[2019] KEHC 4393 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

PETITION NO. 12 OF 2019

IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

AND

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 40, 45, 47, 48, 157 AND 224 OF THE CONSTITUTION OF KENYA

BETWEEN

DAVID KABERIA........................................................... 1ST PETITIONER

PAULINE NJABANI...................................................... 2ND PETITIONER

DORCAS MUKOMAUA .............................................. 3RD PETITIONER

FREDRICK KIRIMI ..................................................... 4TH PETITIONER

ERIC MWENDA.............................................................5TH PETITIONER

AND

ROBERT M’IMPWI .................................................... 1ST RESPONDENT

INSPECTOR GENERAL OF POLICE ......................2ND RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION ...............3RD RESPONDENT

THE DISTRICT LAND & ADJUDICATION

& SETTLEMENT OFFICER – IGEMBE .................4TH RESPONDENT

J U D G M E N T

1. This matter emanates from an amended petition dated 20th May 2019 in which the petitioners seek among other orders, declarations; that the respondents had failed to appreciate the petitioners’ right to participate and consent to alienation of their matrimonial property; that the institution of criminal charges against the petitioners was unconstitutional and damages for breach of their constitutional rights and freedoms.

2. The 1st petitioner is the brother of one Isaya Kamenchu (Isaya) while the 2nd and 3rd petitioners are the wives of the said Isaya and the 4th and 5th petitioners are two of the 14 children of Isaya.

3. The petitioners alleged that on 7th August, 2014, they filed Maua CMCC No. 159 of 2014wherein they sought to prohibit the said Isaya as owner of land parcel No. 6974 Akirang’ondu ‘A’ Adjudication Section (“the suit land”) from selling the same on the basis that it was their matrimonial and ancestral home. On the same day, the Chief Magistrate’s Court, Maua issued an inhibition on the land irrespective of any dealing. They had already lodged a caveat on the suit land with the 4th respondent which was duly acknowledged and noted on the register.

4. A day earlier, the 6th of August, 2014, the prospective buyers of the suit land Stephen Murungi and Paul Mwenda Jeremiah had colluded with Isaya and filed a suit against Isaya, Maua CMCC No. 157 of 2014. The following day 7th August 2014, a consent judgment was entered for the transfer of 0. 40 acres and 0. 30 acres of the suit land to Stephano Murungiand Paul Mwenda Jeremiah, respectively.

5. On learning of this mischief, the petitioners filed an application in the said Maua CMCC No. 157 of 2014whereby on 28th August 2014, the court stayed the implementation of the decree it had issued. The two suits were subsequently consolidated and the earlier prohibitory orders confirmed. Before the suit could be heard, Stephen Murungi died.

6. The petitioners further alleged that despite the existence of the said orders, Paul Mwenda conspired with the officers working for the 4th respondent to secretly sub-divide the land and transfer portions thereof.

7. On 16th March 2019, the 1st respondent came to their home and started sub-dividing their land and fenced off a portion which included parts of their homes. They, together with some of their family members and neighbors, pulled down the newly erected fence. This resulted in the 1st and 2nd petitioner being arrested and charged in Maua Criminal Case No. 1362 of 2019 with the offence of malicious damage to the 1st respondent’s property. That considering that the inhibition was still registered against the suit land, the sub-division and creation of parcel Nos. 10848 and 10847 was obviously illegal and a direct contravention of a valid court order.

8. On the basis of the foregoing, the petitioners prayed for various orders and declarations.

9. In his answer to petition, the 1st respondent stated that he was the registered owner of LR. Akirang’ondu “A”/10848. That he had legally purchased the same from Paul Mwenda Jeremiah and that he was an innocent buyer without notice with a clean and untainted title. That he had purchased the property after due diligence. That he was never a party to the suits referred to in the petition and that the petition is bad in law and without merit.

10. None of the other respondents filed any response to the petition. However, the 4th respondent filed documents on 14th June, 2019 pursuant to an order made by this court on 4th June, 2019. The petitioners and the 1st respondent filed their submissions which this court has carefully considered. The following are the issues that arise for determination: -

11. This petition and response made has raised four main issues:

a) Whether the matter is properly before this court?

b) If in the affirmative, whether the sub-division and consequent alienation of portions of the Suit Land was done in a manner that violates the petitioners’ rights?

c) Whether the institution of Maua Criminal Case No. 1362 of 2019 was unconstitutional and a violation of the petitioners’ rights?.

d) Whether the petitioners are entitled to damages?

12. A constitutional petition relate to alleged breaches of the Constitution and violation or threatened violation of rights and fundamental freedoms set out in the Constitution. When exercising its jurisdiction under Article 165 (3) (b) and (d) (ii) of the Constitution, this court inquires as to whether the rights or fundamental freedoms in the Bill of Rights have been denied, violated, infringed or threatened; and whether the actions complained of were done under the authority of the Constitution or of the law or was inconsistent with, or in contravention of the Constitution and the law.

13. In the case of Centre forHuman Rights and Democracy & another v the Judges and Magistrates vetting Board & 2 Others [2012]eKLR,the court held:-

“Where a legal wrong or legal injury is caused to a person or to determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without the authority of the law or any such legal wrong or injury is threatened, the High Court has power to grant appropriate reliefs so that the aggrieved party is not rendered helpless or hapless in the eyes of the wrong visited or about to be visited upon him or her. This is meant to give an interim protection in order not to expose others to preventable perils or risks by inaction or omission”

14. In the present case, the petitioners have alleged that they have been denied the due protection of the law; that their right to property is about to be infringed; that the criminal proceedings now pending before the Maua Chief Magistrate’s Court is meant to coarse them to drop their claim on what they consider to be their matrimonial and ancestral home; that they have made reports to the investigative agencies of the state of their claim and no action has been taken, amongst other allegations. All these allegations have not been denied or controverted.

15. This court is alive to the fact that, the primary claim in this matter is land. Issues touching on claims of land are primarily the preserve of the Environment and Land Court. However, intertwined with the claim to land is the allegation that the coercive powers of the state through its agencies are being used in the interim to the prejudice of the petitioners. That criminal proceedings have been commenced before the Maua Chief Magistrate’s Court against the 1st and 2nd respondent contrary to the letter and spirit of the Constitution and law. The Articles of the Constitution that are alleged to be violated have also been cited.

16. To my mind, those allegations are not pure hot air. They are well founded:-

a) there is an allegation that a caution had been lodged against the suit land. The documents produced by the 4th respondent show that the 2nd and 3rd petitioners did caution the suit land on 7th June, 2007;

b) there is no evidence that the said caution was ever lifted before the suit land was subdivided and transferred to 3rd parties;

c) it is not clear when the court order in the Maua CMCC No. 157 of 2014was recorded in the claim register against the suit land;

d) the 4th respondent had himself given consent to the petitioners to sue in respect of the suit land;

e) it is unheard of that a case can be filed and judgment entered the following day. Maua CMCC No. 157 of 2014was filed on 6th August, 2014 and on 7th August, 2014 a consent judgment was recorded. Several issues arise:-

i) were Summons issued and served? If so, when?

ii) how possible was it that the consent judgment could be filed and signed on the same day? Was the court waiting for the filing of the consent?

iii) did the parties appear before court as the notes in the document intituled “Consent” shows?

iv) what is the effect of the said ‘consent judgment’ issued on 8th August, 2014 by the Resident Magistrate vis a vis the Chief Magistrate’s order of 7th August, 2014 in Maua CMCC No.159 of 2014?

v) if the consent judgment was stayed, was the 4th respondent entitled to act of the decree arising therefrom as his officers purport to have done?

vi) if it be true that the two cases were consolidated as alleged, how could Maua CMCC No. 159 of 2014be dismissed alone and leave the other suit pending? Was that not meant to sustain the impugned judgment and irreparably prejudice the petitioners?

17. The foregoing questions remain unanswered. They can only be answered before the Land and Environment Court. When viva voce evidence is taken.

18. There is the issue of the 1st respondent’s alleged ‘clean title’ on the strength of which he invaded the suit land fenced it and instigated the Maua CM Criminal Case No. 1362 of 2019against the 1st and 2nd petitioners.

19. There are allegations that the petitioners and other children of Isayaare in possession of the suit land. That title no. Igembe/Akirang’ondu ‘A’/10848 was a portion of the cautioned suit land. The 1st respondent came and fenced that portion which included some homes of the petitioners. The following questions arise?

a) was the seller of Igembe/Akirang’ondu ‘A’/10848,the aforesaid Paul Mwenda Jeremiahin exclusive possession of the property he purported to sell?

b) did the 1st respondent visit the suit property before purchasing the same? What due diligence did he undertake to qualify as an innocent purchaser for value without notice? Did he inquire as to why the petitioners were in occupation?

c) why would the 1st respondent fence into the said Igembe/Akirang’ondu ‘A’/10848homes belonging to the petitioners and not the seller? Was the occupation of that property by the petitioners not enough notice to the 1st respondent before he purported to purchase it or was the ‘purchase’ an act meant to sanitize or further a fraud?

20. These are serious questions which only can be unravelled after a full trial where evidence is tested through cross-examination. Before that is done in the Land and Environmental Court, the petitioners are facing Maua CM Criminal Case No. 1362 of 2019 on the strength of a title obtained by the 1st respondent through questionable means.

21. The petitioners are crying that an irresponsible and drunkard man was about to completely impoverish them by disposing off the only home they know of. Before their cries were heeded to and the process of the disposal of parts of the suit land which they occupy investigated, on the face of a blatant violation of court orders, the 2nd respondent was content in swiftly rounding up the 1st and 2nd petitioner and handing them over to the 3rd respondent to prosecute them. Where is equality before the law?

22. Looking at the evidence on record, the 4th respondent cannot be excused. I am unable to accept the report dated 6th June, 2019 in view of what is contained on record and the questions I have raised above which remain unanswered.

23. To my mind, without going to the powers of the 3rd respondent under Aticle 157 of the Constitution,I think this is a proper case where, the prosecution of the petitioners or anyone pursuant to the impugned process is excepted under Article 157 (11).The prosecution is against public interest and meant for other purposes other than criminal justice. It is meant to silence those opposed to a well-orchestrated fraud meant to further impoverish an already poor family which is painfully seeking justice.

24. In the premises, I allow the petition and make the following declarations and orders: -

a) a declaration hereby issues that the failure by the 2nd and 3rd respondent to investigate and appreciate the 2nd and 3rd petitioners’ rights under Article 45was unconstitutional and in breach of Article 27 of the Constitution.

b) the institution and prosecution of Maua CM’s Criminal Case No. 1362 of 2019is unconstitutional and a violation of the rights of the petitioners under Articles 40, 45 and 47 of the Constitution.

c) the 2nd and 3rd respondent are hereby restrained from in any way whatsoever and howsoever arresting and/or charging any member of the petitioners family in relation to the facts being relied on in the Maua CM’s Criminal Case No. 1362 of 2019.

d) the petitioners do forthwith lodge in the court with jurisdiction, a proper case for the investigation of the matters complained of in relation to the sub-division and consequent alienation of the suit land.

e) for the reason of order No. (d) above, I decline to grant the other orders sought in the petition.

f) the petitioners will have the costs of the petition in any event.

It is so decreed.

DATEDand DELIVEREDat Meru this 19th day of September, 2019.

A. MABEYA

JUDGE