[2024] KEHC 4793 (KLR)

Jumbo Quality Products Limited & another v National Land Commission (Constitutional Petition E003 of 2022) [2024] KEHC 4793 (KLR) (9 May 2024) (Judgment)

Neutral citation: [2024] KEHC 4793 (KLR)

Republic of Kenya

In the High Court at Machakos

Constitutional Petition E003 of 2022

FROO Olel, J

May 9, 2024

IN THE MATTER OF ARTICLES 2,3(1), 10,19,20,21,22(1) (2),23,24,25 OF THE CONSTTUTION OF KENYA AND IN THE MATTER OF ARTICLES 10,19,20,21,22,23,24, AND 25 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE NATIONAL LAND COMMISSION ACT,2012 AND IN THE MATTER OF THE LAND ACT AND IN THE MATTER OF THE ACCESS TO INFORMATION ACT AND IN THE MATTER OF THE FAIR ADMINSTRATIVE ACTION ACT,2016 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 35, 40,47 ,48 ,50 ,60(1), 232 AND 249 OF THE CONSTITUTION OF KENYA

Between

Jumbo Quality Products Limited

1st Petitioner

Jumbo Foam Matress Industries Limited

2nd Petitioner

and

The National Land Commission

Respondent

Judgment

A. Introduction 1. Vide a Petition dated 21. 02. 2022, the Petitioners seek the following orders;a.A declaration that the Respondent’s refusal to supply the Petitioners with information relating to whether there is a dispute in existence between the Government of the Republic of Kenya and the local residents over the parcels of land known as LR NO 28132/17 and LR no 28132/18 amounts to a violation of the Petitioners’ rights under article 35 of the Constitution.b.An order of mandamus compelling the Respondents to supply the Petitioners with information on whether there is a dispute and status of dispute ,if any, between the local residents of Athi River area, Machakos County and the Government of the Republic of Kenya.c.A declaration that the Respondent’s failure to supply the petitioners with information relating to whether the planned expansion of the Nairobi National Park to connect the Athi- Kapiti plains will affect the suit properties amounts to a violation of the Petitioners’ rights under articles 35 and 40 of the Constitution.d.An order of mandamus compelling the Respondent to supply the Petitioners with information on whether the planned expansion of the Nairobi National Park to connect with Athi- Kapiti Plains will affect the suit properties.e.A declaration that the 1st Petitioner is the sole proprietor of all that land that parcel of land known as Land Parcel LR No 28132/17 and the 2nd Petitioner is the sole proprietor of all that land that parcel of land known as Land Parcel LR No 28132/18. f.An order of prohibition prohibiting the Respondent either by themselves and/or their agents/servants, employees or any other person whosoever from claiming title over the suit parcels of land.g.A permanent injunction restraining the Respondent either by themselves and/or their agents /servants or the community members or others whosoever from trespassing, tilling, cultivating, developing permanently /temporarily or using the suit parcels of land.h.Costs of the petition.i.Any other relief or orders that this Honourable Court may deem just and fit to grant.

2. The 1st Petitioner is a limited liability company incorporated in the Republic of Kenya, incorporation number CPR/2011/60291. The 2nd Petitioner is a limited liability company incorporated in the Republic of Kenya, incorporation number CPR/2009/14819. The Respondent is a constitutional commission established under Article 67 of the Constitution of Kenya. The Petitioners contend that their rights under Article 20, 22(1), 23(1) and (2), 35(1), and 47 of the Constitution of Kenya as read with section 4,5 and 7 of the the Fair Administrative Act, 2015 (the FAA Act”) have been violated by the respondent’s inaction and failure to give them public information sort.

3. The Petition is supported by the affidavit of JAYESHKUMAR TRIKAMBHAI PATEL a director of the 1st and 2nd Petitioners deposed on 21. 02. 2022, wherein he contends that the 1st Petitioner is the registered proprietor of LR No 28132/17 and the 2nd Petitioner is the registered proprietor of LR No 28132/18 which were acquired from CAR MASTER TWENTY ELEVEN LIMITED by virtue of transfers dated 17. 06. 2020 and registered in favour of the 1st and 2nd Petitioners as IR 181262/5 and IR 181263/5( hereinafter referred to as the suit parcels of land).

4. It was deposed that the said properties were purchased for purpose of erecting a factory, go downs, office blocks and associated ancillary services and they had obtained permits from Machakos County Government for clearing bushes and thicket, but their agents and representatives were denied access by the residents forcing them to leave for fear of their lives. Subsequently, they wrote to the county Government of Machakos, Lands and Physical Planning department inquiring as to whether there was a dispute with respect to the suit properties and on 24. 11. 2020 they did receive a response referring them to the National Land Commission. They also found out that through Gazette Notice 6953 published on 18. 09. 2020, that the government through Kenya Wildlife Service (KWS) was planning to expand the boundaries of the Nairobi National Park to connect with Athi- Kapiti Plains and they were apprehensive that this would interfere with the suit parcels of land.

5. The Petitioners thereafter wrote a letter to the Respondent dated 2. 12. 2020 and reminder letters dated 12. 01. 2021 and 3. 03. 2021, seeking clarification as to the status of the suit parcels of land but never received any response letter to date. The letter dated 02. 12. 2020 inquired about the following;a.Whether there was dispute between the locals and the government of Kenya over the subject properties.b.The status of the resolution of the dispute (if it exists).c.Whether their client could proceed to develop the properties and should not be interfered with by the Maa community Empakasi Oolera Trust and/or any other person.d.Whether the planned expansion of the Nairobi National Park boundaries will affect the subject properties.

6. The Petitioner further deponed that their advocate did attend a meeting that was scheduled for 02. 03. 2021, with the chairman of the respondent commission, where the status of the subject properties and the hindrance of access thereof was extensively discussed. Thereafter on 03. 03. 2021 their advocate again wrote a letter expressing gratitude and their appreciation to the chairperson of the respondent for granting them audience and also informed him that they were looking forward to get their response on “parameters germane” to their jurisdiction, but no such response was ever received.

7. It is contended that the respondent had ignored and/or declined to respond to the said letters of inquiry, which act had seriously aggrieved the petitioners and as a result, they had suffered and continued to suffer huge financial losses due to the inability to access and utilize their lawfully acquired properties. The respondents continued failure to address the petitioners inquires and concerns violated their right of access to information as protected under Article 35 of the constitution of Kenya and by extension denied them the right to own property as entrenched under Article 40 of the constitution of Kenya. The respondent had a constitutional obligation to ensure that they do not infringe on the petitioners right to information as was statutorily and constitutionally provided for under Article 35 of the constitution of Kenya and Section 5 of the Access to information Act. It was also noted that the respondent would not suffer any prejudice by releasing the information sort to the petitioner.

8. The Respondent, though served did not respond to the Petition. The Petitioners counsel did not file submissions and indicated that they would rely on the supporting affidavit filed as well as the document attached thereto as evidence in this matter.

B. Analysis And Determination 9. I have considered the Petition, the supporting affidavit and the attachments thereto and find that the issues for determination are;a.Whether the threshold for constitutional Petitions has been met.b.Whether the Petitioners rights under Article 35 of the constitution has been infringed and Whether the Respondent should be compelled to give information sort for.c.Whether this court has jurisdiction to declare that the Petitioners are owners of the subject properties, issue prohibitory orders and/or a permanent injunction as sought.

(i)Whether the threshold for constitutional Petitions has been met. 10. On the first issue, this court will be guided by the case of Miscellaneous Criminal Application 4 of 1979, Anarita Karimi Njeru v Republic [1979] eKLR where the court remarked as follows:“If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…

11. The Supreme court in the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 others [2014] eKLR stated as follows:-“Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”

12. In this case, the Petitioners have particularized their rights rights infringed upon by the respondent and manifestation of the said infringement. The articles of the constitution said to be violated are Article 10(1), 22(1), 35 of the Constitution of Kenya as read with Section 4 of the Access to Information Act, 2016. It was also averred that the Respondent has unreasonably withheld public information and no valid reason has been given for withholding the same. To this extent, petition as filed clearly articulates, the issues for determination and the law infringed and it can be safely concluded that the threshold for a prima facie case, deserving of courts intervention has been met.

(ii)Whether the Petitioners rights under Article 35 of the constitution has been infringed and Whether the Respondent should be compelled to give information sort for. 13. The second issue which is to be determined is whether the petitioner’s right under Article 35(1) of the constitution of Kenya has been infringed. The said Article provides for right to information, it provides as follows;(1)Every citizen has the right of access to--(a)Information held by the State; and(b)Information held by another person and required for the exercise or protection of any right or fundamental freedom.(2)Every person has the right to the correction or deletion of untrue or misleading information that affects the person.(3)The State shall publish and publicise any important information affecting the nation. [emphasis added]

14. Article 19 of the Universal Declaration of Human Rights provides that;“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

15. Article 19(2) of International Convention on Civil and Political Rights states that; “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regard less of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Further Article 9(1) of Africa Charter on Human and Peoples Rights states that “every individual has the right to receive information.”

16. Section 4 of the Access to information Act provides that;1)“Subject to this Act and any other written law, every citizen has the right of access to information held by—a)the State; andb)another person and where that information is required for the exercise or protection of any right or fundamental freedom.2)Subject to this Act, every citizen's right to access information is not affected by—a.any reason the person gives for seeking access; orb)the public entity's belief as to what are the person's reasons for seeking access.3)Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.4)This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6. 5)Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.

17. Section 8 of the Access to Information Act, also provides on the procedure for getting information from a public body. It provides ;(1)An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested.(2)Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs.(3)The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request.(4)A public entity may prescribe a form for making an application to access information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form

18. At this juncture it is evident that state bodies or entities have a duty to provide public information which are under their docket, upon request by a citizen. The considerations were elucidated in the case of Nairobi Law Monthly Ltd v Kenya Electricity Generating Company [2013] eKLR where the court observed that;“34. The…consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus, the State has a duty not only to proactively publish information in the public interest-this, I believe, is the import of Article 35(3) of the Constitution of Kenya which imposes an obligation on the State to ‘publish and publicise any important information affecting the nation’, but also to provide open access to such specific information as people may require from the State…36. The recognized international standards or principles on freedom of information,… include maximum disclosure: that full disclosure of information should be the norm; and restrictions and exceptions to access to information should only apply in very limited circumstances; that anyone, not just citizens, should be able to request and obtain information; that a requester should not have to show any particular interest or reason for their request; that ‘Information’ should include all information held by a public body, and it should be the obligation of the public body to prove that it is legitimate to deny access to information.…………[56]… State organs or public entities … have a constitutional obligation to provide information to citizens as of right under the provisions of Article 35(1)(a).... they cannot escape the constitutional requirement that [they provide access to such information as they hold to citizens.”

19. Similarly in the case of Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016]eKLR, the Court stated that;“[270]Article 35(1) (a) of the Constitution does not seem to impose any conditions precedent to the disclosure of information by the state. I therefore agree with the position encapsulated in The Public’s Right to Know: Principles on Freedom of Information Legislation –Article 19 at page 2 that the principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances and that public bodies have an obligation to disclose information and every member of the public has corresponding right to receive information. Further the exercise of this right should not require individuals to demonstrate a specific interest in the information”.

20. It is clear that from the wordings of Article 35(1),(a)of the Constitution, that this right is applicable to citizens only. This Article is very particular as to its application, that “every citizen”. A citizen is defined in Section 2 of the Access to information Act as follows;" any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens.” (Emphasis added). This implies that a juristic person whose director(s) is a Kenyan citizen, is considered a citizen for purposes of exercising the right to access information under Article 35(1) of the constitution of Kenya as read with Section 4 of the Access to Information Act.

21. The court in Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR interpreted this section as follows;“From the above definition, a juristic person whose director(s) is a citizen, is considered a citizen for purpose of exercising the right to access to information under Article 35(1)(a) of the Constitution as read with section 4 of Access to information the Act.”

22. The 1st and 2nd Petitioners are limited liability company incorporated in the Republic of Kenya. Though the particulars of the directorship is not provided, there is the supporting affidavit sworn by one Jayeshkumar Trikambhai Patel, who deposed that he is a director of both companies. Further amongst the documents annexed in support of the said petition were the duly executed transfer of lease, used to transfer the suit parcels to the petitioners and therein both the petitioner’s director’s names, Kenyan identity card Number and KRA pin certificate details are provided and it can be safely concluded that they are both Kenyan citizens.

23. Indeed, the Respondents have an obligation, on the request of a citizen, to provide access to information under Article 35(1)(a) of the Constitution unless it can provide legitimate reasons for not disclosing such information. Be that as it may the petitioners request was for specific details relating to the existence of a dispute between the government of Kenya and the local residence over the suit parcels of lands, a mandamus order to compel the respondents to supply the said information and also information related to expansion of the National park borders to extent to Athi- Kapiti plains and finally the respondents.

24. The functions of the respondent are set out in under section 5(1) & (2) of the National land commission Act, 2012. The said functions does not included keep of information related to land disputes between local residents and the government of Kenya, unless the same relates to lease, government and county land and the same has been referred to it for adjudication under section 5(1),(e) of the National land commission Act, 2012. The petitioners have alluded to a land dispute but has not provided any information to show that the respondent is/has been seized of the matter at any point to for them to give a feedback on the same/finding or recommendation.

25. The Petitioners also did not specify which particular Article has been infringed. They have just pleaded that Article 35 has been infringed and left it to the court to engage in elimination methods to determine which sub article is relevant. I am guided by the finding of the Supreme Court in the case of National Rainbow Coalition Kenya vs Independent Electoral and Boundaries Commission and 6 others , Petition 1 of 2021 where the 5 judge bench held as follows;The Court has consistently and resolutely stated in numerous decisions, such as Suleiman Mwamlole Warrakah (supra), Nasra Ibrahim Ibren (supra). Daniel Kimani Njehia v Francis Mwangi (supra) and Margaret Wanjiru Wainaina & another v James Njenga Kinyanjui & 4 others [2020] eKLR, that, it is only properly moved by invoking the correct constitutional or statutory provision that clothes it with jurisdiction. It stated in Suleiman Mwamlole Warrakah, (supra) that;“[53]In this appeal, what Counsel for the petitioners is asking us to do is to assume jurisdiction by way of elimination. This Court is being called upon to hold that, because certification, was not sought by the intending appellant, then it must follow that the said appellant, is invoking the Court’s jurisdiction as of right, under Article 163 (4) (a) of the Constitution, even without demonstrating that, such right obtains in the first place. This we cannot do, as it would make a mockery of our past pronouncements on the matter. In Daniel Kimani Njihia v. Francis Mwangi Kimani & Another [2015] eKLR this Court was categorical that in preferring an appeal, “a litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under Article 159 of the Constitution.” This statement of principle, in 14 Petition No. 1 of 2021 our view, still holds sway, and we see no reason to engineer a shift from it”

26. Based on the above, and the facts as pleaded, I do find and hold that the petitioners have not sufficiently proved that the respondent is seized of the dispute between the government of Kenya and local residences over the parcels of land known as L.R No 28132/17 and L.R 28132/18 and therefore they cannot be compelled to provide information relating to the same.

27. But it has been proved that the government at one point had the intention to expand the boundaries of Nairobi National park to create a wildlife corridor connectivity between the National park and Athi-Kapiti plains and did gazette a taskforce to consider the same vide Gazette Notice 6953 of September 2020. Such and exercise and/or its progress cannot be effected without the direct involvement and approval of the respondent and to that extent, if indeed the said project is on going and will affect the respondents, they are entitled to know about the same and should be provided with that information.

iii. Whether this court has jurisdiction to declare that the Petitioners are owners of the subject properties, issue prohibitory orders and/or a permanent injunction as sought. 28. The third issue is whether this court has jurisdiction to declare that the Petitioners are owners of the subject properties and to further issue orders of prohibition and permanent injunction as prayed for. The locus classicus case on the question of jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya) Ltd (1989) KLR 1 where the Court stated that:-“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

29. Article 165 (3) of the Constitution of Kenya provides as follows;Subject to clause (5), the High Court shall have--a.unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of--(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.

30. Article 162(2)(b) of the Constitution establishes the Environment and Land Court. The Environment and land court Act, 2011 at its preamble is worded as follows;to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purpose.

31. Further Section 13 of the Environment and land court Act, 2011 provides that the jurisdiction of this court is as follows;1. The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land; (c) relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.(4)In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.(5)Deleted by Act No. 12 of 2012, Sch.(6)Deleted by Act No. 12 of 2012, Sch.(7)In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including―(a)interim or permanent preservation orders including injunctions;(b)prerogative orders;(c)award of damages;(d)compensation;(e)specific performance;(g)restitution;(h)declaration; or(i)costs.

32. In the Supreme Court in the case of Republic –vs- Karisa Chengo & 2 Others (Supreme Court Petition No. 5 of 2015) 2017 eKLR, the Court held as follows:-“Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the Court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions. That is why this Court has reaffirmed its position that the jurisdiction of Courts is derived from the Constitution or legislation…...In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with sui generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.”

33. To this end, I find that the issues of title, and ownership status of the suit parcels of land, whether to prohibit the respondent from claiming title of the suit parcels of land and whether or not to restrain the respondent or the community members by way of permanent injunction from trespassing, tilling, or whosoever from trespassing, or developing the suit parcel of land cannot be determined before this court as it has no jurisdiction to do so.

Disposition 34. The upshot I find that this petition succeed only in terms of prayer ( c) of the petition and I do proceed to grant the same and direct the respondent to supply the information sort within 30 days of being served with the decree extracted here from.

35. All other prayers in the petition are not merited and I do proceed and dismiss the same

36. Each party will bear their own costs.

Judgement written, dated and signed at Machakos this 9th day of May, 2024. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 9th day of May, 2024. In the presence of;No appearance for AppellantNo appearance for RespondentSam Court Assistant