[2017] KEHC 2498 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENAY AT NAIROBI

MISC. APPLICATION NO.690 of 1997

IN THE MATTER OF THE APPLICATION BY LEPAPA OLE KISOTU FOR ORDERS OF CERTIORARI

NTULELE GROUP RANCH................................1ST RESPONDENT

DISTRICT COMMISSIONER, NAROK..............2ND RESPONDENT

AND

IN THE MATTER OF AN APPLICATION BY LEPAPA OLE KISOTU FOR THE ENFORCEMENT OF THE ORDERS MADE ON THE 2. 7.1998 AND SUBSEQUENT ORDERS

1. SANKALE OLE KISOTU

2. SALAU OLE KILUSU

3. SALASH OLE MATINDA SILAU

4. KOSIOM OLOISONGA KISOTU

5. KAPALE OLE SIMIREN

6. OLNGASHAR OLE PUNYUA

7. KIPAYIAN OLE SHONKO

8. NTARI OLE SHONKO

9. KONTEA OLE KILUSU

10. PARSAPIYO OLE KILUSU............... INTERESTED PARTIES

RULING

Introduction

1. By a Notice of Motion dated 25th April, 2012 the applicant herein, Lepapa Ole Kisotu,seeks the following orders:

1. THAT this matter be certified urgent and heard ex-parte in the first instance.

2. THAT as ordered severally by the Honourable Court, the District Land Adjudication and Settlement Officer, Narok be and is hereby ordered do proceed and adjudicate on Lepapa Ole Kisotu land with the aid of the District Surveyor, Narok North District and the chairman of the Ntulele Group Ranch and Survey out the Applicants Plot No.1 Ntulele Group Ranch Parcel No.259 Oltepesi Ntulele Adjudication section measuring 612 acres of the area known as Oltepesi section. The same be done within thirty (30) days of the orders.

3. THAT in default or compliance with the above order as ordered, the Deputy Registrar, High Court of Kenya, Nairobi Law Courts be and is hereby ordered to execute the conveyance and/or transfer of the 612 acres of plot No.1 Ntulele Group Rnach parcel No.259 Oltepesi Ntulele Adjudication section and the Director of Land Adjudiction and Settlement, Ministry of Lands, Nairobi do act on the said conveyance/transfer, register the same and issue the applicant with a title deed for the 612 acres of Plot No.1 Ntulele Group Ranch in an area known as Oltepesi section.

4. THAT upon the adjudication, surveying out and registration of the applicant parcel of the land in terms of prayer 2 and 3 above, the persons residing thereon having been declared trespassers and to be evicted in the orders of the 12th day of May 1999 are hereby in reiterating the said orders declared trespassers and orders of eviction do issue accordingly to be executed by the court bailiffs and the OCPD Narok Police Division do provide the security to oversee the peace and security during the eviction

5. THAT all parties do observe law and order.

6. The costs of this application be in the cause.

2. After hearing the parties, this Court on 3rd June, 2014 expressed itself as hereunder:

“As clearly recognised by the applicant, the prayers sought in this application have been substantially granted in the past. The only problem has been the implementation of the orders already granted. In my view once the Court grants orders, the implementation thereof ought not to be by way of seeking the same orders. Our procedural and substantive law provides for execution of orders already granted and as already held hereinabove once the orders are granted unless for the limited jurisdiction of review, the court becomes functus officio in the matter…Since the other orders sought were consequential to the grant of prayer 2 herein which the applicant recognised had substantially been granted severally in the past, the prayers sought herein are totally unnecessary. It is therefore my view that this application was rendered unnecessary in light of the orders previously granted herein.”

3. Subsequently contempt of Court proceedings were commenced against the Respondent. After considering the subject matter of dispute herein, the Court o 18th May, 2016 pursuant to Article 159(2)(c) of the Constitution advice the parties to approach the Commission on Administrative Justice, otherwise also known as the Ombudsman, to consider arbitrating over the issue. It was later confirmed that the office of the said Ombudsman had agreed to undertake the said arbitration.

4. After quite some lengthy period of time, on 1st March, 2017 a report dated the same day was filed in this Court authored by the said office.

5. The facts of this case are largely not in dispute. According to the Applicant, on or about the 9th day of September, 1997 he lodged a Judicial Proceedings application in court for the orders of certiorari to quash a decision and order of the District Commissioner, Narok made on the 13th day of March, 1997 in land Appeal No. 240/88 wherein he had been ordered to vacate the land surrounding his homestead and disentitled to the development carried out thereon in which he claimed plot No. 259 Oltepesi/Ntulele adjudication section.

6. On the 2nd July, 1998 the Court quashed a decision the said decision and ordered that the status quo maintained including non-interference with the applicant’s land. Thereafter on or about the 12th day of May, 1999 the court ordered the members of the Ntulele Group Ranch who were still interfering with the applicant’s land by being on it be declared trespassers thereon be evicted. On or about the 29th day of May, 2003, the Applicant took out a Notice to show cause for the District Land Adjudication and Settlement Officer, Narok District to attend court and produce the Map relating to the Plot No.1 Ntulele Group Ranch whose acreage is 612 acres known as Oltepesi section and on the 31st day of July, 2003 upon hearing the Applicant‘s application the court directed that the land adjudication officer do adjudicate Applicant’s land with the aid of the District Surveyor and the Chairman, Ntulele Group Ranch. Further to that on or about 16th day of November, 2005 the Court ordered that the land dispute be surveyed and demarcated according to the survey.

7. In his report the Ombudsman made the following findings:

(1) That in related matters orders had been sought and granted were somewhat contradicting thus making it difficult for the public servants and in particular the Adjudication Officers and the Land surveyors to implement them. Whereas in some instances the Court has ordered the land adjudication officer to adjudicate on the Applicants land with the aid of the District Surveyor in others the adjudication has been stopped leading to a lot of confusion.

(2) Those said case did not necessarily have the same parties hence whatever orders are granted in one case may affect the interests of some parties that are not before that Court.

(3) The subject matter in question concerns the rights of over 2000 people who have a direct interest in the land as a whole. Some of them are now deceased but their offspring’s reside on the land. This raised the issue of fairness of a decision that would be arrived at without involving all the interested parties.

(4) The acreage being claimed by the Applicant of 612 acres is for the most part occupied by other people.

(5) It was not clear how the acreage of 612 acres claimed by the applicant was determined.

(6) It was therefore the opinion of the Ombudsman that this matter goes beyond the Courts considering the various competing interests in the suit land which posed challenges to the implementation of the order of this Court and which challenges cannot be resolved in a litigation process nor an arbitration process where there exists Court Orders that seem to have determined some of those questions and the respective parties are not willing to shift from the positions expressed by such Orders.

8. The Ombudsman’s proposal was therefore that this matter can be settled by there being a fresh allocation process to determine the land due to each original member. This would involve all members, the relevant authorities from government including the Land Adjudication and Settlement departments and the survey departments. After the determinations the subdivision would ensue and title documents issued. The starting point should be the allocations done by the committee members in the late eighties since three of the original committee members are still alive. This would permanently resolve the matters in question.

9. In its view:

(a) The Officials of the group ranch or the committee (whichever is applicable) together with all the members in the presence of the County Land Adjudication Officers and the County Land Surveyors do determine the acreage due to each and every member taking into cognisance the present actual possession of each member, the developments made by each member and the allocation done hitherto.

(b) Maps be prepared of the entire area that would be used for eventual subdivision.

(c) The interests in above exercise be recorded and form the basis upon which absolute ownership is to be ascertained.

(d) Any person who will be aggrieved with any decision, be at liberty to Appeal following procedures laid out in the relevant laws.

(e) Any previous purported adjudication or subdivision be set aside and the relevant government agencies be ordered to effect the same.

(f) Upon conclusion of the said exercise each member be given individual titles to their portion.

(g) The above exercise be conducted in the presence of the relevant government departments and a report of the same filed in court. In the meantime, all suits concerning the said matters be consolidated and stayed.

2nd and 3rd Respondents’ position

10. It was the position of the 2nd and 3rd Respondents as expounded by their learned counsel, Mr Sankale, that since the said report amounted to an award it should be adopted as an order of this Court since in their view, recommendations granted by the Commission on administration of justice is fair and just to all the parties. In so doing the Court was urged to consider that consider that Justice delayed is Justice denied and that wording of the report filed by the commission of Administrative Justice should not hinder justice being achieved and attained by this court. In their view, it is important to consider that it was agreed by all parties herein that arbitration would be adopted as the mode of dispute resolution as ordered by the Court and of which parties were directed to the Commission. The process and procedure taken by all parties before the Commission amounts to an arbitration process that cannot then be dismissed on technicalities.

11. Their position was therefore that it is for the interest of justice that the report filed by the Commission is adopted by this court as an award for the interest of justice being done and justice being brought to an end.

Applicant’s Case

12. This position was however not shared by the applicant. Through his learned counsel Mr. Arusei, the applicant took the view that the glance at the Commission of Administrative Justice report on the court mandated alternative dispute resolution showed quite clearly that they were making recommendations some of them well-wishing or well-meaning but did not make an award of any kind. They equally did not make a determination. As a matter of fact they did not even build on the judgement or crystallised rights on record but in sweeping recommendation brushed aside the judgement in favour of the applicant which had not been set aside or upset on appeal.

13. It was the applicant’s case that the said far reaching recommendations on a glance requires good will and co-operation even by parties not before the court and in a sense was to open a “Pandora box” to all manner of claims real or imagined and in a sense to reverse the clock to the year 1970 when this litigation began. It was therefore contended that the said findings and recommendations contained in the report of the Commission on Administrative Justice do not conform with what can be or what is described as an award in law. In this respect the applicant referred to the definition of an Award in the Black’s Law Dictionarydefines an award as the decision or determination rendered by arbitrators or commissioners, or other private or extrajudicial deciders, upon a controversy submitted to them ; also the writing or document embodying such decision. He also referred to an online website of uslegal.com that an arbitral award or arbitration award refers to a decision made by an arbitration tribunal in an arbitration proceeding and is analogous to a judgment in a court of law. Similarly the Arbitration Act defines an award as Arbitral award “means any award of an arbitral tribunal and includes an interim arbitral award.”

14. The said submissions were further based on Mustill and Boydin their book, “Commercial Arbitration, 2nd Editionthat;

“…An award will be entirely void if the parties never made a binding arbitration agreement; if the matters in dispute fell outside the scope of the agreement; if the arbitrator was not validly appointed, or lacked the necessary qualifications; or if the whole of the relief granted lay outside the powers of the arbitrator. The award will be partially void if the relief granted related to a matter which was not referred or if for some other reason it was outside the jurisdiction of the arbitrator. In all these situations, the primary active remedy is for the Court to declare that the award is void, in whole or in part…”

15. In his submissions under section 27 of the Arbitration Act an award was one that leave can be granted by the Court and entered as judgement in terms of the award together with the costs of the application. He therefore submitted that the term award is one that is a final decision made by the arbitration commission which is intended to be binding and cannot be appealed against to the High Court or to the court of Appeal (however the appeal is subject to section 35 of the Arbitration Act) and made references to Anne Mumbi Hinga–vs- Victoria Njoki Gathaara [2009] eKLR where Court of Appeal stated-

“…we therefore reiterate that there is no right for any Court to intervene in the arbitral process or in the award except in the situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties and similarly there is no right of Appeal to the High Court or the Court of Appeal against an award except in the circumstances set out in Section 39 of the Arbitration Act…We are concerned that contrary to the broad principles of finality of arbitral awards as set out in the Arbitration Act the Superior Court all the same entertained incompetent Applications which have in turn resulted in the 10 years delay in the enforcement of the award…”

16. In this case it was contended that since what the Ombudsman did was just to deliver recommendations and give its considered views and failed to exactly deliver a decision that would otherwise solve the issues that had had been tabled by the parties, the same did not amount to an award since the Commission on Administrative Justice report showed that the mode of ADR preferable was arbitration as ordered by the court and moderated with mediation, conciliation, negotiations where appropriate inconsideration of Article 252(1)(b) of the Constitution, so that plainly the recommendation and considered views did not arise out of an arbitration per se but from an hybrid system encompassing arbitration, mediation, conciliation and negotiation.

17. It was therefore prayed that the Commission on Administrative Justice’s report above be declared to be no award for any purpose in law and thereby refused or declined leave in terms of the provisions of section 27 of the Arbitration Act Cap. 49 Laws of Kenya.

Determination

18. I have considered the foregoing.

19. In its report, the Ombudsman clearly stated that although it was agreed that Arbitration would be adopted as the mode of dispute resolution as ordered by the Court, considering the nature of the dispute it would be flexible and moderated with mediation, conciliation and negotiation where appropriate in consideration of the provisions of Article 252(1)(b) of the Constitution which vests the Commission with powers to conduct conciliation, mediation and negotiation. It is therefore clear that the mode of dispute resolution was not purely arbitral but was combination of all the three modes of dispute resolution mechanisms. However there was nothing wrong with that since this Court did not direct the Ombudsman to resolve the matter by way of arbitration but directed him to consider arbitrating over the issue.

20. It is clear that the Ombudsman was unable within the legal framework it was operating to resolve the dispute through any of the aforesaid dispute resolution mechanisms it resorted to. It is therefore my view that having applied all the three dispute resolution mechanisms, it cannot give rise to an award. The best it could give rise to was a consent order. However in the absence concurrence of the parties, the product of such a process was neither an award nor a consent.

21. According to Alternative Dispute Resolution in Northern Carolina, Edited by Jacqueline R. Clare page 6 “arbitration” is described as follows:

“…like litigation, a form of adjudication. The parties submit evidence and arguments to a third-party neutral, the arbitrator, who decides the dispute and makes an award. As in trial, arbitration is usually a win-or-lose process, though the arbitrator’s award can have the incidental effect of facilitating a settlement.”[Emphasis mine].

22. At page 132 it is stated:

“Arbitration hearings are scheduled by the court and are held in a courtroom (if available) or in any other public room suitable for conducting judicial proceedings. The hearings are open to the public. The witnesses can be called, but their testimony is usually kept brief. The arbitrator is empowered and authorised to administer oaths and affirmations in arbitration hearings…Hearings are to be conducted with decorum, but are more informal than a trial in the sense that the Rules of evidence apply only as a guideline.”[Emphasis mine].

23. Mediation, on the other hand is described in the said work at page 5 as:

“a structured negotiation conducted with the assistance of a third-party neutral, the mediator. Unlike a judge, a mediator never has decision-making power, his or her role being to help the parties arrive at their own resolution of their differences. Mediation is typically consensual and confidential. It can be used to resolve past disputes or to come to agreement on the terms of a future relationship or interaction…The mediation process usually consists of a combination of joint sessions and private caucuses. In joint sessions, the parties and their attorneys present and exchange information and proposals with the assistance of the mediator. In private caucuses the mediator confers with each side individually to elicit information and proposals. In both processes the mediator’s objective is to help the parties move toward agreement.”[Emphasis mine].

24. It is therefore clear that mediation is more of a private affair in which the mediator is neither applying nor interpreting the law but just facilitating the parties to arrive at their mutual agreement. Mediation, with its confidentiality protections, offers a much more private, low-keyed approach to conflict resolution.

25. It is therefore clear that unlike in mediation, arbitral proceedings are, just like in litigation, open to the public and follows a similar procedure to that of litigations but with a more relaxed approach. The nature of the arbitration process therefore encompasses the application and interpretation of the law.

26. The general role of Ombudsmen is described in the said work at page 8 in the following terms:

“Ombudsmen typically work to resolve disputes in institutional settings, such as large corporations, hospitals, and government agencies. They can be used to investigate consumer complaints, employee grievances, or their problems and to resolve them through informal, non-adversarial means. Ombudsmen rarely have any decision-making authority and must rely on persuasion as their primary tool.”

27. The foregoing generally sets out the powers of the Ombudsmen though there is nothing barring them from acting as arbitrators where a conflict of interest does not arise.

28. Therefore this matter having come back to the Court without any arbitrated or mediated resolution, this Court must proceed and determine the pending matters as provided for by the law.

29. Accordingly, I will say no more on those issues at this stage in the said in order to avoid prejudicing or embarrassing any proceedings that may be undertaken now henceforth.

30. In the result parties are at liberty to move the Court for any orders they may deem fit.

31. It is so ordered.

Dated at Nairobi this 9th day of November, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Nasanga for Mr Arusei for the applicant

Mr Taliti for Mr Sankale for the interested parties

CA Ooko