[2018] KEELC 2058 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

PETITION NO. 5 OF 2011

IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL

RIGHTS AND FREEDOMS UNDER ARTICLE 2, 19, 20,

21, 22, 25(C), 27, 40, 47, 50, 60(1) (B), 62(1) (H),64, 165, 262 AND SECTION 19 OF THE 6TH

SCHEDULED OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE SURVERY ACT, THE REGISTERED LAND ACT, THE

PUBLIC ROADS OF ACCESS AND THE PHYSICALPLANNING ACT, THE LOCAL GOVERNMENT ACT

AND

IN THE MATTER OF: REGISTRATION SECTION OR BLOCK KNOWN AS CHEMBE/KIBABAMSHE/MAYUNGU/MALINDI

AND

IN THE MATTER OF: MALINDI HIGH COURT CIVIL SUIT NOS. 52 OF 2007, 69 OF 2007, 46 OF 2008, 31 OF 2009, 40 OF 2011,

MALINDI MISCELANEOUS CIVIL APPLICATION NO.17 OF 2009 AND ALL MATTERS PENDING IN THE

HIGH COURT AT MALINDI RELATING TO ANYBOUNDARY DISPUTE IN THE REGISTRATION SECTION

KNOWN AS CHEMBE/KIBABAMSHE LOCATION ATMAYUNGU, MALINDI

BETWEEEN

MARRY BEACH LIMITED................................................................................PLAINTIFF

VERSUS

1. THE ATTORNEY GENERAL

2. THE COMMISIONER OF LANDS

3. THE CHIEF LAND REGISTRAR

4. THE DISTRICT LAND REGISTRAR, KILIFI

5. THE DIRECTOR OF PHYSICAL PLANNING

6. THE DIRECTOR OF SURVEYS

7. THE DIRECTOR OF LAND ADJUDICATION AND SETTLEMENT

8. THE COUNTY GOVERNMENT OF KILIFI

9. THE OFFICE COMMANDING POLICE DIVISION, MALINDI

10. GIMALOWI COMPANY LIMITED

11. EXEMPLER LIMITED

12. SHARIFF M. MOHAMED

13. P.M. NDOLO

14. LA MARINA LIMITED

15. MALINDI MUSKETEERS LIMITED

16. SHARRIF N. HABIB

17. HILDERGARD JUNG................................................................................RESPONDENTS

AND

ITAKEY INVESTMENTS LIMITED...................................................INTERESTED PARTY

RULING

1. By a Notice of Motion application dated 5th February 2018, Messrs Itakey Investments Ltd sought the following orders:-

1. That the service of the application be dispensed within the first instance due to its urgency;

2. That pending the hearing of this application this Honourable Court be pleased to stay the execution of the Judgment herein by the Petitioner to enable the Applicant comply with the Judgment of the Court issued on 30th October 2015;

3. That this Honourable Court be pleased to stay the execution of the Judgment herein by the Petitioner to enable the Applicant comply with the Judgment of the Court issued on 30th October 2015;

4. That this Honourable Court be pleased to set aside the warrants to issue vacant possession issued to the Petitioner pending the Applicant complying with the Judgment of this Honourable Court dated 30th October 2015;

5. That in compliance with the Judgment of the Court dated 30th October, 2015, this Honourable Court do order that the County Government of Kilifi as the Successor in law of the 8th Respondent to identify the location of the road leading to Chembe/Kibabamshe from Malindi using the Registry Index Map, diagram No. 19 and 20 of the report of Geodata Land Surveyors & Consultants dated 5th December 2013 as ordered in the Judgment to enable the Applicant comply with mandatory injunctions against the 10th and 11th Respondents so that the Applicant can be allowed to demolish the villas and any other developments standing on the public road between the original Plot No. Chembe/Kibabamshe 358 (and Chembe/Kibabamshe/374 as ordered in the Judgment dated 30th October 2015;

6. That the costs of this application be provided for.

2. The said application is supported by the Affidavit of Antonella Braccini and is premised on the grounds:-

a) That on 25th January 2018, the Court of Appeal delivered Judgment in Civil Appeal No. 34 of 2017 which it set aside the Ruling of Angote J. of 16th September 2016 which had set aside the Judgment of 30th October 2015;

b) That with the reinstatement of the Judgment of 30th October 2015, the Applicant as the Successor of the 10th Respondent is ready and willing to comply with the orders of re-opening the road and demolishing any structures which may be encroaching thereon as ordered by the Court;

c) That the Judgment envisaged a situation where the Petitioner would only execute the Judgment after the Applicant as the Successor of the 10th Respondent failed to comply with the mandatory injunction issued and Applicant is willing to comply with orders after being given a reasonable period of ten (10) days after the County Government of Kilifi identifies the road referred to in the Judgment.

3. When the said application was placed before me in Chambers that very day, I was persuaded that the same was urgent and proceeded to grant orders in the interim in terms of prayers 1 and 2 thereof pending the inter-partes hearing which was scheduled for 19th February 2018.

4. However, in a swift rejoinder, the Petitioner Merry Beach Limited moved to Court the following day and filed its own Notice of Motion dated 6th February 2018 seeking the following:-

2. That the Orders issued by this Court on the 5th day of February2018 be reviewed, varied and/or set aside.

3. That the Petitioner be allowed to proceed with the executionof the decree herein as per the terms of the Judgment whichexecution is underway.

5. The Petitioner’s application is supported by an Affidavit sworn by Walter Kilonzi, the Petitioner’s Secretary and is based on the grounds:-

i) That the Court was misled to issue the orders of 5th February 2018;

ii) That the firm of Kiarie Kariuki & Company Advocates is nolonger on record having been disjoined by the Court of Appeal in Civil Appeal no. 34 of 2017;

iii) That the said law firm has no right of audience or locus standi to file any document herein;

iv) That the orders of 5th February 2018 amount to a review of the Judgment of the Court of Appeal.

6. When the said application was placed before me under Certificate of Urgency on 7th February 2018, I did certify the same as urgent and directed that it also be served for inter partes hearing on 19th February 2018. On the date scheduled for hearing a number of parties required time to respond to and/or align themselves to the two applications and I did direct that the two applications be heard together and parties to file and exchange submissions before coming for the hearing thereof.

7. I have considered the two applications and the various responses thereto. I have equally considered the oral submissions made before me by the Learned Advocates for the parties on 1st March 2018 when the matter came up for hearing.

8. From the record herein, it is evident that this matter commenced against an initial group of 18 Respondents by way of a Constitutional Petition dated 18th May 2011. In the said Petition, the Petitioner averred that it is the registered proprietor of a leasehold interest in all that parcel of land known as Chembe/Kibabamshe/374 which has been developed with a perimeter wall around it encompassing a number of villas, apartment blocks and swimming pools.

9. It was the Petitioner’s case that there was a public road that runs between its said property and an adjoining Plot No. 358 which road connects Malindi town to Watamu. In addition it contended that there was another road between its land and Plot No. 362 which provided an access to the sea. It was the Petitioner’s case that following certain cases, filed in Court, an order was made that the proper boundaries to the properties be fixed by the Registrar. In purported execution of the said orders the Registrar invaded the suit properties with certain surveyors and erected beacons thereon the effect of which was that 50% of the Petitioner’s land was handed over to Gimalowi Company Ltd (the 10th Respondent).

10. The Petitioner further contended that after the new beacons were erected, the 10th and 11th Respondents herein built a wall completely blocking the public road connecting Chembe/Kibabamshe to Watamu and that the access road to the ocean became part of the 10th Respondent’s property.

11. As a result the Petitioner sought various mandatory orders including an order compelling the 5th, 6th and 7th Respondents to demolish the villas built on the public road between the original Plot Nos 358 and 374; an order of prohibitory injunction against the 10th and 11th Respondents from trespassing on Plot No. 374 and a declaration that the road serving the suit premises and enabling the Petitioner access the property either from Malindi or from Watamu and the road between its plot and Plot No. 362 are public roads.

12. In a Judgment delivered on 30th October 2015, the Honourable Angote J. then seized of the matter was satisfied among other things that the sub-division of Plot No. 358 by the 10th Respondent into various sub-plots distorted the initial location of two roads that were in existence as per the Registered Index Map Sheet Numbers 19 and 20 and proceeded to grant various orders in favour of the Petitioner inter alia as follows:-

a) A mandatory injunction be and is hereby issued compelling the County Government of Kilifi, the Successor in law of the 8th Respondent, to identify the location of the road and open up the said road, leading to Chembe/Kibabamshe from Malindi to Watamu using the Registered Index Map, diagram number 19 and 20 and the report of Geodata Land Surveyors & Consultants dated 5th December 2013 which was produced as PEX B1; and that

b) A declaration be and is hereby issued that the road serving Chembe/Kibabamshe enabling the Petitioner to access the suit property either from Malindi or from Watamu and the road between the Chembe/Kibabamshe 374 and Plot 362 leading to the ocean as depicted in the Registered Index map and report of Geodata Land Surveys of 5th December 2013 are public roads and should be opened up forthwith for use by the Petitioner and members of the public.

13. Subsequent to the delivery of Judgment, Messrs Itakey Investments Ltd moved to Court vide an application dated 5th November 2015 seeking to be enjoined as an Interested Party in view of the fact that they were the owners of the Original Plot No. Chembe/Kibabamshe/358 and that they stood to be prejudiced as the effect of the decision of 10th October 2015 could lead to their properties being demolished. Having heard the application, the Honourable Justice Angote allowed the same in a Ruling delivered on 16th September 2016 and enjoined the said Itakey Investments Ltd as the 19th Respondent to the Petition and set aside his earlier Judgment of 30th October 2015.

14. Aggrieved by the said decision, the Petitioner appealed the Ruling of 16th September 2016 to the Court of Appeal. In a Judgment delivered at Mombasa on 25th January 2018, the Learned Judges of Appeal (Visram, Karanja & Koome LL JA) set aside the Ruling dated 16th September 2016 and substituted the same with an order dismissing the 19th Respondent’s application for joinder.

15. It is apparent that shortly after the decision of the Court of Appeal, the Petitioner moved to have the access roads created leading to the filing of these applications.

16. Mr. Kiarie Kariuki, Learned Counsel for the said Itakey Investments Ltd told the Court that the Petitioners have moved to execute the Court’s orders against his client and that as the previous 10th Respondent-Gimalowi Company Ltd is nolonger there, Itakey Investments Ltd which is the successor thereof moved to Court as they are the ones that shall now be affected by the Court’s orders.

17. I have considered the application by Itakey Investments Ltd and the decision of the Court of Appeal and I am in agreement with the Petitioner that the application has been filed by a party who is not a party to this suit. The effect of the decision of the Court of Appeal was that their application to be enjoined as a party as per the provisions of order 1 Rule 10 of the Civil Procedure Rules had been found to be baseless and lacking in merit. That being the case, they cannot go behind the Court of Appeal decision and come in as the successor of the 10th Respondent.

18. As the Court of Appeal found, both Itakey and the 10th Respondent shared directors and therefore had notice of the Petition and were therefore bound by the Judgment thereof.

19. That being the case, I find and hold that the application dated 5th February 2018 is erroneously on record. I strike out the same in its entirety with costs to the Petitioner and the 13th, 14th, 15th and 18th Respondents.

20. In regard to the Petitioner’s application dated 6th February 2018 seeking to be allowed to proceed with the execution of the decree, I have considered the wording of order number ‘a’ of the reliefs granted by Angote J at paragraphs 80 of his decision. I am in agreement with Ms Lutta Learned Counsel for the 1st to 6th, 7th and 9th Respondents that there was need for the boundaries to be pointed out and sufficiently identified prior to execution herein. As per the said order the County Government of Kilifi is required to identify the same using the Registered Index Map, diagram Number 19 and 20 and the report of Geodata Land Surveyors & Consultants dated 5th December 2013 which was produced as PEX 1.

21. Arising from the foregoing, and given the time lapse since this matter was concluded, I hereby direct the 8th Defendant acting in consultation with the 2nd, 3rd and 6th Defendants to immediately proceed to identify the access road as per the Judgment of this Court delivered on 30th October 2015. The said exercise should be done within 30 days from today. The rest of the orders as per the Judgment of the Court aforesaid shall fully take effect upon expiry of 45 days from today.

22. It is so ordered.

23. Each Party shall bear their own costs as regards the application dated 6th February 2018.

Dated, signed and delivered at Malindi this 31st day of July, 2018.

J.O. OLOLA

JUDGE