[2023] KEELC 107 (KLR)

Ethics and Anti-Corruption Commission v Ebsons Construction Company Limited & 3 others (Environment & Land Case 22A of 2021) [2023] KEELC 107 (KLR) (18 January 2023) (Ruling)

Neutral citation: [2023] KEELC 107 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisii

Environment & Land Case 22A of 2021

M Sila, J

January 18, 2023

Between

Ethics and Anti-Corruption Commission

Plaintiff

and

Ebsons Construction Company Limited

1st Defendant

Okungu Marilyn Judith

2nd Defendant

Edward Kariuki Muchai

3rd Defendant

Davies Omolo Onono

4th Defendant

Ruling

1. The application before me is that dated 12 November 2021 filed by the plaintiff. The application is basically one for an injunction, seeking orders to stop the defendants from dealing with the land parcel Kisii Municipality Block 1/980 (the suit land), pending hearing and determination of the suit. In the plaint, filed on 28 September 2021, the plaintiff contends that the suit land was reserved for the Kisii Vocational Rehabilitation Centre and is thus public land. It is the case of the plaintiff that on 7 July 1998, the 3rd defendant, who at that time held the position of Senior Lands Officer, authorized an unlawful excision of the land of the Rehabilitation Centre, and illegally created the suit land. The land was then allocated to the 1st defendant through a lease dated 12 April 2004, whereby the suit land was leased to the 1st defendant for a period of 99 years from 1 July 1998. The 2nd defendant was at the time the Commissioner of Lands and the 4th defendant the Land Registrar, Nairobi and it is claimed that they were all participants in the alleged fraudulent allocation and issuance of title to the 1st defendant. It is further pleaded that on 6 July 2007, the Gusii County Council was entered in the register as the absolute proprietor of the suit property after a purported title was created in its favour. In the plaint, the plaintiff inter alia seeks orders for a declaration that the suit land is public land and was not available for alienation, orders for the cancellation of the title of the 1st defendant, and vacant possession. I have already mentioned that through the present application, the plaintiff seeks that there be no dealings pending hearing of the suit.

2. To oppose the motion, the 1st defendant filed Grounds of Opposition, a Notice of Preliminary Objection and a replying affidavit sworn by Elijah Amota Onsika, its director. The preliminary objection is to the effect that the suit is time barred pursuant to section 7 of the Limitation of Actions Act, cap 22, Laws of Kenya; that the suit is barred by the doctrine of res judicata; that the suit is barred by dint of sections 24, 25 and 26 of the Land Registration Act; and that the suit does not disclose a reasonable cause of action against the 1st defendant. In the grounds of opposition, it is inter alia contended that this court has previously dealt with the subject matter and has no jurisdiction to hear the suit. In the replying affidavit, Mr. Onsika has deposed that the 1st defendant was issued with a certificate of lease dated 6 July 2007 and is therefore the proprietor of the suit land. He has refuted the claim that the suit land belongs to a Government agency. He has deposed that the National Land Commission (NLC) undertook a verification exercise and confirmed that the suit land belongs to the 1st defendant. A copy of the report of the NLC, dated 27 April 2017, is annexed. He has deposed that the 1st defendant was granted the suit land by the Municipal Council of Kisii after deliberation and he has annexed copies of minutes of the said Council dated 16 July 1998. Upon the allocation, the 1st defendant took possession and constructed houses. He has contended that the Rehabilitation Centre has a different parcel of land which is separated by a public road and that the plaintiff is relying on misinformation from busybodies. He added that he had filed suit against the County Government of Kisii over the ownership of the suit land, being the case Kisii ELC Petition No. 3 of 2013, and judgment was entered in his favour where the court declared that the suit land belongs to him. He has added that the orders sought cannot be granted as the 1st defendant is in actual occupation of the suit land.

3. The 2nd respondent filed a replying affidavit. She has deposed that she is now retired after serving as Commissioner of Lands from 2004 to 2007. She has averred that she was invited by the plaintiff’s officers to give her input on the allocation of the land, and has complained that the plaintiff’s officers misrepresented to her that the information she would provide would be used in investigating the ownership of the suit land, only for them to turn round and use the information to institute suit against her. She contends that the present suit is inviting this Court to make a pronouncement on a subject matter that has already been determined and the avenue of the plaintiff is to apply for review or appeal. She has added that she has no interest in the suit property and any restriction imposed would be of no significance to her and the court ought not to make orders in vain. She has otherwise deposed that she never acted in any manner that amounted to abuse of her former office.

