[2017] KEHC 2968 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIONAL PETITION NO. 31 OF 2012

IN THE MATTER OF: ARTICLE 22 OF THE CONSTITUTION OF

KENYA, 2010

IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE BILL

OF RIGHTS UNDER ARTICLES 10, 19, 20,

21, 23, 40, 64, 165 AND 258 OF THE

CONSTITUTION OF KENYA, 2010

BETWEEN

THE KENYA URBAN ROADS AUTHORITY.......1STPETITIONER/APPLICANT

THE MINISTRY FOR ROADS............................2ND PETITIONER/APPLICANT

VERSUS

KISAUNI BRIDGE LIMITED.........................................................RESPONDENT

RULING OF THE COURT

The Application

1. By way of a Notice of Motion dated 31st May, 2017 brought under the Constitution of Kenya 2013 Rules, Article 40 of the Constitution, Sections 149 and 150 of the Land Act, Section 13 of the Environment and Land Court Act and Articles 162 (2) (b) and 165 (6, 7) of the Constitution of Kenya, the Applicants seek the following orders:

a) THAT this cause be transferred to the Environment and Land Court for hearing and determination.

b) THAT the costs hereof be in the cause.

The application is supported by the grounds on the face of the application and by the supporting affidavit of ENG. ANTHONY MURAGURI MWAI sworn on 31st May, 2017.

2. The Applicants herein allege that their cross-petition dated 15th July 2016 raises issues of use, occupation of and validity of title to land which fall under the Environment and Land Court (ELC) as per Article 162 (2) (b) of the Constitution of Kenya 2010.

3. The Applicants claim that the this court is empowered to enforce the Bill of Rights and the issues emergent herein transcend such jurisdiction and further that the transfer of this cause to the Environment and Land Court (ELC) will afford all the parties an opportunity to canvass those issues that go beyond the realm of the Bill of Rights.

4. It is the Applicants’ case that the jurisdiction of this court would limit the parties to matters touching on the bill of rights and may thus occasion severe miscarriage of justice on the parties and that the Environment and Land Court would be best suited to provide a comprehensive hearing and determination of this matter.

The Response

5. The Respondent responded to this application by way of a Statement of Grounds of Opposition dated 22nd June, 2017 in which the Respondent alleges that this application has no legal basis and that the Environment and Land Court has no jurisdiction to hear this Petition as it falls within the realm of the High Court.

Hearing and Submissions

6. The application came up for hearing on 19th July, 2017 where the parties canvased the application by way of oral submissions.

7. Mr. Guyo, learned Counsel for the Applicants submitted that the Petition herein relates to issues concerning use of and title to land and referred the court to prayers (a) to (m) of the Petition. Counsel argued that the orders sought in the instant petition are judicial review in nature, for instance prayers (f) and (g) but that issues raised therein deal with title to land.

8. Mr. Guyo submitted that in the replying affidavit of the Surveyor, Mr. P.A Zimmmerlin at paragraphs 14, 15, 16 and 17 he discusses issues pertaining to changing a public road to private property. Counsel stated that Mr. Zimmerlin would be cross examined based on his affidavit and the best court to handle this would be the ELC and not this court.

9. Mr. Guyo submitted that the Applicants had also filed a cross-petition dated 15th July, 2016 in this matter in which they sought orders declaring the suit property to have been illegally acquired and in which they also seek to have the land register rectified. Counsel argued that the issues raised in the cross-petition deal with the use and occupation of land.

10. Mr. Guyo cited the case of Republic versus Karisa Chengo and 2 others [2017] in which the Supreme Court noted that it is best that issues of use and ownership of land be taken before the Environment and Land Court. Mr. Guyo submitted that the scope and validity to deal with survey and ownership of land as raised in this matter lies with the Environment and Land Court.

11. Mr. Guyo submitted that Article 162 (2) of the Constitution of Kenya outs this court from handling this matter. Counsel stated that this matter was filed in 2012 when the ELC was not in existence and now that the ELC exists justice would be best served before the ELC.

12. Mr. Guyo further submitted that the Applicants’ cross-petition has discussed Cap 399 which deals with public roads and access to the same and also Section 192 of the Local Government Act thus it does not only deal with constitutional issues.

13. Mr. Khanna, learned counsel for the Respondent submitted that its main Petition is pegged on Articles of the Constitution mainly Articles 22, 23 and 40 and thus this court is well placed to deal with the constitutional issues raised. Counsel also submitted that the cross-petition by the Applicants herein was also based on constitutional issues which are within the jurisdiction of this court.

14. Mr. Khanna submitted that when it comes to the Bill of Rights only the High Court can deal with such issues and that its claim is that its rights under Article 40 have been violated. Counsel urged this court to be guided by the case of Republic versus Kenya Urban Road Authority & 2 others Ex parte Tamarind Village Ltd [2015] eKLR.

15. Mr. Khanna submitted that this court can grant the constitutional reliefs sought by the Petitioners as provided for under Article 23 and urged this Court to dismiss this application.

Determination

16. I have carefully considered this application, authorities therein and the submissions by the parties. The issue that arises for determination by this court is whether this court has the jurisdiction to entertain the main petition herein and the cross-petition or whether the same should be transferred to the Environment and Land Court.

17. The brief history of the matter is as follows. On 5th April, 2012, the Respondent filed the main petition herein in which it sought a declaration that its rights under Article 40 of the Constitution had been threatened by the Applicants’ intended unlawful and illegal demolition of the suit properties, a declaration that the actions of the Applicants herein to acquire and demolish the suit properties were null and void, an order of judicial review in the nature of prohibition, an order of permanent injunction against the Applicants herein and a declaration that the suit properties being Mombasa/Block XLVI/174, Mombasa/Block XLVI/175, Mombasa/Block XLVI/176, Mombasa/Block XLVI/177, Mombasa/Block XLVI/179, Mombasa/Block XLVI/180, Mombasa/Block XLVI/181, Mombasa/Block XLVI/182, Mombasa/Block XLVI/183 and Mombasa/Block XLVI/184 are not road reserves.

18. Subsequently, the Petitioner made an application by way of Chamber Summons dated 4th April, 2012 seeking an interim injunction against the Respondents and this court on 5th April, 2012, issued an interim injunction restraining the Respondents from demolishing or destroying the walls, buildings and other structures and developments on the suit properties pending the hearing and determination of the application interparties.

19. On 15th July, 2015, the Respondents in the main Petition filed a cross-petition in which they sought a permanent injunction restraining the Petitioners from selling, transferring, entering or in any way dealing with the suit properties which they claimed constituted a road reserve, a declaration that the suit properties were acquired illegally and unprocedurally and an order cancelling the titles to the suit property and directing the Land Registrar to rectify the title register for the suit properties. Thereafter the Applicants herein made this instant petition seeking to transfer this matter to the Environment and Land Court.

20. Article 165 of the Constitution establishes the High Court and at sub-article (3) it states:

(3) 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

v. Any other jurisdiction, original or appellate, conferred on it by legislation.

21. On the other hand, Article 162 (2) establishes the Environment and Land Court. It states that:

(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to-

a) …………….

b) The environment and the use and occupation of, and title to land.

22. The Applicants have argued that when the main Petition herein was established the Environment and Land Court was not in existence and now that the said court is operational this matter should be transferred to that court. The Respondent, on the other hand, stated that the matter herein raises constitutional issues which can only be dealt with by the High Court which is conferred this jurisdiction by virtue of the Constitution. The Respondent added that this matter revolved around violation of the Bill of Rights which jurisdiction is conferred on the High Court.

23. Article 23 of the Constitution states that:

23 (1) The High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, threat to, a right or fundamental freedom in the Bill of Rights.

(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including-

a) a declaration of rights;

b) an injunction;

c) a conservatory order;

d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

e) an order of compensation;

and

f) an order of judicial review.

24. It is imperative to question whether the matter before this court is a matter that relates to the environment and the use and occupation of, and title to land and whether the Environment and Land Court has the jurisdiction to deal with issues relating to constitutional interpretation and enforcement of constitutional remedies especially in respect to matter which fall within the realm of the Environment and Land Court.

25. Jurisdiction is everything and if a courts lacks jurisdiction it should down it tools and not take any further step, see the case of Owners of Motor Vessel “Lillian S’ versus Caltex Oil (Kenya) Limited [1989] KLR 1. If the matter before this court wholly deals with the use and occupation of, and title to land then this court does not have the jurisdiction to entertain this matter.

26. According to the Black’s Law Dictionary, 10th edition, the term “use” is defined as:

“the application or employment of something; especially a long continued possession and employment of a thing for the purpose for which it is adapted, as distinguished from a possession and employment that is merely temporary or occasional”.

The term “occupation” is defined as:

“the possession, control, or use of real property”

While the term “title” is defined as:

“the union of all elements (as ownership, possession and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself”.

27. In the matter herein the Petitioner claims to have legally acquired and developed the suit properties while the Respondents argue that the said suit properties were illegally acquired by the Petitioners and that the suit properties are road reserves. From this claim it is clear the occupation and title to the suit properties is disputed thus this matter falls within the jurisdiction of the Environment and Land Court as provided by Article 162 (2) of the Constitution. In the case of Capital Fish Kenya Limited versus Monnatz Limited & 2 others (2014) eKLR, Justice Mabeya stated that:

“….my view is that the intention in the Constitution is that if an issue arise touching on land in respect of its use, possession and occupation, then this High Court will have no jurisdiction…”

28. As to whether the Environment and Land Court can deal with issues relating to constitutional interpretation and enforcement of constitutional remedies, Section 13 of the Environment and Land Court Act provides the jurisdiction of that court as:

“(2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the court shall have the 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 lad; and

e. Any other dispute relating to environment and land.

(3) Nothing in this Act shall preclude the Court from hearing applications for redress of 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.

(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;

f) Restitution;

g) Declaration; or

h) Costs.

The jurisdiction of the Environment and Land Court is limited to disputes under Article 162 (2) of the Constitution and Section 13 of the Environment and Land Act. From a reading of Section 13 (3) of the Environment and Land Act it is clear that the Environment and Land Court can deal with issues relating to denial, violation, threat or infringement of rights provided that they relate to Articles 42, 69 and 70 of the Constitution of Kenya. However, none of the parties herein have cited any violation that is within the aforementioned Articles of the Constitution.

29. While faced with a similar issue though relating to the Employment and Labour Relations court, Justice Majanja in the case of United States University (USIU) versus Attorney General (2012) eKLR had this to say;

“Labour and Employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in Section 12 of the Industrial Court Act, 2011 or to interpret the Constitution would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court. This would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. Litigants and ingenious lawyers would contrive causes of action designed to remove them from the scope of the Industrial Court. Such a situation would lead to diminishing the status of the Industrial Court and recurrence of the situation obtaining before the establishment of the current Industrial Court… To accept a position where the Industrial Court lacks jurisdiction to deal with constitutional matters arising within matters its competence would undermine the status of the court. Reference of a constitutional matter to the High Court for determination or permitting the filing of constitutional matters incidental to labour relations matters would lead to the High Court supervising a superior court.

In Light of what I have stated, I find and hold that the Industrial Court as constituted under the Industrial Court Act, 2011 as court with the status of the High Court is competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms in matters arising from disputes falling within the provisions of Section 12 of the Industrial Court Act, 2011”.

30. It is evident that the Environment and Land Court being a court with the status of the High Court as the Employment and Labour Relations court is, has the jurisdiction to deal with issues relating to denial, violation or infringement of, or threat to, rights and fundamental freedom in matters envisioned by Article 162 (2) (b) and Section 13 of the Environment and Land Court Act. Thus, the issues raised and remedies sought in the Petition and subsequent cross-petition herein can be dealt with by the Environment and Land Court.

31. For the following reasons I will allow the application dated 31st May, 2017 and make the following orders:

a. THAT this court lacks the jurisdiction to deal with this matter as it falls within the jurisdiction of the Environment and Land Court.

b. THAT this matter be and is hereby transferred to the Environment and Land Court for hearing and determination.

c. Costs of this application be in the cause.

Dated, Signed and Delivered in Mombasa this 5th day of October, 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Makuto for Hon. Attorney General

M/s Onesmus holding brief Khanna for Respondent

Mr. Kaunda Court Assistant