[2021] KEELC 4639 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

PETITION NO. 18 OF 2019

ISAACK SAMUEL KIRAMBURI alias SAMUEL MUNGANIA........PETITIONER

VERSUS

LAND ADJ. AND SETTLEMENT OFFICER IGEMBE.............1ST RESPONDENT

MINISTRY OF LANDS...................................................................2ND RESPONDENT

DIRECTOR OF LAND ADJUDICATION....................................3RD RESPONDENT

CHIEF LAND REGISTRAR..........................................................4TH RESPODNENT

THE ATTORNEY GENERAL.......................................................5TH RESPONDENT

AND

JAMES KIRITU..................................................................1ST INTERESTED PARTY

JOSHUA MUKARIA NTOKIMBA..................................2ND INTERESTED PARTY

NTUNDU NTULIMITU KAUNDU..................................3RD INTERESTED PARTY

JUDGMENT

1. Isaack Samuel Kiramburi alias Samuel Mungania filed this petition on 11. 7.2019 seeking the following orders;

(a) A declaration that the 1st, 2nd, 3rd, 4th and/or 5th respondent’s decision with regard to the petitioners land are irregular, fraudulent, ambiguous, irrational and unconstitutional hence null and void.

(b) An order of certiorari for purposes of quashing; the decision of the land adjudication officer that the 1st interested party should take the portion which had been transferred to him illegally and registered as parcel no. Igembe central Akirangondu ‘A’/1376 and that the 2nd interested party should take the portion illegally transferred to him and registered as parcel no. Igembe central/Akirangondu ‘A’/1904 and that the 3rd interested party should take the portion illegally transferred to him and registered as land parcel no. Igembe central/Akirangondu ‘A’/2801.

(c) A declaration that land parcel no. Igembe central/Akirang’ondu ‘A’1376 (currently divided into land portions no. Igembe central/Akirangondu ‘A’ 1904 and 2801) belongs to the petitioner.

(d) An order of mandamus compelling the chief land registrar to register land parcel no. Igembe central/Akirangondu ‘A’ 1376 (currently divided into land portion nos. Igembe central/Akirang’ondu ‘A’ 1904 and 2801) in the petitioner’s name.

(e) General damages for breach of petitioner’s right to property.

(f) Costs of this suit and interests on (d) above.

2. In his supporting affidavit to the petition, the petitioner contends that his grandfather Isaack M’Ikiara gathered a parcel of land no. 1376 measuring 2. 5 acres at Akirangondu ‘A’ adjudication section which was demarcated in his name. He developed the land and planted various trees including miraa. He later learnt that the land was subdivided into three parcels namely 1376 in the name of the 1st interested party, 1904 in the name of the 2nd interested party and 2801 in the name of the 3rd interested party.

3. The petitioner states that he has never sold the suitland to any of the interested parties and that the said interested parties have never occupied the said parcels.

4. He avers that the 1st interested party filed a suit for his eviction in Maua CMCC No. 67 of 2009 which suit was dismissed for want of prosecution (petitioner has availed a plaint to that effect).

5. The petitioner further avers that he filed objection cases no. 197, 5300 and 5299 in respect of land parcels numbers 1376, 1904 and 2801 which were dismissed by the land adjudication officer (1st respondent) out of collusion and compromise with the interested parties.

6. The petitioner contends that the decision of the 1st respondent had glaring errors and was biased, unreasonable, illogical, illegal and it was a mockery of justice. He further states that efforts to get the said objection proceedings were futile for many years as the same remained hidden to prevent him from challenging the subject decision.

7. He further states that parcel 2801 was awarded to Joshua Mukaria in his absence and who had declined to participate in the proceedings. He also stated that the 3rd interested party though alive also declined to participate in the proceedings yet the 1st respondent accepted the defence of his wife.

8. The petitioner avers that he has exhausted all other remedies available under cap 283 and 284 Laws of Kenya and that is why he filed this suit for the protection of his constitutional rights. The petitioner availed the proceedings in the aforementioned objection case to support his claim.

9. The respondents opposed the application vide the grounds of opposition filed on 19. 9.2019 where it is averred that there are no identifiable rights in terms of article 40 of the constitution capable of being enforced by this court, that the suit offends the provisions of section 26, 29 and 30 of the land adjudication Act cap 284 Laws of Kenya and that article 47 of the constitution has not properly been invoked to locate the judicial review remedies sought.

