[2018] KEELC 2128 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC PETITION NO. 2 OF 2017

IN THE MATTER OF THE ALLEGED DENIAL, INFRINGMENT OF AND THREAT TO RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLE 22, 23, 40 AND 50 OF THE CONSTITUTION

AND

IN THE MATTER OF THE RULES 10 (1), 11 (1) AND 13 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURE 2013

AND

IN THE MATTER OF THE LAND DISPUTES ACT NO. 18 OF 1990

AND

IN THE MATTER OF LAND PARCEL NO. S/KABRAS/SAMITSI/99

BETWEEN

KITTS MBATI JOHN MUKONYOLE...................................PETITIONER

VERSUS

THE ATTORNEY GENERAL.........................................1ST RESPONDENT

THE CHIEF MAGISTRATE, KAKAMEGA.................2ND RESPONDENT

LEVI NDOMBI MUKONYOLE...................................3RD RESPONDENT

JUDGEMENT

The petition is briefly that, the petitioner is the registered owner of land parcel No. S/KABRAS/SAMITSI/99. He was registered owner through transmission vide Succession Cause No. 242 of 1987 at Kakamega High Court.On 14th October, 1997 the tribunal made a ruling in favour of the 3rd respondent.The ruling was signed by the chair of the tribunal alone contrary to the provisions of Act No. 18 of 1990. That apart from the fact that the ruling was irregular the tribunal did not have jurisdiction to award the 3rd respondent one acre of land from his parcel of land. That the 3rd respondent then caused to be opened Misc. Application No. 133 of 1997 for purposes of adopting the aforesaid ruling. That the aforesaid ruling/decision has not been adopted to date but may be adopted in due course. That the District Tribunal exceeded its powers in awarding the 3rd respondent one acre comprised in Land parcel No. S/Kabras/Samitsi/99 as it had no power to make orders affecting the petitioner’s title.The award having been made without jurisdiction right to own property under Article 40 has been violated. The petitioner humbly prays for:-

(a) An order of certiorari to bring into this court and quash the award dated 14th November, 1997 for being irregular and made without jurisdiction.

(b) An order of prohibition prohibiting the 2nd respondent from adopting the award dated 14th November, 1997.

(c) Costs of the petition to the petitioner.

The petitioner submitted as follows;

Article 2 of the Constitution of Kenya (2010) provides for the supremacy of the constitution and specifically Article 2 (1) and (2) provides.

“(1) This Constitution is the supreme law of the Republic and binds all persons and all state organs at both levels of government.

(2)No person may claim or exercise state authority except as authorized under this constitution. ”

Article 40 of the Constitution provides for protection of right to property and specifically Article 40 (3) provides:

“The state shall not deprive a person of property of any description or of any interest in or right over, property of any description unless the deprivation,

a) Results from an acquisition of land or an interest in land or a conversion of an interest in land, or tide to land, in accordance with chapter five.

or,

b) Is for a public purpose or in the public interest and is carried out in accordance with this constitution and any act of parliament that-

i. Requires prompt payment in full of just compensation to the person/ and,

ii. allows any person who has an interest in or right over, that property a right of access to a court of law."

Article 23 of the Constitution grants this honourable court authority to uphold and enforce the Bill of Rights and precisely Article 23(1) provides:

"The High Court has jurisdiction in accordance with Article 165 to hear and determine applications for redress of a denial violation or infringement of or threat to a right of fundamental freedom in the Bill of Rights;

Article 165 of the Constitution establishes this High Court coloring it with authority to hear violations of the Bill of Rights thus;

Article 165 (3) (b) provides:

“(a) Subject to clause (5) the high court shall have-

(b) Jurisdiction to determine the question whether a right or fundamental freedom in the bill of Rights has been denied violated, infringed or threatened. ”

Article 165 (5) (b) on the other hand provides:

“The High Court shall not have jurisdiction in respect of matters.

“(b) falling within the jurisdiction of the courts contemplated in Article 162 (2)

Article 162 (2) (b) establishes this court and Article 162 provides:

“The superior courts are the Supreme Court, the court of appeal, the High Court and the courts referred to in clause (2)”

162 (2) (b) provides;

“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to;'

(b) The environment and the use and occupation of and title to land”

This Honourable Court is therefore sanctioned with authority as sanctioned by the constitution to hear and determine question relating to the bill of rights touching on land and environment.

The Land Disputes Tribunal Act Cap 303 A (now repealed) established the Land Disputes Tribunal. Section 3 of the Act limited the jurisdiction of the Tribunal as follows;

“3 (1) subject to thus act, all cases of a civil nature involving a dispute as to;'

(a) The division of or determination of boundaries to land including land held in common;

(b) a claim to occupy or work land; or

(c) trespass to land,shall be heard and determined by a tribunal established under Section 4.

By the reading of section 3 (1) of the Land Disputes Tribunal Act, the tribunal is not authorized to determine issues of title and ownership to land, neither did it have jurisdiction to cancel a title and/or subdivide a parcel of land.

The respondent in his reply to the petition dated 18th January 2016 stated that the verdict of Malava Disputes Tribunal was in his favour which the petitioner herein was dissatisfied and appealed to the Western Provincial Land Disputes Tribunal. The latter overturned the Malava tribunal decision and the respondent lodged an appeal and application for stay in Kakamega HCC No 31 of 1998 and Kakamega CMCC No 133 of 1997. The petitioner made an application to review the judgement as he was dissatisfied and the same was dismissed with costs by Justice G.B.M Kariuki on the 15th May 2006. The petitioner being dissatisfied appealed to the court of appeal in Kisumu in CA No 16 of 2007 and the same was dismissed. This matter is therefore res judicata.

This court has carefully considered the petition and the submissions therein. The Petitioner petitioned this honourable court through the Petition dated 14th December 2015. The Petitioner contends that the ruling and decision of the claim of the Land Dispute Tribunal sitting at Malava on 14th October 1997 Dispute Tribunal, Dispute Cause no. 11 of 1997 abridged his constitutional right to own property as sanctioned by Article 40 of the Constitution of Kenya (2010).The Petitioners right to own property was violated on the basis that the decision of the tribunal was ultra vires its jurisdiction and therefore without any statutory and/or constitutional basis. The first issue to be determined in my opinion is whether this matter is res judicata.

Section 7 of the Civil Procedure Act Cap 21 provides as follows:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

The respondent stated that the verdict of Malava Disputes Tribunal was in his favour which the petitioner herein was dissatisfied and appealed to the Western Provincial Land Disputes Tribunal. The latter overturned the Malava tribunal decision and the respondent lodged an appeal and application for stay in Kakamega HCC No 31 of 1998 and Kakamega CMCC No 133 of 1997. The petitioner made an application to review the judgement as he was dissatisfied and the same was dismissed with costs by Justice G.B.M Kariuki on the 15th May 2006. The petitioner being dissatisfied appealed to the court of appeal in Kisumu in Civil Appeal No 16 of 2007 and the same was dismissed. This matter is therefore res judicata. All these decisions mentioned above have been annexed to the replying affidavit. I find that this matter is res judicata in view of the said Kakamega HCC No 31 of 1998 and Kisumu Civil Appeal No 16 of 2007 which has been decided. The doctrine of res-judicata requires that there should be an end to litigation where a court of competent jurisdiction has rendered a conclusive decision. I find the preliminary objection has merit and I strike out this suit with costs to the 3rd Respondent.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 25TH DAY OF JULY 2018.

N.A. MATHEKA

JUDGE