[2013] KEHC 1495 (KLR)

REPUBLICOF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

CONSTITUTIONAL APPLICATION NO. 11 OF 2012

IN THE MATTER OF AN APPLICATION UNDER CHAPTER 4 ARTICLES 22 (1), 23 (1) (3) (F) AND SCHEDULE 6 PART 5 CLAUSE 19 OF THE CONSTITUTION OF KENYA

BETWEEN

MWANIKI NGUGI ..........................................................................1ST APPLICANT

JORAM MURAGE ............................................................................2ND APPLICANT

AND

THE DISTRICT LAND REGISTRAR KIRINYAGA ............. 1ST RESPONDENT

THE PRINCIPAL MAGISTRATE COURT WANGURU ..... 2ND RESPONDENT

ALLAN NJOGU NJERI ........................................................... 3RD RESPONDENT

MARK KUNGU JAMES .......................................................... 4TH RESPONDENT

AMBROSE WAMAIYA GITARAGARA

Alias AMBROSE MWANGI .................................................. 5TH RESPONDENT

JUDGMENT

By their Constitutional Application filed herein on 15th November 2012 under Articles 22 (1) and 23 (1) (3) of the Constitution, the applicants sought the following orders:-

That their fundamental right to own property has been infringed by the Principal Magistrate’s Court Wanguru by ordering the Land Registrar Kirinyaga to cancel the registration of their title to parcel of land number MWERUA/KAGIO/3963 without giving them an opportunity to be heard.

That the Principal Magistrate’s order in Wanguru Civil Case No. 59 of 2010 has now been executed and yet the applicants have not been parties in the suit nor have they been notified

That this Court in exercise of it’s supervisory power be pleased to quash the Principal Magistrate’s Court ruling/order given on 11th August 2011 and dated 17th August 2011.

That this Court be pleased to order cancellation of MARK KUNGU JAMES and ALLAN NJOGU NJERI in land parcel No. MWERUA/KAGIO/3963 and reinstate the same to joint names of the applicants and the 5th respondent.

The application is supported by the affidavit of the 1st applicant MWANIKI NGUGI in which he depones, inter alia, that he, the 2nd applicant and the 5th respondent are the joint registered proprietors of land parcel No. MWERUA/KAGIO/3963 (hereinafter referred to as the suit property) since 24th May 2010 and that on or around June 2010, the 3rd respondent filed Wanguru Civil Suit No. 59 of 2010 against the 5th respondent. That on 10th June 2011, the 3rd respondent filed an application whose outcome would affect their fundamental rights over the suit property and they (applicants) were not heard on their application to be enjoined in the suit and an order was made depriving them of their proprietary rights hence this application.

The application is opposed by the 3rd and 4th respondent.

Submissions have been filed by counsels for the applicants and the 3rd and 4th respondents. The 5th respondent also filed submissions in support of the applicant’s application.

I have considered the application, the rival affidavits and submissions on record.

It is clear from the proceedings in Wanguru SPM Civil Case No. 59 of 2010 that it was filed in 26th May 2010 by the 3rd respondent herein ALLAN NJOGU NJERI against AMBROSE WAMAIYA GITARAGARA alias AMBROSE MWANGI the 5th respondent seeking a refund of Ksh. 44,340/= plus interest of 30% after a sale agreement over land parcel No. MWERUA/KAGIO/3116 went sour. On 29th July 2010 interlocutory judgment was entered and on 11th August 2010, an application for Notice to show cause was filed against the 5th respondent and he was committed to civil jail for 30 days on 26th August 2010 but was released following a consent on how to liquidate the decretal sum. On 3rd May 2011 an application was made that the 5th respondent’s parcel of land which is the suit property herein be sold to recover the decretal sum. That application was allowed. On 10th June 2011, the 3rd respondent filed an application seeking inter alia, that the Land Registrar be ordered to cancel the registration of the applicants and 5th respondents as proprietors of the suit land. That application came up before Mr. D.A. OCHARO Resident Magistate in presence of Ms Thungu for the applicant on 4th August 2011. Mr. Chomba was also present holding brief for Mr. Ikahu Ngangah for the interested parties (applicants herein) and he addressed the Court that Mr. Ikahu had filed an application dated 3rd August 2011 which ought to be heard first. However, Ms Thungu objected and stated that the application dated 10th June 2011 should be heard first. The Court agreed, heard the application dated 10th June 2011 and delivered a ruling on 11th August 2011 granting the orders sought therein which orders had the effect of cancelling the registration of the applicants and 5th respondent as proprietors of the suit property hence this application.

The applicants application dated 3rd August 2011 and filed in the lower Court on the same date sought orders to enjoin the applicants herein in Wanguru Civil Suit No. 59 of 2010 and was supported by the 1st applicant’s affidavit in which he deponed, inter alia, that he and the 2nd applicant were the registered owners of the suit property and ought to be enjoined as interested parties in the said suit since the orders being sought in the application dated 10th June 2011 would be adverse to their proprietary rights in the land. They annexed a copy of the Green Card to the said land.

I have perused the said Green Card and it is clear that although the 5th respondent was issued with title deed to the said suit property on 11th March 2010, the applicants acquired title to the said property on 26th May 2011. Clearly therefore, when the application dated 10th June 2011 came up for hearing on 4th August 2011, there was evidence placed before the trial magistrate in the form of the Green Card which was prime facie evidence that as at that date, the applicants were the registered proprietors of the suit property. Since the orders being sought in the application dated 10th June 2011 included the cancellation of the applicants and the 5th respondent as owners of the suit property, it was incumbent upon the trial magistrate to hear the applicants herein before making orders adverse to them particularly in a matter touching on land. It is true that the manner in which the Land Control Board’s consent was obtained to transfer the land to the applicants was suspicious. However, that did not take away the trial magistrate’s responsibility of hearing the applicants on their application before making the order that he did. It must be noted that the applicants had moved the Court under Order 1 Rule 10 and 25 of the Civil Procedure Rules which allows the Court “at any stage of the proceedings” to enjoin any party to the proceedings.

“----- whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit ----“

As there was evidence in the form of a Green Card placed before the magistrate demonstrating that the applicants herein had a proprietary interest in the suit land, he ought to have heard them before making the adverse orders that he did. Therefore, the applicant’s compliant that their Constitutional rights were violated is well founded. Since the applicants were jointly registered as proprietors of the suit land on 26th May 2011 and the application seeking the cancellation of their interest was filed on 10th June 2011, the rules of natural justice demanded that they be heard before their rights under Article 40 of the Constitution could be taken away. It is fundamental to fair procedure that both sides should be heard – audi alteram partem. The right to a fair hearing is also enshrined under Article 6 (1) of the Human Rights convention which forms part of our law. Therefore, as co-owners of the property, the applicants ought to have been enjoined in the proceedings in the lower Court to agitate their right however hopeless it may have be appeared to be. That was not done with the result that their Constitutional rights were infringed upon. Their application is therefore well merited.

There is also another issue that perhaps escaped the attention of the magistrate in the lower Court. It is clear from the record in Wanguru Civil Case No. 59 of 2010 that the judgment that was entered against the 5th respondent on 29th July 2010 was only an interlocutory judgment. It was not a final judgment and it is doubtful if execution could infact proceed on the basis of such a judgment.

In the circumstances, I am satisfied that the applicants are entitled to the prayers sought in this Constitutional application filed herein on 15th November 2012 and I grant the orders as prayed therein.

B.N. OLAO

JUDGE

5TH NOVEMBER, 2013

5/11/2013

Coram

B.N. Olao – Judge

CC – Muriithi

Mr. Ndata Mugo for Applicants – absent

Mr. Ngangah for Ms Thungu for 3rd & 4th Respondents – present

5th Respondent present

COURT: Judgment delivered this 5th day of November 2013 in open Court.

Mr. Mugo for applicant absent

Mr. Ngangah for Ms Thungu for 3rd and 4th respondents present

5th respondent present in person

Right of appeal explained.

B.N. OLAO

JUDGE

5TH NOVEMBER, 2013