[2023] KEELC 18254 (KLR)

Lolkidienye & 9 others v Olemiranit & 15 others (Environment & Land Petition E002 of 2023) [2023] KEELC 18254 (KLR) (15 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18254 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyahururu

Environment & Land Petition E002 of 2023

YM Angima, J

June 15, 2023

In the matter of: article 22, and article 258(1) & (2) of the constitution of kenya, 2010 in the matter of: alleged threat of violation of articles 3 and 10 of the constitution of kenya, 2010 in the matter of: alleged threat to and contravention of articles, 19, 20, 21, 22, 23, 24, 25(c), 27, 35, 40, 47, 50, 51, 63 of the constitution of kenya, 2010 in the matter of: the community land act, 2016

Between

Lemokin Lolkidienye & 9 others

Petitioner

and

Samuel Olemiranit & 15 others

Respondent

Ruling

A. Introduction 1. By a petition dated 16. 01. 2023 supported by an affidavit of even date sworn by Lemokin Lolkidienye the Petitioners sought the following reliefs against the Respondents:a.A declaration do issue that the sub-division, survey, demarcation, beaconing, mapping and allocation of land and or the process leading to allocation of title deeds to the members of Longewan Group Ranch is unlawful, illegal and unconstitutional for want of public participation as required by Article 10 of the Constitution of Kenya, 2010 and further for failing to comply with the Director of Land Adjudication & Settlement – Ministry of Land & Physical Planning report dated 10th March, 2021. b.A declaration do issue that the sub-division, survey, demarcation, beaconing, mapping, and allocation of land without consideration for public utilities in Longewan Group Ranch in Samburu County within the Republic of Kenya is unconstitutional and amounts to infringement of Article 174 of the Constitution of Kenya as read with Part 2 of Schedule Four to the Constitution of Kenya, 2010. c.A declaration do issue that the Respondents failure and/or refusal to furnish the Petitioners with Longewan Group Ranch formal registers despite numerous requests amounts to contravention of the Petitioners right of access to information as guaranteed by Article 35 of the Constitution of Kenya, 2010. d.That an order of permanent injunction do issue restraining the Respondents either by themselves, their employees, servants, agents representative and/or any person acting under instructions from continuing with the surveying, beaconing, or re-beaconing, allocation, registration and issuing of title deeds and/or further issuance of the deeds relating to all that land known as Longewan Group Ranch in Samburu County within the Republic of Kenya.e.The court do find that the Petitioners are entitled damages and/or compensation for violation of constitutional rights.f.Costs of the petition be borne by the Respondents.

2. The Petitioners who pleaded that they were members of Longewan Group Ranch (the Ranch) challenged the sub-division, survey, demarcation, mapping and allocation of land within the Ranch by the Respondents. They contended that the process was unlawful, illegal and unconstitutional, inter alia, for want of transparency and public participation. They alleged violation of Articles 10, 19, 20, 24, 25, 26, 27, 28, 35, 40, 42, 43, 47, 61 and 63 of the Constitution of Kenya by the Respondents in their dealings with the suit land belonging to the Ranch.

3. It was contended that there was discrimination in the allocation of land to members of the group whereby non-members were allocated land and some bona fide members left out; that the sub-division of land was done without the participation of the members of the Ranch and relevant government departments; that there was failure by the officials to convene annual general meetings since 2014; that the survey was undertaken from Nakuru by a private surveyor without visiting the ground with the consequence that some existing public utilities were allocated to private individuals; and that some of the committee members were not members of the Ranch.

4. The Petitioners further pleaded that following numerous complaints by members of the Ranch the National and County Government officials convened a dispute meeting on 25. 08. 2020 whereby the Director of Land Adjudication was represented with a view to addressing the said grievances. It was further contended that on 10. 03. 2021 the Director of Land Adjudication and Settlement made the following recommendations for resolution of the identified problems:a.The group representatives be dissolved and a new committee elected;b.The survey work already done to remain but some adjustments be made.c.The incoming committee to complete the work by end of June, 2021. d.That in the event of failure to meet the deadline the Group Ranch should transit to Community Land as per the provisions of the Land Community Act, 2016.

5. The Petitioners pleaded that none of the recommendation for resolution of the identified grievances were implemented by the Respondents but the 1 – 8 Respondents had gone ahead to initiate the process of issuance of titles on the basis of a flawed process hence the petition.

B. The Petitioners’ Instant Application 6. Vide a notice of motion dated 16. 01. 2023 based upon Articles 22, 23 and 163 (4) of the Constitution of Kenya, 2010 and Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules, 2013, the Petitioners sought the following interim orders:a.Spent;b.Spent;c.That the court be pleased to issue and order of mandatory injunction directed at the Respondents and/or their agents and employees to implement the Director of Land Adjudication & Settlement Report dated 10th March, 2021 before processing of title deeds for members of Longewan Group Ranch located in Samburu County in the Republic of Kenya.d.That the honourable court be pleased to issue an order of injunction restraining the Respondents either by themselves, their employees, servants, agents, representative and/or any person acting under their instructions from continuing with the surveying, beaconing, or re-beaconing, allocation, registration and issuing of title deeds and/or further issuance of title deeds relating to all that land known as Longewan Group Ranch in Samburu County within the Republic of Kenya pending the hearing and determination of the petition filed herewith.e.That the costs of this application be provided for.

7. The said application was based on the grounds set out on the face thereof which were essentially the same grounds set out in the Petition and the affidavit in support thereof. The application was supported by another supporting affidavit sworn by Lemokin Lolkidienye on 16. 01. 2023 together with the exhibits thereto. The Petitioners were apprehensive that as members of the ranch they stood to suffer serious prejudice for violation of their legal and constitutional rights hence they sought the said interim orders pending the hearing and determination of the petition.

C. The 1st – 10th Respondents’ Responses 8. The 1st Respondent filed a replying affidavit sworn on 13. 03. 2023 on his own behalf and on behalf of the 2nd – 10th Respondents in opposition to the application. He stated that the Ranch had 412 members and that they were fully involved in the survey, demarcation and allocation of the suit land belonging to the Ranch. It was stated that due process was followed and that each member of the Ranch was allocated 2 parcels of land and that most of them were happy with the process except a few disgruntled elements.

9. The 1 – 10 Respondents stated that the earlier survey was adjusted by a land surveyor hence any issues in relation thereto was resolved through consensus by members of the Ranch. It was further contended that all the 412 members of the Ranch were allocated a total of 35. 5 acres each and that the process of winding up or dissolving the group Ranch was underway.

10. The 1 – 10 Respondents, therefore, contended that the Petitioners had not demonstrated a prima facie case with a probability of success at the trial and that there was no evidence that they stood to suffer any irreparable harm or injury in the absence of an injunction. It was further contended that the Petitioners had failed to satisfy all the requirements for the grant of the injunctions sought as set out in the case of Giella –vs- Cassman Brown & Co. Ltd. [1973] E.A. 358. The court was consequently urged to dismiss the application with costs.

11. There is no indication on record of the 11 – 14 Respondents represented by the Attorney General having filed any responses to the application for interim orders.

D. The Petitioners’ Reply 12. With leave of court, the Petitioners filed a further affidavit sworn on their behalf by Lemokin Lolkidienye on 19. 04. 2023. The Petitioners disputed the contents of the 1st – 10th Respondents’ replying affidavit and reiterated the contents of the supporting affidavit. They stated that according to a report dated 10. 03. 2021 from the Director of Land Adjudication and Settlement, 8 out of the 10 officials of the Ranch were not members of the Group Ranch at the time of their purported election.

13. It was contended that the survey was never adjusted after the Ranch lost about 500 acres to Logorate Group Ranch hence those members originally allocated land within that area had not been resettled. It was further contended that the terms and conditions for approval of Development Permission issued by the County Government of Samburu had not been observed and that land initially reserved for public facilities such as a police station, schools, health centres had been allocated to private individuals.

E. The 1st – 10th Respondents’ Preliminary Objection 14. By a notice of preliminary objection dated 22. 01. 2023 the 1st – 10th Respondents (the Respondents) objected to the notice of motion dated 16. 01. 2023 and petition on the following grounds:a.The honourable court herein is devoid and divested of jurisdiction to entertain and/or adjudicate upon the subject notice of motion application and the instant suit herein.b.The Petitioners herein are devoid of the requisite locus standi to mount and/or maintain the instant suit/proceedings herein.c.In any event, the instant application and suit amounts to and/or constitutes an abuse of the due process court.d.The Petitioners are non-suited.

F. Directions on Submissions 15. When the application was listed for directions it was directed that both the application dated 16. 01. 2023 and the preliminary objection dated 22. 01. 2023 shall be canvassed together through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that the Petitioners filed their submissions on 25. 04. 2023 whereas 1 – 10 Respondents filed their submissions on 26. 04. 2023. There is, however, no indication of the rest of the Respondents represented by the Attorney General having filed any submissions.

G. Issues for Determination 16. The court has considered the Petitioners’ notice of motion dated 16. 01. 2023, the Respondents’ replying affidavit as well as their notice of preliminary objection dated 22. 01. 2023. The court is of the opinion that the following issues arise for determination herein:a.Whether the 1st – 10th Respondents’ preliminary objection dated 22. 01. 2023 is well founded.b.Whether the Petitioners have made out a case for the grant of a temporary restraining injunction.c.Whether the Petitioners have made a case for the grant of a mandatory injunction.d.Who shall bear costs of the application and the preliminary objection.

F. Analysis and Determination a. Whether the 1st – 10th Respondents’ preliminary objection dated 22. 01. 2023 is well founded 17. The court has considered the submissions and material on record on the preliminary objection. The preliminary objection was argued on two fronts. First, it was argued that the Petitioners had failed to observe the doctrine of exhaustion. It was contented that the Petitioners had failed to exhaust the available administrative dispute resolution mechanisms before seeking judicial intervention. The Respondents relied upon Section 10 of the Land (Group Representatives) Act and the cases of Geoffrey Muthinja & Another –vs- Samuel Mugune Henry & 1756 Others [2015] eKLR and the Speaker of National Assembly –vs- James Njenga Karume [1992] eKLR in support of the doctrine of exhaustion.

18. The second front objected to the application on the ground that the Petitioners had no locus standi to file the petition and application. It was submitted that the Group Ranch was like an incorporated company and the individual members were not at liberty to file proceedings to redress any wrongs done to the group ranch unless it was through a derivative action as known in company law. The Respondents relied upon Section 7 of the Land (Group Representatives) Act and the case of Daniel Momaguk Kandei & 2 Others –vs- Kamanga Holdings Ltd & 44 Others [2017] eKLR in support of that submission. It was argued that only the incorporated group representatives of a group ranch could file suit.

19. It would appear that the Petitioners did not address the preliminary objection in their written submissions filed on 25. 04. 2023. Nevertheless, the court is obligated to consider and determine the preliminary objection in accordance with the law.

20. Section 10 of the Land (Group Representatives) Act (repealed) stipulated as follows:1. If it appears to the registrar that there has been a dispute among the officers or members of a group so that he is not satisfied as to who are the officers of the group, the registrar may in writing require the officers of the group to produce to him evidence of either:-a.The settlement of the dispute and the proper appointment of officers of the group; orb.The institution of proceedings for the settlement of the dispute and for a declaration as to who are the officers of the group, and where he does so the officers shall provide evidence accordingly within the time specified and it shall be signed by at least three of the officers

2. A District Magistrate’s Court shall have jurisdiction to settle disputes and make declarations for the purposes of proceedings instituted under subsection (1)(b) of this section.

21. It is apparent from a perusal of the said section that it has nothing to do with a dispute on the survey, demarcation, allocation or distribution of land belonging to a group ranch. The section simply deals with a dispute on who are the legitimate officers of a group ranch. The section requires the registrar of group representatives to write to the disputing persons to provide evidence of resolution of the leadership dispute in the manner stipulated by the section. The section has nothing to do with resolution of the kind of disputes which precipitated the instant petition. The court is of the opinion that the nature of declarations and reliefs sought in the petition do not lend themselves to the dispute resolution mechanism contemplated under Section 10 of the said Act.

22. The court is further of the opinion that there is even a greater reason why the Respondents’ preliminary objection on that aspect should fail. A perusal of Section 45 of the Community Land Act, 2016 (CLA) reveals that the Land (Group Representatives) Act was repealed with effect from 21. 09. 2016 when the CLA came into force. The court was not addressed on the corresponding provisions of the CLA on the alternative dispute resolution mechanisms provided therein. Section 39 of the CLA provides for alternative dispute resolution by a registered community with priority being given to those mechanisms set out in the by-laws of the community. There is no material on record to demonstrate that Longewan Group Ranch was ever registered as a community and no copy of its by-law was presented before the court.

23. The court is unable to agree with the Respondents’ contention that the group ranch is like a limited company and that only the group ranch could have filed the instant petition. It is clear from the contents of the petition and the affidavit in support thereof that the Petitioners’ case is not seeking to obtain a remedy for a wrong done to the group ranch. They simply filed the petition as the aggrieved members whose legal and constitutional rights were allegedly violated by the Respondents’ acts and omissions. They further contended that the alleged violations not only affected them but also other members of the group ranch in like manner.

24. Article 22(1) & (2) of the Constitution of Kenya on enforcement of the bill of rights stipulates that:“(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by:-(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.”

25. On the other hand, Article 258 of the Constitution stipulates that:“(1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by:-(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.

26. The court is thus of the opinion that the Constitution of Kenya grants locus standi to the Petitioners to ventilate the matters in dispute not only on their own behalf as members of the Longewan Group Ranch but also on behalf of other members of the same group ranch. The court is satisfied that the Petitioners have locus standi and as such the Respondents’ preliminary objection is not well founded. There can be no greater authority on locus standi than the Constitution itself. The Respondents’ preliminary objection contained in their notice dated 22. 01. 2023 is hereby overruled.

b. Whether the Petitioners have made out a case for the grant of a temporary restraining injunction 27. The court has considered the material and submissions on record on this issue. The Petitioners have raised serious issues of alleged violation of their constitutional rights under the Constitution of Kenya. They have pointed out various irregularities and illegalities which were alleged to have been perpetrated by the Respondents in the process of sub-division, demarcation, mapping and allocation of the suit-land. The court has also considered the Respondents’ replying affidavit and submissions on the matters in dispute.

28. The court has noted that the Respondents did not adequately respond to the serious allegations contained in the report dated 10. 03. 2021 by the Director of Land Adjudication and Settlement. The said report was prepared after a special general meeting of the Group Ranch was held on 25. 08. 2020. It is pertinent to reproduce the contents of the said report in which serious violations were said to have been confirmed on the part of the Respondents except the 6th & 8th Respondents who were cleared of any impropriety.

29. The Report by the Director of Land Adjudication & Settlement states as follows:“THE REPORT ON LONGEWAN GROUP REPRESENTATIVES COMMITTEEThere has been persistent complains about Longewan group representatives (committee) over their management, survey, and plot allocation in Longewan Group Ranch.This culminated into holding a special general meeting on 25th August, 2020 with members of Longewan Group Ranch. In attendance were the leadership of Samburu County, led by the County Commissioner, area Members of Parliament and the County Executive Committee Members (CECs). The venue of the meeting was Maralal Catholic Center. A follow up meeting was held at the County Land Adjudication Officer’s Office. On 21st September, 2020, a fact-finding team went to Longewan Group Ranch to verify the allegations of the complaints. As such, the following were confirmed: 1. The venue of the meeting was Longewan market and 97% of the members turned up. The committee members would not attend. They looked themselves up in Anti-Stock Theft Unit (ASTU Camp), because the members were very hostile to them.

2. Complaints that the committee illegally allocated themselves land were proven to be true. Eight committee members were found to have more than three shares of land to themselves and their family members. It was observed that, at the time these officers were elected and incorporated on 8th August 2016, they had no land of their own. They only acquired and allocated themselves land during their tenure in office. These allocations are as follows: I.Lemironi Samuel (Chairman) – Owns land parcel No. 412 but allocated other parcels to his sons and relatives.

II.Philip Kasaine (Area Chief) – Was allocated land and yet he is not a member of the Group Ranch.

III.Mr. Lekipaika Maasai (Secretary) – He had no share and not a member of the group ranch, but he allocated himself land on becoming an official.

IV.David Lenakila – He was not a member and had no land, but he allocated himself plot number 187.

V.Philip Lekereu – He was not a member, but he was allocated land upon being elected an official.

VI.Bishop Simon Lemarinde – He was not a member nor his father, but he allocated land to himself, his wife and brother.

VII.Kanket Leteroi – He got land after being elected yet he was not a member of the group ranch.

VIII.Lechima Lemot – He was a member with one share but irregularly gave his wife an extra share.

IX.Philip Lepanoya and Taporn Lemaribe – Are the only members of the Group Ranch who had only one share each and did not inordinately benefit from these irregular land allocations.

3. Longewan had encroached into Logorate Group Ranch by about 500Ha. This land was re-surveyed and recovered from Longewan Group Ranch. 21 people who were beneficiaries of this irregular encroachment lost their shares and they were never compensated with alternative land.

4. Public utilities such as Police Station, Anti-Stock Theft Unit, Secondary School, Health Center etc are not surveyed as they are in an individual’s share of land.

5. Inequalities in acreage – Others had been allocated 36 acres while others had less than 10 acres.RECOMMENDATIONS AND WAY FORWARDThe problem in Longewan Group Ranch is the committee (Group Representatives). At the time they were elected into office and incorporated on 8th August, 2016, out of ten (10) officials, eight (8) of them were not Group Ranch members and they had no share of land in the group. Their priority became allocating themselves land at the expense of the rightful members when they became officials. Their relationship with the members is so toxic that the Group Ranch members do not want to see officials in the Group Ranch therefore becoming a security threat.To cure this problem, it is advisable that: I.The group representatives be dissolved, and a new committee elected.

II.The survey work already done to remain but adjustments to be done.

III.The incoming committee to complete this work by end of June, 2021.

IV.Failure to meet this deadline, the Group Ranch transits to community land as per the provisions of the community land act, 2016. ”

30. Although the Respondents’ claim to have addressed the issues raised in the said report, there is no credible evidence to demonstrate that the Ranch representatives who had illegally acquired shares in the Ranch relinquished the same. There is no evidence to demonstrate that the area chief and other non-members who were unlawfully allocated plots had relinquished the same. There is also no evidence to demonstrate that the 21 members who lost their land as a result of restitution of 500 ha to Logorate Group Ranch were allocated alternative land. There was also no credible evidence tendered by the Respondents to demonstrate that a re-adjustment to the survey was done and that plots for public utilities and public facilities such as the police station, anti-stock theft unit, secondary school and health centre were provided for.

31. The court is thus satisfied that on the basis of the material on record the Petitioners have demonstrated a prima a prima facie case with a probability of success at the trial within the meaning of the principles enunciated in the case of Giella –vs- Cassman Brown & Co. Ltd [1973] EA 358. The court is further satisfied that unless the interim injunction sought is granted the Petitioners shall suffer irreparable harm and injury. The court takes the view that a violation of one’s constitutional rights cannot be adequately compensated by an award of monetary damages in the circumstances obtaining in this petition. Since the court is not in doubt on the second principle of irreparable harm, it shall not consider the third principle on balance of convenience. In the premises, the court is satisfied that the Petitioners have made out a case for the grant of the interim restraining injunction sought.

c. Whether the Petitioners have made out a case for the grant of the mandatory injunction sought 32. The court has considered the material and submissions on record on this issue. The Petitioners are seeking a mandatory injunction to compel the Respondents to implement the report dated 10. 03. 2021 before the processing of title deeds for members of the ranch. It is evident that the said report was adverse to most of the Respondents (save the 6th & 8th). There is no evidence from the material on record to demonstrate that the Respondents have taken any serious steps to implement the recommendations contained in the said report.

33. It is noteworthy that the said report was released more than 2 years ago and among the recommendations were the dissolution of the group representatives, the formation of a new committee, and the adjustment of the initial survey within a given timeline in default of which the ranch was to transit into a community under the provisions of the CLA. It would appear that the group representatives (the 1st - 10th Respondents) have stayed put over the past 2 years and there is no indication that they are about to give way for new leadership.

34. In the circumstances, the court is not inclined to grant the mandatory injunction sought because there is no guarantee that the Respondents will remedy the wrongs of the past in good faith given that they have failed to do so for over 2 years now. The second reason why the court is not inclined to grant the order is that it would give the Respondents an unwarranted extension of time through the back door and thereby unduly restrict the freedom of the Community Land Registrar to initiate the process of transitioning of the group ranch into a registered community and consequent appointment of a community land management committee under the CLA.

d. Who shall bear costs of the application and the preliminary objection 35. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd [1967] EA 287. The court finds no good reason why the successful litigants should not be awarded costs of the application and the preliminary objection. Consequently, the Petitioners shall be awarded costs of the application and the preliminary objection.

F. Conclusion and Disposal Orders 36. The upshot of the foregoing is that the court finds no merit in the 1st – 10th Respondents’ preliminary objection. The court further finds merit in the Petitioners’ application for interim orders to the extent indicated in the ruling. Accordingly, the court makes the following orders for disposal of the notice of motion dated 16. 01. 2023 and the preliminary objection.a.The 1st – 10th Respondents’ notice of preliminary objection dated 22. 01. 2023 is hereby overruled in its entirety.b.An interim injunction be and is hereby granted restraining the Respondents either by themselves, their agents or servants or any other persons acting under their instructions from howsoever continuing with the surveying, beaconing, re-beaconing, allocation, registration or issuance of title deeds or further issuance thereof, relating to all the land originally registered as Suguta Marmar ‘A’ belonging to Longewan Group Ranch located in Samburu County pending the hearing and determination of the petition or until further orders of the court.c.The Petitioners’ prayer for a mandatory injunction is hereby declined.d.The Petitioners are hereby awarded costs of the preliminary objection and the application be borne by the 1st – 10th Respondents only.e.For the avoidance of doubt, the Chief Land Registrar shall be at liberty to proceed with the transition process stipulated under the Community Land Act 2016, notwithstanding the pendency of the petition.f.The petition shall be mentioned on 24. 07. 2023 for the pre-trial directions.

37Orders accordingly.

RULING DATED AND SIGNED AT NYAHURURU AND DELIVERED THIS 15TH DAY OF JUNE, 2023 VIA MICROSOFT TEAMS.In the presence of:Mr. Lesaigor for the PetitionersMs. Tessot for the 1st – 10th RespondentsMs. Chepkirui for the Attorney General for the 11th – 14th RespondentsC/A - Carol……………………Y. M. ANGIMAJUDGE