[2024] KECA 1385 (KLR)

Kithira & 2 others v Attorney General & 5 others (Civil Appeal 47 of 2018) [2024] KECA 1385 (KLR) (11 October 2024) (Judgment)

Neutral citation: [2024] KECA 1385 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Appeal 47 of 2018

W Karanja, J Mohammed & LK Kimaru, JJA

October 11, 2024

Between

Angelo Mucee Kithira

1st Appellant

Paul Mutegi Kathenya

2nd Appellant

Augosto Njeru Mucee

3rd Appellant

and

The Honourable Attorney General

1st Respondent

County Government of Tharaka Nithi (In Place of the County Council Of Tharaka)…….…..2Nd Respondent The Commissioner Of Lands

2nd Respondent

The Commissioner of Lands

3rd Respondent

Gatunga Adjudication Section

4th Respondent

Director Land Adjudication and Settlement

5th Respondent

The District Land Adjudication and Settlement Officer Tharaka

6th Respondent

(An appeal from the judgment of the Environment and Land Court at Chuka (P. M. Njoroge, J.) dated 13th December, 2017 in ELC Petition No. 5 OF 2017 (Formerly Meru ELC Petition No. 5 of 2010 ? 01 of 2017 )

Judgment

Background 1. This is an appeal from the judgment of the Environment and Land Court (ELC) in Chuka (P. M. Njoroge, J.) which dismissed the petition filed by Angelo Mucee Kithira, Paul Mutegi Kathenya and Augosto Njeru Mucee (the 1st to 3rd appellants) dated 20th July, 2010 seeking in the main:a.A declaration that the respondents are in breach of the mandatory Constitutional and statutory provisions relating to setting apart the suit property and as such the suit property has never been set apart at all.b.A declaration that the suit property belongs to the petitioners.b.A permanent injunction restraining the respondents and/or any other person or body claiming through them from trespassing into the suit property or any other way interfering with the petitioners quiet and peaceful possession, user and occupation of the suit property.b.Costs of this petition be paid by the respondents jointly and severally.”The Honourable Attorney General, County Government of Tharaka Nithi, (in place of the County Council of Tharaka), The Commissioner of Lands, Director Land Adjudication & Settlement, the District Land Adjudication & Settlement Officer Tharaka, The Demarcation Officer, Gatunga Adjudication Section are the 1st to 6th respondents respectively.

2. The subject matter of the petition was that in 2005 during the land adjudication process, the 6th respondent despite finding the appellants in possession, user and occupation of Land Parcel No. 1249 Gatanga Adjudication Section (the suit property) purported to declare that the suit property was public land under the trusteeship of the 2nd respondent reserved for Gatue Secondary School.

3. Further, that the 5th respondent in 2008 purported to direct that the suit property was set apart in 1990 for public use, that is for Gatue Secondary School, by the 2nd respondent which was not in existence at the time since it was established in 1999.

4. The appellants averred that the suit property being within a Trust Land area is administered under the provision of the Trust Land Act (now repealed) whose express provisions and in particular Section 13 thereof were never complied with in the purported setting apart. Further, that the purported setting apart did not comply with the provisions of Section 117 of the former Constitution.

5. The respondents opposed the Petition. The Clerk to the 2nd respondent filed a replying affidavit deponing, inter alia, that the appellants hurriedly put up structures on the suit property in 2005 to stake a claim thereon; that the appellants had not been in occupation of the suit property since the 1940’s; that they were, therefore, occupying public land and should not seek protection from the court; that the land set apart by the 2nd respondent was never trust land and therefore not subject to the Trust Land Act; that it was subject to the Land Consolidation Act and the Land Adjudication Act; and that the appellant’s private and selfish interest should not supersede public interests. The 2nd respondent further asserted that the appellants should have exhausted the clear and elaborate dispute resolution procedures provided under the Land Consolidation Act and the Land Adjudication Act which applied to the suit property.

6. The trial court ultimately dismissed the petition after full hearing, holding in essence that:24. I find that there is no iota of evidence from the pleadings tendered by the petitioners that there was any setting apart of land by the predecessor of the 2nd respondent. Having so found, it is not necessary to examine the processes followed in the alleged setting apart of the land in order to establish if or not the apposite process was in consonance with the applicable constitutional and statutory provisions. In other words, there is no need to ascertain the integrity of the alleged setting apart process.25. In the circumstances, this Petition is dismissed.”

7. Aggrieved, the appellants filed the instant appeal and raised seven (7) grounds of appeal essentially faulting those findings on grounds that the learned Judge erred in law and fact in: failing to resolve the question whether the suit property was part of the trust land held by the 2ndrespondent within the meaning of Section 114 of the former Constitution which was in place at the time of filing the petition before the ELC; failing to find that the suit property was part of the trust land held by the 2nd respondent for the benefit of persons resident thereon within the meaning, purport and import of Sections 114 and 115 of the former Constitution; in holding that subjection of trust land to the Land Consolidation Act and the Land Adjudication Act is different from setting apart of trust land whereas the two pieces of legislation are merely tools for facilitating the process of setting apart of the trust land; in failing to find that the Land Adjudication Act and the Land Consolidation Actwould only come into play after the procedure set out under Section 13 (2) of the Trust Land Act (now repealed) had been complied with; in failing to find that the provisions of Section 13 (2) of the Trust Land Act (now repealed) had not been complied with and therefore the respondents' action of setting apart the suit property as public land while the appellants were in occupation of the same and without any compensation to the appellants amounted to unlawful deprivation of property; in failing to find that the appellants’ right to ownership of property in the suit property as granted by Section 115 (2) and 117 of the former Constitution and Section 69 of the Trust Land Act (now repealed) had been violated and proceed to allow the appeal; and that the decision of the ELC is against the law and the weight of evidence on record.

Submissions by Counsel 8. When the appeal came up for hearing, learned counsel Mr. Kariuki appeared for the appellant and highlighted the written submissions filed on behalf of the appellants. There was no appearance by counsel for the respondents.

9. Mr Kariuki submitted that the 2nd respondent in setting apart of the trust land in occupation by the appellants did not follow the applicable law at the time being Section 13 of the Trust Land Act (now repealed) as read together with Section 117 of the former Constitution. Counsel further submitted that Section 13 of Trust Land Act (now repealed) set out mandatory steps to be followed before setting apart trust land and that the said steps were clearly set out in the petition and which the appellants maintained were never followed. Counsel submitted that the 2nd respondent maintained that the suit property was not trust land but land within an adjudication area. Counsel pointed out that the appellants and the 2nd respondent had a land committee case as well as an Arbitration Board Case No. 143 of 2008 conducted within the ambit of the Land Adjudication Act.

10. Counsel further submitted that at the committee hearing, the County Council’s witness confirmed that the suit property was trust land held by the 2nd respondent in trust for the persons ordinarily resident in that area. Counsel asserted that the suit property falls within the meaning of the land referred to under Section 144 of the former Constitution since the same was outside Nairobi and in an adjudication special area and hence was registered in the name of the Trust Land Board and its title was in the name of the 2nd respondent.

11. Counsel emphasized that the appellants referred the trial court to Section 115(2) of the former Constitution as well as Section 69 of the Trust Land Act (now repealed) in order to demonstrate that the appellants as persons who were in occupation of the suit property had legally protected rights under the Constitution and statutory provisions. Counsel further emphasized that Section 117 of the former Constitution as read with Section 113 of the Trust Land Act (now repealed) empowered the 2nd respondent and any other County Council to set apart trust land within areas of its jurisdiction.

12. On the question whether trust land in the Land Consolidation Act and the Land Adjudication Act is different from setting apart trust land, counsel submitted that the Land Adjudication Act and the Land Consolidation Act would only come into play after the procedure set out under Section 13(2) of the Trust Land Act (now repealed) had been complied with. Counsel emphasized that the laws ought to be interpreted holistically and urged this Court to rely on the Advisory Opinion Reference No. 2 of 2014. In the said Advisory Opinion, the Supreme Court while considering the meaning of holistic interpretation of the Constitution had made reference to the case of In the matter of Kenya National Commission on Human Rights Supreme Court Reference No. 1 of 2012, (2014) eKLR where the Apex Court had observed as follows:“But what is meant by a holistic interpretation of the constitution? It must mean interpreting the constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”

13. Counsel submitted that the procedures under Section 13 of the Trust Land Act (now repealed) were put in place to guide the processes such as the one undertaken by the respondents. Accordingly, in counsel’s opinion, the lack of compliance with the laid down law and procedures amounts to a fundamental breach of the rights of the appellants.

14. Counsel further submitted that the provisions of the Land Adjudication Act only come to play after the Trust Land is fully set apart since the Land Adjudication Act is applied to aid in the registration of individual titles to the trust land after it has been set apart and therefore its application cannot be said to have cured the failure to comply with the provisions of Section 13 (2) of the Trust Land Act (now repealed).

15. On the question whether the petitioner's right to ownership of property in the suit property as granted by Section 115(2) and 117 of the former Constitution and Section 69 of the Trust Land Act (now repealed) had been violated, counsel submitted that the failure/refusal/negligence by the respondents to follow the laid down statutory procedures amounted to a fundamental breach of the appellants’ rights to property. Reliance was placed on the authority of Gitson Energy Ltd v Francis Chachu Ganya & 6 others [2017] eKLR in support of the proposition. Counsel submitted that due to the conduct of the 2nd respondent and failure to observe and comply with legitimate legal provisions; the appellants were evicted from the suit property without following the due process. That the appellants therefore seek the intervention of this Court to enable them obtain proper redress.

16. Counsel urged us to consider this Court’s decision in Funzi Island Development Ltd & 2 others v County of Kwale & 2 others [2014] eKLR on the mandatory provisions of Section 13(2) of the Trust Land Act (now repealed). Counsel urged us to allow the appeal with costs.

Determination 17. We have considered the record, the submissions by counsel, the authorities cited and the law.

18. This is a first appeal from the ELC pursuant to Section 16 of the Environment and Land Court Act, 2011. Such an appeal proceeds by way of retrial and we are obliged to re-evaluate and reappraise the evidence adduced before the trial court and come to our own conclusion.We are nevertheless required to bear in mind that we do not have the advantage that the trial Judge had of seeing and hearing the witnesses as they testified. On issues turning on the credibility of witnesses, we must therefore defer to the conclusions of the learned Judge, unless we are satisfied that on the basis of the evidence on record, no reasonable tribunal would have arrived at the conclusion that the trial court did. (See Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123).

19. We discern the issue for determination in this appeal to be whether the appellants presented any evidence of wrongdoing by the respondents on the basis of which the court could have issued the orders prayed for in the Petition.

20. Section 115 of the former Constitution vested all Trust Land in the county council within whose jurisdiction the land was situated. By dint of Section 115(2) the council held the trust land for the benefit of the persons ordinarily resident on the land, with an obligation to give effect to such rights, interests, and benefits under African Customary Law that were vested in them as a tribe, group, family, or individual.

21. The appellants’ case is based on the Trust Land Act (now repealed), which they contend was the only Act applicable to the suit property once the Gatunga Adjudication Section was declared. The respondents maintained that the case is based on the Land Adjudication Act, which was enacted in 1968 to provide for the ascertainment and recording of rights and interests in Trust Land. Section 3 thereof empowers the Minister, subject to satisfaction of the conditions set out therein, to apply the Trust Land Act (now repealed) to any area of trust land. The purpose of declaring an area an adjudication section is to make it possible to ascertain and record individual interest in trust land. The Trust Land Act (now repealed) required any person who has an interest in land in an adjudication section to lodge his claim to the recording officer.

22. Once the interest is ascertained and confirmed after determination of any objections, it is entered into the adjudication register, which when completed is open to the public for inspection. Throughout the entire adjudication process, the Trust Land Act (now repealed) provided elaborate dispute resolution mechanisms, including appeals, if there are any competing claims. Once all the objections have been settled, the adjudication register is finalised and the Chief Land Registrar registers the land in favour of the claimant in accordance with the adjudication register. What is absolutely not in doubt is that the Land Adjudication Act was intended to apply to trust land where the rights and interests of individuals exist but have not yet been ascertained and recorded.

23. The appellants’ case is based on the argument that in 2005 during the adjudication process at the Gatunga Adjudication Section, their rights and interests over the suit property, which previously was trust land, had already been recognized through the setting apart process provided under the former Constitution and the Trust Land Act (now repealed).They further contend that in those circumstances, the Land Adjudication Act was not applicable to the suit property.

24. The ELC found as follows:“Subjection of Trust Land to the Land Consolidation Act and the Land Adjudication Act is quite different from setting apart of Trust Land. I find that there is no iota of evidence from the pleadings tendered by the petitioners that there was any setting apart of land by the predecessor of the 2nd respondent. Having so found, it is not necessary to examine the processes followed in the alleged setting apart of the land in order to establish if or not the apposite process was in consonance with the applicable constitutional and statutory provisions. In other words, there is no need to ascertain the integrity of the alleged setting apart process.”

25. Section 116 of the former Constitution provided for conversion and registration of trust land into individual title and provided as follows:“116 (1) A county council may, in such manner and subject to such conditions as may be prescribed by or under an Act of Parliament, request that any law to which this subsection applies shall apply to an area of Trust land vested in that county council, and when the title to any parcel of land within that area is registered under any such law or otherwise than in the name of the county council it shall cease to be Trust land.2 The laws to which subsection (1) applies are –a.the Land Consolidation Act and the Land Adjudication Act; andb.any other law permitting the registration of individual titles to estates, interests or rights in or over land that, immediately before registration, is Trust land (except so far as the law permits the registration of estates, interests or rights vested in persons or authorities for whose use and occupation the land has been set apart under this Chapter.”

26. The effect of such conversion was that the land henceforth ceased to be trust land. By dint of Section 116(2), of the former Constitution, the laws under which the conversion could take place were the Land Consolidation Act, the Land Adjudication Act and any other law permitting such conversion.

27. Section 117 of the former Constitution read with Section 13 of the Trust Land Act (now repealed) provided for setting apart of trust land vested in a county council for use and occupation by among others, any person or persons, for a purpose which in the Council’s opinion was likely to benefit persons ordinarily resident in the area. Section 13 of the Trust Land Act (now repealed) sets out an elaborate procedure to be followed in setting apart Trust land.

28. Section 117 (1) of the former Constitution provided as follows:“Subject to this section, an Act of Parliament may empower a county council to set apart any area of Trust land vested in that county for use and occupation-a.by any public body or authority for public purposes; orb.…c.…and the Act of Parliament may prescribe the manner in which and the conditions subject to which such setting apart shall be effected.”

29. This Court in the decision of Flemish Investments Limited v Town Council of Mariakani [2016] eKLR stated as follows:“The Act of Parliament contemplated by section 117(1) was the Trust Land Act, section 13 of which provides for setting apart of land vested in a county for public purposes, and sets out the procedure to be used in setting land apart.”

30. The effect of setting apart Trust land was given in Section 117(2) of the former Constitution as follows:“Where a county council has set apart any area of land in pursuance of this section, any rights, interests or other benefits in respect of that land that were previously vested in any tribe, group, family or individual under African customary law shall be extinguished.” [Emphasis supplied].

31. After setting apart the land, the county council was allowed, subject to any law, to make grants or dispositions of any estate, interest or right in or over the land set apart to any person or authority for whose use the land was set apart. There is no evidence on record to show that before the 2005 as alleged by the appellants and before the declaration of Gatunga Adjudication Section, the appellants’ families had initiated the process of setting apart the suit property with the County Council of Tharaka.

32. By dint of Section 117(2) of the former Constitution, the effect of setting apart the suit property, even before issuance of the allotment letters or grants was to extinguish all customary law rights, interest or benefits over the suit property. No such allotment letters or grants were shown to have been issued to the appellants.

33. This then raises the fundamental question which the appellants must, and in our view have failed to answer: how could rights and interests which had been extinguished by operation of the law by dint of Section 117(2) of the former Constitution still be ascertained and recorded subsequently under the Land Adjudication Act? Once land has been set apart, it cannot subsequently be the subject to a process of adjudication as there are no longer rights and benefits to ascertain and record over that same land.

34. This Court in Flemish Investments Limited v Town Council of Mariakani (supra) stated as follows:“By dint of section 117(2) of the Constitution, once Plot No. 34 was set apart for public purposes, all the rights that the Katetei family or any other person had over that plot were immediately extinguished by operation of the Constitution. The effect thereafter was that neither the Katetei family nor any other person, could sell and transfer any rights over Plot No. 34…”

35. This conclusion puts to rest the appellants’ arguments on the application of the Land Adjudication Act to the suit property which had already been set apart before the declaration of the Adjudication section.It also settles the argument that the Land Adjudication Act, being a later statute, takes priority over the Trust Land Act (now repealed). A proper reading of the legal regimes under the two statutes, as applicable in this case, does not disclose any inconsistency that would require giving preference to the later statute. On the contrary, the two statutes show that once the process of setting apart land under the Trust Land Act (now repealed) is completed as it was in this case, the Land Adjudication Act has no application since by the operation of the law, there are no longer any rights over that land to ascertain and record.

36. The critical date for the purpose of this appeal is the date on which the suit property was set apart, which the 2nd respondent contends was in the year 1990 which was before the declaration of the Adjudication Section. Ultimately, we have come to the conclusion that this appeal has no merit and it is dismissed in its entirety. We make no order as to costs. It is so ordered.

DATED AND DELIVERED AT NYERI THIS 11TH DAY OF OCTOBER, 2024. W. KARANJA..........................JUDGE OF APPEALJAMILA MOHAMMED..........................JUDGE OF APPEALL. KIMARU..........................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR