[2024] KEELC 6403 (KLR)

DLP Festive Limited v Land Registrar Kisumu & another (Environment & Land Petition E002 of 2023) [2024] KEELC 6403 (KLR) (3 October 2024) (Judgment)

Neutral citation: [2024] KEELC 6403 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment & Land Petition E002 of 2023

E Asati, J

October 3, 2024

IN THE MATTER OF: ALLEGED VIOLATION AND INFRINGEMENT OF THE RIGHTS AND FREEDOMS IN ARTICLES 2, 3, 10, 19, 20, 21, 22(1), 23, 27, 28, 40, 47, 48, 50(1), 73, 258(1), 259(1) AND 260 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE LAND REGISTRATION ACT, 2022 AND IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, 2015

Between

DLP Festive Limited

Petitioner

and

The Land Registrar Kisumu

1st Respondent

The Hon Attorney General

2nd Respondent

Judgment

1. Vide the Petition dated 23rd October, 2023, the Petitioner, Dpl Festive Limited, who claims to be the beneficial registered owner/proprietor of Land parcel numbers Kisumu/Kogony 5124, 5125, 5126, 5127, 5128, 5129, 5130, 5131, 5132, 5133, 5134 and 5135 sought for orders that;a.the 1st Respondent to remove/lift the restriction entered in the register of the parcels of land known as Kisumu/Kogony/5124, 5125, 5126, 5127, 5128, 5129, 5130, 5131, 5132, 5133, 5134 and 5135. b.the restriction restricting dealings in land parcel number Kisumu/Kogony/5124, 5125, 5126, 5127, 5128, 5129, 5130, 5131, 5132, 5133, 5134 and 5135 respectively be lifted.c.costs of the petition be provided for.d.any other or further relief as the honourable court may deem fit to grant.

2. Together with the petition, the Petitioner filed the Notice of Motion dated 23rd October, 2023 seeking for an order of temporary injunction against the Respondent.

3. In response to the petitioner, the Respondents filed Replying Affidavit sworn by Nicholas Obiero the Land Registrar Kisumu, on 5th February, 2024. The Respondent deny that a restriction is registered on the suit land.

4. Directions were taken on 6th December, 2023 that the Petition and the application be canvassed together by way of written submissions.

5. The Petitioner’s grievance is that the 1st Respondent is limiting the Petitioner’s constitutionally guaranteed right to use its property as it wishes. That the 1st Respondent illegally and irregularly registered a restriction against the Petitioner’s property, the suit lands herein.

6. That for 6 years the 1st Respondent has illegally infringed and/or limited the Petitioner’s right to use and abuse its parcels of land by registering the restriction and that no communication was given to the Petitioner’s directors.Counsel framed the issues for determination to be:-a.whether a declaration should issue that the 1st Respondent violated articles 10, 27, 28, 40 and 47 of the Constitution by discriminating and unfairly denying the Petitioner the legitimate right to use its land.b.Whether the restriction lodged against land parcel No.Kisumu/Kogony/5124, 5125, 5126, 5127, 5128, 5129, 5130, 5131, 5132, 5133, 5134 and 5135 are lawful.c.whether the court should order the 1st Respondent to remove/lift the restriction entered in the register of the parcels of land described as Kisumu/Kogony/5124, 5125, 5126, 5127, 5128, 5129, 5130, 5131, 5132, 5133, 5134 and 5135. .d.Costs.

7. On the first issue, Counsel submitted that the 1st Respondent as a state organ is bound by law to abide to dictates of article 10 of the Constitution and the relevant statutes. That the 1st Respondent has a fundamental duty to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.

8. That the Certificates of Official Search extracted in respect of the suit lands show that restrictions were lodged on the suit lands prohibiting any dealings in the suit lands. That the reason given was that the properties overlap government land. That the restrictions have subsided for over 7 years now. That the right to property is protected under article 40 of the Constitution. That the restrictions are malicious and discriminatory as the 1st Respondent did not give the Petitioner the opportunity to be heard, failed to give adequate notice, did not take into account the prejudice that the restriction will have on the Petitioner and does not demonstrate how it intends to solve the problem.

9. Counsel submitted further that the restrictions are illegal and unlawful as they deny the Petitioner the right to use the property.That they violate articles 27, 28, 40, 50(1) of the Constitution.

10. Counsel urged the court to find that the rights of the Petitioner had been violated.

11. Counsel referred the court to the case of M W K & Another –vs- the A.G. & 3 Others [2017]eKLR where it was held, inter alia, that courts cannot countenance a denial or violation of Constitutionally guaranteed fundamental rights which are a cornerstone of our legal system. That it is the court’s primary duty to protect those basic rights of the people vis-a-viz the actions of the government.

12. Counsel submitted that the Petitioner has proved various violations of its rights in accordance with among other cases, the decision in Anata Karimin Njeru –vs- The Republic (1976 – 1980)KLR 1272.

13. Counsel submitted further that the restrictions were illegal for offending the provisions of articles 40 and 47 of the Constitution and Section 4(3) of the Fair Administrative Actions Act because the limitation to the right to property was unlawful and unjustified.

14. Secondly, that it was an unfair administrative action. Counsel relied inter alia on the provisions of section 4(3) of the Fair Administrative Actions Act which provides that where an administrative action is likely to adversely affect the rights or fundamental freedom of any person, the Administrator shall give the person affected by the decision an opportunity to be heard and to make representation in that regard.

15. Counsel submitted that it was illegal for the Respondents to issue such directives/restrictions as it prima facie flies in the face of the Act itself.

16. That the Petitioner was not heard before the adverse administrative action was taken.

17. To support the submissions, Counsel relied on the case of Catherine Chepkemoi Mukenyang –vs- Evanson Pkemei Lomakuny & Another [2022]eKLR where it held that the a person whose interest and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative actions as provided under article 47(2) of the Constitution.

18. Counsel urged the court to quash the 1st Respondent’s directives in the firm of a restrictions lodged in the register of the suit land.

19. Counsel submitted further that there was no public participation conducted. That the 1st Respondent has not discharged the burden of proof on whether public participation was conducted.

20. Counsel concluded that when an administrative action is illegal, the court has no option but to quash it and urged the court to make an order to remove/lift the restriction entered in the register of the suit land. Counsel prayed that the petition be allowed.

22. On behalf of the Respondents, written submissions dated 5th May, 2024 were filed. Counsel submitted that there is no restriction subsisting currently on the suit lands. That the Certificates of Official Search produced do not show the current status of the suit lands.

23. That upon discovery of anomalies over the suit lands, the Regional Surveyor did a letter dated 14th April, 2023 notifying all parties involved, informing them of the intention to expunge the parcels that were irregularly obtained by fraudulent surveys. That subsequently, the registers in respect of the affected parcels were kept in the strong rooms to avoid any further erroneous transactions.

24. That the petition was filed after the letter of intention to expunge the parcels.

25. I have considered the petition, the Replying Affidavit, Supplementary Affidavit and the submission filed by Counsel for the parties. The Petitioner’s sole complainant is that the restrictions were unlawfully lodged by the 1st Respondent on the Petitioner’s land parcels herein thereby limiting the Petitioner’s right to property as enshrined in the Constitution.

26. To prove the existence of the restrictions, the Petitioner filed Certificate of Official Search in respect of the suit lands. The Certificates of Official Search were marked as annexture JN-4 attached to the Supporting Affidavit. Perusal of the Certificates of Official Search show that restrictions were placed on the suit lands in October, 2017 in the same month when the suit lands were registered in favour of the Petitioner and title deed issued.

27. The restrictions were to the effect that no dealings on the subject lands since “the plot overlaps onto a leasehold area.”

28. The Petitioner claimed that the restrictions had been in place for 7 years during which period the Petitioner was denied the right to use its lands. There was however no evidence produced to show that the restrictions had been in place for 7 years. There were no records produced to show the current status of the suit lands as at the time of filing the petition or filing the Supplementary Affidavit. The Certificates of Official Search produced are dated 2019.

29. The burden of proof that the restrictions were in place as at the time of filing petition rested with the Petitioners.

30. The Respondents denied that there were any restrictions currently registered on the suit lands.

31. The procedure of lodging of a restriction on land is laid out in section 76 of the Land Registration Act. Section 76 empowers the Land Registrar to make an order called a restriction prohibiting or restricting dealings with any particular land, lease or charge. The grounds for making a restriction are to prevent fraud or improper dealings or for sufficient cause. Before making the restriction, the Land Registrar is required to direct such inquiries to be made and notices served and hearing of such persons as the Registrar considers fit done. Restrictions under section 76 of the act should subsist for a specified period of time or until the occurrence of a specified event or the making of further orders. Restrictions cannot be placed indefinitely.

32. Section 77 of the same Act requires the Land Registrar to give notice in writing of a restriction to the proprietor affected by the restriction. As much as there is no evidence that there are restrictions on the lands currently, the evidence placed before court is that restrictions had been lodged on the suit lands in October 2017. There is no evidence that the requirements of section 76 of the Land Registration Act were complied with then. The Land registrar is bound to ensure protection of the fundamental freedoms and rights provided by the constitution and to abide by the provisions of the law.

33. There is no explanation why the petitioner did not seek redress in the year 2017 or soon after the restrictions were lodged. The Respondent aver that the Petition is only being brought because the Regional Surveyor vide the letter dated 14th April 2023 notified parties including the petitioner herein of the intention to expunge land parcels that had been created by fraudulent survey.

34. The current position of the suit lands, according to the Land Registrar, is that there are no restrictions placed thereon. If that be the case, then it will cause no prejudice to the Respondents if an order is made that the restrictions, if any, be removed.

35. The land Registrar may have had sufficient cause to make the restrictions as it appears from the submissions by the Respondents that there is an ongoing process regarding parcels that were created as a result of fraudulent survey pursuant to which the registers in of the affected parcels were kept in the strong rooms and that there are existing court cases over the parcels, but failed to follow due process. The Petitioner did not complain about the ongoing process by the Regional Surveyor and storage of the registers in the strong room. It was not part of the Petitioner’s case or complaint in the petition.

36. Regarding costs of the Petition, in the circumstances of this case namely that there is an ongoing process initiated by the Regional surveyor, the existence of which has not been denied by the Petitioner and there are other cases in court namely Kisumu H C JR 1 and 5 as highlighted by the 1st Respondent in the replying Affidavit, it will be in interest of justice that each party bear own costs of the petition.

37. Since the petition has hereby been determined, the application dated 23/10/2023 by the petitioner is overtaken by events.

38. In conclusion, for the foregoing reasons I find that the restrictions placed on the suit lands in October 2017 were so placed without compliance with the provisions of section 76 of the Land Registration Act and if still in place, ought to be lifted. The Petition is therefore allowed as follows:i.The restrictions placed on the suit lands in October 2017 are hereby lifted.ii.Each party to bear own costs.Orders accordingly.

RULING DATED AND SIGNED AT KISUMU, DELIVERED VIRTUALLY THIS 3RD DAY OF OCTOBER, 2024 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Maureen: Court Assistant.Ogada for the PetitionerGichobi for the Respondents