[2018] KEELC 2164 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC PETITION NO. 11 OF 2017

IN THE MATTER OF: ARTICLES 19, 20, 22, 23, 47, 50, 64 & 159 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDONS UNDER ARTICLE 64 OF THE CONSTITUTION OF KENYA.

IN THE MATTER OF: THE GOVERNMENT LANDS ACT (NOWREPEALED) CHAPTER 280, REGISTERED LAND ACT (NOW REPEALED) CHAPTER 300 AND THE TRUST LAND ACT CHAPTER 288

IN THE MATTER OF: SECTION 24, 25, AND 26 OF THE LANDREGISTRATION ACT 2012 AND THE

LAND ACT 2012

AND

IN THE MATTER OF: THE CONTRAVENTION OF RIGHT TO PROPERTY AND THE MATTER OF PURPORTED REVOCATION OF TITLE NO. KAKAMEGA MUNICIPALITY/BLOCK III/195.

BETWEEN

DIVYESH KOTECHA RAMESH ....................................................... PETITIONER

VERSUS

THE HON. ATTORNEY GENERAL..........................................1ST RESPONDENT

REGISTRAR OF TITLES ........................................................ 2ND RESPONDENT

COMMISSIONER OF LANDS................................................3RD RESPONDENT

AND

ETHICS AND ANTI-CORRUPTION COMMISSION ... INTERESTED PARTY

JUDGEMENT

The Petitioner submitted that, he is and was at all material times the registered owner and entitled to the possession of all that piece of land known as Land Reference Number Kakamega Municipality/Block 111/195 situated in Kakamega Town issued under the Registered Land Act (now repealed), Cap 300. Pursuant to Sections 27 and 28 of the said Registered Land Act (now repealed) and Sections 24, 25 and 26 of the Land Registration Act 2012, upon its registration, the said Grant constituted and continue to constitute conclusive evidence that the Petitioner was and is the absolute and indefeasible owner of the said land. The 2nd Respondent vide Gazette Notice No. 15575 published on 26th November, 2010 purportedly issued under unidentified provisions of the Constitution of Kenya, the Government Lands Act (now repealed) and the Trust Lands Act and entitled "Notification of Revocation of Land Title", by which the District Land Registrar, Kakamega, Mr. J.S. Onary, has purported to, inter alia, revoke the title over the said land in the following terms:

Gazette Notice No. 15575

"Whereas the parcel of land whose details are described under the Schedule herein below were allocated and title issued to private developers, it has come to the notice of the Government that the said parcel of land were reserved for public purpose under the relevant provisions of the Constitution, the Government Lands Act (Cap 280) and the Trust Land Act (Cap 288). The allocations were therefore illegal and unconstitutional.

Under the circumstances and in view of the public need and interest, the Government revokes all the said title.

SCHEDULE

KAKAMEGA MUNICIPALITY

Kakamega Municipality/Block 3/220 Kakamega Municipality/Block 3/497 Kakamega Municipality/Block 3/111 Kakamega Municipality/Block 3/297 Kakamega Municipality/Block 3/160 Kakamega Municipality/Block 3/245 Kakamega Municipality/Block 3/225 Kakamega Municipality/Block 3/496 Kakamega Municipality/Block 3/498 Kakamega Municipality/Block 3/235 Kakamega Municipality/Block 3/228 Kakamega Municipality/Block 3/195

All the above land was reserved for County Council of Kakamega.

J.S. Onary

District Land Registrar, Kakamega

The Petitioner was never notified by the 2nd Respondent or any of the other Respondents or anyone else that the Government proposed to take that course of action; nor has the Government formally notified the Petitioner dial it has taken that course of action. The Petitioner is entitled to protection and exercise of the following fundamental constitutional rights:

Article 20 (1) (2) & (3) (b) - protection of fundamental rights to be mandatorily protected by the Court by adopting the interpretation that most favours the enforcement of a right or fundamental freedom.

Article 22 (1) - the right to institute proceedings acting in the public interest. It is in the public interest that a person or any parties cannot benefit from an illegality by enjoying a judgment based on an illegally acquired land. The Court must uphold the sanctity of the Constitution.

Article 23 (1), (3) - the right to an injunction and conservatory orders.

The Respondents had violated the Petitioner's constitutional right guaranteed by Article 40 of the Constitution of Kenya, 2010. The Petitioner's legitimate expectation to natural justice, due process and a fair trial has been infringed by the Respondents.

Under Section 27 and 28 of the Registered Land Act (now repealed) and under the transitional Section 105(1) and Section 24, 25 and 26 of the Land Registration Act 2012 a Certificate of Title issued by the Registrar to any purchaser of land is to be taken by all courts as conclusive evidence that the person named therein as the proprietor of land is the absolute and indefeasible owner thereof.

The 2nd and 3rd Respondents' purported action of revoking the Petitioner's title is an affront to private proprietary rights which are guaranteed by our Constitution and such an action must be frowned upon by the law and the Courts. The court should declare that the Certificate of Title to the Petitioner in respect to the suit land is conclusive evidence of ownership thereof and the Petitioner is the absolute and indefeasible owner of the suit land. The petitioner prays for the following orders;

a. An order of certiorari do issue to bring into this Honourable court for the purposes of being quashed, the 2nd Respondent's gazette notice pursuant to The Kenya Gazette for 26th November 2010 Gazette Notice No. 15575 purporting to revoke the Petitioner's tide to all that parcel of land comprised in Title Number Kakamega Municipality/Block 111/195 situate in Kakamega Town.

b. An order of prohibition do issue to prohibit the Respondents by themselves, servants, agents or whomsoever from alienating the Petitioner's title to all that parcel of land comprised in Title Number Land Reference Number Kakamega Municipality/Block 111/195 situate in Kakamega Town or in any manner interfering with the Petitioner's possession of the said premises

c. An order of prohibition do issue to prohibit the Respondents by themselves, servants, agents or whomsoever from in any manner issuing any title and/or licence in respect to the Petitioner's land comprised in Title Number Kakamega Municipality/Block 111/195 or registering any encumbrance thereon.

d. An order of mandamus do issue to compel the Respondents by themselves, servants, agents to delete any entries on the Petitioner's Certificate of Title made as a consequence to or in furtherance of Petitioner's tide to all that parcel of land comprised in title number Kakamega Municipality/Block 111/195 situate in Kakamega Town.

e. A permanent injunction order do issue restraining the Respondents by themselves, agents or assigns or any other government department or agency from alienating the Petitioner's parcel of land comprised in Land Reference Number Kakamega Municipality/Block 111/195 situate in Kakamega Town or in any manner interfering with the Petitioner's possession of the said premises by fordable entry or otherwise in any manner whatsoever or proceeding in any manner whatsoever with cancelling or revoking the Petitioner's Grant aforesaid or maintaining any entries in the Grant adverse to the Petitioner's sanctity of title.

f. A declaration that die Respondents purported revocation of the Petitioner's title to all that parcel of land comprised in title number Land Reference Number K Kakamega Municipality/Block 111/195 situate in Kakamega Town is unconstitutional, null and void.

g. A declaration that the Certificate of Title to the Petitioner in respect to all this parcel of land comprised in title number Land Reference Number Kakamega Municipality/Block 111/195 situate in Kakamega Town is conclusive evidence of ownership and that the Petitioner is the absolute and indefeasible owner of the suit property.

h. Exemplary Damages and costs of and incidental to this suit.

The respondents submitted that, the reliefs being sought by the petitioner are in the form of judicial review orders and which orders are discretionary, in Peter Bogonko vs. National Environment Management Authority (2006) eKLR in which an orders of certiorari was denied it was held that:-

“Certiorari is a discretionary remedy which the court may refuse to grant even when the requisite grounds for its grant exist. The court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The judicial discretion of the court being a judicial one, must be exercised on the basis of evidence and sound legal principles.”

That the purported allocation of the suit property to the petitioner herein was an illegality ab initio and therefore null and void and hence the petitioner is not entitled to the orders sought. It is the respondent’s submissions that the petitioner is not entitled to an award of exemplary damages as prayed since exemplary damages and aggravated damages are inappropriate remedies where unconstitutional action is the subject of the challenge. That exemplary damages are normally awarded based on the conduct and motive of the respondents and in this case the motive of the respondents in revoking the petitioners title to the suit property was made in interest of public and hence they should not be punished by an ward of exemplary damages.

It is the respondents submissions that the orders being sought by the petitioner being discretionary judicial review remedies brought in a constitutional petition, the honourable court should exercise it discretion and decline to grant the said orders in the interest of the public as the suit property whose title was revoked by the 2nd respondent was acquired by the petitioner illegally and without following the due process of law. That the proprietorship of the suit parcel to the petitioner is also subject to another court case with the interested party herein and hence they urge the honourable court to dismiss the petition with costs.

The upshot of the interested party’s submissions is that the transactions leading up to the alienation of the suit property and the transfer to the petitioners was null and void ab initio. Nobody can derive any benefit therefore. Because the grant was null and void ‘ab initio’, meaning from the beginning, the land registrar or the Registrar of tiles cannot be faulted for ‘undoing’ something that did not exist in the first place. His actions must be seen from the point of view that innocent third parties who might be duped into purchasing interests from the same need to be protected. In Macfoy vs. United Africa Company ltd (1961) 3 ALL E.R. 1169, Lord Denning at page 1172 states:-

“If an act is void, then it is in law a nullity. It is not only bad, but it is incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.

