IN THE HIGH COURT AT NAIROBI MILIMANI LAW COURTS JUDICIAL REVIEW DIVISION MISC. APPL. NO. 163 OF 2012 BETWEEN REPUBLIC …………..……………………………..................................................… APPLICANT AND THE COMMISSIONER OF LANDS ….…….................................................... 1ST RESPONDENT THE CHIEF LAND REGISTRAR ……...................................................…..…. 2ND RESPONDENT THE DIRECTOR OF SURVEY …………...................................................….. 3RD RESPONDENT EX-PARTE JANE WAIRIMU MWANGI …………....................................................……...… 1ST APPLICANT SAMWEL MANGI …………………....................................................……….… 2ND APPLICANT NELSON MUKUNA MWANGI ………....................................................…….… 3RD APPLICANT ERIC NJAU MWANGI …………………....................................................….….. 4TH APPLICANT BENSON K MWANGI …………………….......................................................… 5TH APPLICANT JOHN MWAURA MUIGAI ………………....................................................…… 6TH APPLICANT GRACE MUTHONI MWAURA …………....................................................….… 7TH APPLICANT NICHOLAS KABUCHO MURIMI ……...….....................................................… 8TH APPLICANT MARY MUKAMI KARIITHI ………….......................................................…...… 9TH APPLICANT STEPHEN KARIITHI MUNGAI …………......................................................… 10TH APPLICANT AND
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COUNCILLOR JOSHAT WAICHAHI CITY COUNCIL OF NAIROBI AND 23 OTHERS ……...……………… INTERESTED PARTIES JUDGMENT I have considered this matter, the depositions and submissions and it concerns on-going litigation in the Chief Magistrates’ Court, to wit CMCC No. 1796 of 2009 between the ex-parte applicants and the interested parties concerning the property known as Land Reference No. 209/7260/175 to 209/7260/176(IR 23787). There are also other case file in the High Court, Environment and Land Division which concern the suit land. The suits, it appears, were filed when the Magistrate Court’s directed that the interested parties in the court case pending in the subordinate court should file separate suits to determine their matters. The Notice of Motion dated 20th May 2012, seeks an order of certiorari to quash the decision of the 3 rd respondent approving Deed Plans relating to the suit properties pending hearing and determination of CMCC No. 1796 of 2009. In my view a deed plan is an integral part of the title to property and where the suit pending before the court deals with ownership, then the court will direct its inquiry to the incidents of ownership and accordingly make the declaration. Such declaration or other relief may be enforced against the relevant parties. Judicial Review is a discretionary remedy and one of the factors to be considered is whether there is an efficacious remedy available and whether the circumstances warrant the grant of such an order. The material before the Court is clear that there are several suits concerning the properties in dispute and the courts called upon to adjudicate the issue of ownership will carry out a full inquiry. The grant of an order of judicial review would undercut the pending suit by interposing an order that may affect the real and effective determination of the matters at hand. I am satisfied that the issues raised in respect of the Deed Plans to the suit properties can be dealt with by the court where the case is filed. In the circumstances, the Notice of Motion dated 20 th May 2012 is dismissed with no order as to costs. DATED and DELIVERED at NAIROBI this 1st day of October 2013 D.S. MAJANJA JUDGE Mr Kiarie instructed by Ndegwa Kiaries and Company Advocates for the ex-parte applicants. Mr Mwangi instructed by Irungu Mwangi Ng’anga’a T. T. And Company Advocates for the interested parties. Mr Mosoti, instructerd by Momanyi and Associates for the Nairobi City Council.
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