[2019] KEELC 2988 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

JUDICIAL REVIEW APPLICATION NO. 27 OF 2017

ISACKO PIUS MALICHA...............................................................................1ST APPLICANT

MARY LUKA LEMERELLE..........................................................................2ND APPLICANT

PETER LETIYON LEITORO.........................................................................3RD APPLICANT

VERSUS

NATIONAL LAND COMMISSION............................................................1ST RESPONDENT

CHIEF LAND REGISTRAR........................................................................2ND RESPONDENT

MARSABIT PASTORS FELLOWSHIP.....................................................3RD RESPONDENT

JUDGMENT

A. INTRODUCTION

1. The applicant filed the instant application dated 31st August, 2017 and filed on even date seeking the following orders:

i. An order of Certiorari to bring into this Honourable Court the decision of the commission to revoke the title of the suit property, land reference number 11969/214 and quash it.

ii. An order of Certiorari to bring into the Honourable Court the decision of the Commission to investigate the title for suit property, land reference number 11969/214.

iii. An order of Prohibition prohibiting the Chief Land Registrar from revoking the title to Land Reference Number 11969/214.

iv. The Respondents pay the costs of this case in response to the Application, the 1st Respondent filed their grounds of opposition dated 6th March, 2018 and filed on 7th March, 2018.

2. The 3rd Respondent on their part filed a Replying Affidavit sworn by Joseph Chiwe. The 2nd Respondent did not file a response and neither did they participate in these proceedings.

B. BACKGROUND

THE APPLICANTS CASE

3. The Applicants in their Notice of Motion allege that the 3rdApplicant is the registered owner of the portion of land known as Land Reference Number 11969/214 (the suit property) and that the 1st and 2nd Applicants purchased the suit property from the 3rd Applicant, who purchased the property from one Golawa Mirgicha who acquired the same vide a grant from the defunct County Council of Marsabit. The 1st and 2nd Applicants allege that they purchased the same from the 3rd Applicant for value. In support of this assertion, they produced the copy of the grant and the Sale Agreement. The gist of the dispute is that the 1st Respondent vide gazette notice number 6862 directed the 2nd Respondent to revoke their title to the suit property under Section 14 (5) of the National Land Commission Act.

4. The Applicants allege that the 1st Respondents conducted the hearing of the complainant filed by the 3rd Respondent relating to the suit property without according them an opportunity to be heard and to reasonably prepare for their case. They allege that on 6th April, 2017 when the matter came up for first hearing, they sought an adjournment for purposes of putting in their further response in answer to the complainants further submissions/representations before the 1st Respondents. However, they were denied an adjournment.

5. In addition, they allege that they were never given an opportunity to cross-examine the witnesses and that the 1st Respondent refused to supply them with crucial documents produced in the matter to enable them effectively present their case.

6. In sum the Applicants allege that the 1st Respondent acted against the rule of natural justice by denying them an opportunity to reasonably prepare their case and file responses in breach of Article 47 of the Constitution and the Fair Administrative Action Act No. 4 of 2012.

7. Further, the applicants argue that the 1st Respondents lacked the jurisdiction to entertain the complaint against the suit property title in view of Section 14 (7) of the National Land Commission , as the suit property title had been transmitted to 3rd parties who had acquired ownership as bonafide purchasers without notice of any alleged defect in title.

8. In support of their case the applicants have attached the letter dated 6th April, 2017 addressed to the 1st Respondent requesting for the adjournment of the matter and a letter dated 11th April, 2017 equally seeking an adjournment of the hearing of the matter. In addition, the applicant, have produced title to the suit property issued on 1st October, 1992 and Sale Agreement dated 23rd April, 2011.

1ST RESPONDENT’S CASE

9. The 1st Respondent vide their grounds of opposition opposed the application arguing that the purported decision brought to Court by the Applicants is incapable of being quashed by way of Certiorari. In addition, they allege that the gazette notice only communicates a decision and not constitute a decision capable of being quashed.

10. Further they allege that the Fair Administration Action Act allows the 1st Respondent 60 days upon demand to produce the reasons for its determination as published in the gazette notice number 6862 dated 17th July, 2017 and that investigations having been concluded and determination rendered, there is no investigations to be quashed thus the prayers sought by the applicants are overtaken by events.

11. Further they allege that the Applicants were given adequate notice and fair hearing thus they should have challenged the 1st Respondent decision on merit and not vide a Judicial Review Application. In sum the 1st Respondent argues that the Applications discloses no cause of action and ought to be dismissed with costs.

3RD RESPONDENT’S CASE

12. Vide affidavit sworn by Joseph Chiwe on behalf of the 3rd Respondents, they allege that they are members of Marsabit Pastors Fellowship and allege that the genesis of this suit has been an attempt by the Christian Community in Marsabit to recover land which had been set aside as a Christian graveyard but allocated to private individual in the year 1992, when the suit property was sub–divided into five portion, four of which were distributed to private individuals and that the suit property is part of the sub-division.

13. The 3rd Respondent allege that they filed a complaint with the Marsabit County Land Management Board on 1st March, 2015. The Board conducted a hearing and a site visit where the 3rd Applicant participated and was heard. They allege that on the site visit the Board found a grave on the edge of the property. Further they allege that the Board reached a finding that the allocation was improper and recommended that the 1st Respondent undertakes an independent review of the grant and dispositions on the graveyard.

14. The 3rd Respondent on 1st April, 2015 filed a complaint with the 1st Respondent for review of the suit property title, and that as result, the 1st Respondent vide a letter dated 6th February, 2017 summoned all Interested parties including the 3rd Applicant to appear before it on 9th March, 2017 for review of the said title to the suit property.

15. On 9th March, 2017 they allege that the 3rd Respondent appeared before the Commission, when Mr. Nyamweya for the Applicants sought an adjournment which Adjournment was granted and parties directed to file written submission before the next hearing slated for 6th April, 2017.

16. Subsequently on 21st March, 2017 the Applicants wrote to their advocate requesting to be served with the complaints, which complaint was served on 23rd March 2017 and that on 4th April, 207 they filed their submission, before the 1st Respondent and that on 6th April, 2017 they attended the hearing of the matter.

17. It is their assertion that on 6th April, 2017 during the date for the hearing, the Applicants advocate Mr. Nyamweya sought an adjournment, however the same was denied and the matter proceeded in the absence of the Applicants, where upon conclusion the 1st Respondent fixed the 11th April, 2017 for hearing of the Respondent’s case.

18. The 3rd Respondent further alleges that on 11th April, 2017 the 1st Respondent Committee lacked quorum and the hearing was adjourned to the 20th April, 2017 when the Advocate for the Respondent raised an objection and informed the Committee that he had filed JR No. 188/2017 seeking to stop the proceedings.

19. The 1st Respondent Committee dismissed the Preliminary Objection and directed parties to proceed to hearing the following day or in the alternative file written submissions, by 26th April, 2017.

20. Furthermore, they allege that JR No. 188/17 was dismissed because the Applicant failed to comply with Court timelines and that they are guilty of material non-disclosure as they did not inform the Court that they had filed a similar application which has since been dismissed.

21. In conclusion the 3rd Respondent allege that the Gazette Notice No. 6862 was issued by the 1st Respondent after fully hearing the parties and urged the Court to affirm the 1st Respondent decision returning the grabbed grave yard.

22. In support of their case the 3rd Respondent produced the Marsabit County Government Land Management Report, summons from the 1st Respondent dated 6th February, 2017, Applicants Advocates letter dated 21st March, 2017 and a letter forwarding the complaint dated 22nd March, 2017, the Ruling from 1st Respondent committee dated 20th April, 2017 and the Preliminary Objection dated 19th April, 2017.

SUBMISSIONS

APPLICANTS SUBMISSIONS

23. The Applicants submitted on two issues, first on whether the 1st Respondent had jurisdiction to deal with the suit property title and secondly, whether the Applicants right to Fair Administration Action was infringed.

24. On the First issue as to whether the 1st Respondent had jurisdiction, the Applicants submitted that they lacked the jurisdiction to entertain and adjudicate on the complaint pursuant to Section 14 (7) of the National Land Commission Act number 5 of 2012 and as envisaged under Article 62(2)of the Constitution.

25. They allege that Section 5 and 6 of the National Land Commission Act confines the powers and functions of the 1st Respondent to Public Land only. They argue that Article 67 (2) of the Constitution empowers the 1st Respondent to initiate investigations on its own or on a complaint and recommend appropriate redress, however they allege that the 1st Respondent from the pleading was not expressing its mandate as required.

26. Additionally, they allege that Section 14 of the National Land Commission Act gives the Respondent the jurisdiction to enforce Article 68 (c) (r) of the Constitution and review all grants or dispositions of Public Land to establish their property or legality relying on the case of : Republic -Vs- National Land Commission & 4 Others Ex-Parte, Holborn Company Limited & Another. They argue that no evidence was presented before the 1st Respondent rebutting the claim that the suit land was private land.

27. Further they argue that where the initial allottee of public land has transferred land to a bona fide purchaser for value without notice of defect in the title, the Registrar does not have the jurisdiction to revoke such title under Section 14 (7) of the National Land Commission Act. In this they rely on the case of : Republic -Vs- National Land Commission Ex-parte Holborn Properties limited.

28. On the second issue of whether the Applicants right of Fair Administrative Action, they reiterate that the 1st Respondent never complied with the rules of natural justice and that they never gave them an opportunity to be heard in accordance with the Provisions of Article 47 of the Constitution. They rely on the Authorities of Sceneries limited -Vs- National Land Commissionand the case of Republic -Vs- National Land Commission & Tropical Treasure Limited, Ex-parte Krystalline Salt Limited.

29. In sum they argue that they were denied a fair hearing and being the holders of suit property with a title not challenged by evidence of fraud, misrepresentation, illegally, un-procedural and/or corrupt scheme, are seeking that the application be allowed with costs.

1ST RESPONDENT’S SUBMISSIONS

30. The 1st Respondent in their submissions addressed four issues. The first being the Jurisdiction of the 1st Respondent to entertain and determine the dispute relating the suit property. In this regard they argue that they have the jurisdiction to entertain complaints relating to grants or dispositions of public land. This they argue emanates from Article 68 (C) (V) of the Constitution and Section 14 of the National Land Commission Act, which gives them the authority to direct the Registrar to revoke title and/or take appropriate steps to correct the irregularity and may also make consequential orders.

31. In answer to the Applicants’ allegation that the suit property is a private property and outside the mandate of the 1st Respondent, they argue that their mandate covers land that is in the hands of private ownership and was initially a public land. In this they rely on the following authorities. Republic -Vs- Land Registrar Mombasa & 2 Others Ex-Parte Bhangra Limited [ 2012] e K.L.R, Republic -Vs- National Land Commission & 2 Others Ex-Parte Airways Holding Limited (2015) e KLR, Republic -Vs- National Land Commission & Another Ex-parte Muktar Saman Olow Miscellaneous Appl. No. 376 of 2014 [2015], Republic -Vs- National Land Commission Ex-parte Holborn Properties Limited [2016] e KLR.

32. The Second issue advanced by the 1st Respondent is on whether there is a decision of the 1st Respondent before Court capable of being quashed, which they argue that there is no decision before the Court to be quashed as envisaged under Order 53 Rule 7. On this they rely on the case of: Republic -Vs- Kenya National Highway Authority & 7 Others, Exparte Kenya Transporters Association & Others (2013].

33. The Third issue advanced by the 1st Respondent is as to whether the applicants are bonafide purchasers for value. In this regard they argue that the applicants are not innocent purchasers for value as the suit property was allocated as a public cemetery and therefore the applicants ought to have known. In this, they rely on the case of: Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwauri -Vs- Attorney General & 4 Others [2017] e K.L.R on the definition of a bonafide purchaser.

34. The final issue submitted on by the 1st respondent is on whether the applicant was afforded a fair hearing. They argue that the applicants were awarded a reasonable opportunity to present their case, however they failed to do so. They argue that when the matter came for hearing on 9th March 2017, the same was adjourned at the behest of the applicants to 6th April, 2017, when again they sought another adjournment which was denied. Further they allege that the Applicants were directed to file written submissions but they never complied.

35. They also pointed out that since the parties appeared before the Marsabit County Land Management Board and both made extensive presentation on the suit, they urge the Court to find that the 1st Respondent availed all avenues for Applicants and all documents, but the Applicants willfully declined to appear and make their presentation.

36. In sum they oppose the application arguing that due process was followed and the application be dismissed with costs.

3RD RESPONDENT’S SUBMISSIONS

37. The 3rd Respondent identified three issues. The first issue is as to whether the 1st Respondent has the jurisdiction to review title in private land. In this regard they argue that the 1st Respondent has the jurisdiction to review title of private land pursuant to the provisions of Article 68 (c) of the Constitution and Section 14 of the National Land Commission Act. In this, they rely on the above cited decision of Ex-parte Krystalline Salt limited Ex-parte Muktar Saman Olow & Ex-parte Holborn properties.

38. Additionally, they distinguish the Applicant cited authority of Republic -Vs- National Land Commission & 4 others Ex-parte Fulson Company limited and Another, arguing that the same was wrongly decided and was not followed in Nicholas Mwatika Mulei -Vs- National Land Commission & 3 others (2018). They argue that the 1st Respondent indeed has the jurisdiction to review title even in a private land.

39. The second issue identified by the 3rd Respondent is whether the Applicants are bonafide purchasers and argue that the Applicants fail to meet the test for bonafide purchasers as set out by the Court of Appeal in: Samuel Kamere -Vs – Lands Registrar, Kajiado Civil Appeal No. 28 of 2005, arguing that had the Applicants conducted due diligence before acquisition, they would have realized that the suit property was allotted for Christian graveyard.

40. The final issue identified by the 3rd Respondent is whether the Applicants were afforded a fair hearing, and they argue that the Applicants were afforded several opportunities to be heard but failed to avail themselves of the opportunities. In this regard they referred to the chronology of the dispute from the first hearing slated for 9th March, 2017 which was adjourned at the behest of the Applicant’s counsel Mr. Nyamweya and the 6th April, 2017 hearing where Nyamweya equally sought an adjournment on behalf of the Applicant which was denied for the reason that the complainants witnesses had travelled from far.

41. In sum they argue that the Applicants were afforded an opportunity to be heard but willfully chose not to present their case.

A. ISSUES ARISING

1. Whether the 1st Respondent has the jurisdiction to Review private land title

2. Whether the Applicants were afforded fair hearing.

3. Whether the 1st and 2nd Applicants are innocent purchasers for value

a) Whether the 1st Respondent has the jurisdiction to Review private land title

42. The applicants have submitted citing Article 67 of the Constitution and Section 14 (8) of the National Land Commission Act that the 1st Respondent lacks jurisdiction over the land in question, which they argue is a private land. On their part, the 1st Respondent argues that it has the jurisdiction to hear the complaint under Article 67 (1) of the Constitutionand Section 14 of the National Land Commission Act, this position is equally supported by the 3rd Respondent.

43. The functions of the National Land Commission under Article 67 (2) (e) of the Constitution include (e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress.Article 61 (2) of the Constitution classifies land in Kenya as Public, Community or Private.

44. The import of the above is that the National Land Commission is empowered on its own motion or upon a complaint by the National or a County Government, a community or an individual to review all grants or disposition of public land to establish their propriety or legality subject to Article 68 (c) (v) of the Constitution.

45. Section 14 of the National Land Commission Act provides that: -

“(1) Subject to Article 68 (c) (v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the National or a County Government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality”.

46. According to Korir, J. in J.R 376 of 2014 - Muktar Saman Olow Vs National Land Commission:

“Under section 14 of the National Land Commission Act, 2012 the Respondent is given jurisdiction to enforce Article 68(c)(v) of the Constitution and review all grants or dispositions of public land to establish their propriety or legality. In my view, the Respondent can only fulfil this mandate by probing the process under which public land was converted to private land. It would defeat the purpose of the Constitution to imagine that unlawfully and irregularly acquired land once registered as private property is no longer within the reach of the Respondent.”

47. The import of the applicants claim on this issue is that once a person is lawfully granted a leasehold tenure over public land, the land becomes private land, hence the Respondent lacks jurisdiction over the same.

48. It is therefore apparent from the forgoing cited provisions that for the 1st Respondent Jurisdiction to be invoked, the land must be public land within the above definition, or the land must have been public land that was converted to private land, thus if the land was originally public land which was converted to private land, then it falls within the Constitutional and statutory mandate of the National Land Commission.

49. Mativo J. in Karaini Investments Vs National Land Commission & Another[2018] e KLR in this regard stated: -

“39. Under Section 14 of the Act the Respondent is given jurisdiction to enforce Article 68 (c (v) of the Constitution and review all grants or dispositions of public land to establish their propriety or legality. In my view, the Respondent can only fulfil this responsibility by querying the process under which public land was converted to private land, if there is evidence that the land was once public land. In this regard, so long as the land was once public land, the Respondent has the Constitutional and statutory mandate of investigating the process under which it was converted into private land.”

50. Consequently, this Court is inclined and indeed finds that the 1st Respondent has the jurisdiction to determine the complaint filed by the 3rd Respondent before it. It has not been disputed that the suit property was a public land allocated to the 3rd Applicant. The 1st and 2nd Applicants argue that they are innocent purchasers for value.

b) Whether the Applicants were afforded fair hearing.

51. In KandaVs Government Of Malasyia 1962 A C322, Lord Denning had the following to say about a proper hearing: -

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them”.

52. In the Landmark decision of the House of Lords in Ridge Vs Baldwin 1964 A.C 40,it was recognized that the rules of natural justice and in particular, the right to a fair hearing apply not only to bodies having a duty to act judicially but also to bodies exercising administrative duties. In the Ridge Vs Baldwin(supra) Lord Hudson identified three features of natural justice as:-

1. The right to be heard by an un-biased Tribunal

2. The right to have notice of the charge of misconduct

3. The right to be heard in answer to these charges.

53. InRugsel Vs Duke of Norfolk 1949 1 ALL E.R109,it was noted thatalthough natural justice is a principle of universal application, it is nevertheless flexible and its requirement must depend on the circumstances of each case, the nature of inquiry, the rules under which the Tribunal is acting, the subject matter being dealt with.

54. Consequently, the question as to whether the Applicants were granted an opportunity to present their case will depend on the specific circumstances herein. It narrows down to whether they were given an opportunity to present their case.

55. Justice B.N Olao J. In Margaret Wairimu Magara & another Vs Faith Wanjiku Gikunju [2017] e KLRa case with almost similar circumstances to this one noted that:-

“However, by walking out of the Court, which has not been rebutted, they left the trial magistrate with no other option other than to hear the plaintiff and deliver a judgment on the evidence that was available. A party who walks out of a Court cannot be heard to claim that his right to be heard has been violated. Whether or not to grant an adjournment was a matter entirely within the discretion of the trial magistrate who was in charge of the proceedings. Given the circumstances of this case and more particularly the un-rebutted averment by the Respondent that the Petitioners walked away when the matter was reached for hearing, any claim that there was a denial of the right to a fair hearing cannot, in my view, be sustained.”

56. In this case the Applicants were invited by the 1st Respondents to attend to the hearing of the complaint on 9th March, 2017, however on that date they sought an adjournment, which was granted and matter fixed for hearing on 6th April, 2017. On this date the Applicants further sought an adjournment which adjournment was not granted and they subsequently walked and never attended the hearing fixed for 10. 30 a.m. The matter proceeded and the 1st Respondent fixed the 21st April, 2017 date for the hearing of the Applicant’s case, which however never proceeded as the Applicants advocate attended and never proceeded citing that he had filed application in Court.

57. It is apparent to this Court that the opportunity was availed to the Applicants to present their case before the 1st Respondent Committee but it was squandered. In the case of The Union Insurance Company of Kenya Ltd Vs Ramzan Abdul Dhanji C.A Civil Application No. 179 of 1996(un-reported), counsel for the Applicant did not turn up in Court for hearing and his application was dismissed. On appeal, the Court of Appeal addressed itself as follows:

“The law, as we understand it, is not that parties must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and it is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it”

58. The Court further noted: -

“The trial magistrate having declined to further adjourn the case, the Petitioners still had the option to conduct their own defence and not to walk out of the Court and by doing so, they did not utilize that opportunity. Clearly, there was no violation of Article 50 of the Constitution.”

59. Guided by the foregoing, this Court is inclined to find the Applicants were granted sufficient opportunity to present their case, however they deliberately failed to utilize the same and therefore their allegation that their right to fair hearing was infringed has no basis.

c) Whether the 1st and 2nd Applicants are innocent purchasers for value

60. The 1st and 2ndApplicants have submitted that they are bona fide purchasers for value of the subject property from the 3rd Applicant. The 3rd Applicant argues that he was allotted the property by the defunct County Council of Marsabit. The 3rd Respondents have submitted that the said property was subdivided into 4 portions , in which 3 were converted into private property and among them the Applicant’s own 1 portion. The dispute regards the parcel owned by the Applicants which they allege was set aside as part of a Christian grave yard and was illegally allotted to them.

61. The Court of Appeal in Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura Vs Attorney General & 4 others [2017] e KLRin regard to the meaning of a bonafide purchaser adopted the definition of the Court of Appeal in Ugandan case ofKatende Vs Haridar & Company Limited [2008] 2 E.A. 173where the Court held:-

“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that:

(a) He holds a certificate of title;

(b) he purchased the property in good faith;

(c) he had no knowledge of the fraud;

(d) he purchased for valuable consideration;

(e) the vendors had apparent valid title;

(f) he purchased without notice of any fraud;

(g) he was not party to any fraud.”

62. In the instant case, the 1st and 2nd Applicants are arguing that they were innocent purchasers for value and therefore since the suit property had been transferred to innocent purchaser for value, the 1st Respondent should interfere

63. There is evidence that even before a complaint was made to the 1st Respondent, the 3rd Respondent filed complaint before the Marsabit County Lands Board, which upon hearing both parties recommended that the matter be forwarded to the 1st Respondent. The 1st Respondent as found hereinabove was properly seized of the Jurisdiction to determine the complaint. It commenced investigations to investigate the grant to ascertain its propriety or legality. All the procedures required in my opinion were complied with. These procedures included contacting all those affected including the Applicants to attend.

64. The Applicants were given opportunity to present their case, but chose otherwise. After full consideration, the Commission found that the title to the land which resulted in the suit land had being unlawfully acquired hence their recommendation that it be revoked vide a Gazette notice, directing the Registrar to revoke the title pursuant Section 14(5) of the National Land Commission Act.

65. Obaga J. an E.L.C Judge in the caseRegnol Oil (K) Limited Vs National Land Commission & another [2017] e KLRin regard to bona fide purchase of a public land noted:-

“Article 40 (6) of the Constitution does not afford any protection to land which is found to have been unlawfully acquired. Article 40(6) of the Constitution does not exclude innocent purchasers of land which is found to have been unlawfully acquired. This is so because someone who has acquired land unlawfully has no good title to pass because that title is void ab initio. If it was the intention of the Constitution to protect such innocent purchasers of unlawfully acquired land, then there will be chaos because people would unlawfully acquire land and quickly sell the same to innocent purchasers who would then retain it. I therefore find that Regnol is not entitled to compensation for the land.”

66. Consequently, this Court is inclined to agree with the above position and finds that the Applicant’s argument that they are innocent purchasers for value does not stand. The 3rd Applicant had no valid title to pass to the 1st and 2nd Applicants. And therefore their prayer that they are bona fide purchaser for value collapses.

ENDING

In conclusion, it is my considered opinion that the Instant Application lacks merit and the same is hereby dismissed with costs.

READ and SIGNED in open Court at Meru this 3rd day of June 2019.

E.C. CHERONO

ELC JUDGE

3RD JUNE, 2019

In the presence of:

1. Mr. Ondari holding brief for Nyamweya for Applicant

2. Respondent/Advocate – absent