Applicant herein has the authority and/or mandate to institute the present JR Application on behalf of the estate of RAPHAEL KOYIAKI SAKAJA.
  2. The Interested Party was of the view that the Ex-parte Applicant should not have been appointed the lawful administrator of the Estate of RAPHAEL KOYIAKI SAKAJA because his wife and other immediate beneficiaries were still alive and are the ones that should have been appointed as the Legal Representatives of the late RAPHAEL KOYIAKI SAKAJA and not the Ex-parte Applicant.
  3. On the other hand, the Ex-parte Applicant pleaded that he was the lawful Legal Representative of the late RAPHAEL KOYIAKI SAKAJA having obtained a Grant of Letters of Administration Interstate on the 8th of February 2021 under the proceedings known as NAROK HIGH COURT SUCCESSION CAUSE NO. 30 OF 2017.
  4. Further to that, the Ex-parte Applicant also filed an Affidavit Sworn on the 27th October 2023 by the beneficiaries of the estate of RAPHAEL KOYIAKI SAKAJA who expressly authorised the Ex-parte Applicant to represent them in the present JR Application.
  5. For clarity purposes, the Interested Party did not state whether the Grant of Letters of Administration Interstate granted on the 8th of February 2021 had been revoked.
  6. A perusal of the Grant of Letters of Administration Interstate issued on the 8th of February 2021 in the Estate of the late RAPHAEL KOYIAKI SAJAKA confirms that the Ex-parte Applicant is the Legal Representative of the entire Estate of RAPHAEL KOYIAKI SAKAJA.
  7. In essence therefore, the Ex-parte Applicant had the authority and capacity to institute any proceedings and/or defend any suits appertaining to the Estate of the late RAPHAEL KOYIAKI SAKAJA without again seeking for Letters of Administration Ad-Litem.
  8. The Letters of Administration Ad-Litem are usually issued if there are no substantive Letters of Administration Interstate issued in the estate of a deceased person.
  9. In other words, the Ex-parte Applicant herein having filed the present JR Application after the issuance of the Letters of Administration Interstate on the 8th of February 2021, then he has the locus and capacity sue on behalf of the estate of the late RAPHAEL KOYIAKI SAKAJA.

ISSUE NO. 2- WAS THE ADMISSION OF THE INTEREST PARTY’S APPEAL TO THE 3RD RESPONDENT WITHIN THE PRESCRIBED TIME UNDER THE LAND ADJUDICATION ACT, CAP 284?

  1. The second issue for determination is whether or not the Interested Party’s Appeal to the 3rd Respondent was filed within time.
  2. According to the Ex-parte Applicant, the Interested Party’s Appeal to the 3rd Respondent was filed out of time and therefore time barred.
  3. The Interested Party on the other hand states that the Appeal to the 3rd Respondent was duly filed within time and therefore lawful before the law.
  4. The 2nd Respondent in his Replying Affidavit presented various documents as regards this issue.
  5. All the documents presented by the 2nd Respondents have not been denied and/or disputed by the Interested party.
  6. According to the Records presented by the 2nd Respondent, the Objection Ruling before the 2nd Respondent was pronounced on the 14th June 1996 with leave to Appeal of 60 days thereof.
  7. This period of 60 days within which to Appeal the decision of the Land Adjudication officer handling an Objection proceeding is founded under Section 26 (1) of the Land Adjudication Act.
  8. In essence therefore, if any person and/or party files the Appeal beyond the 60 days period provided under Section 26 (1) of the Land Adjudication Act, Cap 284, then such an Appeal is time barred and the 3rd Respondent does not have the jurisdiction to entertain such an Appeal.
  9. The 2nd Respondent has further confirmed that the Interested Party filed his Appeal known as Minister’s Appeal No. 92 of 1997 before the 3rd Respondent on the 07.03.1997.
  10. Clearly therefore, the Interested Party’s Appeal No. 92 of 1997 before the 3rd Respondent was filed out of the 60 days period prescribed by the law hence time barred.

ISSUE NO. 3- DID THE 3RD RESPONDENT HAVE JURISDICTION TO ADMIT AND ENTERTAIN THE INTERESTED PARTY’S APPEAL NO.92 OF 2022 UNDER THE LAND ADJUDICATION ACT, CAP 284?

  1. The third issue for determination is whether the 3rd Respondent had the jurisdiction to admit and entertain the Interested Party’s Appeal having been found to be time barred.
  2. The 2nd Respondent in his Replying Affidavit has stated that upon the Appeal being time barred, then the 3rd Respondent did not have the jurisdiction to either admit the said Appeal and/or entertain the same to its logical conclusion by issuing a determination thereof.
  3. This Court fortunately agrees with the 2nd Respondent that where the Appeal is found to be time barred, the 3rd Respondent has no jurisdiction to either admit and/or entertain such an Appeal under the law.
  4. Any decision by the 3rd Respondent to admit an Appeal which has been filed out of time is to act ultra vires the powers bestowed on him by Section 26 (1) of the Land Adjudication Act, Cap 284.
  5. It is clear from the evidence placed by the 2nd Respondent and the Ex-parte Applicants that the 3rd Respondent not only admitted an Appeal which was time barred but further entertained the same thereby making a decision which was unlawful, illegitimate null and void.
  6. This Court therefore is of the considered opinion that the 3rd Respondent acted ultra vires the provisions of Section 26 (1) of the Land Adjudication Act, Cap 284 and did not have the jurisdiction to either admit and/or entertain the Interested Party’s Appeal No. 92 of 1997.