4. I observe that the 3rd defendant has filed defence but I have not seen any reply to the application. The defence basically traverses the claims of the plaintiff in the plaint. I have not seen anything filed by the 4th defendant so far.

5. The plaintiff filed a supplementary affidavit sworn by David Naibei, an investigator with the plaintiff. He has deposed that the instant suit is not similar to Kisii ELC Petition No. 30 of 2013 and res judicata cannot apply. He annexed a copy of the petition and has contended that it was one geared to oppose a compulsory acquisition. He has added that the suit was compromised by consent and has annexed a copy of the proceedings. On the investigations of the NLC, he has averred that the same do not bar the plaintiff from investigating any land. He has deposed that the construction of houses on the land does not negate the land being public land. On the allegations of the 2nd defendant, he has deposed that at no time was she informed that she will not be subject of court proceedings.

6. The 1st defendant filed a further replying affidavit where he reiterated that the issues in Kisii ELC Petition No. 30 of 2013 are similar to the issues raised in this suit. He has also reiterated that the NLC gave his title a clean bill of health. He has repeated that he legally obtained the suit land.

7. I have considered the application alongside the submissions filed by counsel for the plaintiff and counsel for the 1st and 2nd defendants.

8. Before I delve into the application at hand, lead me first deal with the preliminary objection raised which basically contends that the suit is res judicata, that the suit is time barred, and refers to sections 24, 25 and 26 of the Land Registration Act, on indefeasibility of title. On the plea of res judicata, I have particularly been referred to the suit Kisii ELC Petition No. 30 of 2013. I have looked at the pleadings of that case. I observe that this was a petition filed by the 1st defendant against the Governor, Kisii County, the Kisii County Government, and the Attorney General. The 1st defendant (as petitioner) asserted to be the owner of the suit land. He complained that on 3 October 2013, officers of the County Government of Kisii went to the suit land and demolished the perimeter fence and a store. He averred that the County Government was intent on compulsorily acquiring the suit land, without regard to this title, which was unconstitutional. In the petition, he asked for the following orders:-a.Declaration be issued to the effect that the petitioner is entitled to protection under the Constitution.b.Declaration that the 1st and 2nd respondents have no rights, mandate and/or authority to forcefully and/or forcibly enter upon, demolish the perimeter wall fence and purport to compulsorily acquire the suit land.c.Declaration that the petitioner herein is likely to be arbitrarily deprived of her rights and/or interests over the suit land. Consequently, the petitioner’s constitutional rights are bound to be infringed upon and/or violated.d.Declaration that LR No. Kisii Municipality/ Block 1/980 lawfully belongs to the petitioner.e.An order of permanent injunction restraining the 1st and 2nd respondents either by themselves, agents, servants and/or anyone claiming under the said respondents from entering upon, trespassing onto, taking possession, building on, demolishing structures on and/or in any other way, whatsoever, interfering with the petitioner’s rights over the suit land.f.An order for damages.g.Costs of the petition borne by the respondents jointly and/or severally.h.The Honourable Court be pleased to issue such orders and or writs as the Court may deem fit and/or expedient.

9. The petition was actually never heard because the 1st and 2nd respondents in that petition had no objection to a report by the National Land Commission (NLC) being adopted (that report is to effect that the lessor of the suit land is Gusii County Council who had leased the property to the 1st defendant herein). The court, Mutungi J, upon adoption of the report of the NLC, ordered as follows: -“The respondents by reason of the findings and report by the NLC dated 27/4/2017 concede the petition and the court hereby enters judgment in favour of the petitioner in terms of prayers (d) & (e) of the petition. Each party will bear their own costs of the petition.”

10. I am not persuaded that the above petition raises issues similar to that raised in this suit. This suit claims that the suit land is public land reserved for use as a Rehabilitation Centre and seeks to claim it back to the public. The petition on the other hand was a complaint against the County Government of Kisii for demolition of a fence and store and sought to protect the title against any compulsory acquisition. The question whether the suit land is public land reserved for the Rehabilitation Centre was never canvassed in that petition. I am aware that part of the orders declared the suit land as belonging to the 1st defendant but that must be construed within the context of the suit. That declaration was a declaration as against the County Government of Kisii and it does not mean that any other person claiming ownership or title to the land is barred from filing suit. For example, if there was another person also holding a title to the same land, such person cannot be stopped from suing for cancellation of the title of the 1st defendant based on the judgment in the said petition, for the question of ownership of the 2nd title would not have been determined in the petition. It is the same thing here. The question whether the suit land is public and or Government land reserved for the Rehabilitation Centre was never in issue and was never determined in the petition. Neither was the plaintiff herein party to the Petition. I am thus not moved by the plea of res judicata.

11. The second contention in the preliminary objection is that the suit is time barred given section 7 of the Limitation of Actions Act, which requires that an action for recovery of land be filed within 12 years. This cannot apply to public land by dint of the provisions of section 41 of the same Act which provides as follows :-41. Exclusion of public landThis Act does not—(a)enable a person to acquire any title to, or any easement over—(i)Government land or land otherwise enjoyed by the Government;(ii)mines or minerals as defined in the Mining Act (Cap. 306);(iii)mineral oil as defined in the Mineral Oil Act (Cap. 307);(iv)water vested in the Government by the Water Act (Cap. 372);(v)land vested in the county council (other than land vested in it by section 120(8) of the Registered Land Act (Cap 300)); or(vi)land vested in the trustees of the National Parks of Kenya; or(b)affect the right of Government to any rent, principal, interest or other money due under any lease, licence or agreement under the Government Lands Act (cap. 280) or any Act repealed by that Act.It will be observed from the foregoing, that one cannot shelter under Section 7 if the claim before court is for recovery of land that is alleged to belong to the Government as this would be public land.

12. The last bit of the preliminary objection refers to sections 24, 25 and 26 of the Land Registration Act. These are sections that protect a title holder. However, section 26 does give instances where title can be challenged which is exactly what the plaintiff intends to do in this suit. I therefore do not see how the 1st defendant can rely on sections 24, 25 and 26 of the Land Registration Act, to have this suit struck out in limine.

13. From the foregoing, I do hold that the suit is properly before this court and I will move to the merits of the application.

14. What is before me is an application for injunction and I stand guided by the principles laid down in the case of Giella v Cassman Brown (1973) EA 358. In the said case, it was held that to succeed in an application for injunction, one needs to demonstrate a prima facie case with a probability of success; show that he stands to suffer irreparable loss if the injunction is not granted; and where the court is in doubt, it will decide the application on a balance of convenience.

15. The case of the plaintiff is that the suit land was illegally carved out of land belonging to the Kisii Rehabilitation Centre. In the plaint, the plaintiff contends that the change of use, alienation, survey, and registration of the suit land was illegal. The plaintiff avers that the planning of Kisii Town is vide Plan Ref. No. 37/71/1 of 8 October 1974 and that Deed Plan No. 51 guided the use of land within the Municipality. It is claimed that according to this Deed Plan, the suit land falls within a zone marked 8(5) which comprised of future housing, a proposed rehabilitation centre and proposed rental flats, all reserved for public use. It is pleaded that the land reserved for Kisii Vocational Rehabilitation Centre despite being delineated in DP No. 51 remained unsurveyed and without a formal letter of reservation from the Commissioner of Land but it remained public land. There is reference in the plaint to Part Development Plan No. KSI/37/87/4 prepared in 1987 and Part Development Plan No. KSI/37/96/2 prepared in 1996, respectively to facilitate extension of the land of the Rehabilitation Centre beyond what was contained in DP No. 51 but there is no record of approval.

16. I have perused the supporting and supplementary affidavits sworn by David Sangula Naibei but all which is annexed are requests for information and records relating to the suit land. A lot of the documents annexed are in fact redacted and one cannot get the full import of them. There is reference to the old plan of the Municipality, but without an elaboration of the plan and how exactly it applies to the suit land, it is difficult at this stage to make a concrete finding over the same. This requires evidence which can only be appreciated after a hearing.

17. Given the foregoing, I think that it is best that the application be decided on a balance of convenience. My view is that the balance of convenience tilts towards preserving the current status quo, on both title and possession, until the case is heard and determined. If this order is not granted, there is risk of there being dealings over the suit land, which may render moot this litigation. I will therefore compromise the application by the order that the current position regarding title, possession and use, be maintained until the suit is heard and determined. I make the order that there be no dealings entered and/or registered against the title of the suit land, and there be no construction of any structures and/or wastage of the suit land, until the suit is heard and determined. The costs of the application will be costs in the cause.

18. Orders accordingly.

DATED AND DELIVERED AT KISII THIS 18 DAY OF JANUARY 2023. JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTKISII