[2017] KEHC 1971 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA PETITION NO 12 OF 2016

MOHAMED ABDI MAALIM............................................................1ST PETITIONER

YUSSUF MOHAMUD MOHAMED……………........................…2ND PETITIONER

OMAR ABDILLE DAGANE………………………………........…3RD PETITIONER

VERSUS

THE CABINET SECRETARY MINISTER OF INTERIOR

AND CO-ORDINATION OF NATIONAL GOVERNMENT.........1ST RESPONDENT

REGIONAL CO-ORDINATOR NORTH EASTERN REGION...2ND RESPONDENT

THE COUNTY COMMISSIONER OF WAJIR………….........3RD RESPONDENT

THE HONOURABLE ATTORNEY GENERAL………….…....4TH RESPONDENT

AND

ABDI RASHID SALAT………..…………..................…1ST INTERESTED PARTY

MOHAMED ABDI ELMI…............................................2ND INTERESTED PARTY

MOHAMED YUSSUF ELMI...........................................3RD INTERESTED PARTY

ABDI ALI………………….……….………...............…4TH INTERESTED PARTY

KANYARE MOHAMED YUSSUF...................................5TH INTERESTED PARTY

JUDGMENT

1. Before me is a petition filed by 3 petitioners from Wajir County. They claim to have filed this petition on their own behalf and on behalf of residents of Bakala location and in the public interest. They have named the Cabinet Secretary responsible for Internal Security and Co-ordination of National Government as 1st respondent, the Regional Coordinator North Eastern Region as 2nd respondent, the County Commissioner Wajir County as 3rd respondent, and the Honourable Attorney General as the 4th respondent. Five interested parties later joined the proceedings.

2. The petition was brought under Articles 10,19,21,22,23,26,27,28,40,47,63,165,and 174 of the Constitution of Kenya 2010, as well as the Community Land Act No 27 of 2016, and the Fair Administrative Action Act No 4 of 2015, and the National Government Coordination Act No 1 of 2013.

3. It is alleged that Bakala location is an administrative unit within Eldas Constituency, Eldas Sub-County and has been in existence for over 2 decades with a population of about 2000 people, the majority of whom are of the Jibril sub-clan of the Degodia clan in the Somali community, with national identity cards issued to them bearing Bakala location. It is alleged that the residents are pastoralists who use vast and registered community land to support their livestock herds as their source of their livelihood and considered the land therein as ancestral land.

4. It is alleged that on about 5th November 2016 the residents were unexpectedly attacked by armed person whom they later established to be from the Matan sub-clan of the Degodia clan whose ancestral home was the neighbouring Wajir West sub-county.

5. It is also alleged that boundary concerns and utilization of community land remained an emotive issue in the region and deserved to be resolved in a consultative manner.

6. It is further alleged that information availed was that the National Government through the office of the Regional Coordinator North Eastern and County Commissioner Wajir County had devised a plan for forcefully remove all the residents of Bakala location to prevent future disputes and clashes and as a result, between 4th and 5th November 2016, military officers armed with weapons stormed the location and harassed and intimidated residents claiming to be searching for weapons or firearms.

7. It is claimed that before the 5th of November 2016 government officials visited the location and made threats to the residents ordering them to move out of their current settlement within 14 days failure to which they would be forcefully be removed. It is stated that the residents of Bakala location intended to register their proprietary interests in the ancestral and community land that they occupy and could not afford to lose the land to rival clans.

8. The petitioners also claim that they received information that the 1st respondent in concert with the 2nd and 3rd respondents intended to carry out an exercise of forcefully evicting the residents through the Constitution and the Community Land Act envisaged the application of alternative disputes resolution mechanisms, such as reconciliation, mediation, negotiation.

9. The petitioners claimed that the intended actions are contrary to the Constitution and the written law, and that the residents anticipated that damage and injury would be suffered by such action which was a violation of fundamental rights and freedoms guaranteed under the Constitution.

10. The petitioners have sought 3 prayers. Firstly, that the court issue a permanent order of prohibition restraining the 1st , 2nd and 3rd respondents by their organs, departments, officers, agents and or employees from taking any administrative steps or making any administrative decisions that would have the effect of forceful removal and or eviction of the current residents of Bakala location in Eldas sub-county, Constituency within Wajir county.

11. Secondly, that this court do issue a permanent order of prohibition restraining the 1st, 2nd, 3rd and 4th respondents by their organs, departments, officers, agents or employees from causing any illegal, forceful and unlawful removal , evictions or relocation of the current residents of Bakala location in Eldas sub-county in Wajir County. Thirdly and lastly, they sought costs of the petition.

12. The petitioners also filed a Notice of Motion dated 17th November 2016 for interim orders. That application for interim orders was allowed by the court on interim basis.

13. On 6th of June, 2017 the parties counsel agreed that any interim orders in force be extended till the hearing and determination of the petition. Thus the interim orders in force have operated till this decision.

14. Parties counsel also agreed that they would file and exchange respective written submissions to the main petition.

15. The petitioners written submissions were filed on 10th July 2017. In the said submissions, it was stated that there was a threat of forceful eviction of the petitioners by the disciplined forces. It was contented that previously peace efforts had been made and that currently the input of the residents of Bakala location should be sought before any administrative action was taken.

16. Counsel stated that under Article 22 of the Constitution of Kenya 2010 and rule 4 of the Constitution of Kenya Protection of Rights and Fundamental Freedoms Practice and Procedure Rules this court had jurisdiction in the matter. Counsel also relied on Article 23 (1) and Article 165 (3) of the Constitution on this court’s jurisdiction to determine the question whether a right of fundamental freedom in the Bill of Rights had been denied, violated, infringed, or threatened, and that this was not a matter that was exclusively governed by the Environment and Land Court Act No. 19 of 2011.

17. Counsel stated that as Akala location had always been part of Eldas District or Constituency, the respondents had no authority to forcefully transfer population in a bid to secure peace in the region. According to counsel, the eviction was intended to seek a resolution of Electoral Boundaries, in which case only the Independent Electoral and Boundaries Commission should be involved.

18. The counsel argued that the affidavit filed by the petitioners had not been challenged by the respondents or interested parties, and that the petitioners they clearly stated therein that they were threatened and told to leave their present settlements or risk forceful removal which position was confirmed in paragraph 29 of the interested parties replying affidavit.

19. Counsel claimed that it would be a normal reaction for the residents to resist eviction from their ancestral community land which was their only source of livelihood, as the residents of Bakala location could not be disenfranchised and denied enjoyment of their fundamental rights and freedoms. According to counsel the anticipated violation of constitutional rights amounted to discrimination under Article 27 of the Constitution.

20. Counsel emphasized that under Article 47 of the Constitution, it was envisaged that every person would have a right to fair administrative action, which was echoed also under Section 5 of the Fair Administrative Action Act.

21. According to counsel, since the affidavits evidence of the petitioners had not been challenged, this court should grant the orders sought. Counsel questioned the secretive and clandestine nature of the proposed eviction which was clearly against the constitutional principles of transparency, accountability, and people’s right of participation in activities that affected them and their welfare.

22. Counsel relied on the case of ODD JOBS VS MUBEA (1970) 476 and the case of BABEL ALIBHAI MAUJI VS SULTAN HASHIM RALJI AND ANOTHER Civil appeal No. 296 of 2001.

23. Though the respondents were granted 14 days on 17th July 2017 to file and serve their written submissions, upto the date of writing this judgment they have not filed their written submissions. I thus have to rely on their written submissions to the application for interim orders dated 20th January 2017 signed by Irari Mercy Faith, a Litigation Counsel, and the grounds of opposition filed or both the petition and Notice of Motion dated 17th November 2016.

24. It stated therein that the petition was full of glaring conjecture and did not demonstrate specific manner in which the petitioners fundamental rights had been violated or threatened by any of the respondents.

25. It was contended also that the respondents at all times acted within the respective constitutional and statutory mandates, and that the respondents had the mandate to resolve boundary disputes arising between inhabitants of any particular geographical or administrative area within Kenya and to preserve and maintain peaceful coexistence between various communities.

26. It is also the position of the respondents that the petitioners did not disclose whether they had reported the alleged attack from the Matan sub-clan to lawful authorities, and emphasized that respondents were law abiding citizens who had not hatched any unlawful plans to forcefully evict the petitioners from any particular area and as such the provisions of Fair Administrative action Act did not come in to play.

27. It was also contented that the issue of registration of proprietary interest in community or ancestral land at paragraph 26 of the petition was outside the jurisdiction of this court, and lastly, that the petitioners had failed to make out a case for the issuance of the orders sought.

28. The 1st to 5th interested parties filed written submissions on 17th July 2017 through their counsel MMA Advocates.

29. In the said submissions, their grounds of opposition were highlighted. Counsel stated that this court had no jurisdiction to entertain this matter as it was a land case. They relied on the case of OWNERS OF THE MOTOR VESSEL LILLIAN “S” –VS- CALTEX OIL KENYA LIMITED (1989) KLR 1 .

30. Counsel submitted that this being a boundary dispute , the Independent Electoral and Boundaries Commission had been mandated by the Constitution under Article 88 (4) (c) to determine Constituencies and Ward Boundaries, and stated that this court only had power to review such decision under Article 88 (10) (11) of the Constitution and relied on a case of PETER ODOYO OGADA AND 9 OTHERS –VS- IEBC AND 14 OTHERS (2013) EKLR.

31. Counsel also stated that if the petitioners were pursuing their rights under the Community Land Acts No. 27 of 2016, then they should not disguise it as a Constitutional petition because the Community Land Act had specific provisions on the registration of community lands. Counsel stated that the land which the petitioners occupied was land in which they settled just in October 2016 not as alleged by them, and relied on a case of KENYA AIRPORTS AUTHORITY -VS- MITU-BELL WELFARE SOCIETY AND 2 OTHERS (2016) EKLR.

32. According to counsel also, the respondents had intervened in evacuating members of Jibril Sub-clan in order to ensure peace following violence which had erupted in the disputed land. The court was thus asked to exercise restraint while pronouncing itself in this matter.

33. Counsel submitted further that the petitioners rights had not been ascertained and also that the petitioners failed to disclose material facts which were that there were efforts by the Degodia clan led by the Governor of Wajir County to settle the dispute. They also failed to disclose that the electoral and administrative boundary was settled when both Jibril and Matan members settled on the current boundaries after negotiations which was later gazetted by the Independent Electoral and Boundary Commission in the year 2012.

34. Counsel thus stated that the petitioners did not present before this court evidence of the factual basis upon which the court could make a determination and relied on a case of ANARITA KARIMI NJERU -VS- REPUBLIC (1976-1980) 1KLR 1272.

35. Counsel stated that the Interested Parties were entitled to a clean and healthy environment which was being depleted due to overgrazing on the disputed land thus reducing productivity, usefulness, and biodiversity of the land.

36. In conclusion, counsel stated that the petitioners were merely abusing the court process and that the respondents took the measures of evicting the petitioners instead of deploying security forces in the area and that the security concern arising from boundary issues in Northern Kenya was due to limited resources in the area resulting in eruption of clashes and loss of property and life and that granting the orders sought by the petitioners would potentially fuel the eruption of deadly clashes in the area.

37. I have considered the petition, documents filed, the written submissions and authorities cited to me. In my view the issues for determination are as follows;

1. Whether this court has jurisdiction to hear and determine this matter.

2. Whether the interested parties have shown that they have a sufficient interest to oppose the petition.

3. Whether the respondents have attempted to evict the petitioners unlawfully or unconstitutionally.

4. Whether the petitioners have established a case for constitutional reliefs.

5. What orders should this court grant.

6. Who will bear the costs of the proceedings.

38. On whether this court has jurisdiction to hear and determine this matter, I understand the arguments by the respondents and the interested parties to be saying firstly, that this is a land matter in which the petitioners claim a right under the Community Land Act,that this matter should go to the Environment and Land Court. Secondly, this matter relates to a boundary dispute and that it is thus pre-maturely before this court as the issue should have been dealt with first by the Independent Electoral and Boundaries Commission.

39. It is trite law that jurisdiction of a court is conferred by the Constitution or the written law. It is also trite law that where a court lacks jurisdiction, it has to down it’s tools and proceed no further. This position was clearly stated by the court of Appeal in the case of Owners of the Motor Vessel “Lilians” –vs- Caltex Oil (Kenya) Ltd (1989) KLR1 cited by counsel for the interested parties where Nyarangi J. A stated as follows:

“Jurisdiction is everything without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

40. This matter was brought to this court through a constitutional petition. Indeed there are matters that must be dealt with by the Environment and Land Court where the High Court will have no jurisdiction to deal with those matters. It is also true that electoral boundary disputes are required to be dealt with by the Electoral and Boundaries Commission. This is the position as contained in the Constitution of Kenya 2010, as well as the existing statutory enactments under Article 165 (b) of the Constitution. It is provided that the High Court shall not have jurisdiction in respect of matter falling within the jurisdiction of the courts contemplated in Article 162 (2). Article 898 of the Constitution reserves the review of electoral units and boundaries for the IEBC.

41. Claims relating to violation of constitutional rights apply even in situations relating to land matters as well as boundaries whether they are electoral or administrative boundaries, provided there are specific provisions of the Constitution which are violated or threatened to be violated. The way I understand it is that the petitioners claim that they are threatened with forceful removal from their ancestral land in contravention of the Constitution.

42. The respondents who were alleged to be doing so , have not come to this court through a replying affidavit or affidavits to explain what they were doing and giving the justification for doing what they are doing. In my view, people are entitled to live on land which they consider to be their own and any removal from there should not be in violation of either the Constitution or the written law.

43. Since the respondents have not stated the constitutional, statutory, or other justification for the removal of the petitioners, I am of the view that this court has jurisdiction to enquire into the constitutionality of such threats to removal of the petitioners and to come to a decision on the matter. I thus come to the conclusion that this court has jurisdiction to entertain, hear, and determine this matter.

44. The second issue is whether the interested parties have shown that they have sufficient interests to oppose the petition. Indeed, the interested parties were joined in this proceeding by consent and with the approval of the court. They have given their position both through replying affidavits and written submissions. They come from Eldas area of Wajir County, which is the same area in dispute. They are a rival clan to the clan comprising of the petitioners. In my view therefore, they have demonstrated that they have an interest and have so explained in their documents. Their position therefore has to be taken into account by this court in determining the petition.

45. The third issue is whether the respondents had attempted to evict the petitioners unlawfully or unconstitutionally. As I have said earlier, the respondents have not filed any replying affidavits to contest the allegations of the petitioners that they wanted to evict them from Bakala area unlawfully and unconstitutionally. The respondents have instead filed grounds of opposition, which tend to rely on technicalities rather than substantive response to the allegations of the petitioners.

46. The respondents appear to be concerned about maintaining peace. In my view if they were seriously complying with the law in attempting to maintain peace, they would have filed replying affidavits to explain what they were doing, how they were doing it, and the justification for what they were doing. They certainly have a right and a Constitutional duty to maintain peace and take any necessary action to do so. However, in doing so they are required to comply with both the Constitution and statutory provisions. They should do so without violation of Constitutional or statutory, or personal or proprietary rights of residents.

47. From the facts placed before me, I find that the respondents attempted to unconstitutionally and unlawfully evict the petitioners from an area where the petitioners claim to be their known place of residence, abode, and use.

48. The interested party have brought into fore clan issues and rival rights and environmental matters. Those are not the issues that are in contest. The petitioners merely asked for restraining orders against unlawful and unconstitutional evictions.

49. The next issue is whether the petitioners are entitled to the reliefs sought. The first relief sought is a permanent order of prohibition restraining the 1st 2nd and 3rd respondents and those working under them, from making administrative decisions for their forceful removal or eviction . This prayer in my view, is a blanket prayer which does not address the issues of illegality and unconstitutionality. The 1st and 2nd respondents as administrators, in my view, can in appropriate circumstances in compliance with a law and the Constitution take administrative steps or make administrative decisions for removal or eviction or residents of a certain area. This prayer therefore cannot be granted.

50. The second prayer is for a permanent order prohibiting 1st ,2nd ,3rd and 4th respondents and anybody working under them from causing any illegal, forceful and unlawful removal, eviction and relocation of the current residents of Bakala location. In my view, with the facts placed before me, this prayer is justified in order to protect the constitutional and legal rights of the petitioners. I will thus grant this prayer.

51. Prayer 3 is with respect to costs. The petitioners state that they wish to be awarded the costs of the petition. Indeed, they have won the case. One prayer has however been disallowed by this court.

52. The three petitioners who came to this court stated that they came to this court on behalf of themselves and other residents of Bakala location and in the public interest. It cannot thus be said that this is a petition simply relating to the three petitioners. To balance of the interests between the parties herein, I will order that each of the parties herein bear their respective costs of this proceedings.

53. In summary therefore, I allow the petition herein. I decline to grant prayer 1. I grant prayer 2 in the following terms that a permanent order of prohibition be and is hereby issued restraining the 1st , 2nd , 3rd and 4th respondents by their agents, departments, officers, agents and all employees from causing any illegal, forceful and unlawful removal, eviction and or relocation of the current residents of Bakala location in Eldas Sub-county in Wajir County. I clarify that if the eviction is lawful and constitutional, it can be done. I order that each party will bear their respective costs of this proceeding.

Dated and delivered at Garissa on 8th November, 2017.

GEORGE DULU

JUDGE