ISSUE NO. 4- WAS THE 3RD RESPONDENT LEGALLY CAPABLE OF CANCELLING THE CERTIFICATE OF TITLE RELATING TO THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/21 IN THE NAME OF THE LATE RAPHAAL KOYIAKI SAKAJA?

  1. The fourth issue is whether or not the 3rd Respondent had the legal capacity to cancel the Title issued to the late RAPHAEL KOYIAKI SAKAJA based on the determination of the Minister’s Appeal No. 92 of 1997.
  2. To begin with, this Court has already declared that the 3rd Respondent’s action of admitting the Interested Party’s Appeal which was time barred was unlawful and consequently the proceedings undertaken in the Minister’s Appeal No. 92 of 1997 were null and void for lack of jurisdiction.
  3. In other words, this Court is of the considered opinion that the decision of the 3rd Respondent pronounced on the 30.03.2022 in the Minister’s Appeal No. 92 of 2022 was ultra vires the powers provided under Section 26 (1) of the Land Adjudication Act, Cap 284 and can not therefore be implemented by way of cancelling the late RAPHAEL KOYIAKI SAKAJA’S Certificate of Title.
  4. In addition to the foregoing, this Court has pronounced itself in many other decisions that once the 3rd Respondent opens a Green Card under the Land Registration Act, Cap 3 of 2012, the dispute resolution mechanisms provided under the Land Adjudication Act, Cap 284 can not be used to cancel and/or nullify the issued title unless with an Order of the Court.
  5. In this particular instance, the decision of the 3rd Respondent can not directly be implemented through cancellation of the Certificate of title issued under the Land Registration Act, Cap 3 of 2012 unless the same has been sanctioned by a Court of competent jurisdiction.
  6. Based on these two findings, this Honourable Court hereby makes a determination that the 3rd Respondent did not have the authority and capacity to cancel the Certificate of Title or the entry of the late RAPHAEL KOYIAKI SAKAJA as the registered owner of the property known as LR.NO.TRANSMARA/MOITA/21.

ISSUE NO.5- IS THE EX-PARTE APPLICANT ENTITLED TO THE PRAYERS SOUGHT IN THE PRESENT JR APPLICATION?

  1. The fifth issue is whether the Ex-parte Applicants are entitled to the prayers sought in the present JR Application.
  2. Based on the findings in Issue No. 2,3 and 4 hereinabove, this Court is satisfied that the Ex-parte Applicant is entitled to the prayers sought in the present JR Application.

ISSUE NO.6- WHO BEARS THE COSTS OF THE PRESENT JR APPLICATION?

  1. The last issue for determination is costs of the present JR Application.
  2. Costs usually follow the end and, in this instant, the 1st Respondent will bear the costs of the present JR Application.

CONCLUSION

  1. In conclusion therefore, this Court hereby makes the following Orders as relates to the Notice of Motion application dated 06.04.2023; -
  2. AN ORDER OF CERTIORARI BE AND IS HEREBY ISSUED CALLING TO THIS HONOURABLE COURT AND QUASHING THE DECISION OF THE 3RD RESPONDENT ISSUED ON THE 30.03.2022 IN THE PROCEEDINGS KNOWN AS THE MINISTER’S APPEAL NO.92 OF 2022.
  3. AN ORDER OF CERTIORARI BE AND IS HEREBY ISSUED CALLING TO THIS HONOURABLE COURT AND QUASHING THE 3RD RESPONDENTS LETTER DATED NOVEMBER 2022 DIRECTED TO THE 1ST, 2ND AND 4TH RESPONDENTS TO IMPLEMENT THE DECISION OF THE 3RD RESPONDENT ISSUED ON THE 30.03.2022 IN THE PROCEEDINGS KNOWN AS THE MINISTER’S APPEAL NO.92 OF 2022.
  4. THE 1ST, 2ND 3RD AND 4TH RESPONDENTS BE AND ARE HEREBY FURTHER PROHIBITED BY WAY OF A PROHIBITORY ORDER FROM CANCELLING THE NAME OF THE LATE RAPHAEL KOYIAKI SAKAJA ENTERED IN THE GREEN CARD OF THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/21 ON THE 10.12.1997.
  5. THE INTERESTED PARTY WILL BEAR THE COSTS OF THE PRESENT JUDICIAL REVIEW APPLICATION.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 14TH MARCH 2024.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATE FOR THE EX-PARTE APPLICANT: MR. MACHAGE

ADVOCATE FOR THE RESPONDENTS: MR. RANAH

ADVOCATE FOR THE INTERESTED PARTIES: MR. MIRUKA

Details

Delivered
Court rank
Environment and Land Court
Station
Kilgoris Environment and Land Court (Environment and Land Court at Kilgoris Environment and Land Court)
Division
Environment and Land Court
Case type
Judicial Review
Bench
E. M. WASHEJ

Related decisions

Published for information only — not legal advice. Check the official record before relying on this text. Talk to an advocate