[2023] KEELC 15727 (KLR)

Imathiu & 4 others v Land Adjudication and Settlement Officer Uringu – 1, Adjudication Section & 5 others; Ratanya (Interested Party) (Petition 5 of 2020) [2023] KEELC 15727 (KLR) (22 February 2023) (Judgment)

Neutral citation: [2023] KEELC 15727 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Petition 5 of 2020

CK Nzili, J

February 22, 2023

In The Matter Of Alleged Contravention Of Fundamental Rights And Freedoms Under Article 40 Of The Constitution Of Kenya 2010 And In The Matter Of Articles 22 And 23 And 165 Of The Constitution Of Kenya 2010 And In The Matter Of Sections 28 And 29 Of The Land Adjudication Act Cap 284 Laws Of Kenya And In The Matter Of Sections 26, 76 And 80 Of The Land Registration Act And In The Matter Of Section 7 Of The Land Act No. 6 Of 2012 And In The Matter Of Environment And Land Act 2011

Between

Joseph Murithi Imathiu

1st Petitioner

Aldoson B.K Karitho

2nd Petitioner

Stephen Kaberia

3rd Petitioner

Rose Mwendwa Mugambi

4th Petitioner

Joshua Muriira Mitu

5th Petitioner

and

The Land Adjudication and Settlement Officer Uringu – 1, Adjudication Section

1st Respondent

The District Land Registrar, Tigania District

2nd Respondent

Director of Land Adjudication

3rd Respondent

Director of Surveys

4th Respondent

Chief Land Registrar

5th Respondent

The Hon. Attorney General

6th Respondent

and

Domiziano M’chokera Ratanya

Interested Party

Judgment

1. Before the court is a petition dated 15. 4.2020 in which the petitioners claim that they are the actual occupants and or owners of LR No’s 1740/1276, 1940, 1821, and 1173 within Uringu Adjudication Section which the interested parties illegally and fraudulently colluded with the respondent in the filing an A/R objection No. 822, heard and determined it in favor of the interested party. The petitioners averred that they had challenged the validity of the A/R objection award in H.C Meru JR No. 29 of 2008, wherein the court quashed the same and directed the 1st rrespondent to rehear the objection under the law.

2. The petitioner averred that to his utter dismay and without following the court decree, the suit parcels of land were instead irregularly and fraudulently altered by consolidating and or deleting them from the original Map No. 108/3/15/6 and renaming them as Land Ref No. 3881 under a new Pap Sheet No. 108/3/15/8. Further, the petitioners averred that the respondents in collusion with the interested party moved the aforesaid parcels of land to a far away area and caused it to appear on Map No. 108/3/15/8, assumed to be a subdivision of an adjoining land Parcel No. 2635 Uringu I Adjudication Section. It was averred that as a result of the collusion, the respondents altered the record and caused the registration regardless of the pending suit and acted in total disregard of the court order.

3. The petitioners averred that except for the alleged alterations, the disputed land remained the same on the ground still under their occupation, as initially demarcated. The petitioners contend that the respondent's act of omission or commission was illegal, fraudulent in total disregard of the court order and the law, and hence infringed on their rights to property under Article 40 of the Constitution.

4. The petitioners prayed that the court:a.Declares the alleged changes to the original land parcels their localities and subsequent registration in favor of the interested party are illegal and fraudulent.b.A declaration that the said actions amounted to a breach of the petitioners’ rights to property.c.Certiorari to quash the registration of LR No. Nyambene /Uringu I/3881 by cancelling the respective register and registry index map in favor of the interested party.d.Mandamus compelling the Director of Surveys and the Chief Land Registrar to cancel the registration of LR No’s 1740, 1276, 1940, 1821, and 1173 and cause a fresh survey to be carried out as per the development and possession on the ground.

5. The petition was accompanied by the petitioners' list of witnesses and a list of documents dated 28. 11. 2022.

6. Through an order issued on 12. 10. 2022, the respondents and the interested party were granted 45 days to file any responses to the petition; a corresponding leave was also granted to the petitioners to file and serve any supplementary affidavit within 7 days upon service of the response by either the respondents or the interested party.

7. As at the time the matter was mentioned on 19. 1.2023, and directions given by consent of parties to dispose of the petition by way of written submissions, no response had been filed by either the respondents or the interested party. Nevertheless, the petitioners and the interested relied on their written submissions dated 16. 1.2023 respectively.

8. On their part the petitioners while acknowledging that no substantive replying affidavit was filed by the respondents, they nevertheless attacked the replying affidavit dated 19. 6.2020 by the interested party to the interlocutory application dated 15. 4.2020 where the interested party averred that the petition was res-judicata on account of Meru JR No. 29 of 2008, JR No. 43 of 2008 and 36 of 2008 and that the title deed for L.R. 3881 was legally obtained.

9. The petitioners submitted that they have been in possession and occupation of the suit land. Relying on Commissioner of Land vs Kunste Hotel Ltd (1997) eKLR, the petitioners submitted that a judicial review case was different from a constitutional petition and that in this suit, they were not seeking for the court to consider the decision-making process by the 1st respondent in A/R Objection No. 832. On the contrary, petitioners submitted that what was before this court was about constitutional rights. The petitioners also relied on Anthony Ngure Murugu vs Kenya Railways Corporation (2022) eKLR where the court cited S vs Boesak (2001) 1 S.A 912 CC, on the proposition that a constitutional matter may include whether any law or conduct was inconsistent with the Constitution as well as issues concerning the status, powers, and functions of an organ of the state, the interpretation, application, and upholding of the Constitution.

10. As to whether the petition complied with the law and raised a constitutional question, the petitioners submitted that the petition has substantially complied with the procedural and substantial law by inter alia, describing the parties, facts of the matter, nature, and particulars of the infringed rights, injury or breach complained about, pending or concluded proceedings and the reliefs sought. Further, the petitioners submitted that they had attached supporting evidence by way of written witness statements and documents including the A/R proceedings previous judgments, decree, and letters written to the respondents in line with Rules 9, 10 & 10 (3) of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules 2013, Mutunga Rules 2013, which evidence formed the evidential foundation of the petition and has not been challenged by the respondents as well as the interested party.

11. As to whether there was evidence of a violation of their rights, the petitioners submitted that A/R Objection No. 832 decision by the 1st respondent was overturned in JR No. 29 of 2008 as per documents No 2 & 3 in the list of documents dated 28. 1.2022 and the 1st respondent was ordered to hear and determine the objection afresh. Instead, however, the respondents created Parcel No.3881 out of their parcels of land and moved them to a different map and locality yet there was no appeal filed against JR No. 29 of 2008.

12. Therefore, the petitioners submitted that given the foregoing, the title deed acquired by the interested party for LR No. 3881 without hearing the objection afresh, was unlawful, irregular and amounted to a deprivation of their right to land under Article 40 of the Constitution. The petitioners submitted that in absence of any material by the interested party and the respondents to show that the title deed was obtained procedurally and lawfully, after a re-hearing of the Objection No.832, the burden of proof on the issues complained about in the petition have been discharged to the required standards. Reliance was placed on Christian Juma Wabwire vs AG (2019) eKLR citing with approval Col Peter Ngari Kagume & 7 others vs AG Petition No. 128 of 2006, on quality evidence in support of a petition in line with Sections 107 and 109 of the Evidence Act. The court was also urged to be guided by the case of David Mungiria Mwongo vs DLASO Tigania West and 6 others (2023) eKLR.

13. Concerning the appropriate reliefs which the court ought to grant, the petitioners submitted that under Article 23 (3) of the Constitution, they were entitled to the reliefs prayed for, since they have demonstrated that there was irregular relocation and consolidation of their parcels of land to a different map, ground, and locality in favor of the interested party which irregularity had not been justified by the respondent and the interested party.

14. Lastly, the petitioners submitted that under Section 13 of the Environment Land Court Act, the court should find the title deed held by the interested party who did not file a cross-petition or plead that he was not privy to the illegalities, improprieties and the irregularities as impeachable in law.

15. The interested party on the other hand submitted that his certificate of title was lawfully acquired by the means provided under Section 7 of the Land Act, which was bonafide evidence of proprietorship under Section 26 (1) of the Land Registry Act in absence of fraud, misrepresentation, illegality, unprocedural procurement or through a corrupt scheme.

16. It was the interested party’s submission that the petition was res judicata contrary to Section 7 of the Civil Procedure Act which this court should apply by dint of Section 19 (2) of the Environment and Land Court Act. Reliance was placed on Pangaea Holding LLC & another vs Hacienda Development Ltd and others (2020) eKLR, where the court cited with approval IEBC vs Maina Kiai & 5 others (2017) eKLR, Benedict Obat & 3 others vs Pius Onyango Obat & 13 others (2021) eKLR, Rose Njeri Munoru vs Hannah Mwihaki Muturi & 4 others (2016) eKLR, Richard Malakwen Sang & 3 others vs Principal Secretary Ministry of Housing and Urban Development & others (2021) eKLR, on the proposition that parties should not be allowed to evade the doctrine of res judicata by adding new parties or filing an otherwise innovative cause of action. In this instance, the interested party submitted that the parties were the same in this suit as in the previous suit except for the 5th petitioner, on the same issue(s) which were conclusively settled by a competent court yet no appeal had been proffered.

17. As to whether the title deed was acquired legally, the interested party submitted that no evidence of deceitful practice or an attempt to deprive another of his right or concealing of facts, which the petitioners, in any event, had failed to specifically plead and prove as held in Vijay Morjaria vs Nansingh Madhusing Darbar & another (2020) eKLR and Arthi Highway Developers Ltd vs West End Butchery & 6 others (2015) eKLR.

18. On the aspect of the title alleged to have been acquired illegally, unprocedural, or acquired through a corrupt scheme, the interested party submitted that he followed the right procedure in acquiring his title, including by gathering the land in 1967, proving his interest in the land under Section 7 of the Land Consolidation Act (Cap 283), ensuring that his interests were recorded by a committee under Section 11 thereof, having it demarcated under Section 23 thereof following which the adjudication process was finalized in 1985, filing an A/R Objection No. 832 whose outcome led to a case by petitioner namely JR 29 of 2008, which remitted the A/R Objection for rehearing before the 1st respondent. The interested party also submitted that the petitioners never followed up the court orders to date which was 4 years down the line in total ignorance of the law.

19. Further, the interested party submitted that in the event the petitioners were apprehensive that the same land Adjudication officer would have been biased against them, they should then have filed an appeal with the Minister. Needless to say, the interested party submitted that the petitioner did nothing to execute the judicial review decree. It was the interested party’s submission that he obtained a title deed on 17. 3.2016 after the decision of the A/R objection hence the same could not be impeached on any grounds as set out under Section 26 (1) of the Land Registration Act since he followed all the processes laid down under Cap 283.

20. The interested party submitted that the judicial review judgment was entered in 2018 which was two years after the title deed was issued since there was no stay of the decision in A/R Objection No. 832 pending the hearing and determination of the JR case. Reliance was placed on Republic vs KRA Exparte Shake Distributors Ltd (2012) eKLR.

21. It was the interested party’s submissions that under Section 20 of the Land Consolidation Act, the Record of Existing Rights (RER) was final and since his name was entered into the Adjudication Register as the land owner, the register became final under Section 27 of the Land Consolidation Act on the date the certificate of finality was issued hence paving way for the issuance of the title deed. The interested party submitted that the petitioners failed to attach any documents evidencing their ownership of the property by way of the original gathering record showing their names, RER, an adjudication register, or a map supporting their claim to justify the basis upon which they were now occupying the land. Further, the interested party submitted that it was he who initiated the change of user by a newspaper advertisement on 31. 3.2021 prompting the petition herein.

22. In conclusion, the interested party submitted the conversion of a civil suit already determined into a constitutional petition should not be allowed to avoid the doctrine res judicata, that the evidence tendered did not support the alleged breach of the petitioner’s constitutional rights and that the same should be dismissed and orders of eviction granted in his favor.

23. The court has gone through the pleadings, the exhibits attached thereto, and the written submissions. The issues commending themselves for courts determination are: -a.If the petition has met both the procedural and the substantive law requirements.b.If the petition is caught by the doctrine of res judicata.c.If the petitioners exhausted the internal dispute mechanism set under the Land Consolidation Act before filing the petition.d.If the petitioners are entitled to the reliefs sought.e.What is the order as to costs?

24. A party seeking constitutional relief on account of breach, threats, or an infringement of the bill of rights must comply with Rule 10 of the Mutunga Rules. In this petition, the petition dated 15. 4.2020 described the parties, listed out the details of the rights alleged to have been infringed, set out the facts and grounds relied upon, indicated the nature of the injury, damage, or loss, mentioned the previous and or pending disputes over the matter and lastly set out the reliefs sought. The petition was accompanied by affidavits in support, of a list of witness statements and documents as evidence for the alleged infringement of rights. Therefore, the court is satisfied that the petition was pleaded with clarity, specificity and included the evidence in support thereof in compliance with the caselaw of Anarita Karimi Njeru vs Republic (1979) eKLR, Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2014) eKLR (supra).

25. Filed alongside the petition was an application dated 15. 4.2020 in which the petitioners sought for interim orders. In response, the interested party filed a replying affidavit dated 19. 6.2020 terming the petition as res judicata due to the aforementioned judicial review cases. Further, the interested party averred that his title deed was legally obtained on 17. 3.2016 under the Land Consolidation Act.

26. In the Meru ELC JR No. 28 of 2008, the exparte applicant was the 4th petitioner herein against the 1st respondent while the petitioner was the interested party. The exparte applicant had sought the court to quash the decision in A/R Objection No. 832 dated 30. 11. 2007. At the hearing, the 1st respondent had averred that the said award was implemented in February 2008, and a new parcel number issued in favor of the interested party and that the exparte applicants herein had been allocated different plots on a different site. The court made a finding that the A/R proceedings and the resultant decision had been made without the involvement of the Land Adjudication Committee contrary to the provisions of the Land Consolidation Act. The court held that a decision made without jurisdiction was null and void ab initio and therefore there was nothing that could have been implemented in February 2008. The court proceeded to quash the decision and all other resulting decisions therefrom. A prohibition order was also issued against the Land Adjudication Officer Igembe/Tigania from implementing the decision. The A/R Objection was remitted for re-hearing as per the decree issued on 4. 9.2018.

27. In this petition, the 2nd, 3rd, 4th, and 5th respondents were not parties to the JR No. 29 of 2008. The petitioners have pleaded in paragraphs 13, 14, 15, 16, 17, 18 & 19 of the petition that title deeds were issued to the interested party based on falsified documents, irregularities, fraud, alterations of consolidation, or shifting of their parcels of land to different maps or locality and more importantly contrary to the decree issued on 4. 9.2018.

28. On the other hand, the interested party attacked the petition on the basis that there was no stay granted over the land adjudication officer's decision pending the hearing and determination of JR No. 29 of 2008. Therefore, at the time the decision was rendered on 14. 6.2018 and a decree issued on 4. 9.2018, already the decision had been implemented and a title deed issued to him on 17. 3.2016 under Registry Map Sheet No. 108/3/15/6.

29. The title deed issued to the interested party indicates that the register was opened on 28. 11. 2014. Entry No. 3 which is the name of the interested party was entered on 15. 3.2016.

30. The leave to commence judicial review in Meru JR No 29 of 2008 was sought and obtained on 14. 5.2008 against the decision made on 30. 11. 2007. This was before the six months period to apply for judicial review which ended on 30. 5. 2008. So it cannot be true that there was no pending stay order against the implementation of the award as alleged by the interested party.

31. Coming to the next issue, the doctrine of res judicata as set out in IEBC vs Maina Kiai & 5 others (2017) eKLR covers issues that have been heard and finally determined in a former suit by a court of competent jurisdiction against parties litigating under the same title. In the former JR No. 29/08, the issue before the court was whether A/R Objection No. 832 was heard and determined by a competent authority in line with the Land Consolidation Act. In Peter Kimandiu vs Land Adjudication Officer Tigania West District & 4 others (2016) eKLR, the Court of Appeal underscored the central role a Land Adjudication Committee plays under the Land Consolidation Act unlike in the Land Adjudication Act where the central role player is the Land Adjudication Officer. To determine whether the court is being asked to revisit already settled issues, it is important to look at the events in the previous matter

32. In this instance, the judicial review matter had been pending since 2008. An order for a stay of the implementation of the A/R objection decision made in 2007, was granted at the inception of the case. The court after hearing the parties on merits delivered its judgment on 4. 6. 2018. It made several findings interalia that the A/R Objection and its determination was not anchored in law. Even though the respondent in the case had alleged that the decision sought to be quashed had already been implemented sometime in February 2008 during the pendency of the suit, the court went ahead to invalidate the A/R Objection decision and its subsequent decisions on the basis that a decision made without jurisdiction was a nullity ab initio.

33. In this petition, the petitioners complain that the respondents ignored a binding court order staying the implementation since 2008, and went ahead to implement the decision contrary to the doctrine of lis pendens to the extent of making changes to the demarcation maps, and registers. Further, the respondents, consolidated and relocated the petitioners from their parcels of land on paper but not on the ground and proceeded to issue title deeds to the interested party oblivious of their constitutional rights.

34. To my mind, the issues being raised by the petitioners in this petition are different. The facts and parties are different from the ones in the previous case. Similarly, the same was never determined on merits and in finality by the former court.

35. The petitioners were then following the internal dispute mechanisms set out under the Land Consolidation Act since an A/R Objection decision was final and not appealable to the minister unlike in the Land Adjudication Act. After the A/R objection decision was quashed by this court, the 1st respondent herein was statutorily mandated to rehear the A/R Objection afresh. Prohibition orders had been issued against him. In this case, there has been no replying affidavit filed by the 1st respondent to explain why the decree in the previous case was not executed and or implemented. The interested party did not also file a replying affidavit in line with Rule 15 of the Mutunga Rules 2013.

36. Going by the decision of Republic vs Francis Karioko Muruatetu & another vs Republic (2017) eKLR, an interested party cannot set an agenda in a proceeding as if he was a principal party to the suit. The interested party cannot in this petition purport to plead for and on behalf of the honorable Attorney General or a state organ who under Rules 15 (1) and 16 of Mutunga Rules must file a replying affidavit and annex any documents thereto within 14 days of service, failure of which the petition may be heard and determined in the respondents’ absence.

37. Further to this, under Article 47 of the Constitution, as read together with Section 6 of the Fair Administrative Action Act, the petitioners were entitled to written decisions on why the A/R Objection No. 823 was not afresh heard and determined within a reasonable time and if not so the difficulties the 1st respondent was encountering. In absence of a replying affidavit and an explanation, my finding is that the respondents and the interested party are estopped from alleging that the petitioners should have exhausted the internal dispute mechanism before coming to court by way of a petition.

38. The petition in my view is properly before the court in so far as it raises a constitutional question as to whether or not the respondents ignored a valid court order staying the implementation of the A/R Objection which under Sections 27& 29 of the Land Consolidation Act as well as Section 28 of the Land Adjudication Act required the Chief Land Registrar to restrict the parcel number until the appeal was heard and determined. The court is asked to determine whether in so doing the respondents infringed on the constitutional rights of the petitioners as to the right to property, fair hearing, and fair administrative action. The answers to the issues raised by the petitioners can only be answered through the lens of a constitutional court as it interprets the conduct of the respondents, and the use of their powers and functions in a manner inconsistent with the constitutional rights and freedoms of the respondents.

39. As to whether the petitioners have pleaded and proved a breach of their constitutional rights and freedoms, it is not in dispute that the 4th petitioner obtained a lawful order and a decree of this court against the 1st respondent as an agent of the 3rd respondent. The law as indicated above is that once an appeal is filed before a certificate of finality is issued a restriction is registered against a parcel number under appeal. The same can only be lifted after the dispute is heard and determined. In this petition, the 1st respondent was a party to the previous case. The 1st respondent was statutorily mandated to observe the rule of law and obey court orders and decrees. It was not the duty of the petitioners to implement the court order or decree but the 1st, 3rd & 5th respondents. The buck stops with them and not the petitioners.

40. The petitioners have attached the judgment/ decree and a copy of the letter to the respondents.

41. In Gladys Boss Shollei vs Judicial Service Commission (2013) eKLR, the Supreme Court of Kenya underscored the implications of Article 47 of the Constitution. The respondents have not discharged their mandate under Section 6 of the Fair Administrative Actions Act to show that there was a good reason for not acting on the court order and the decree. As held in the case of Christian Wabwire vs AG (supra) all that the petitioners are required is to avail tangible evidence of the alleged violation with probative value. A title deed was issued in 2016 which was 15 months after the judicial review suit was filed and during the pendency of the case. This was in clear violation of the petitioners’ right to a fair hearing, fair administrative action, and access to justice for their property rights.

42. In the case of Euton Njuki Makungo vs Republic & 2 others (2014) eKLR the court held that Sections 28 of the Land Adjudication Act requires the Chief Land Registrar to restrict any dealings with a parcel of land that is subject to an appeal. The court said that a person who knew of a pending appeal could not come to court and submit that because there were no restrictions entered in the register, he could deal with the land as he pleased. The court said that he who comes to equity must come with clean hands. Further, the court held that the land registrar had no jurisdiction to issue a title deed since the land was still subject to the adjudication process. The court found that the action by the land registrar was null and void.

43. In Meru ELC Petition No. E02 of 2021 this court took the view that land adjudicatory bodies act within the constitutional framework and the act of relocating or re-demarcating and failing to implement an A/R Objection decision when the petitioner had a legitimate expectation that the decision was lawful and was going to be implemented was contrary to Articles 47 and 40 of the Constitution as held in CCK & others vs Royal Media Services (2014) eKLR on the doctrine of a legitimate expectation. The court held that an A/R objection decision serves a certain purpose under Section 26 of the Land Adjudication Act and that parties expect such a decision to be of great worth and to be acted upon.

44. In this petition, the court granted a stay of the implementation of the A/R Objection’s award. The court proceeded to quash the award and all its subsequent decisions following its implementations despite a valid court order. Unfortunately, the respondents have not opposed the petition and explained why they failed to safeguard the petitioner’s constitutional rights. In Kimwele Kithoka & 26 others vs DCC Kyuso (2022) eKLR, the court held that administrative actions must now meet the constitutional test of legality, reasonableness, and procedural fairness. The court cited with approval Pashito Holdings Ltd vs Paul Nderitu & Others (1997) and Judicial Service Commission vs Mbalu Mutava & another (2015) eKLR, that administrative action reflects the national values and principles of governance such as the rule of law, and good governance and that administrative actions are now bound by Article 47 of the Constitution, rather than to the doctrine of utravires under the common law. The court proceeded to direct by way of a mandatory injunction for the cancellation of the title deeds issued in disregard of the law.

45. As to the appropriate reliefs, given the gravity of the violation by the respondents and the utter disregard of not only the Constitution, the applicable statutes, and a valid court order followed by a decree, the actions by the respondents fall short of the constitutional requirements under Article 47 of the Constitution. Therefore, I that find the reliefs sought by the petitioners are in line with Section 11 of the Fair Administrative Actions Act and are hereby granted as follows;a.A declaration do issue that the changes to the original land parcels, adjudication register(s), their localities and subsequent registration in favour of the interested party were irregular, unlawful and unconstitutional.b.A declaration that the aforesaid changes, consolidation, relocation, registration and issuance of titles were in violation of the petitioners’ constitutional rights to property, fair hearing and fair determination.c.The 3rd – 5th respondents are directed to recall, cancel and invalidate the adjudication register(s), demarcation maps, registry index maps and resultant title deed(s) in favour of the interested party.d.In view of the reliefs number (a) – (c) above, an order of mandamus be and is hereby issued directed at the 1st & 3rd respondents to execute the decree of the court dated 4. 8.2018 within 3 months from the date hereof.e.Costs to the petitioners.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 22ND DAY OF FEBRUARY, 2023HON. C.K. NZILIELC JUDGEIn presence of:C/A: KananuMiss Mbogo for Maranya for petitionerSandi for interested party