[2019] KEELC 1914 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC PETITION NO. 4 OF 2018

DICKSON MUIGAI GAKUNA.....................................................PETITIONER

VERSUS

THE HONOURABLE ATTORNEY GENERAL................1ST RESPONDENT

THE LAND REGISTRAR – NYANDARUA......................2ND RESPONDENT

THE PRINCIPAL MAGISTRATE

NYAHURURULAW COURTS...........................................3RD RESPONDENT

MARY WANJIRU NJAGI...................................................4TH RESPONDENT

JUDGMENT

(constitutional petition claiming violation of right to property; 4th respondent having instituted a suit before the Land Disputes Tribunal over ownership of disputed land; Tribunal holding in favour of the 4th respondent; award adopted by the Magistrate’s Court and a decree issued and executed transferring the land to the 4th respondent; petitioner claiming that he was never served with proceedings before the Tribunal and before the Magistrate’s Court and further that the Tribunal went outside its jurisdiction; Tribunal not mandated to hear disputes over ownership of title and therefore had no jurisdiction to hear the matter; no proof of service upon the respondent in respect of the Tribunal proceedings; the only affidavit of service being for a hearing notice for an application before the Magistrate’s Court; service effected upon an officer in the Army but the petitioner had already retired and no longer in service; no proper service meaning that the petitioner was never served; person ought not to be denied of ownership of property unless the law is followed; petition succeeds; title to revert back to the petitioner)

1. This is a constitutional petition that was filed on 24 January 2017. The petitioners allege contravention of their rights under Articles 40(1) and (3), 43 (1) (b) 47 (1), 50 (1), 60 (1) (b) and (d) of the Constitution of Kenya. It is the case of the petitioner that he was at all material times registered as the proprietor of the land parcel Nyandarua/Ol Joro Orok Salient/1999 (the suit land) which is land measuring 2. 8 Ha and that he got his title deed on 1st December 1985. In the year 2009, the 4th respondent, lodged a claim of ownership of the suit land at the now defunct Nyandarua West Land Disputes Tribunal (Ol Joro Orok) under the now repealed Land Disputes Tribunal Act, No. 18 of 1990. It is claimed that the Tribunal proceeded ex-parte and made orders inter alia :-

(i) That the suit land belongs to the 4th respondent;

(ii) That the Principal Magistrate’s Court Nyahururu do issue an order to the Land Registrar Nyandarua to cancel the petitioner’s title and have it re-issued in the name of the 4th respondent.

2. It is averred that the 4th respondent proceeded ex-parte to the Nyahururu Senior Principal Magistrate’s Court vide Land Disputes Case No. 2 of 2010, and ex-parte proceedings were undertaken, where the award of the Land Disputes Tribunal was adopted as a judgment of the court and a decree was issued cancelling the petitioner’s title to the suit land and ordering a new title to be issued to the 4th respondent. It is the contention of the petitioner that the award of the Tribunal, the adoption of it as a valid judgment of the court, the issuance of the decree, and the cancellation of the petitioner’s title are illegal, wrongful, unconstitutional, null and void, principally because the Tribunal had no jurisdiction to decide the dispute and further that he was not given an opportunity of being heard. He thus believes that his rights for the protection of property under Article 40 of the current constitution of 2010 and Section 75 of the repealed constitution were contravened; that also violated were his right to have a fair hearing under the current Article 50 (1) and the former Section 77 (9) of the former constitution; that his right to fair and just administrative action under Article 47 (1) were violated. He has also cited Section 80 of the Land Registration Act, Act No. 3 of 2012, which gives the court power to rectify title.

3. In his petition, he has asked for the following orders :-

(a) A declaration that the proceedings and the award by the Nyandarua West District Land Disputes Tribunal Case No. 008 of 2009 (Mary Wanjiru Njagi vs Dickson Muigai Gakuna) made on 9th December 2009 and the subsequent adoption of the said award as a judgment of the court and the resultant decree issued on 6th May 2010 in Nyahururu Principal Magistrates Court at Nyahururu, Land Dispute Case No. 2 of 2010, contravened the Petitioner’s constitutional right to property, housing and fair administrative action under the Constitution and violated the rules of natural justice.

(b) A declaration that the rule of the Constitution which prohibits the taking away of a citizen’s property or liberty without being given a chance to be heard was violated.

(c) A declaration that the entire proceedings and the award of the Nyandarua West District, Land Disputes Tribunal Case No. 008 of 2009 (Mary Wanjiru Njagi vs Dickson Muigai Gakuna) and Nyahururu Principal Magistrates Court Land Dispute Case No. 2 of 2010 (Mary Wanjiru Njagi vs Dickson Muigai Gakuna) together with the resultant decree are null and void.

(d) That this Honourable Court vacates and quashes the proceedings and the award of Nyandarua West District Land Disputes Tibunal, Case No. 008 of 2009 (Mary Wanjiru Njagi vs Dickson Muigai Gakuna) of 9th December 2009 together with Nyahururu Principal Magistrates Court, Land Disputes Case No. 2 of 2010, decree of 6th May 2010.

(e) The order by the Tribunal and the decree issued by the 3rd respondent herein, cancelling the petitioner’s title deed (Nyandarua/Ol Joro Orok Salient/199) be reversed; followed by an order of this court ordering the 2nd respondent to restore in the register the names of Dickson Muigai Gakuna as the registered proprietor of land parcel number Nyandarua/Ol Joro Orok Salient/1999 in place of Mary Wanjiru Njagi.

(f) A permanent order of injunction restraining the repondents by themselves, their agents and their servants from violating the petitioner’s constitutional rights guaranteed under the constitution of Kenya by depriving the petitioner of his property or making any claims or rights of ownership of the petitioner’s property or seeking to limit or restrict the petitioner’s rights and enjoyment of his property namely Nyandarua/Ol Joro Orok/Salient/1999.

(g) Costs of this petition be awarded to the petitioner as against the respondents.

4. The petition is supported by the affidavit of the petitioner where he has elaborated on the above and annexed copies of his title deed, a letter dated 23 September 1999 from the Director Land Adjudication and Settlement; a letter dated 27 February 2003 from the Permanent Secretary Lands; a letter dated 20 May 1994 from the Director Land Adjudication and Settlement; the proceedings and award of the Land Disputes Tribunal; and the decree of the Nyahururu Magistrate’s Court. He has deposed that he came to learn of the proceedings long after the period within which he could challenge the same by way of judicial review had lapsed and his lawyer’s attempts to seek an extension of time were unsuccessful. He has asserted that he was not heard, and that he was never served with any statements of claim both at the Tribunal and before the Magistrate’s Court. He has referred to an affidavit of service claiming that he was served through the Commander Kenya Army, and averred that he was not in service of the Army as at 31 December 2008. It is his view that the proceedings before the Tribunal were shrouded in secrecy yet he was the final recipient of the results.

5. The 1st to 3rd respondents did not file anything in response to the petition. On her part, the 4th respondent filed response to the petition and a replying affidavit (though wrongly titled “supporting affidavit”) . It is her position that she is the original allottee of the suit land and that she took possession of it in the year 1988 and that she has been occupying and working the land since the year 2013 when she was issued with title. She has contended that the rights of ownership of the suit land have never vested in the petitioner and no constitutional protection accrues to him. She has denied that the decree in issue is illegal or unconstitutional. In her affidavit, she has deposed inter alia that the petitioner through a person she believes is his sister, and who owns 6 plots adjacent to hers, orchestrated the irregular issuance of title to the suit land to the petitioner. Once she discovered the fraud, she lodged a case before the Land Disputes Tribunal and that despite being served, the petitioner failed to appear before the Tribunal. An award was then made in her favour on 9 December 2009. She has stated that no appeal was filed and the award was filed before the Principal Magistrate’s Court at Nyahururu. She has deposed that the petitioner was served but failed to appear and the award was thus adopted and a decree issued. She has deposed that she served the decree upon the petitioner but he failed to act and she thus applied that the Executive Officer of the court do execute the requisite documents to transfer the land to her which was done. The Land Registrar vide Gazette Notice No. 9863 of 19 July 2013, gazetted that he would dispense with production of the original title to effect transfer to her and no objection was raised within the stipulated 30 days. She was thereafter issued with a title deed on 14 October 2013. She has averred that the petitioner did not appeal against the order of the Tribunal and neither did he apply to set aside the decree of the Magistrate’s Court. She has refuted that the proceedings were ex-parte and asserted that the petitioner was served. She has also mentioned that the petitioner filed Nakuru High Court Miscellaneous Cause No. 324 of 2011 which was dismissed. She has stated that she also deserves protection from this court since the petitioner trashed all other avenues available to him.