The maintenance of the liberty and fundamental rights of the individual are enjoyed only when the rights and freedoms of other individuals and citizens are equally guaranteed and respected by those seeking their rights and freedoms to be so respected and guaranteed.

It is also clear that there is an existing suit before the Environment & Land Court Kakamega HCC No. 93 of 2009 and now CMC ELC No. 70 of 2018, Kenya Anti-Corruption Authority vs Tom Maliachi Sitiwa, Divyesh Kotecha Ramesh & Wilson Gachanja where the main issue is ownership and the issue as to whether the petitioner has an indefeasible title over the suit property is indeed the substratum of this petition. They submit that the best procedure would be to dismiss the petition and have the parties’ rights be determined in the main suit. In Baywatch Limited vs. Land Registrar Kisumu & 2 others (2015) eKLR Learned Judge ruled as follows:-

“It is clear that in the two suits pending between the parties, ownership is a central issue. When one looks at the prayers sought in this petition, again ownership is a central issue. In the earlier suit, the 3rd respondent is trying to wrestle ownership from the petitioner herein. In the petition; the roles have reversed. Ownership been wrestled from the petitioner vide the gazette notice complained of. The petitioner wants ownership to revert back to itself.

Elementary rules of procedure require that when an issue is already pending decision in a suit already filed, a latter suit cannot be filed to resolve the same issue. And when such latter suit is filed, it is supposed to be stayed. I realise that the earlier suits already pending are ordinary suits. They invoke provisions of ordinary statutes. But the petition as filed is not an ordinary suit; it is raising constitutional issues. I realize too that it was filed in reaction to an event that took place after the two suits had already been filed. That event is the publication of the gazette notice that revoked the petitioner’s title. The best way forward is not to stay the petition. But such of the issues if any, as are common in both the suits and the petition are to be left out to be dealt with in the pending suits.”

In Compar Investments Ltd. Vs. National Land Commission & 3 Others (2016) eKLR the Learned judge dismissed a similar petition for lack of substance. They pray that the petitioner’s notice of motion dated 3rd April, 2011 in this matter and in all the other matters which have been consolidated with this case be dismissed with costs to the respondents and the interested party.

This court has carefully considered the petition and the submissions herein. The right to property is safeguarded under Article 40 of the Constitution. The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows:

“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

Section 26 (1) of the Land Registration Act states as follows:

“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –

a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or

b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

Looking at the facts of this petition, ownership of the said parcel of land had been passed on to the plaintiff. The law is clear that, the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except on the ground of fraud or misrepresentation to which the person is proved to be a party or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

This court in considering this matter referred to the case of Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another (2013) eKLRwhere the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. Hon Justice Munyao Sila in the case while considering the application of section 26(1) (a) and (b) of the Land Registration Act rendered himself as follows:-

“--------------the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.”

Be that as it may, the proprietorship of the suit parcel to the Petitioner is also subject to another court case with the interested party, that is, before the Environment & Land Court Kakamega HCC No. 93 of 2009 and nowCMC ELC No. 70 of 2018, Kenya Anti-Corruption Authority vs Tom Maliachi Sitiwa, Divyesh Kotecha Ramesh & Wilson Gachanja. In this petition the roles have been inter changed. Ownership has been removed from the Petitioner vide the gazette notice complained of. The petitioner wants ownership to revert back to himself. The suit mentioned above was filed way back in 2009, this petition was filed in 2012 asking that the court should declare that, the Certificate of Title to the Petitioner in respect to the suit land is conclusive evidence of ownership thereof and the Petitioner is the absolute and indefeasible owner of the suit land. I concur with the authority cited above of Baywatch Limited vs. Land Registrar Kisumu & 2 others (2015) eKLR that the proper procedure is to have the earlier suit of Kakamega HCC No. 93 of 2009 and now CMC ELC No. 70 of 2018, Kenya Anti-Corruption Authority vs Tom Maliachi Sitiwa, Divyesh Kotecha Ramesh & Wilson Gachanja heard and concluded.

Just like the authority relied on above this petition was filed in reaction to an event that took place after the suit had already been filed. That event is the publication of the gazette notice that revoked the Petitioner’s title. The best way forward is not to stay the petition. Much of the issues are common in both the suit and the petition and should be dealt with in the pending suit. This petition appears to be an afterthought. The proprietorship of the suit parcel to the petitioner being the subject in another court case with the interested party herein 00renders this petition unmerited. I therefore dismiss the petition with costs to the respondents and the interested party.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 25TH DAY OF JULY 2018.

N.A. MATHEKA

JUDGE