[2019] KEELC 2598 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT EMBU

E.L.C. CONSTITUTIONAL PETITION 10 OF 2018

IN THE MATTER OF ARTICLES 1, 2, 3, 22, 23, 35, 62, 162, 165, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE RIGHT TO ACCESS INFORMATION BY THE PUBLIC

AND

IN THE MATTER OF PROTECTION OF PUBLIC LAND

AND

IN THE MATTER OF PUBLIC INTEREST LITIGATION

BETWEEN

MARTIN MURITHI NJERU (Suing on his behalf and on behalf of

Kenyan Citizens)..............................................................................................1ST PETITIONER

SIMON NJAGI (Suing on his behalf and on behalf of

Kenyan Citizens).............................................................................................2ND PETITIONER

VERSUS

POSTAL CORPORATION OF KENYA....................................................1ST RESPONDENT

FAVE GAS OIL (K) LTD............................................................................2ND RESPONDENT

COUNTY GOVERNMENT OF EMBU....................................................3RD RESPONDENT

NATIONAL CONSTRUCTION AUTHORITY.......................................4TH RESPONDENT

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY..........5TH RESPONDENT

RULING

1. By a notice of motion dated 25th October 2018 brought under Articles 1, 2, 3, 22, 23, 35, 62, 162, 165, 258 and 259 of the Constitution of Kenya and Rule 23 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013and filed under certificate of urgency the Petitioners sought the following orders:

a. That this application be certified urgent and be heard on priority basis.

b. That this honourable court be pleased to issue temporary orders against the 1st and 2nd Respondents and their agents restraining them from further developing, alienating, transferring, wasting and/or dealing with the Land parcel No. Embu/Municipality/986 in any manner whatsoever pending the hearing and determination of this application interpartes.

c. That this honourable court be pleased to issue temporary orders against the 1st and 2nd Respondents and their agents restraining them from further developing, alienating, transferring, wasting and/or dealing with land parcel No. Embu/Municipality/986 in any manner whatsoever pending the hearing and determination of this petition.

d. That the OCS Embu Police Station to ensure compliance with the orders issued herein.

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

2. The said application was based upon the several grounds set out on the face of the motion and supported by the affidavit sworn by the 1st Petitioner on 25th October 2018. It was contended that the 2nd Respondent had leased Title No. Embu/Municipality/986 (hereinafter the suit property) from the 1st Respondent in violation of the law and the Constitution of Kenya. It was further contended that the 2nd Respondent had embarked on some illegal development on the suit property.

3. The 1st Respondent filed a replying affidavit sworn by Samuel Mwaura Mburu, on 8th February 2019 in opposition to the said application. It was contended that the 1st Respondent was a state corporation established under The Postal Corporation of Kenya Act No. 3 of 1998 and was capable of acquiring, holding and disposing of both movable and immovable property. It was denied that the suit property was unalienated public land and that it constituted public land within the meaning of the law.

4. It was contended that there was no encumbrance precluding the 1st Respondent from dealing with the suit property by leasing it and that a similar application for injunction in Embu ELC No. 96 of 2017 – Lincoln Muthui t/a Linco Stores Vs Postal Corporation of Kenya & Another over the same suit property was dismissed by this court on 21st March 2018.

5. The 1st Respondent further stated that the lease with the 2nd Respondent was for a period of 10 years with effect from 1st October 2017 and that the 2nd Respondent had already taken possession of the suit property.

6. It was the 1st Respondent’s contention that the said application was frivolous, vexatious and an abuse of the court process. The court was therefore urged to dismiss it with costs.

7. The 2nd Respondent filed a replying affidavit sworn by James Mungai on 8th February 2018 in opposition to the said application. The 2nd Respondent contended that it had lawfully leased the suit property from the 1st Respondent which was the registered proprietor at the material time. It was also contended that the issues raised in the application were canvassed and determined in Embu ELC No. 96 of 2017 – Lincoln Muthui Muita t/a Linco Stores Vs Postal Corporation of Kenya & Fave Gas Oil Co. Ltd.

8. The 2nd Respondent further contended that pursuant to the said lease, it had taken possession of the suit property and developed it and that it had an operational service station, supermarket and eatery thereon. Some photographs were exhibited to demonstrate the same. It was, therefore, contended that the application for injunction had been overtaken by events.

9. The 3rd Respondent did not file a replying affidavit but it filed only grounds of opposition dated 7th February 2019 in response to the said application. It was contended that it had been wrongfully joined in the matter since no reliefs were sought against it in either the application or the main petition, among other grounds.

10. The 5th Respondent filed a replying affidavit sworn by Gideon Rotich on 27th February 2019 in opposition to the said application. It was contended that the Petitioners had not sought any audience or assistance from it with respect to any grievances relating to developments on the suit property. It was denied that the Petitioners had sought any information from it on any developments on the suit property. It was contended that an Environment Impact Assessment (EIA) licence was issued upon due compliance with the requirements of the law as set out in the Environmental Management Co-ordination Act, 1999 and applicable Regulations.

11. When the said application was listed for hearing on 6th March 2019 only the advocates for the Petitioners, 1st Respondent, 2nd Respondent and the 3rd Respondent were present. The Petitioners orally prosecuted the said application whereas the 1st – 3rd Respondents opposed it.

12. The court has considered the Petitioners’ said application, the grounds of opposition by the 3rd Respondent as well as the replying affidavits filed by the other Respondents in opposition thereto. The court has also considered the oral submissions on record by the parties who were represented at the hearing of the application.

13. The court is of the view that the following questions arise for determination:

a. Whether the suit property is public land.

b. Whether the application is barred under either section 6 or section 7 of the Civil Procedure Act (Cap. 21).

c. Whether the Petitioners have made out a case for the grant of an interim injunction.

d. Who shall bear the costs of the application.

14. Although the Petitioners contended that the suit property was public land within the meaning of the Constitution, the 1st Respondent contended otherwise. The 1st Respondent contended that the suit property was not public land for two reasons. First, it was a corporate entity capable of acquiring, holding and disposing of property under the establishing statute. Second, it was contended that the suit property was not unalienated government land within the meaning of Article 62 (1)(a) of the Constitution and neither was it a state organ within the meaning of Article 260 of the Constitution.

15. Whereas the court agrees that the 1st Respondent is not a state organ as defined in Article 260 of the Constitution, it is unable to agree that the suit property is not public property. Article 62(1) defines several categories of public land other than unalienated government land and land held by a state organ. For instance, there are other categories such as land which is designated as public land by an act of parliament under Article 62(1) (n) and land which is not classified as either private or community land under Article 62 (1) (m).

16. The mere fact that a public body has corporate personality and is capable of acquiring, holding and disposing of immovable property does not take such property out of the realm of public land. Its corporate personality is merely a convenient legal device to enable it perform its statutory functions with ease. It does not convert the public property held by the corporation into private property. Accordingly, since the 1st Respondent is a state corporation wholly owned by the Government of Kenya, its landed property constitutes public land within the meaning of Article 62 (1)(m) unless such land is classified as either community land or private land by the Constitution.

17. The 2nd issue is whether the application is barred either under section 6 or section 7 of the Civil Procedure Act (Cap. 21) Section 6 bars the court from entertaining a suit in which the matters directly and substantially in issue are also directly and substantially in issue in another pending suit between the same parties. On the other hand, section 7 bars the court from entertaining a suit in which the matters directly and substantially in issue were also directly and substantially in issue in a previously instituted suit which was heard and determined with finality. In either case, the suits must have been between the same parties and litigating under the same title with some few exceptions, of course.

18. The court is of the view that although some of the issues raised in the instant application were also directly and substantially in issue in a previous application for injunction in Embu ELC No. 96 of 2017and the subject matter was the same, some of the requirements such as commonality of parties have not been satisfied. The Petitioners herein had no opportunity of raising their grievances in the previous suit since they were not parties thereto. Accordingly, the court finds that the instant application does not satisfy the requirements of either section 6 or section 7 of the Civil Procedure Act hence the application cannot be considered an abuse of the court process at this stage.

19. The third issue is whether the Petitioners have made out a case for the grant of an interlocutory injunction. The Petitioners are required to meet the requirements set out in the case of Giella V Cassman Brown & Co. Ltd [1973] EA 358. The Petitioners contended that the lease in issue was procured without adequate public participation as required by the Constitution of Kenya. It was also contended that the resultant lease was illegal for lack of registration and that it was created in spite of a caution and restriction registered against the suit property.

20. The court does not wish to make any definitive pronouncements on the legality of the lease in issue and on the legality of the developments on the suit property. That is the province of the trial judge and I do not wish to make any comments or assessment which might prejudice the fair trial of the action. However, the mere existence of a caution or restriction does not necessarily mean that the creation of a lease inter vivos as between the 1st and 2nd Respondents was illegal. The non-registration of the lease does not necessarily make it illegal or void ab initio. It may, in some cases, operate as a contract between the parties privy thereto.

21. Although the Petitioners claimed that the developments were undertaken without due process as regards compliance with EMCA, 1999 there is no material on record from which it could be inferred, without going into greater depth on the matter that there was such a violation. On the contrary, a Compliance Officer of the 5th Respondent has sworn an affidavit stating that due process was followed in the granting of the EIA licence to the 2nd Respondent. There is no material on record to demonstrate that the Petitioners ever challenged the granting of such licence or that they filed any appeal to the National Environment Tribunal with respect to developments on the suit property. In deed, not a single letter of protest or complaint to any public authority in Kenya was ever exhibited in that regard.

22. The court is thus far from satisfied that the Petitioners have made out a prima facie case with a probability of success at the trial. The application for interlocutory relief must inevitably fail.

23. The court is further of the view that even if the Petitioners had established a prima facie case and even demonstrated all the requirements for the grant of such injunction, the court would not have been inclined to grant the order. There is uncontroverted evidence on record that the construction sought to be prevented has already been completed. There is already an operational gas station and supermarket on the suit property. An order of injunction would not be available since a court cannot issue an order of injunction in futility.

24. In the case of Eric Makokha & 4 Others V Lawrence Sagini & 2 Others [1994] eKLR the Court of Appeal made the following observations on the nature of an injunction:

“There is one other reason on which the order of injunction granted in that case could be questioned. An application for injuction under Rule 5(2)(b) is an invocation of the equitable jurisdiction of the court. So its grant must be made on principles established by equity. One of it is represented by the maxim that equity would not grant its remedy if such order will be in vain. As is said “Equity, like nature, will do nothing in vain”. On the basis of this maxim, courts have held again and again that it cannot stultify itself by making orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes. If it will be impossible to comply with the injunction sought, the court will decline to grant it …”

25. The court would also not be inclined to grant any order to prevent alienation or further dealing with the suit property since there is no evidence to demonstrate the risk of such alienation or dealing. The certificate of official search exhibited by the Petitioners show that there are at least two encumbrances registered against the suit property. There is a restriction entered at the instance of the defunct Municipal Council of Embu and a caution registered at the instance of Lincoln Muthui Muita who is the Plaintiff in Embu ELC No. 96 of 2017. In those circumstances, there is no imminent danger of alienation of the suit property.

26. The upshot of the foregoing is that the court finds no merit in the Petitioners’ notice of motion dated 25th October 2018. Accordingly, the same is hereby dismissed in its entirety. Costs of the application shall be in the cause.

27. It is so ordered.

RULING DATED, SIGNED and DELIVERED in open court at EMBU this 4TH day of JULY, 2019.

In the presence of Mr. Guantai for the Petitioners; Ms. Nzekele holding brief for Mr. Wachira for 1st Respondent, Mr. Andande holding brief for Ms. Migwi for 2nd Respondent and in the absence of the 3rd, 4th and 5th Respondents.

Court Assistant Mr. Muinde

Y.M. ANGIMA

JUDGE

4. 07. 19