6. She annexed some proceedings of the case Nakuru HCCC Miscellaneous Cause No. 324 of 2011 and ruling dated 2 December 2011; an official search of the property dated 30 August 1995 showing that the suit land is still under the Settlement Fund Trustee; a letter dated 29 July 1992 to the District Commissioner Nyandarua District written by her, seeking to be allocated land that she claimed to be in occupation of; a letter dated 13 January 1999 from the Ministry of Lands and Settlement to the Director of Land Adjudication and Settlement stating that the 4th respondent is squatting on the suit land though title is with the petitioner; a letter dated 2 August 1995 from the District Commissioner Nyandarua to the Director of Land Adjudication and Settlement asking him to look into the plight of the 4th respondent; A letter dated 26 October 2000 from the Director of Land Adjudication and Settlement asking the Land Registrar to place a caution on the title owing to a dispute over it; a letter dated 31 May 2001 from the District Commissioner to the Director of Land Adjudication and Settlement recommending the 4th respondent to be given title to the suit land; a letter dated 15 March 2002, from the Director of Land Adjudication and Settlement to the 4th respondent and the petitioner asking them to attend a meeting on 9 April 2002 over the suit land; a letter dated 15 July 2003 written by her to the Minister of Lands and Settlement basically giving reasons that the land ought not to have been allocated to the petitioner but to her; the decree in Nyahururu SPMCC Land Disputes Case No. 2 of 2010;an order dated 17 May 2011 in the same case authorizing the Executive officer to execute all relevant documents to transfer the suit land to her; the Gazette notice through which the Land Registrar issued notice of intention to dispense with production of the original title deed in order to issue title to her; the title deed issued to her on 14 October 2013; the register of the suit land; an affidavit of service sworn on 23 April 2010 stating that the petitioner has been served in the proceedings in Nyahururu SPMCC LDT Case No. 2 of 2010; and a letter dated 6 April 2004 to the President appealing to him to intervene in the matter.

7. I directed that the petition be disposed off by way of written submissions and both Mr. Karanja Mbugua, learned counsel for the petitioner and Ms. Maiyo for the 4th respondent filed submissions. The Attorney General for the 1st to 3rd respondents did not file any submissions. I have considered these submissions before arriving at my decision.

8. What I have before me is a constitutional petition which principally complains that the petitioner’s right to property and his right to a fair hearing and fair administrative action, were violated, on the complaint that the Tribunal heard a case for which it had no jurisdiction, and further, that the petitioner was never informed of the proceedings.

9. The first issue that I need to determine is whether the Tribunal had jurisdiction to hear the case.

10. The jurisdiction of the Land Disputes Tribunal was canvassed at Section 3 of the Land Disputes Tribunal Act, CAP 303A, Laws of Kenya (repealed by the Environment and Land Court Act, 2011) which provided as follows :-

3. (1) Subject to this Act, all cases of a civil nature involving a dispute as to—

(a) the division of, or the determination of boundaries to land, including land held in common;

(b) a claim to occupy or work land; or

(c) trespass to land, shall be heard and determined by a Tribunal established under section 4.