10. The 1st interested party opposed the petition vide his replying affidavit filed on 30. 8.2019 where he avers that there are no constitutional issues arising from the petition as the dispute has been heard in various forums. He contends that they had a case with the petitioner, the same being Maua PMCC No. 67 of 2009 where orders were issued against the petitioner who then lodged an appeal in Meru HCCA No. 120 of 2009. The said appeal was dismissed for want of prosecution. The 1st interested party has availed the proceedings in the Maua case No. PMCC 67 of 2000 as well as the ruling in Meru HCCA 120 of 2009 for the court’s perusal.

11. The 1st interested party avers that the petitioner lodged objection cases with the adjudication office where he was given a full hearing. He therefore urges the court to dismiss this petition as the same is an abuse of the court’s process.

12. No pleadings were filed on behalf of the 2nd interested party.

13. For the case of the 3rd interested party, the petition was opposed vide the affidavit filed on 29. 10. 2019 by one Sarah Ntundu, the wife of Ntundu Ntulimitu Kaundu. The deponent states that her husband died in year 2010 hence the husband has been sued unlawfully. She contends that her husband bought land parcel 1904 on 17. 9.1987 from Mungania M’Ikiara and the same was duly transferred to him as per annexure SN 1. Thus the records remain in her husband’s name from 1987 and that she now has a title deed. She contends that her husband planted tea bushes and that petitioner does not live on the land.

14. She further avers that no constitutional provisions have been violated, that the decision in objection cases was conclusive, that no consent was obtained to file this petition and that petitioner did not exhaust the remedies available under Cap 283 and 284 Laws of Kenya.

Submissions

15. In his submissions, the petitioner reiterated the averments set out in his petition and the supporting affidavit. He contends that his parcel of land was illegally subdivided and that it is not true that his father sold the suit parcel 1376.

16. For the respondent, it is submitted that the petition offends the provisions of section 26, 29 and 30 of the Land Adjudication Act, and that the applicant has not shown how Article 47 of the constitution has been violated. It is also averred that the petitioner is seeking Judicial Review remedy in respect of a decision given 10 years ago. That the overriding principle for Judicial Review proceedings is that they must be expeditiously heard and determined as they relate to the exercise of public related functions which exercise must not be hindered by excessively long periods of time. And to circumvent this requirement, the petitioner has invoked the constitutional jurisdiction of this court. The respondents have urged the court to dismiss the case with costs.

17. For the 1st interested party, it is submitted that the said 1st interested party and other parties bought their parcels from petitioner’s grandfather known as Smauel Mungania M’Ikiara who was also known as M’Mungania M’Ikiara. That in the objection cases, petitioner identified himself as Samuel Kiriamburi while in the Maua case and in HCCA 120 of 2009, he was known as Isaac Samuel Kiramburi. In this petition, he calls himself Samuel Kiramburi alias Samwel Mungania. It is averred that the name Samuel Mungania is being introduced in this suit to deceive the court that Samuel Mungania did not sell the disputed parcels of land.

18. The 1st interested party contends that the petitioner has not stated with precision the constitutional provisions which have been violated.

19. It is further submitted that the petitioner lost his claim in the objection cases and he failed to file an appeal to the minister or file a Judicial Review suit. Further, the 1st interested party contends that the Maua case no. 67 of 2009 is still pending but orders of injunction had been issued against the petitioner of which his appeal in the High court was dismissed. The objection cases filed by the petitioner were also dismissed. The petitioner has therefore not stated how his constitution rights have been violated, hence this suit should be dismissed.

20. In support of his arguments, the 1st interested party proffered the following authorities:

i. Ledidi Ole Tauta & Others vs The Attorney General and 2 others (2015) eKLR

ii. Sisters of Notre Dame De Namur Registered Trustees vs National Land Commission & 2 others, Ethics and Anti-Corruption Commission (interested party) (2019) eKLR.

iii. Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR.

21 For the 3rd interested party, she has reiterated the averments set out in her replying affidavit. She added that the petitioner has not demonstrated that there was collusion or malpractice and/or irregularity between the respondents and the interested parties in so far as the objection cases are concerned, and that petitioner has not availed any adjudication records to show that he gathered the suit land which was registered in his name.

22. Further it was submitted that the petitioner has not availed any evidence to show that he tried to challenge the objection proceedings for the last 9 years. The 3rd interested party has urged the court to dismiss the petition with costs.

Determination

23. I have considered all the issues raised herein, the respective pleadings and affidavits as well as the submissions of the parties. I frame the following issues for determination:

(i) What is the applicable law?

(ii) Whether the petition meets the constitutional threshold.

(iii)Whether the petition is valid against a deceased person.

(iv) Whether the petition should be struck out for lack of consent.

(v) Whether the petitioner should be declared the owner of the suit parcels.

