[2018] KEELC 1997 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

PETITION NO. 28 OF 2013

M’MUGAINE M’NAINGABU.......................................PETITIONER

VERSUS

KARUTA MBERIA................................................1ST RESPONDENT

FRIDA KAMBANJA MBERIA...........................2ND RESPONDENT

THE LAND ADJUDICATION OFFICER

TIGANIA EAST/WEST DISTRICT...................3RD RESPONDENT

THE HON. ATTORNEY GENERAL.................4TH RESPONDENT

JUDGMENT

INTRODUCTION.

1. The petitioner filed this petition dated 31/10/2013 on 18/11/2013 in which he sought the following prayers:-

(a) A declaration that the petitioner has been deprived of ownership of a portion of land measuring 1. 50 acres.

(b) A declaration that the petitioner has been denied a right to a fair administrative action.

(c) An order directing the 3rd respondent to implement the decision of the Land Adjudication Officer made on 11/02/2008.

(d) Any other order as is just and fair.

2. The said petition is supported by the affidavit of the petitioner sworn on the 31st October, 2013. The petitioner also swore a further supporting affidavit dated 15th February, 2018 which he filed on the same date. He also filed his submissions on 11/3/2018.

3. The 1st respondent filed her replying affidavit dated 11th January, 2014on the 15/1/2014. The 1st and 2nd respondents filed submissions on 20/3/2018.

4. The Land Adjudication Officer Tigania District, Mr. Japhet Muthaka Muchai filed replying affidavit dated2nd August, 2017on17th October, 2017. I have considered these filed documents.

The Petitioner’s Case

5. In the petition the petitioner avers that he lodged Objection No. 649 within Kitharene Adjudication Section on 20/06/1994 against one Limberia Kirera. In Objection No. 649the petitioner was claiming 1. 50 acres from land parcel No. 1417 Kitharene Adjudication Section.

6. He states that after conducting a full hearing and listening to the respective parties arguments, the Land Adjudication Officer found in favour of the petitioner and the decision was to the effect that the said Limberia Kirera gives the petitioner a portion measuring 1. 50 acres to be excised from land parcel number 1417Kitharene Adjudication Section. The said decision was pronounced on 11/2/2008 and has never been challenged by Limberia Kirera. It is averred that the 2nd respondent has contravened the decision of his own office by subdividing parcel of land No. 1417 into two portions being Nos. 1417and3241 Kitharene Adjudication Section.

7. The petitioner states that parcels of land Nos. 1417and3241 Kitharene Adjudication Section are presently recorded in the names of the 1st and 2nd respondents who are the wife and daughter of Limberia Kirera respective. The petitioner has incessantly petitioned the 3rd respondent to implement the decision of 11/02/2008 to no avail. It is averred that the petitioner has been deprived of the right to own property and the right to a fair administrative action.

The 1st Respondent’s Defence

8. The 1st respondent’s replying affidavit dated 11/1/2014 filed on behalf of the 1st and 2nd respondents, responds to the petition by confirming the petitioner’s allegation that plot number 3241 and1417are registered in the names of the 1st respondent and the 2nd respondent respectively; that two plots formerly belonged to the 1st respondent’s deceased husband; that the 2nd respondent is her daughter, that the consent of the District Land Adjudication And Settlement Officer only allowed the petitioner to claim part of plot number1417, that the two parcels have no pending cases; that the authenticity of the objection proceedings attached to the petition is in doubt; that there is no proof that the deceased was ever served with the hearing notices in respect of the objection; that Objection Number 649 was heard in 1995 and it was dismissed; that none of the petitioner’s rights have been infringed; and that judicial review proceedings against the 3rd respondent would have been the appropriate remedy.

The 3rd Respondent’s Defence

9. The 3rd respondent’s response to the petition is by way of the sworn affidavit of one Japhet Muthaka Muchai, Land Adjudication Officer, who states as follows: that Parcel Number 1417 originally belonged to Limberia Kirera; that the petitioner’s Objection No 649 claiming 1. 50 acres out of plot 1417 was dismissed on 21/4/1998; that however a second objection assigned the same number was heard on 12/2/2008 which awarded the petitioner 2. 00acres of Limberia’s land to the petitioner; that in his opinion, the first decision is the right decision. No documentary evidence is attached to the said affidavit. However these facts are reiterated in the supplementary affidavit of the 1st respondent filed on 23/1/2018 which attaches several documents. From the contents thereof, it is apparent that when the first objection was lodged by the petitioner the parties entered into a compromise by which the petitioner withdrew his claim in return for an undertaking that the deceased would allow him to have one acre out of the land the deceased was entitled to at another place which had not been subjected to demarcation and adjudication.

10. The 1st respondent’s supplementary affidavit is countered by the petitioner’s further affidavit sworn on 15/2/2018 which admitted the compromise between him and the deceased in the objection proceedings. However in the new affidavit he avers that he only kept his claim in abeyance pending the compensation promised by the deceased. He avers that when the demarcation process began at Ngathuine, the deceased refused to honour his undertaking, thus prompting him to revive the Objection No 649, which to him had not been heard and determined. The objection was thus heard and determined on 11/2/2008. He avers that it was in the latter decision that the deceased was ordered to excise a portion of land of 1. 50acres from Parcel Number 1417 and have it registered in the petitioner’s name. However the by the time of the deceased’s demise he had not conducted the excision and the decision has never been implemented to date.

DETERMINATION

Issues for Determination

11. The issues for determination in this matter are as follows:

a. Whether the rights of the petitioner to own property or to receive fair administrative action have been violated;

b. What orders should issue.

a. Whether the rights of the petitioner to own property or to receive fair administrative action have been violated;

12. The existence of the two sets of proceedings in respect of Objection Number 649 has been confirmed by the 3rd respondent. There is therefore no doubt that there was a dispute between the petitioner and the deceased and that the same was resolved by the 3rd respondent. The 3rd respondent however, despite having resolved the dispute for a second time seems to believe that the first resolution was the correct one. The 1st respondent’s documents show that the petitioner was to get alternative land from the deceased. The 1st respondent is the one now in the deceased’s shoes, so to speak, as she is his widow. Her doubts regarding the truthfulness of the record attached to the petition as resolution of Objection No 649 has been dispelled by the 3rd respondent who verifies that it is genuine. The question is why the 3rd respondent has not implemented the decision yet he confirms that it is in the official record. This is exactly what has prompted this petition. As long as that decision stands I think that it is not the task of this court to consider whether there was any other decision made there before concerning the suit land. Furthermore it appears that the 1st and 2nd respondents, being the persons entitled to the second parcel of land that the deceased would get at Ngathaine when demarcation began, would unfairly benefit from acquisition of the deceased’s second portion while the petitioner would go without any land. If the petitioner had already been given land from the new Adjudication Section as was intended in the objection proceedings, then there would not have been anything easier than for the 1st and 2nd respondents to expressly say so in their replies. That however was not done and, in my thinking, an putting an end to this dispute without any remedy being accorded to the petitioner would leave the petitioner quite disadvantaged.

13. I have noted that a subdivision of the land by the deceased which was prompted by the deceased’s letter dated 11/2/2006 was something that the Land Adjudication Officer knew about while he was implementing the deceased’s wishes. The same land adjudication office that presided over the compromise between the appellant and the deceased was instrumental in subdividing the suit land while all along it knew that the petitioner would be left empty handed. Even then, the justice of the case demanded that the petitioner be not left empty handed. The record of the new Adjudication Section where the petitioner’s compensation was to emanate have not been laid before me by any of the parties, and I consider that the burden of doing that lay with the respondents for the petitioner was solely reliant on them to do so.

What should this court do? It is clear that land cases have a way of destroying lives and livelihoods by their mere pendency in court or before tribunals while none of the disputing parties clearly know their rightful entitlement until a determination is pronounced by the court or tribunal. In the meantime in this country, billions of shillings worth of investment potential both in terms of financial investment aimed at enhancing productivity of the land and man hours attending such disputes are continually being wasted. This is a petition under the Constitution of Kenya which at Article 159 enjoins this court to do substantive justice to the parties at the expense of technicalities. Article 10 of the same Constitution espouses equity. In my view, it is not in a case such as the instant petition where a technicality that the dispute had been settled earlier should be upheld despite the injustice that holding would mete out to the petitioner. This must be the main point that motivated the Land Adjudication Officer to hear the dispute again and issue a substantive determination, this time not based on the consent on the parties, but on the evidence on the record. It is important to note that the deceased was still alive at the time of the hearing, and that the determination was in the petitioner’s favour. Had this been done earlier, the defence now raised by the respondents would have been non-existent. In my view, had the claim in the objection proceedings been denied by the deceased, or had the hearing by the Land Adjudication officer arrived at a finding that did not favour the petitioner, I would have taken an entirely different course. However the admission by the deceased has determined the perspective that this court has to take. In my view there is need to have the dispute between the parties settled at the earliest instead of letting it fester between the parties like an eternal wound. I agree with the petitioner that this was a matter in which the prompt administrative action of the 3rd respondent to implement his own decision should have finalised the matter quite easily. I do not find any need to leave the petitioner to pursue any other remedy while the land was admitted by the deceased to belong to the petitioner. The land is still in the hands of the 1st and 2nd respondents who survived the deceased. It is important to remember that the orders I will make can be enforced simply because the deceased was alive at the time of the second determination which has been acknowledged by the 3rd respondent. Article 23 of the constitution does not limit this court in terms of the remedies that it may apply to any situation in constitutional petitions. In this instance it appeals to this court to issue orders that will reinstate the petitioner’s land to him and leave the 1st and 2nd respondents to pursue the other land that the deceased was entitled to and take possession of it to the exclusion of every other person including the petitioner who, had the compromise borne fruit, would have been a beneficiary thereof.

CONCLUSION

b. What orders should issue?

14. I therefore find that had the Land Adjudication Officer considered the matter in the above perspective he would have implemented the second decision promptly and put and written finis to the dispute. By delaying and failing to so he has violated the petitioner’s right to fair administrative action and this court can not stand and watch as the petitioner is denied his rights. The rights to the land in the unadjudicated section could only have been pursued and established by the deceased or his survivors for their benefit and for the petitioner’s benefit. However, the survivors are now busy denying the petitioner’s claim without showing there is any alternative, yet the deceased had officially admitted the claim during his lifetime. The neglect by the 3rd respondent to implement the award has contributed to this untidy situation. It is clear that the rights of the petitioner to prompt and fair administrative action arose immediately the decision in his favour was made in the year 2008.

15. I therefore find that the petition dated 31/10/2013 has merit and I grant the following orders:

(a) A declaration that the petitioner has been denied a right to a fair administrative action by the 3rd respondent’s failure to implement the decision arrived at during the objection which awarded the petitioner the land.

(b) A declaration that the petitioner has been deprived of ownership of a portion of land measuring 1. 50 acres by the 3rd respondent’s failure to implement the decision arrived at during the objection which awarded the petitioner the land.

(c) An order directing the 3rd respondent to implement the decision of the Land Adjudication Officer made on 11/02/2008 by first merging parcels numbers 1417 and 3241 to reinstate the original size of plot number 1417, and subsequently excise the 1. 50 acres therefrom and register it in favour of the petitioner.

(d) The respondents shall bear the costs of these proceedings.

Dated, and signed at Kitale on this1stday of August, 2018.

MWANGI NJOROGE

JUDGE

ENVIRONMENT AND LAND COURT, KITALE

Delivered at Meru on this 29th day of August, 2018 in open court in the presence of:

Mr. Mwirigi for 1st and 2nd respondents

Mr. Kiongo for 3rd and 4th Respondents

Mr. Kibiti holding brief for Mr. Muriithi for petitioners

C/A Mutua

MWANGI NJOROGE

JUDGE

ENVIRONMENT AND LAND COURT, KITALE.