11. It will be observed from the above provision that the jurisdiction of the Land Disputes Tribunal was not general but was limited to a certain category of cases, which are outlined in the said section. In the instance of this case, the suit before the Tribunal was certainly not one for division of, or determination of boundaries, to land; neither was it one that was a claim to occupy or work land; and it certainly was not a dispute over trespass to land. What was before the Tribunal was who ought to be the registered proprietor of the suit land as between the petitioner and the 4th respondent, and in its award, the Tribunal held that the suit land belongs to the 4th respondent and further directed that the petitioner’s title be cancelled. It is clear to me that the Tribunal entertained a dispute that was outside its jurisdiction. It is trite law, and I need not cite any authority, that a decision made by a body which has no jurisdiction over the matter is null and void. Indeed, I do note that in her submissions, counsel for the 4th respondent was silent on the issue of jurisdiction, save to merely state that a court of competent jurisdiction had made a determination on the issue of ownership, and did not address me on how it could be said that the Tribunal had jurisdiction. The only decision that I can reach is that the Tribunal proceeded to hear a dispute where it had no jurisdiction.

12. The second complaint of the petitioner is that he was never served to attend to the proceedings before the Tribunal and before the Magistrate’s Court. On this point, I have not seen any affidavit of service showing that the petitioner was duly served to attend the Tribunal. I do however take note that in its award, the Tribunal noted as follows :-

“The objector Mr. Muigai Gakuna refused to comply with the notice of attendance. Two summons were sent, one to him and the other to his Commanding Officer Kahawa Garrison.”

13. Given that the petitioner has in this suit contested service, nothing would have been easier than for the respondents to annex proof of this service, through an affidavit of service. Without an affidavit of service, I cannot assume that the words noted in the award are true, that the petitioner was indeed served.

14. The petitioner has also claimed that he was never served with the proceedings before the Principal Magistrate’s Court at Nyahururu. I have gone through those proceedings which the petitioner annexed. I have seen that an application dated 21 January 2010, was filed on even date by the 4th respondent asking the court to adopt the award of the Tribunal. I have no proof that this application was ever served upon the petitioner as there is no affidavit of service annexed by the 4th respondent. I have noted from the proceedings that once it was filed, the court registry gave the date of 1 April 2010 as the date for hearing of the said application and directed a notice to issue. I have no evidence of any notice issued to the petitioner. On 1 April 2010, when the matter came up before the Honourable Magistrate, the 4th respondent was present in person (as applicant) but there was no appearance for the petitioner (as respondent). The court fixed the matter for hearing on 27 April 2010. The affidavit of service annexed by the 4th respondent is probably meant to indicate that the petitioner was served for this date of 27 April 2010. I note that the deponent, one Emmah Muchoki, avers that she proceeded to Kahawa Garrison to serve the petitioner with a hearing notice, on 15 April 2010 and 19 April 2010, but she did not find the petitioner as she was informed that he is at a drill. On 22 April 2010, she went back and was at the gate at 8. 30 am and waited until 9. 30 a.m when a senior officer came and she inquired about the whereabouts of the petitioner. She deposes that the senior officer (whose name is not disclosed) told her that he knows the petitioner and that he will break at noon from drill. She became frustrated as this was the same “story” that she had heard before and she decided to serve the senior officer with the hearing notice which the senior officer is said to have received but declined to sign. Now, the problem with this affidavit, is that the petitioner has annexed documents from the Kenya Army showing that he was discharged on 31 December 2008. I have no reason to doubt the Certificate of Discharge that he has displayed and indeed the same is not challenged by the 4th respondent. If the petitioner had been discharged on 31 December 2008, it follows that he was not serving in the army as at 22 April 2010, when it is alleged that a senior officer was served. I am thus not persuaded that the petitioner was ever served with the hearing notice for 27 April 2010. What I find surprising is that in the decree issued on 6 May 2010, the same notes that the award was adopted in the presence of both the plaintiff/applicant and the defendant/respondent. This is not supported by the record of the court and I wonder why the Magistrate’s Court decided to place the petitioner where he was not.

15. After the award was adopted, the 4th respondent, through another application dated 21 March 2011, sought to have orders that the documents of transfer be executed by the Executive Officer of the court. That application was never served upon the petitioner for the record shows that it was heard ex-parte and the orders granted.

16. From the above, I come to the conclusion that the petitioner was actually never served to appear before the Tribunal nor before the Magistrate’s Court in Nyahururu. I have no contrary evidence before me and it is clear to me that the case before the Tribunal and the proceedings before the Magistrate’s Court in Nyahururu were conducted under a cloud of darkness, without the petitioner being informed. This certainly did violate his right to be heard. He was the title holder at the time and the proceedings were meant to cancel his title. The Tribunal and the Court were wrong to proceed without ensuring that the petitioner, who was the person who stood to be adversely affected, was served before proceeding to hear the matter.

17. I have seen that the petitioner did attempt to file a judicial review proceeding to quash the award through the case Nakuru HCCC Miscellaneous Application No.324 of 2011. That suit was dismissed on 2 December 2011 because the court held that the proceedings had been filed outside the six months period given for commencing judicial review proceedings under Order 53 Rule 2 and Section 9 of the Law Reform Act. It is thus apparent to me that the petitioner had no other avenue to address his grieavance. He had not been served and could thus not file an appeal within the 30 days prescribed in the Land Disputes Tribunal Act, for filing an appeal against the award, to the Provincial Appeals Tribunal. He could also not get relief through the Judicial Review proceedings because they were filed out of time and the court held that it had no jurisdiction to extend time. In other words, the avenues of relief that the law provided were not available to the petitioner.

18. Should the court now wring its hands and send away the petitioner when clearly an injustice has been meted out against him ? Certainly not. I am persuaded that by proceeding on a matter that it had no jurisdiction and proceeding without ensuring that the petitioner was served, the Tribunal and the Magistrate’s Court violated the petitioner’s right to property , previously enshrined in Section 75 of the 1963 Constitution (repealed) and now covered in Article 40 of the Constitution. The petitioner was also not accorded a fair hearing nor any fair administrative action. I am thus persuaded that his constitutional rights were infringed.

19. I am aware that in her replying affidavit the 4th respondent tried to demonstrate that she is the rightful owner of the suit land. Counsel for the 4th respondent also devoted a good chunk of her submissions in asserting that the rightful title holder is the 4th respondent. That to me is neither here nor there, at least within these proceedings. What I face, is a complaint that there were proceedings which were conducted without regard to the constitution. The issue of who is the rightful owner of the suit land is not before me and I opt not to make any comments on who ought to be the rightful owner of the suit land for that may be the subject of future proceedings.

20. I have held that the petitioner’s constitutional rights were violated, especially the right to property. The right to property ought not to be taken lightly. Property is precious and a person ought not to be deprived of his property unless due process of the law is followed. Neither can one benefit from illegal proceedings which vest upon him/her another person’s property. In the circumstances of this case, the 4th respondent benefited by having the petitioner’s title cancelled and had the same registered in her name through proceedings that were illegal. The title of the 4th respondent is thus liable to be cancelled for the law does not protect an illegally acquired title. I have no option but to proceed to cancel the title of the 4th respondent and order that the same do revert back to the name of the petitioner. In essence, I do allow this petition, in terms of prayers (a) (b) (c) (d) and (e). I am reluctant to grant prayer (f) as drawn for I cannot restrain the 4th respondent by a permanent injunction from making a claim to ownership of the property through means that are recognized in law. If I delve into that, then I will essentially be determining the issue of ownership yet that issue is not within the province of this suit. I will however allow the petitioner costs in terms of prayer (g) of the petition jointly and/or severally against the respondents.

Dated, signed and delivered in open court at Nakuru this 3rd day of July 2019.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU

In presence of : -

No appearance on the part of M/s Karanja Mbugua & Company Advocates for the petitioner.

No appearance on the part of M/s Mwangi Wahome & Company Advocates for the 4th respondents.

No appearance for the State Law Office for the 1st - 3rd respondents.

Court Assistants: Nelima Janepher/Patrick Kemboi.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU