[2023] KECA 1314 (KLR)

Likizo Limited v Nasib Kashuru Limited & 5 others (Civil Appeal E005 of 2020) [2023] KECA 1314 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KECA 1314 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Civil Appeal E005 of 2020

SG Kairu, P Nyamweya & GV Odunga, JJA

November 10, 2023

Between

Likizo Limited

Appellant

and

Nasib Kashuru Limited

1st Respondent

The National Land Commission

2nd Respondent

The Chief Land Registrar

3rd Respondent

The County Land Registrar, Kilifi

4th Respondent

The Hon. Attorney General

5th Respondent

Gidjoy Investments Limited

6th Respondent

(An appeal from the judgment and order of the Environment and Land Court at Malindi (J. O. Olola J.) delivered on 25th June 2020 in Malindi ELC Petition No. 19 of 2017 Petition 19 of 2017 )

Judgment

1. This appeal challenges a decision made by the Environment and Land Court of Kenya (ELC) at Malindi (Olola J) contained in a judgment delivered on June 25, 2020 in ELC Constitutional Petition Number 19 of 2017, in which a petition filed by Likizo Limited (the appellant herein) was dismissed. The petition had challenged the constitutionality of the issuance of a title to Nasib Kashuru Limited (the 1st respondent herein) with respect to the parcel of land known as Chembe/Kibambashe/407 (hereinafter “the suit property”), and the appellant had claimed That it purchased the suit property on February 24, 2004 at a consideration of Kshs 4,500,000/-, and was registered as proprietor thereof by certificate of lease dated 3rd August 2004.

2. The appellant was aggrieved by the allocation of the suit property to the 1st respondent by the Government of Kenya acting through the then Commissioner of Lands, by a letter of allotment dated August 26, 2010 for a term of 99 years from September 1, 2010. Further, That the actions of the Commissioner of Lands (whose functions are now exercised by the National Land Commission, which is the 2nd respondent herein), the Chief Land Registrar (the 3rd respondent herein), and the County Land Registrar, Kilifi (the 4th respondent herein) of issuing a second Certificate of Lease to the 1st respondent on September 29, 2010 was therefore not only illegal, but amounted to compulsory acquisition of the appellant’s land contrary to the provisions of article 40 of the Constitution. The appellant urged That it was illegal and contrary to the provisions of Section 32 (1) of the repealedRegistered Land Act for there to be two different title documents in respect of the same parcel of land issued to different people. The appellant further contended That the suit property was not government land, and was therefore not available for allocation.

3. The appellant explained That the actions by the said respondents were taken pursuant to a report dated June 2010 by the “Special Task Force on Kilifi Jimba and Chembe Kibabamshe Land Adjudication Section”. However, That the Malindi ELCCourt in a judgment dated May 8, 2015 delivered in Malindi ELCPetition 11 of 2012 quashed the certificates of lease That were issued based on the Report of the Special Task Force on Kilifi Jimba and Chembe Kibabamshe Land Adjudication Section for being in violation of the Constitution. In addition, the appellant asserted That the 3rd to 5th respondents herein were the 1st, 3rd and 4th respondents in the said Malindi ELC Petition No. 11 of 2012, while the 1st and 2nd respondents herein were the interested parties therein and had not appealed or sought to have the said judgment reviewed. However, that on July 17, 2017, the 2nd respondent, while being aware of the orders issued in the said judgment, caused to be published Gazette Notice No. 6866, contained in the Kenya Gazette Special Issue Vol. CXIX-No 97, the determination of review of grants and disposition of public land in respect of Kilifi Chembe Kibabamshe Settlement Scheme- Kilifi County , wherein it was decided That the 1st respondent is the first allotee of the suit property and that his ownership of the suit land be regularised. The appellant further alleged That the 2nd respondent’s mandate had lapsed before issuance of the gazette notice; That the notice was in contravention of orders issued by the court in Malindi ELC JR5 of 2015 and Malindi ELC Petition 11 of 2012; That the suit land is not public land but it is trust land therefore the 2nd respondent had no mandate or jurisdiction over the suit land.