(vi) Whether this court should issue the JudicialRevieworders of certiorari and mandamus quashing the decision in objection cases no. 197, 5300 and 5299 and compel the Chief Land Registrar to register parcel no. “A” 1376 in the name of the petitioner.

(vii) Whether general damages can be awarded to the petitioner for breach of his property rights.

(viii) The relief.

Applicable law

24. The 3rd interested party has claimed that titles have been issued and to this end, she has made reference to her annexure SN 4. However, the said document is not a title deed, it is a confirmation of ownership in the records of adjudication. It is however not in dispute that the petition is anchored on the objection proceedings in cases no. 197, 5300, and 5299. It follows that the said proceedings were conducted under the adjudication statutes, hence the dispute resolution mechanism applied in respect of the suit parcels was either the Land Adjudication Act Cap 284 or the Land Consolidation Act Cap 283 laws of Kenya.

Constitutional threshold

25. A party seeking redress through a constitutional petition is required to state his claim with precision by making reference to the provisions of the constitution which have been violated – see Anarita Karimi Njeru vs Republic (1979) eKLR, Mumo Matemu vs trusted society of Human rights alliance & 5 others (2013) eKLR.

26. I find that the petitioner has stated that he was the recorded owner of parcel no. 1376 which he never sold to any one. Whether that claim is true or not is another issue for determination. The bottom line is that the petitioner has laid a basis for seeking redress through a constitutional petition.

Caseagainsta deceased person

27. The 3rd interested party has in paragraph 2 of her replying affidavit stated that Ntundu Ntulimitu, her husband died in year 2010 and no substitution was done. The petitioner has not made any rejoinder to this claim. A suit before a court of law can only be maintained by or against the legal representative of a deceased person. See Tobias Achola Osindi & 3 others vs Cyprianus Otieno Ogalo & 6 others (2013) eKLR.In the circumstances, the suit against the 3rd interested party was dead on arrival, hence the suit against 3rd interested party is dismissed at this juncture.

Consent

28. Both section 30 of the Land Adjudication Act and section 8 of the Land Consolidation Act require that a consent be obtained from the land adjudication officer before the filing of a suit. Section 30 (1) of the Land Adjudication Act stipulates as follows:

“Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act”.

29. Section 8 (2) of the land consolidation act also provides as follows:

“No officer of any court whatever shall issue any plaint or other legal process for the institution or continuance of any proceedings which by virtue of the provisions of subsection (1) of this section are for the time being prohibited, except upon being satisfied that the consent required by those provisions has been given”.

30. In Republic vs Musanka Ole Runkes Tarakwa & 5 others exparte Joseph Lelol Lekitio & others (2015) eKLR, the court had this to say on the issue of consent:

“A suit that questions the process of land adjudication, rather than the determination of interests would not be a suit concerning an interest in land and would therefore not require the consent of the land adjudication officer”.

31. I have in several decisions aligned myself to this holding; – see Johnson Mbaabu Mburugu & another vs Mathiu Nabea & 9 others (2020) eKLR,The Muthara Njuri Ncheke council of elders & another vs The Committee Ngare Mara/Gambella adjudication section & 2 others (2019) eKLR.

32. The filing of the objection cases no. 197, 5300 and 5299 by the petitioner was a clear manifestation that the petitioner wanted his rights and interests in the suit parcels determined. And when he failed in the aforementioned proceedings, he opted to file this suit. The declaratory orders sought by the petitioner in his prayer no. (c) in the petition boils down to a determination of rights and interests in the suit parcels. A consent was therefore a requisite document in the filing of the suit.

33. The applicant has not demonstrated the efforts he made to get the said document. I therefore find that the petition fails for want of the relevant consent under the adjudication statutes.

Ownership

34. The petitioner has raised several issues as to why he desires to be declared as the owner of the original parcel 1376. He contends that he never sold this parcel to any of the interested parties, that there was collusion and illegality by the 1st respondent in awarding his land to the interested parties, that the decision of the 1st respondent was made in absence of the 2nd and 3rd interested parties and that the Maua case filed against him was dismissed. All those allegations have been refuted by the respondent and the interested parties. Additionally, the 3rd interested party has alleged that the person sued is even dead.

35. I have keenly gone through the objection proceedings availed by both the petitioner and the 1st interested party which reveals that the petitioner participated in the said proceedings.

36. I find it necessary to extract a portion of the petitioner’s evidence in the A/R objection case as follows:

“I Samwel Kiriamburi adult of sound mind duly sworn states that I was given land by my grandfather Isaka M’Ikiara. I did the gathering of this land. The land was demarcated and I was recorded with the land. I was given no. 1376 I came to the office later and I was told that someone called M’Limitu Karundi is in my land. I asked why he was in my land. I was told he had bought. I was informed that he had bought from M’Mungania M’Ikiara. I asked that he be called. He said he had not sold the land. I sued with the committee. I sued the officer for this. The committee case was never heard but the committee verbally said they would return my land…..”.

37. From the foregoing evidence, I discern that there was a committee case in respect of the suit parcel even though the petitioner claims it was never heard. The findings and decision in objection cases delivered on 26. 5.2010 was that:

“Findings

P/No 1376 was originally recorded under the plaintiff Samuel Mungania,

- 1. 5 acres transferred to P/N 1904 objection 559 under Ntundu M’Limitu (transfer letter 0. 50 acres transferred by Mungania M’Ikiara ID 2449971/65 dated 17. 9.1987.

- 0. 50 acres transfer to P/No 2801 to Joshua Mukaria M’Ikiamba - Balance 0. 40 acres transferred to James Kiritu M’Ithibutu – Objection 1969. Transfer letters filed in the office.

Decision

Objection 179, 5300, 5299 dismissed. The parcels to remain with defendants; (emphasize added)”

38. What emerges from the decision in the objection cases is that the suit parcels were already registered in the names of the interested parties. I further discern from the aforementioned findings that the suit parcels had previously been subjected to other objection cases where one Samuel Mungania was the plaintiff and the suit parcels were transferred to the interested parties. These findings are in tandem with petitioners claim that there were committee cases in respect of the suit parcels.

39. It must be noted that the 1st respondent’s reference to “the plaintiff Samuel Mungania” in the objection cases was in respect of the original recorded owner of parcel 1376. The petitioner has not adduced evidence to demonstrate that he was the same person referred to in the initial proceedings. After all, in the objection case no’s 197, 5300 and 5299, the plaintiff was “SAMWEL KIRIAMBURI ID 886395” and when petitioner was called upon to testify in the aforementioned proceedings, he again stated that he was Samwel Kiriamburi.

40. In the proceedings before the Maua court case no. 67 of 2009 and in the Appeal case Meru HCCA no. 120 of 2009, the petitioner is again identified as Isaack Samwel Kiramburi.

41. Further, it is noted that the Maua case No. 67 of 2009 was filed more than 10 years ago. The petitioner has not indicated the nature of his defence and or counter claim therein. There is no indication that for the years that Maua case was in court, the petitioner made attempts to add the name SAMUEL MUNGANIA as his alias name.

42. I am in agreement with the submissions of the 1st interested party to the effect that the alias “SAMUEL MUNGANIA” is being introduced for the first time in this petition so that the petitioner can present himself as the plaintiff in the initial proceedings. The court cannot accept a mere assertion that the petitioner is one and the same person who was referred into the initial proceedings considering that the particulars of the seller of the land including his identity card is reflected in the objection proceedings.

43. I am therefore not persuaded by the petitioner that he was the originally recorded owner of the suit parcels.

44. Under the Land Adjudication Act, committee cases are lodged under section 21 of the act and the dispute could be escalated to the arbitration board under section 22 thereof. Section 11 of the Land Consolidation Act similarly gives the committee and arbitration board the mandate to adjudicate on disputes; See- Christopher Iddi Moto & 15 others v Chiriba Nyambu Baru & another [2014] eKLR.

45. I am inclined to find that the decision of the 1st respondent delivered on 26. 5.2010 was derived from the previous adjudication proceedings which the petitioner has alluded to. It is not for this court to act as an appeal over the decisions made by the adjudication bodies. More so when those proceedings were conducted decades ago.

46. In the case of Francis Murungi M’ibaya v Paul Kigea Nabea (Deceased and now substituted by Kigea Amos Kilemi & Paskwale Mwiti Kigea) & 4 others [2020] eKLR, I stated as follows in regard to objection proceedings;

“An in depth analysis of the proceedings undertaken in the adjudication processes(particularly the proceedings commonly referred to as A/R Objection cases conducted under section 26 of both the Land Adjudication Act and the Land Consolidation Act) usually gives the court a sneak preview of the nature of the dispute which guides the court in determining whether such a court has jurisdiction or not. This entails a thorough scrutiny of the material presented before the court.”

47. In petition 6 of 2016 Kisii, John Masiantet Saeni vs. Daniel Aramat Lolungiro & 3 Others, Mutungi J while upholding a Preliminary Objection challenging the competency of a Petition had this to say on matters adjudication;

“I do not agree that the provisions of the Land Adjudication Act that deal with the process and procedure of adjudication would constitute procedural technicalities. The Act sets out in considerable detail the process of adjudicating people’s interests and rights over land the subject of adjudication before such land is demarcated for issuance of individual titles on registration. The Act equally sets out a dispute resolution mechanism during the process of land adjudication. The petitioner participated in the adjudication process and invoked the dispute resolution mechanism up to the end resulting in the decision of the Minister on the appeal where the petitioner’s appeal was rejected”.

48. The dispute in respect of the suit parcels appears to have been heard though the committee stage and A/R objection cases. The 1st respondent did not award the suit parcels to the interested parties. He only affirmed that they were the owners of the said parcels. The allegations of bias, collusion, illegality have not been proved by the petitioner.

49. On the claim that the 1st respondent erred in making a decision in favour of absent parties (2nd and 3rd interested parties), I find that indeed those two parties were absent though 3rd interested party was represented by the wife Sarah Nkatha. Section 13 of the Land Adjudication Act provides as follows:

“Every person who considers that he has an interest in land within an Adjudication section shall make a claim to the recording officer, and point out his boundaries to the demarcation officer in the manner required and within the period fixed by the notice published under section 5 of this Act. (2) Every person whose presence is required by the adjudication officer, demarcation officer, recording officer, committee or board shall attend in person or by a duly authorized agent at the time and place ordered. (3) If any person who is ordered to attend fails to attend in person or by a duly authorized agent, the demarcation, recording, adjudication or arbitration, as the case may be, may proceed in his absence.( emphasize added).(4) If the demarcation officer or the recording officer considers that a person who has not made a claim has an interest in land within the adjudication section, he may, but is not bound to, proceed as if that person had made a claim (Emphasize added).

(5) Where several persons claim separately as successors of a deceased person, and one or more of those persons attends, his or their attendance shall be taken to be the attendance of all the successors, unless the adjudication officer otherwise directs”.

50. Section 13 of the Land Consolidation Act has more or less similar content. What resonates from the aforementioned provisions of law can be summarized as follows;

(i) Any person who has a claim of interests in land can lodge a case,

(ii) A person who is required in the proceedings can have a representative in lieu of the claimant,

(iii) A case can proceed in absence of a person who has been ordered to attend the proceedings.

(iv) Proceedings can even be conducted in respect persons who have not lodged any claims where their interests in the land can be discerned,

(v) Successors of deceased persons can lodge claims either separately or through one or more of those successors.

51. Nothing in the adjudication statutes state that such absent persons including non-claimants shall lose their rights and interest in land in respect of cases lodged before the adjudication bodies because of their absence. Therefore the claims set out in paragraph 30 and 31 of the petition to the effect that the 1st and 2nd interested parties worn the case against the petitioner yet they did not participate in the proceedings is not legally sound.

52. On the issue of the Maua case, I find that in paragraph 20 of the petition, the petitioner has stated that the said case was dismissed. This is far from the truth. The proceedings availed by the 1st interested party indicate that a ruling was delivered by the court on 22. 7.2009 in Maua case no. 67 of 2009 against the petitioner and in favour of 1st interested party. The petitioner appealed in HCCA No. 120 of 2009 which was dismissed on 27. 5.2014 for want of prosecution. It follows that the petitioner is not candid and does not hesitate to peddle lies before this court. The true status of the Maua matter is that the same was stayed by consent of the parties herein as per the proceedings of this court of 25. 11. 2019.

53. As far as this suit is concerned, there is no sufficient material to declare the petitioner as the owner of the suit parcels.

Judicial ReviewOrders of certiorari/mandamus

54. The petitioner contends that he was never given the proceedings in respect of the decision delivered by the 1st respondent o 26. 5.2010. However, the petitioner has not in any way demonstrated the efforts he made to get the said proceedings. That is however now a moot point. This is because the petitioner has not succeeded in his prayer to be declared as the owner of the suit land. He cannot therefore succeed in the prayer for certiorari and mandamus.

Damages

55. The claim for damages equally fails as the court has not declared the petitioner as the owner of the suit parcels.

Relief

56. Ultimately, this petition fails in its entirety. In the circumstances, the suit is hereby dismissed with costs to the respondent and the interested parties. The orders given on 25. 11. 2019 for maintenance of status quo and staying the Maua suit no. 67 of 2009 are hereby discharged and the said case is to proceed to its logical conclusion.

DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF JANUARY, 2021

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this Judgment was given to the advocates for the parties through a virtual session via Microsoft teams on 15. 10. 2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Judgment has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE