[2023] KEELC 21309 (KLR)

Lekesike & another v Dahir & 3 others (Environment & Land Petition 011 of 2021) [2023] KEELC 21309 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEELC 21309 (KLR)

Republic of Kenya

In the Environment and Land Court at Isiolo

Environment & Land Petition 011 of 2021

PM Njoroge, J

November 6, 2023

Between

Fredrick Turesa Lekesike

1st Petitioner

Duba Galgalo Duba

2nd Petitioner

and

Iman Dahir

1st Respondent

The District Land Adjudication & Settlement Officer, Jirime Adjudication Section

2nd Respondent

The District Land Registrar, Isiolo

3rd Respondent

The Honourable Attorney General

4th Respondent

Judgment

1. This suit is a consolidation of two petitions: Meru Petition No.34 of 2015 and Meru Petition No. 35 of 2015. This consolidated Petition is Isiolo Petition No. 11 of 2022. In Meru Petition No. 34 of 2015, the Petitioner Duba Galgalo Duba had the following prayers;a.A declaration that the Petitioner is the bona fide legal owner of that Land Parcel known and/or described as Plot No. 1390 Jirime Adjudication Section and is entitled to be issued with a title deed for the same.b.An order directing the 2nd and 3rd Respondents to rectify the Register for records of existing rights, or the Register for Land Parcel No. 1390 Jirime Adjudication Section by deleting the name of the 1st Respondent there from and inserting the name of the petitioner therein and for cancellation of any title issued thereof and to issue a fresh title deed to the Petitioner.c.An order for permanent injunction to issue restraining the 1st respondent, by himself, his agents, servants and/or employees or whomsoever else acting on the Respondent’s behalf or instructions from entering into, fencing, invading, occupying, trespassing or moving into, cultivating or in any other manner whatsoever or howsoever dealing with or interfering with the Petitioner’s ownership, possession, occupation and user of Land Parcel No. 1390 Jirime Adjudication Section.d.Costs of these proceedings and interest thereof.e.Any other relief or remedy this Honourable Court may deem fit and just to grant.

2. In Meru Petition 35 of 2015, Fredrick Tureisa Lekesike had the following prayers;a.A declaration that the Petitioner is the bona fide legal owner of that Land Parcel known and/or described as Plot No. 1390 Jirime Adjudication Section and is entitled to be issued with a title deed for the same.b.An order directing the 2nd and 3rd Respondents to rectify the Register for records of existing rights, or the Register for Land Parcel No. 1390 Jirime Adjudication Section by deleting the name of the 1st Respondent there from and inserting the name of the petitioner therein and for cancellation of any title issued thereof and to issue a fresh title deed to the Petitioner.c.An order for permanent injunction to issue restraining the 1st respondent, by himself, his agents, servants and/or employees or whomsoever else acting on the Respondent’s behalf or instructions from entering into, fencing, invading, occupying, trespassing or moving into, cultivating or in any other manner whatsoever or howsoever dealing with or interfering with the Petitioner’s ownership, possession, occupation and user of Land Parcel No. 1390 Jirime Adjudication Section.d.Costs of these proceedings and interest thereof.e.Any other relief or remedy this Honourable Court may deem fit and just to grant.

3. I note that 2 scene visits were made. The 1st scene visit took place on 21/4/2017 and a report concerning that visit authored by one Kariuki Njuki, Executive Officer, Meru Law Courts, is dated 21/4/2017. However by a consent arrived at on 27/9/2017 and approved by the court the same day, the parties agreed to disregard the report of the 1st scene visit. It was agreed that the following issues be addressed by the 2nd scene visit;a.To ascertain whether Plot Nos. 1488 and 794 claimed by the Petitioner share the same ground position with plot No. 1390 being claimed by the 1st Respondent.b.To ascertain whether the measurements and size of plot No. 1390 is a consolidation of the two plots either all or partially.c.To ascertain from the initial area, map and the Survey, the original boundaries for each of the plots; if the ground position for the said plots and whether there is any reserved road or access path.d.To ascertain the original ownership on the ground position from the records and the Dlaso and determine from the Register of Rights how the plot numbers were registered, consolidated and their present status.e.To produce the initial registration records for the three plots as claimed by the parties and also the initial registration documents for the plot registered in the name of the 1st respondent.f.To ascertain whether any of the parties have a PDP for the ground in dispute and if so who and whether the same went through the proper legal process.g.The Petitioner to bear the costs for the scene for and on behalf of Court Officers.

4. The report of the 2nd scene visit signed by C.K Obara, Deputy Registrar; Meru High Court was Unequivocal that not much was achieved during the scene visit. The parties agreed to dispense with any other scene visits. The report however concluded that;a.Mr Gicheru Mutinda, the Land Adjudication Assistant for Mbadassa Adjudication Section never addressed any of the items of agenda pertinent to the scene visit.b.That he came with a map only showing Plot No. 1390. c.That he did not have any map or information with regard to Plot Numbers 1488 and 794. d.That the 2nd and 3rd respondents were uncooperative and that they had sent a representative who was not well versed with the matter.

5. Part of the Petitioners’ evidence had been heard orally as if the suit had been filed by way of a plaint. As the court directed that the petition eventually be heard by way of written submission and because none of the respondents had been heard orally, I deem that in the interest of justice, this evidence should be ignored. It would be eminently prejudicial to the respondents should this evidence be considered when they did not have an opportunity to tell their side of the story. For record purposes only, I note that on 25/7/2022, advocate Ouma who said that he was representing the Petitioners and advocates Ms Nyasani and Benjamin Kimathi, who represented the respondents agreed to the Petitioners’ proposal that the consolidated Petition be heard by way of written submissions.

6. I find that the primary issue for determination in this matter is if or if not the Petitioners in Meru Petitions 34 and 35 of 2015 which were consolidated to become this Petition have demonstrated that they deserve to be granted the prayers they seek.

7. I do note that the 1st Petitioner alleges that the 2nd and 4th Respondents have not opposed the consolidated Petition. There is nothing further from the truth. It is pellucid from filed pleadings and their submissions, that the 2nd, 3rd and 4th Respondents have vigorously opposed the consolidated Petition.

8. The 1st Petitioner, Fredrick Tureisa Lekesike, says that he had bought 2 plots from one Philip Amoni Aoyi in 1992 and from one Margaret Kilante Latana in 1993 and he had the 2 plots registered as one plot with Plot NO. 1488. He says that he is the bona fide owner of the Parcel of Land known as Plot No. 1390 Jirime Adjudication Section in Marsabit County which was formerly Plot No. 1488, Marsabit.

9. The 1st Petitioner says that the 2nd Petitioner purchased Land Parcel No. 794 from one Osman Roba in 1993, has been in ownership and possession and has been paying Land rates and rent to the County Government of Marsabit.

10. A conspectus of the 1st Petitioner’s case is that there was fraud perpetrated by the collusion of the 1st, 2nd and 3rd respondents which led to the suit land being registered in the name of the 1st respondent. He says that the title acquired by the 1st respondent should be cancelled on account of having been acquired fraudulently. He says that he had availed a copy of a map covering the suit property, copies of two separate sale agreements concerning the suit property, receipts of payments of transfer, registration and rates for the property and a copy of the Adjudication record. He asks the court to be guided by Section 26 (1) of the Land Registration Act, 2012 where cancellation of a title is allowed for having been acquired illegally, unprocedurally or through a corrupt scheme. He proffers the case of Mungu Maina Versus Hiram Gathiha Maina [2013] eKLR for his assertion that mere possession of a title does not suffice to conclusively prove ownership where the said title is under challenge.