4. The appellant accordingly sought the following reliefs in its petition;a.A declaration that the appellant is the legal proprietor of Title No. Chembe/Kibabamshe/407;b.Cancellation of the certificate of lease in Title No. Chembe/Kibabamshe/407 issued to the 1st respondent;c.An order of permanent injunction to restrain the respondents, their servants and/or agents from interfering with the appellant’s use, ownership and utility of Title No. Chembe/Kibabamshe/407;d.An order of certiorari to bring to the Court for the purposes of being quashed Gazette Notice No. 6866 contained in the Special Issue Vol. CXIX-No 97 and published on the 17th day of July, 2017 by the Chairman, National Land Commission;e.An order of permanent injunction to prohibit the respondents by themselves, servants, agents or whatsoever authorized on their behalf from giving effect or implementing in any manner whatsoever Gazette Notice No. 6866 contained in the Special Issue Vol. CXIX-No. 97 and published on the 17th day of July, 2017 by the Chairman, National Land Commission.f.An order of mandamus to issue compelling the 4th respondent to restore the register in respect of Title No. Chembe/Kibabamshe/407 and issue to the appellant a Certificate of Search on payment of the requisite fees;

5. The 1st respondent in response stated That he had taken possession of the suit property upon the publication by the 2nd respondent of Gazette Notice No. 6866 and That on August 26, 2010, he was issued with a letter of allotment by the government through the settlement fund trustees; and later with a certificate of lease. Further, That the appellant filed a similar suit against him in the year 2011 but the same was dismissed for want of prosecution.

6. The 2nd respondent on its part stated That after receipt of complaints, it conducted its own verification and it was revealed That in 1970, the suit property was placed under the Land Adjudication Act by the then Minister of Lands and Settlement; that 440 title deeds were issued and the suit property was created. That later, in 1986, the Commissioner of Lands declared That the suit property was not subject to the Land Adjudication Act but was instead Government land governed by the repealed Government Lands Act, and the District Land Registrar Kilifi was directed to cancel titles registered and to issue an embargo restricting dealings in the suit property, which was then again allocated under the repealed Government Lands Act by the then Commissioner of Lands. In 1988, the Government established settlement schemes on the suit land and 443 parcels of land were allocated to various persons. Following complaints on what was termed as irregular allocation of public land in the area, the 2nd respondent published notices appearing in various newspapers on 1st and September 2, 2015 informing the public of its intention to review the legality of the grants and after considering the testimonies of persons who came forward, made a determination directing the 3rd respondent to revoke the appellant’s title to the suit property.

7. The 3rd to 5th respondents’ case was that the 2nd respondent acted within its mandate. The 5th respondent further claimed That it purchased the suit property from the 1st respondent by a sale agreement dated December 23, 2020; That it subsequently was registered as proprietor of the suit land.

8. The ELC in its judgment found that the 2nd respondent had jurisdiction to review all grants and dispositions of public land, and That the fact That the suit property was registered in the names of the appellant or the 1st respondent did not oust this jurisdiction. It was added That there was evidence That the suit property was once public land and there was no evidence That the 2nd respondent relied on the Report of the Task Force on Kilifi Jimba and Chembe/Kibabamshe Adjudication Sections dated June 2010 when making its determination. The ELC concluded That there was no evidence That the 2nd respondent acted unlawfully, unreasonably or unfairly. The court noted That the appellant and 1st respondent were not parties in Malindi ELC Petition 11 of 2012 and That the suit property was therefore not subject of the said suit hence the court declined to extend the judgement dated 8th May 2015 to the suit property. The learned judge concluded That the said petition “was not precipitated by any violation of the petitioner’s alleged Constitutional rights but was instead an attempt by the petitioner to play lottery with the Court and to try to obtain with the second chance the ownership of the parcel of land whose claim it had lost when it failed to prosecute the earlier suit leading to its dismissal some one year before it filed this Petition.”

9. With these findings, the appellant’s petition was dismissed for want of merit. The appellant being dissatisfied with the decision, has raised eight (8) grounds in the memorandum of appeal lodged in this court, challenging the trial Court’s failure to find That the 2nd respondent’s mandate had lapsed on May 2, 2017 and That it therefore lacked jurisdiction to issue Gazette Notice No. 6866 dated July 17, 2017; the disregard of the judgements in Malindi ELC Petition 11 of 2012 and Malindi ELC Petition 5 of 2015 to the effect that it had no jurisdiction to review the appellant’s title; the failure to appreciate That the public hearings by the 2nd respondent conducted between 7th and September 17, 2015 and 3rd to February 5, 2016 were in contravention of the aforementioned judgements; the failure to find the want of jurisdiction of the 2nd respondent to determine the issue of ownership of property as between the 1st and 6th respondent; and the failure to find that in the absence of evidence of the process of review of the appellant’s title by way of a report from the 2nd respondent, then the 2nd respondent’s decision was ultra vires the Land Commission Act and the Constitution.

10. We heard the appeal on November 10, 2022, and learned counsel Mr Elijah Mwangi and Ms. Moraa Nyakundi appeared for the appellant; learned counsel Mr. Kokebe appeared for the 1st respondent; learned counsel Ms. Jacqueline Njuguna appeared for the 2nd respondent; learned State counsel Ms. Lutta appeared for the 3rd, 4th and 5th respondents; while learned counsel Mr. George Sichangi and Mr. Kariuki appeared for the 6th respondent. Mr. Mwangi, Mr. Kokebe, Ms. Njuguna and Mr. Sichangi highlighted their clients’ respective written submissions dated June 10, 2022, July 28, 2022, July 13, 2022 and July 22, 2022, while Ms. Lutta relied on written submissions dated July 25, 2022. After the hearing, it became apparent that some documents in the record of appeal were incomplete, and after various unsuccessful attempts to get the parties to agree on provision of the missing pages of the affected documents, this court eventually directed that judgment would be delivered on the basis of the record as filed.

11. This is a first appeal, and the duty and role of this Court was set out in the decision of Selle & another vs Associated Motor Boats Co. Ltd & Others (1968) EA 123 which is to reconsider the evidence, evaluate it and draw our own conclusion of facts and law, and only depart from the findings by the trial court if they were not based on evidence on record; where the said court is shown to have acted on wrong principles of law as was held in Jabane v Olenja(1968) KLR 661, or where its discretion was exercised in judiciously as held in Mbogo & Another v Shah (1968) EA.

12. There are three main issues That arise in this appeal. The first is whether the 2nd respondent had jurisdiction to review the grants with respect to the suit property. The second issue is whether the appellant was granted a fair hearing during the process of review. The last issue is what reliefs if any, are available to the parties herein. On the first issue, the appellant’s counsel urged That the 2nd respondent had no jurisdiction to review the appellant’s title. While placing reliance on Section 14(1) of the Land Commission Act, it was submitted That the mandate of the 2nd respondent to review the suit property run till May 2, 2017 and the determination published on July 17, 2017 was ultra vires and ought to be quashed. Further, That the learned trial Judge did not consider this issue which was specifically pleaded. The counsel cited the Supreme Court decision in Judges & Magistrates Vetting Board & 2others v Centre for Human Rights & Democracy & 11others (2014) eKLR and the Court of Appeal decision in Joint Venture of Lex Oilfield SolutionsLtd& CFAO Kenya Ltd vs Public Procurement Administrative Review Board & 4 Others(2022) KECA 424 KLR for the holding That decisions arrived at outside the period provided for in a statute are time barred and a nullity.

13. The 1st and 6th respondent’s counsel’s submissions on the issue were similar, and while citing article 67(2) of the Constitution and section 14 of the Land Commission Act, the said counsel urged That following the placement of an embargo on the suit property in 1970 in accordance with the Lands Adjudication Act (Application)(Kilifi District) Order 1970, as well as the revocation of titles issued under the Land Adjudication Act, titles were issued under the repealedGovernment Land Act. Counsel pointed out That the 2nd respondent stepped in to lift the embargo placed on the suit land and conducted public hearings; That after conclusion of the hearings, the determination was published in the impugned gazette notice That gave directions on the venue to collect the full determination. It was emphasized That the date of publication of the gazette was not the date of the determination.

14. The 2nd respondent’s counsel’s position was urged along three fronts. Firstly, That the appellant was estopped from taking contradictory positions at trial and on appeal, and that the appellant, having argued during the trial that the 2nd respondent did not have jurisdiction to review the title in question on account of the suit property being private land, cannot be permitted to resile from that position and argue instead That the 2nd respondent's mandate under Section 14 (1) of theNational Land Commission} NLC Act }}had lapsed. Several decisions stating this position, including Behan & Okero Advocates vs National Bank of Kenya(2007)eKLR, Fursys (Kenya) Limited vs Southern Credit Banking Corporation Limited [2015]eKLR andRoyal Ngao Holdings Limited vs N.K. Brothers Limited[2020] eKLR were cited by the counsel.

15. Secondly, that the trial court was correct to make a finding that the mere fact that the suit property was registered in the names of the appellant or the 1st respondent was no bar to the 2nd respondent’s jurisdiction. Lastly, That the gazette notice communicated the public outcome of the 2nd respondent’s decision; that the appellant did not present the full determination and the court could not make a finding on the absence of the same.

16. It is notable that in its amended petition dated May 16, 2019, the appellant specifically pleaded in paragraph 34(c) thereof that the determination by the 2nd respondent on the suit property and the subject Gazette Notice was ultra vires for among other reasons:“Pursuant to the mandatory provisions of Section 14(1) of the {{abbr{title National Land Commission} Act, the mandate of the 2nd respondent to review all grants or dispositions of public land to establish their propriety or legality commenced on the 2nd day of May 2012 and lapsed on or before the 2nd day of May 2017. This mandate has not been extended and as such the determination by the 2nd respondent on the suit property and the Gazette Notice was made without jurisdiction. The 2nd respondent has not yet seen it necessary to invoke the provisions of Section 14(9) of theNLC Act.”

17. The appellant also addressed this aspect of the 2nd respondent’s jurisdiction in its submissions dated July 4, 2019 filed in the trial Court. The other grounds for contesting the 2nd respondent’s jurisdiction were that it made a determination and not recommendations contrary to article 67 (2)(e) of the Constitution and section 5 of the Land Commission Act; That the 2nd respondent’s determination offended the prayers granted in Malindi ELCPetition 11 of 2012 on May 8, 2015, and That it did not have jurisdiction to revoke a title issued to a bona fide purchaser for value without notice of defect in the title or to review grants and dispositions of trust land.

18. The 2nd respondent’s response in its replying affidavit was That it acted within and according to the powers conferred to it under article 67(2) of the Constitution and in the exercise of its mandate under section 14 of theNational Land Commission, which was the position also taken by the 1st and 6th respondents. The 2nd respondent in this respect averred as follows therein:“18. That the 2nd respondent in line with its mandate under section 14 of the National Land Commission sought to review all grants and dispositions of interest in land within the Kilifi Chembe/Kibabamshe area with the ultimate goal of ascertaining the true ownership of the parcels of land within the area.”

19. After examining the provisions of article 68(c)(v) of the Constitution and section 14(1) of the Land Commission Act, the learned trial Judge found as follows on the jurisdiction of the 2nd respondent:62. Arising from the foregoing, it was clear to me That under Section 14 of the Land Commission Act, Act No. 5 of 2012, the respondent herein has jurisdiction to enforce article 68 (c) (v) of the Constitution and to review all grants and dispositions of public land to establish their propriety or legality. It was further clear to me That the fact That the property was already registered in the name of either the petitioner or the 1st respondent was not a bar to the 2nd respondent’s jurisdiction. The 2nd respondent can only fulfill its Constitutional and statutory mandate by querying the process under which the land hitherto considered public was converted into private land where there was evidence such as in this case That the land was once treated as public land.63. While it was true from the material placed before me That the Report of the Task Force on Kilifi Jimba and Chembe/Kibabamshe adjudication Sections dated June 2010 was the subject of Malindi ELC Petition No. 11 of 2012, there was no evidence tabled before this Court That the 2nd respondent had relied on the said Report to arrive at its impugned determination.64. Indeed from a perusal of the record of those proceedings, it was evident That neither the petitioner herein nor the 1st respondent were parties in the said dispute. The suit property herein therefore was not the subject of those proceedings and I decline the invitation to extend the application of the Judgment delivered therein on 8th May 2015 to all other properties that were not the subject of litigation before the Court.”

20. It is evident That the learned Judge did not consider a relevant factor, namely whether the mandate of the 2nd respondent under section 14(1) of the Land Commission Act had expired, which was a crucial factor in determining the 2nd respondent’s jurisdiction, especially since it purported to exercise the powers under article 68 (c) (v) and section 14 of the Land Commission Act in the impugned Gazette Notice No 6866.

21. It is notable in this respect That while the 2nd respondent is a Constitutional Commission with certain constitutional functions under article 67 of the Constitution, its powers to review grants or title with respect to public land and recommend revocation of such title are purely statutory. article 68(c)(v) of the Constitution empowers Parliament to enact legislation to enable the review of all grants or dispositions of public land to establish their propriety or legality; Section 14 of the Land Commission Act in this respect provides as follows:1. Subject to article 68(c)(v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality.2. (Subject to articles 40, 47 and 60 of the Constitution, the Commission shall make rules for the better carrying out of its functions under subsection (1).3. In the exercise of the powers under subsection (1), the Commission shall give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.4. After hearing the parties in accordance with subsection (3), the Commission shall make a determination.5. Where the Commission finds That the title was acquired in an unlawful manner, the Commission shall, direct the Registrar to revoke the title.6. Where the Commission finds That the title was irregularly acquired, the Commission shall take appropriate steps to correct the irregularity and may also make consequential orders.7. No revocation of title shall be effected against a bona fide purchaser for value without notice of a defect in the title.8. In the exercise of its power under this section, the Commission shall be guided by the principles set out under article 47 of the Constitution.9. The Commission may, where it considers it necessary, petition Parliament to extend the period for undertaking the review specified in subsection (1).

22. The time limits set by section 14(1) of the National Land Commission Act have both procedural as well as substantive implications. Procedurally, the 2nd respondent was required to act without delay, and to comply with the express time limits, namely undertake and complete its review within five years of commencement of the Land Commission Act. A review is defined in theConcise Oxford English Dictionaryas “a formal assessment of something with the intention of instituting change if necessary”, and inBlacks, Law Dictionary 9th Edition at page 1434 as “consideration, inspection, or re-examination of a subject or thing, or the “plenary power to direct and instruct an agent or subordinate, including the right to remand, modify, or vacate any action by the agent or subordinate, or to act directly in place of the agent or subordinate”. A review therefore envisages both the process and outcome of whatever act or decision is being re-examined or reconsidered.

23. In the present appeal, a textual and ordinary construction of the relevant provisions and mathematical calculations will determine if there was compliance with the time limits by the 2nd respondent. It is explained in Halsbury’s Laws of England, Fifth Edition at paragraph 302 That the calendar year begins on 1st January and the common year consists of 365 days, and is divided into 12 unequal parts called calendar months. A year is therefore in normal usage either the calendar year or any period of 12 calendar months, depending on the context in which the expression is used. In paragraph 303, it is stated That with respect to other usages of the term year and statutory definitions of year, a year may also mean any like period of time running from a date fixed by statute, contract or otherwise, while a financial year is the year when public accounts are made up, the budget is prepared and the supplies are voted.

24. The date of commencement of the Land Commission Act is indicated therein as May 2, 2012. Therefore, all reviews under section 14(1) of grants and dispositions of public land including the determinations thereof, were to be completed within five years of twelve calendar months each, being by May 2, 2017. It is not disputed That the impugned Gazette Notice 6866 is dated July 17, 2017“[99]By virtue of the above amendments, the legislature changed the initial time- frame within which the Vetting Board would carry out the vetting process, at the request of the Board itself. First, the legislature extended the vetting process to a period exceeding the initial one year, upon request. Second, it extended the period of completion of the vetting process after its commencement, from December 31, 2013 to 31st December, 2015 – an additional two years as from the initial conclusion date. This time-frame gives the valid span of time within which the Vetting Board carries out its functions, and any functions outside the said time-frame would be contrary to the law.”

25. In this respect it is notable that the 1st, 2nd and 6th respondents have alleged that the burden was on the appellant to demonstrate compliance by availing the full determination by the 2nd respondent, which it was required to collect as directed by the Gazette Notice No. 6866. Therefore, that the failure by the appellant to tender the full determination in evidence was That an assumption could not be made That the mandate of the 2nd respondent had expired at the time it made its determination. Further, that the publication in the Kenya Gazette was only meant to inform the general public and did not mean That the determination by the 2nd respondent was made on the date of the publication.

26. We respectively disagree with this position for two reasons. Firstly, we have already found that the interpretation and construction of the provisions of section 14(1) of the Land Commission Act require both the process and outcome of any reviews by the 2nd respondent pursuant to the provisions therein to have been completed by May 2, 2017, including the publications of any determinations. In this regard, it is notable that the Land Commission (Review of Grants and Dispositions of Public Land) Regulations, 2017 published in Legal Notice No.71 of April 21, 2017 provided for the following procedure in Regulation 28(2) and (3):2. Where the Commission finds That a grant or disposition was unlawfully acquired, the Commission may—a.direct the Registrar to revoke the title within thirty days in Form NLC04 set out in the First Schedule; andb.make any other orders as the Commission deems necessary.3. The Commission shall publish a notice of the revocation—a.in the Gazette; orb.in two newspapers with nationwide circulation; orc.on the parcel of land.Regulation 32 also emphasizes the same mode of communication and publication of the Commission’s decisions and orders save for replacing publication on the parcel of land with publication on its website.

27. Secondly, the appellant, having brought evidence that the Gazette Notice No. 6866 with the impugned determination by the 2nd respondent was published on July 17, 2017, which was outside the time limits set by section 14(1), it discharged both its legal and evidentiary burden of proof. The burden then shifted to the 2nd respondent to demonstrate that it indeed completed the process of review with respect to the suit property and made its determination before May 2, 2017. This court held as follows in the case of Mbuthia Macharia vs Annah Mutua & Another [2017] eKLR in this regard:“[16]The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant.”Similar holdings were made by the Supreme Court of Kenya in Raila Amollo Odinga & Another v Independent Electoral and Boundaries Commission & 4 Others & Attorney General & Another, Presidential Petition No. 1 of 2017 [2017] eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji and 2others [2014] eKLR.

28. The substantive implications of non- compliance with the time limits in section 14(1) of the Land Commission Act consequently, are that not only did the 2nd respondent act unlawfully, but also outside the scope of its powers and therefore without jurisdiction. It is notable in this respect That section 14 (1) made it mandatory that the review be undertaken within five years of the commencement of the Act, and this interpretation is supported by the fact this section 14(9) required the 2nd respondent to petition Parliament to extend the period for undertaking the review specified where it was necessary. Therefore, any action made outside the five-year period and without extension of time is unlawful and ultra vires. It is therefore our finding that the 2nd respondent’s determination on propriety of the appellant’s and 1st respondent’s title with respect to the suit property contained in Gazette Notice No. 6866 was published after the expiry of the 2nd respondent’s mandate to review grants and dispositions of public land and without jurisdiction, was therefore unlawful and null and void.

29. The failure of the learned trial Judge to first establish whether or not the 2nd respondent had acted within its powers and particularly within the set time limits set by 14(1) of the National Land Act, before addressing the merits of its decision was therefore in error. Having found That the 2nd respondent had no jurisdiction to make the determination on the suit property, the substantive findings of the learned trial Judge as to the propriety of the 2nd respondent’s determination also fall by the wayside. Arising from our findings on the 2nd respondent’s lack of jurisdiction, we do not find it necessary to address the second issue as to whether the appellant was granted a fair hearing during the process of review, as the effect would be to cloth the process with legitimacy.

30. On the last issue of the reliefs if any available to the parties herein, the appellant has asked That we allow the prayers in its amended Petition, which are of two types. The first relate to the ownership and occupation of the suit property, and include a declaration That the appellant is the legal proprietor of Title No. Chembe/Kibabamshe/407, cancellation of the Certificate of lease in Title No. Chembe/Kibabamshe/407 issued to the 1st respondent, and permanent injunction to restrain the respondents, their servants and/or agents from interfering with the appellants use, ownership and utility of Title No. Chembe/Kibabamshe/407. The 1st and 6th respondents have submitted That the appellant is not entitled to these remedies as it presented no evidence of ownership of the suit property, while the 6th respondent presented evidence That it was the registered proprietor of the suit land. It was added That the appellant did not present evidence of fraud on the part of the 1st respondent in acquisition of the suit land.

31. In this regard, it is our view That the effect of our findings and decision That the 2nd respondent had no power to make the determination in Gazette Notice No. 6866 is That the said decision was null and void ab initio. The appellant and respondents therefore reverted back to the position they were before the determination by the 2nd respondent in Gazette Notice No. 6866 on July 17, 2017. We have perused the record of appeal and note in this respect That the appellant had availed evidence of a Certificate of Lease under the Registered Land Act issued to it on August 3, 2004 for a term of 99 years with respect to the land known as Chembe/Kibabamshe/407. The 1st respondent in his replying affidavit sworn on October 17, 2017 alleged That he was offered an allotment letter dated August 26, 2010 and was issued with a lease certificate after completing all settlement funds trustee requirement. He indicated that the allotment letter was annexed to the replying affidavit as annexure ‘A’. This annexure was missing from the record of appeal, but does not appear to be disputed by the appellant who referred to it in its pleadings as having been dated August 26, 2010. The 6th respondent stated that it entered into a sale agreement with the 1st respondent with respect to the suit property on December 23, 2020, as a result of which the suit property was transferred to it, and it annexed a copy of the said sale agreement, of the transfer, of a title deed issued to the 1st respondent on September 29, 2010 under the Registered Land Act, and of a certificate of lease issued to the 6th respondent on July 9, 2013 under theRegistered Land Act.

32. The appellant alleged That the allocation of the suit property to the 1st respondent was as a result of and based on the Report of the Special Task Force on Kilifi Jimba and Chembe Kibabamshe dated June 2010. The explanation given by the 1st, 2nd and 6th respondents with respect to the issue of the multiple titles was That the parcels of land within Chembe/Kibabamshe section were registered through various legal regimes, namely Adjudication, Settlement and Commissioner of Lands allocations, as opposed to one regime. In addition, That some of the titles allocated were subsequently canceled.

33. We note That the trial Court, having failed to consider the mandate of the 2nd respondent, thereby upheld and relied on the substantive effects of the 2nd respondent’s determination in Gazette Notice No. 6866, which effectively regularised the 1st and 2nd respondent’s titles, and did not address the issue of the multiple titles to the suit property and the validity of the said titles. We are of the view that this Court as an appellate court is not the proper forum to consider these issues at this stage and at the first instance, and we are constrained to remit them back to the trial Court for determination, including the implication thereon of the various decided cases cited by the parties.

34. The second type of prayers sought by the appellant in its amended Petition were in relation to the status of the determination by the 2nd respondent and its effects, and in this regard, the appellant had sought orders of certiorari to quash Gazette Notice No. 6866 contained in the Special Issue Vol. CXIX-No 97; a permanent injunction to prohibit the respondents from giving effect or implementing in any manner whatsoever Gazette Notice No. 6866; and an order of mandamus compelling the 4th respondent to restore the register in respect of Title No. Chembe/Kibabamshe/407 and issue to the appellant a Certificate of Search on payment of the requisite fees.

35. The 6th respondent submitted that the orders ofcertiorari sought by the appellant would revoke the entire impugned gazette notice and affect non-parties to the petition and the appeal. It is our view in this respect That any order granted as regards the illegality of the gazette notice is an order in rem and not in personem, and will be effective as against the whole world, irrespective of whether the parties affected were party to the suit in the trial Court and in this appeal. A judgment in personam defines claims against competing individuals in respect of a particular matter, or compels the performance of a particular act. A judgment in rem on the other hand is a determination of the status of a particular matter or an individual’s rights in respect of a certain matter, but is conclusive not only between the competing parties but also as against the world. It was thus explained inKamunyu & Others v Attorney General &others (2007) 1 EA 116 as follows:“In a suit seeking judgement in rem, That is a judgement applicable to the whole world, an individual does not sue on behalf of the whole world, but sues for judgement which is effective against the whole world. In other words, in the present case, the appellants when successful in the suit obtain judgement, which is effective against the whole world but does not confer benefits upon the whole world.”

36. In the present appeal, it is also notable that in the context of section 44 of the Evidence Act, the legal character that has been taken away from the 2nd respondent by this judgment is the validity of its actions with respect to Gazette Notice No. 6866, which renders this judgment one in rem. It will therefore be incumbent upon any party who wishes to obtain a clarification or benefit from the orders That we grant in rem hereinto move the relevant forum for appropriate relief with respect to any demonstrated individual rights, interests or prejudice suffered.

37. We accordingly find merit in this appeal for the foregoing reasons, and hereby set aside the judgment delivered on June 25, 2020 by the Environment and Land Court of Kenya (ELC) at Malindi (Olola J.) in ELC Constitutional Petition Number 19 of 2017 in its entirety. We also grant the following orders:I.An order of Certiorari be and is hereby issued to bring to the Court for the purposes of being quashed Gazette Notice No. 6866 contained in the Special Issue Vol. CXIX-No 97 and published on the 17th day of July, 2017 by the Chairman, National Land Commission.II.An order of permanent injunction be and is hereby issued prohibiting the respondents by themselves, servants, agents or whatsoever authorized on their behalf from giving effect or implementing in any manner whatsoever the determination in relation to the property known as Title No. Chembe/Kibabamshe/407 in Gazette Notice No. 6866 contained in the Special Issue Vol. CXIX-No. 97 and published on the 17th day of July, 2017 by the Chairman, National Land Commission.III.An order of mandamus be and is hereby issued compelling the 4th respondent to restore the register in respect of Title No. Chembe/Kibabamshe/407 to the state it was before the publication of Gazette Notice No. 6866 contained in the Special Issue Vol. CXIX-No. 97 on the 17th day of July, 2017 by the Chairman, National Land Commission.IV.We hereby remit the outstanding issues of the legality and validity of the allocation of, and the titles issued with respect to the property known as Chembe/Kibabamshe/407 That were raised in the ELC Constitutional Petition Number 19 of 2017, including the legality of the actions by the Commissioner of Lands, and the 3rd and 4th respondents to issue titles in the said property to the appellant, 1st respondent and 6th respondent; the legality and validity of the different titles issued with respect to the said property; and the appropriate reliefs in this regard if any, back to the Environment and Land Court at Malindi for re-hearing and determination by a Judge other than Olola J. ·V.The appellant shall have the costs of the trial in the Environment and Land Court and of this appeal.

38. It is so ordered.

DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF NOVEMBER, 2023. S. GATEMBU KAIRU, FCIArb………………………………JUDGE OF APPEALP. NYAMWEYA………………………………JUDGE OF APPEALG.V. ODUNGA…………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR