[2018] KEHC 9401 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 48 OF 2016

IN THE MATTER OF: ARTICLE 22(1), 23(1), 25(C) OF THE CONSTITUTION

IN THE MATTER OF: CONTRAVENTION AND BREACH OF THE CONSTITUTION (ARTICLE 50 (i)

IN THE MATTER OF: THE LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990 (REPEALED)

BETWEEN

KASIWA GONA....................................PETITIONER

AND

HON. ATTORNEY GENERAL.........RESPONDENT

KAINGU CHARO..................INTERESTED PARTY

JUDGMENT

The Petition

1. The Petition before the court is dated 13th September, 2016. The Petitioner is a male adult resident of Kaloleni. The Respondent is the Honourable Attorney General of the Republic of Kenya while the Interested Party is also a male adult resident of Kaloleni.

2. The Petitioner alleges that he is the owner of all those two parcels of land known as Parcel A and Parcel B (hereinafter referred to as suit premises) situate at Kayafungo Location, Murimani Sub-Location, Mutsikitsini Village Kaloleni Sub-County, Kilifi County. The Petitioner claims that sometime in the year 2008 the Interested Party filed an application for a claim No.66 of 2006, Kaingu Charo vs. Kasiwa Gonafor occupation or working on land i.e. the suit premises before the Kilifi District Land Dispute Tribunal, Kaloleni District (as then was). The matter proceeded for hearing before the Tribunal on 6th August, 2008 in the Petitioner’s absence. The Petitioner alleges that he was neither aware of the proceedings nor was he served with a hearing notice.

3. The Petitioner contends that the Tribunal ultimately awarded the suit premises to the Interested Party and forwarded the proceedings for entry of the Judgment by the Senior Resident Magistrate Court at Kaloleni.

4. Accordingly, the Petitioner claims that he was condemned unheard against the law and all rules of natural justice. The Petitioner claims that he was permanently deprived of his suit premises and also suffered substantial and irreparable loss.

5. The Petitioner alleges that he only learned of the proceedings above recently when the Interested Party threatened to evict him from the suit premises. The Petitioner protested the eviction and the Interested Party furnished him with the proceedings before the Tribunal.

6. It is the Petitioner’s case that the proceedings before the Tribunal were unlawful and should thus be set aside. For these reasons, the Petitioner prays for the following orders:

(a) A declaration that the Petitioner’s constitutional right to fair hearing/trial as guaranteed by Article 50(1) of the constitution was violated and the proceedings of the Tribunal in Kilifi District Land Dispute Tribunal Case No.66 of 2006, Kaingu Charo & Family vs. Kasiwa Gona and subsequent Judgment in Kaloleni Land Award No. 29 of 2008, Kaingu Charo vs. Kasiwa Gona be set aside accordingly.

(b) Costs of this petition.

The Response

7. The Respondent opposed the petition vide Grounds of Opposition dated 3rd October, 2017, and raised the following grounds that:

(a) The Petition is an afterthought and an abuse of the court process.

(b) The Petitioner is guilty of material non-disclosure to the extent that he failed to disclose when he became aware of the decisions the subject matter of the petition herein.

(c) The court lacks jurisdiction to hear and determine this Petition.

(d) The Petitioner is guilty of latches; and

(e) The Petitioner is seeking to be heard on appeal through the back door contrary to section 9 of the Land Disputes Tribunals Act that governed the Land Disputes Tribunal as previously constituted.

8. The Interested Party has never at any one stage participated in these proceedings, yet there is an affidavit of service filed herein on 2nd November, 2017 showing that he was served with a mention date herein and that he is aware of these proceedings.

Submissions

9. The petition was heard by way of written submissions. The Petitioner filed submissions on 7th December, 2017 while the Respondent filed submissions on 6th June, 2018.

10. The Petitioner submitted that he is the owner of the suit premises and that sometime in the year 2008 the Interested Party filed an application for a claim no.66 of 2006, Kaingu Charo vs Kasiwa Gona the subject matter being the suit premises before the Kilifi District Land Dispute Tribunal, Kaloleni District (as it then was). The matter proceeded for hearing before the Tribunal on 6th August, 2008 in the Petitioner’s absence even though the Petitioner was not served with a hearing notice. The Tribunal ultimately awarded the suit premises to the Interested Party. Thereafter, the Tribunal forwarded the proceedings for entry of the Judgment by the Senior Resident Magistrate Court at Kaloleni.

11. The Petitioner submitted that he was condemned unheard against the law and all rules of natural justice thus he was denied justice. To support this assertion, the Petitioner submitted that he only learned of the proceedings before the Tribunal when the Interested Party threatened to evict him from the suit premises and he protested and the Petitioner furnished him with proceedings before the Tribunal.

12. The Petitioner contended that the proceedings before the Tribunal were unlawful and should be set aside as the matter was not determined on its merits but on technicalities.

13. On his part the Respondent submitted that more than 8 years have lapsed before the Petitioner came to court to challenge the decision of the Kaloleni Land Disputes Tribunal in Land Disputes Tribunal Case No 66 of 2006. Further, the Respondent submitted that from the proceedings before the Tribunal, the Petitioner was served with summons to attend the hearing pursuant to Section 13(a) of the Land Dispute Tribunal Rules 1993. The Petitioner however chose not to attend the hearing.

14. The Respondent contended that the Tribunal proceeded to reach a decision in favour of the Interested Party contained in its award of 6th August, 2008 and no appeal was lodged from the Tribunal’s award. The award was subsequently registered at the Kaloleni Resident Magistrate’s Court as Land Case Award No. 29 of 2008.

15. The Respondent submitted that if any of the parties was aggrieved by the said award they had an option to prefer an appeal to the Appeals Committee as provided under section 8(1) of the Land Disputes Tribunals Act or challenge the decision by way of a judicial review application if there were reasonable grounds for the challenge.

16. The Respondent submitted that while the Petitioner was not present during the hearing, his absence was not because he had no notice of the proceedings. According to the Respondent, the Petitioner ought to have exercised due diligence and found out what transpired during the hearing.

17. The Respondent faulted the Petitioner for material non-disclosure. The Respondent submitted that the Petitioner had not stated the date when he became aware of the proceedings before the Tribunal.

18. The Respondent submitted that the matter herein falls within the jurisdiction of the Environment and Land Court. The Respondent pointed out that the dispute herein revolves around ownership of the suit lands. To support this assertion, the Respondent submitted that part of the evidence relied upon by the Petitioner is an agreement dated 19th March, 1982 whose subject although unidentified could be the suit premises.

19. The Respondent submitted that this court lacked the jurisdiction to determine the question of ownership of the suit premises as the same is vested with the Environment and Land Court as provided for under Section 13 (2) (d) of the Environment and Land Court Act.

The Determination

20. I have carefully considered the petition and the submissions therein. The only question that arises for determination by this court is whether the Petitioner’s right to fair hearing as enshrined under Article 50 of the Constitution was violated by the manner in which the proceedings before the Kilifi District Land Dispute Tribunal case no. 66 of 2006 were conducted.

21. Before delving into the aforementioned issue, this court must address its mind to the issue of jurisdiction that was raised by the Respondent. As was held in the case of The Owners of Motor Vessel “Lillian S” V. Caltex Oil Kenya Ltd [1989]KLR 1, jurisdiction is an important aspect of any proceeding. If a court lacks jurisdiction then it cannot proceed any further and has to down its tools. The Respondent contended that this court lacked the jurisdiction to entertain this matter as the issues raised herein fall within the purview of the Environment and Land Court.

22. Article 162 (2) (b) of the Constitution provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land. Further, Section 13 (2) of the Environment and Land Court Act provides as follows:

(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.

23. The Respondent claimed that the matter herein revolved around the ownership of land parcels identified in a sale agreement annexed by Petitioner to his pleadings. I have carefully read the Petition. The Petitioner does at paragraph 1 of the Grounds of Petition claim to be the owner of two land parcels known as Parcel A and Parcel B. However, the Petition does not depict a contention as to the ownership of the aforementioned lands but rather categorically raises the issue of violations of the Petitioner’s right to fair hearing in relation to the proceedings before the Kilifi District Land Dispute Tribunal in case no. 66 of 2006. Article 165 (3) (b) of the Constitution provides that this court shall have the jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. I therefore do find that this court has the jurisdiction to hear and determine this matter.

24. It is trite law that a party claiming violation of a constitutional right must identify the specific rights that were violated and the manner in which the said rights were violated. See the case of Annerita Karimi Njeru v. Republic [1979] eKLR. In the instant case the Petitioner claims that his right to a fair hearing was violated. The Petitioner alleges that proceedings in case no. 66 of 2006 were initiated by the Interested Party before the Kilifi District Land Dispute Tribunal and he was named as an objector but was never served with a hearing notice. Consequently, the tribunal made an award in favour of the Interested Party. The Petitioner contends that he was condemned unheard against the rules of natural justice.

25. The Respondent on his part submitted that the Petitioner had been served with summons to attend the hearing before the tribunal therefore he had an opportunity to defend himself and in turn he was afforded a fair trial. Further, the Respondent stated that if the Petitioner was aggrieved by the decision of the Tribunal he should have appealed the same before the Appeals Committee.

26. It is not disputed by the parties that case no. 66 of 2006 was filed before the Kilifi District Land Dispute Tribunal by the Interested Party. This court must therefore examine the proceedings before the Tribunal so as to determine whether the Petitioner was accorded a fair hearing. The Petitioner’s main grievance was that he was not served with summons to attend the hearing.

27. I have carefully perused certified copies of the proceedings annexed to the supporting affidavit of the Petitioner sworn on 13th September, 2016 marked as “KG3”. The first paragraph of the proceedings indicates that the case was done ex-parte as the objector, the Petitioner herein was not present despite the fact that he received summons in accordance with the Rules. As I understand it, the tribunal members found that the Petitioner had been served with summons to attend the hearing but failed to do so, and as such the tribunal proceeded with the hearing in the absence of the Petitioner.

28. Was the Petitioner therefore condemned unheard? I do not think so. According to the proceedings, the Petitioner was duly served with the summons but failed to attend the hearing. A right cannot be said to have been violated if a Petitioner by his own doing caused the violation. Article 50 of the Constitution enshrines the right to a fair hearing and provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. The Petitioner herein was accorded fair hearing before the tribunal. The Petitioner by his volition failed to attend the proceedings before the Tribunal.

29. The tribunal went ahead to determine the matter in the absence of the Petitioner and the decision of the tribunal was in favour of the Interested Party. If the Petitioner was aggrieved by the said decision he should have lodged an appeal or filed judicial review proceedings.

30. For the foregoing reasons the Petition dated 13th September, 2016 is unproved, and the prayers therein unmerited. The Petition is hereby dismissed. Costs of the Petition to the Respondent.

Dated, Signed and Delivered in Mombasa this 14th day of August 2018.

E. K. O. OGOLA

JUDGE

In the Presence of:

Mr. Ngaire holding brief for Ms. Kimuli for the Petitioner.

Mr. Kaunda Court Assistant