11. The 1st Petitioner says that his petition has been brought to court under Article 22, 23 and 40 of the Constitution of Kenya, 2010. He says that Article 22 empowers anyone to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed upon or is threatened. He says that Article 22 gives courts, including the ELC, authority to uphold and enforce the Bill of Rights. He also says that Article 40 guarantees protection of property rights.

12. The 1st Petitioner asks the court to allow the petition and grant him the costs of the suit.

13. The 2nd Petitioner Duba Galgallo Duba says that he is challenging the Constitutionality of the decision of the Respondents in respect to the illegal, unlawful and fraudulent acquisition of property being land Parcel No. 794 Jirime Adjudication Section which was illegally consolidated to form Land Parcelno.1380 Jirime Adjudication Scheme and given to the 1st Respondent.The 2nd Petitioner says that the particulars of the fraud perpetrated by the respondents are contained in paragraph 9 of his Petition. He says that he purchased the suit property from one Ali Osman Roba in the year 1993 and has adduced the transfer instrument and Land Rent and rates receipts for the period 1993 to 2015. He avers that this demonstrates his ownership of the suit property.

14. The 2nd respondent avers that this court has the mandate donated by Article 162 (2) (b) of the Constitution of Kenya, 2010 and Sections 4 and 13 of the Environment and Land Court Act. He says that this provisions are in consonance with the decision of the Supreme Court of Kenya in Samuel Kamau Macharia & Another Versus Kenya Commercial Bank & 3 Others, SPK Application No. 2 of 2014 which opined that;-“A court’s Jurisdiction flows from either the Constitution or Legislation or both”.

15. The 2nd Petitioner says that he has demonstrated his ownership of the suit property and specifically claims reliance upon a letter dated 16th February, 2016 from the Marsabit County Government which confirmed that Plot No. 794 belonged to him and all rates thereof had been cleared up to 31st December, 2016. He asks the court to protect his constitutional rights to property as decreed by Article 40 of the Constitution of Kenya, 2010. He asserts that the 2nd and 3rd Respondents conduct in consolidating the Petitioners’ Parcel numbers 1488 and 794 Jirime Adjudication Section belonging to the 1st and 2nd Respondents respectively was in total disregard of the Constitutional dictates of Article 40 of the Constitution of Kenya, 2010. He asks this court to find that the Petitioners’ have proofed their case on a balance of probability and to grant the prayers sought in the Consolidation Petition.

16. The 1st Respondent opposes the 2 Petitions. He says that though the Land Adjudication process started in 1994, it is only on 14th July, 1995 that the Petitioners wrote to the Land Registrar Isiolo/Marsabit Counties claiming ownership of Plot No. 1390 Jirime Adjudication Section long after the Adjudication process had commenced. He says that the Petitioners had alleged that Plot No. 1390 Jirime Adjudication Section had been owned by three families for over 20 years. He observes that curiously only two Petitioners are in court instead of three as per their initial allegation. He says that the 1st Petitioner alleged that his Plot No. 1488 Marsabit was consolidated with an unnamed plot to make Plot No. 1390 Jirime Adjudication Section. The 1st respondent submits that there is no land known as 1390 Jirime Adjudication Section. Indeed, the title issued to the 1st Respondent’s father shows that the Parcel of land reads as MARSABIT/JIRME/1390.

17. The 1st Respondent says that the Petitioners have not demonstrated at what stage the respondents colluded to give the suit land to him. He says that Plot No. 794 which the Petitioners claim was consolidated with his land is registered under the name of one/Ibrahim Jaldesa Tacho, who is not a party in this suit. He says that Plot No. 794 does not belong to any of the two Petitioners.

18. The 1st Respondent contends that the consolidated Petition fails the test of specificity as enunciated in the case of Anarita Karimi Versus Republic (No 1) (1979) LKLR 154. He buttresses this assertion by proffering the case of Buruburu Farmers Company Limited Versus Vincent Paul Omondi Obonyo & 4 Others [2021] eKLR where the court opine: “Be that as it may, it is common ground that Constitutional Petitions ought to be pleaded with the requisite particularity and specificity whereby the Petitioner supplies and/or avails to court concise and precise particulars of how the rights have been violated and/or infringed upon. In this regard, the rules of pleadings as far as constitutional Petitions are concerned do not admit of general allegations and/or ambiguous pleading.…...” He submits that for this deficiency alone, the Consolidated Petition ought to be dismissed.

19. Regarding the Petitioners allegation of fraud and collusion the 1st Respondent opines that these are not matters that can properly be canvassed in a Constitutional Petition. To support this assertion, the 1st Respondent proffers the case of Isaac Makoha Okere Versus Mumias Outgrowers Sacco Society Limited & 9 Others [2021] eKLR where the court opined as follows:“ The Petitioners allegation of fraud and collusion as well as prayers for cancellation of title and removal of structures on the land are matters that can be addressed in an ordinary suit under Section 26of the Land Registration Act which makes provisions on the requirements for nullification of a certificate of title…….Additionally, it must be remembered that a Constitutional Petition is usually heard through affidavit evidence and Written submissions, a procedure which is not appropriate to deal with allegations of fraud”

20. The 1st Respondent submits that the Petitioners have not provided even an Iota of evidence to prove the allegation of fraud and collusion between the 1st, 2nd and 3rd respondents. To buttress this assertion the 1st Respondent proffers the case of Kuria Kamau & 2 Others Versus Sammy Magera [2018] eklr , which cited the earlier decision in Kinyanjui Kamau Versus George Kamau [2015] eKLR where it was stated as follows:“ It is trite law that any allegation of fraud must be pleaded and strictly proved. See Ndolo Versus Ndolo (2008) IKLR (GKF) 742 wherein the court stated that “We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher that that required in ordinary Civil Case, namely proof upon a balance of probabilities: but the burden of proof on the respondent was not certainly one beyond a reasonable doubt as in Criminal Cases”…….In cases where fraud is alleged, it is not enough to simply infer fraud from the facts”

21. The 1st Respondent submits that the adjudication process is a lengthy and thorough one and commences with appointment of a committee whose members are well Versed with land issues in a particular land area and on completion of demarcation an adjudication register is compiled and published after which the adjudication officer convenes a Baraza where the register is displayed and land owners are given an opportunity to file objections.

22. The 1st Respondent says that the Petitioners have not demonstrated that they participated in the adjudication process, and if they did so, they did not take advantage of the remedies statutorily provided to prosecute their claims to ownership of the suit land. He also says that the Petitioners have dismally failed to prove that Parcel No. 1488 and an unnamed plot were one with his Parcel No. Marsabit/Jirme/1390.

23. The 1st Respondent takes issue with the claim that the Petitioners paid land rates for the suit land. He says that they showed no receipts regarding payment for Parcel No. Marsabit/Jirme/1390. In any case, he submits that Land Parcel No. Marsabit/Jirme/1390 being freehold land did not require payments of rent and rates to the County Government. He says that both Petitioners have not proved to the required standard that they are the bona fide owners of the suit land.

24. The 1st Respondent concludes that the Petitioners have not established that Plots Numbers 794 and 1488 share the same ground with Parcel No. Marsabit/Jirme/1390. The 1st respondent says that the petitioners have not proved their cases. They also say that since the Petitioners had not exhausted available local remedies, they fully associate themselves with the submissions made by the 2nd, 3rd and 4th Respondents with regard to the doctrines of non-exhaustion.

25. The 2nd, 3rd and 4th Respondents submissions are in many respects congruent and in consonance with the 1st respondent’s submissions. They say that the land adjudication process strictly followed statutory law and submit that where procedures are provided by an Act of Parliament; those procedures must be exhausted before a litigant moves to court. They buttress this assertion by proffering the case of Samson Chombe Vuko Versus Nelson Kilumo & 2 Others [2016] eKLR where the court of Appeal cited with approval the decision in Speaker of the National Assembly Versus Karome [2008] iKLR 423 where the court of Appeal held inter alia.“Where there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or the Act of Parliament, that Procedure should be strictly followed”

26. The 2nd, 3rd and 5th Respondents said that a court of law should not usurp the role of the Land Adjudication Officer. They referred this court to the case of Tobias Achola Osindi & 13 Others Versus Cyprian Otieno Ogato & 6 Others [2013] eKLR where the court held as follows;“The whole process leading up to registration of land as aforesaid is undertaken by the Adjudication officer together with other officers appointed under the Act for the purpose. It follows from the foregoing that once an area has been declared an adjudication area under the Act the ascertainment and determination of rights and interests in land within the area is reserved by the law for the officers and quasi Judicial bodies set up under the Act… The Act has given full power and authority to the Land Adjudication Officer to ascertain and determine interests in land in an adjudication area prior to the registration of such interests.”They further submit that Section 26 of the Land Consolidation Act provides that no appeal shall lie against any decision by the Adjudication Officer to dismiss an objection or order of rectification or to award compensation in lieu of rectification as the case may be BUT the Minister or any dissatisfied person may apply to a subordinate court held by a Magistrate for its revision in such manner as may be prescribed. The 2nd, 3rd and 4th Respondents have proffered the Court of Appeal Case of Gregory Muthinya Kabiru & 2 Others Versus Samuel Muuga Henry & 1738 other [2015] eKLR where the court said:“It is imperative that where a dispute resolution mechanism exists outside courts, the same has to be exhausted before the jurisdiction of the courts is involved”.

27. The 2nd, 3rd and 4th Respondents submit that the Petitioners have not exhausted available remedies as stipulated by statute law; they have not come to this court with clean hands. They rely on the case of Kyangaro Versus Kenya Commercial Bank Ltd & Another [2004] eKLR as was quoted in the case of Patrick Waweru Mwangi & Another Versus Housing Finance Co. of Kenya Ltd [2013] eKLR where the court stated:“ He that comes to equity must come with clean hands and must do equity”

28. The 2nd, 3rd and 4th Respondents submit that in arriving at their decision to have the suit land registered in the name of the 1st Respondent, reliance was had to the law and especially Sections 26 and 27 of the Land Consolidation Act. They also submit that the orders sought in the Consolidated Petition are not grantable as this court cannot arrogate unto itself the powers of the Land Adjudication Committee and the powers of the Land Adjudication Officers. To support this assertion they proffer the case of Bernard Njagi Versus Wilson Miriti Thaara [2021] eKLR where the court said:“The court cannot usurp the powers of land adjudication committee and the land adjudication officer. The court can only play a supervisory role to ensure that the process is carried out within the law. The court can only interpret and determine any point or issue of law that may arise in the course of the adjudication process”.

29. They further submit that a court of law is not mandated to substitute its own decision for that of the Adjudication Officer as was held in Suchan Investment Limited versus Ministry of National Heritage & culture & 3 Others [2016] eKLR and said that the court can only remit the matter to the Land Adjudication and settlement officer for re-hearing and re-determination in accordance with the law or the Petitioners to seek rectification of the title under the Land Registration Act.

30. The 2nd, 3rd and 4th Respondents submit that as the Petitioners filed this consolidated before exhausting all available remedies, this court lacks jurisdiction to hear the matter and for that reason the suit should be dismissed and costs be awarded to the 2nd, 3rd and 4th Respondents.Outrightly, I dismiss the submission that this court lacks jurisdiction to hear and determine this matter. I unequivocally state that this court has jurisdiction to determine all environment and land matters. It is not for the 2nd, 3rd and 4th respondents to usurp the role of courts to interpret law and to determine legal issues which are in dispute.

31. Meru Petitions 34 and 35 have primarily been predicated on allegations of fraud and collusion between the 1st, 2nd and 3rd respondents. This being the case, I do agree with observations in the case of Isaac Makoha Okere Versus Mumias Outgrowers Sacco Limited & 9 Others [2021] eKLR that prayers based on fraud and collusion are best addressed in an ordinary suit other than in a Constitutional Petition. This is because Constitutional Petitions are usually heard through affidavit evidence and submissions which is a procedure not appropriate to deal with allegations of fraud and collusion. Nevertheless, I have carefully considered the pleadings and the submissions proffered by the parties to buttress their diametrically incongruent assertions. On a balance of probabilities I find that the petitioners having proffered allegations, they have not proved fraud and collusion by the 1st, 2nd and 3rd respondents. Fraud and collusion must be proved through cogent evidence. Mere allegation, however grave, cannot suffice.

32. I do find that the Petitioners have conflated allocation of plots by the defunct county councils such as the defunct county council of Marsabit and ascertainment of rights and interests in land under Land adjudication processes. The two cannot go hand in hand. This conflation of the two processes materially dents the Petitioners Claims.

33. I do agree with the respondents that the Petitioners have not demonstrated if or if not they participated in the adjudication process. Litigants cannot ascertain land rights and interests for themselves autonomously. An adjudication process must be followed. It is only after participating in an adjudication process or after being denied participation thereof that litigants would be able to challenge the legal integrity of such a process. Parties cannot declare themselves owners of land. It is generally accepted that almost all Kenyans are interested in owning land. If people were allowed to self declare themselves owners of land, this would spawn veritable chaos. It would be akin to allowing warlike tribes, clans or individuals to lay claims to land. This would even culminate in unnecessary bloodshed. Hence the need for legislation of a statutory process to regulate ascertainment of rights and interests in land. In Kenya, this regulation is through strict adherence to laid down statutory rules laid down in the Land Adjudication Act and the Land Consolidation Act.

34. Even when disputed land is allocated by local authorities/Local governments there has always been a laid down procedure. In this case, the Petitioners do not demonstrate the procedure they used to be declared owners of the plots they say were consolidated and given to the 1st respondent.The letter dated 16th February, 2016 written by the County Government of Marsabit addressed “To Whom It May Concern” and hence to no one, does not indicate how Plot No. 794 came to be owned by Galgallo Duba Galgallo who is presumably the 2nd Petitioner who in the petition is referred to as Duba Galgallo Duba. Indeed the petitioners have not shown how a Plot allocated to the 2nd Petitioner presumably by the defunct County Council of Marsabit, the predecessor to the Marsabit County Government, came to be part of the adjudication process which is governed by adjudication laws and not by local authorities/local government laws. This conflation of the two processes materially weakens the Petitioners’ case.

35. After careful considerations of the pleadings and submissions made by the parties, I agree that the consolidated petition does not satisfy the requirement for particularity and specificity necessary for a successful prosecution of Constitutional Petitions. What I can only discern are only general allegations which are not tied to specific infractions of constitutional rights.

36. I do find that the petitioners did not exhaust the remedies provided by statutory law. Indeed, I find that they did not even attempt to employ local remedies which were available to them.

37. I do find that one of the plots the Petitioners claimed to belong to the second Petitioner, being Plot No. 794, has got a title and is registered in the name of Ibrahim Jaldesa Tacho who is not a party in this Consolidated Petition and who, I think conveniently, the Petitioners have refused and or failed to mention in their pleadings and submissions.

38. I do unequivocally find that there was no unconstitutionally in the Adjudication process that led to the 2nd and 3rd respondents having the suit land registered in the name of the 1st respondent.

39. Consequently and in the circumstances, I issue the following orders:a.This Consolidated Petition consisting of former Meru Petitions No. 34 and 35 is hereby dismissed.b.Costs shall follow the event and are awarded to the respondents against the Petitioners jointly and severally.

DELIVERED IN OPEN COURT AT ISIOLO THIS 6TH DAY OF NOVEMBER, 2023. HON. JUSTICE P.M NJOROGEJUDGE