[2025] KEELC 570 (KLR)

Nathwani & another v Cabinet Secretary Ministry of Transport Infrastructure, Housing and Urban Development & 4 others (Environment & Land Petition 80 of 2019) [2025] KEELC 570 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 570 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition 80 of 2019

MD Mwangi, J

January 16, 2025

Between

Pankarjoy Nanalal Nathwani

1st Petitioner

Rohini Pankarjoy Nathwani

2nd Petitioner

and

The Cabinet Secretary Ministry of Transport Infrastructure, Housing and Urban Development

1st Respondent

Kenya Urban Roads Authority

2nd Respondent

The Chief Land Registrar

3rd Respondent

The National Land Commission

4th Respondent

The Hon Attorney General

5th Respondent

(In respect to the Petitioners Notice of Motion dated 22nd July 2024 brought under the provisions of Articles 23(1), 25(c), and 50 of the Constitution, and Rules 3, 4, 5, 6 and 19 of the Constitution of Kenya (protection of rights and fundamental freedoms) Practice and Procedure Rules, 2013))

Ruling

Background 1. In their Notice of Motion dated 22nd July 2024, the Petitioners/Applicants pray for orders that the 3rd Respondent (the Chief Land Registrar) produces and serves copies of the Deed file and the Correspondence file relating to L.R. No. 21192 as described at the Lands Registry in Nairobi as I.R. No. 68599 and delineated on Land Survey Plan No. 198829 deposited in the Survey records office at Nairobi (‘hereinafter referred to as the suit property). The application is premised on the grounds on the face of it and on the affidavit of Pankajroy Nanalal Nathwani sworn at Nairobi on 22nd July 2024.

2. The Petitioners aver that they are the registered proprietors of the suit property and have since 1996 devotedly paid all due rates to the Nairobi City County Government (the successor in title to the Nairobi City Council) and all due land rent to the Commissioner of Lands.

3. The Petitioners assert that the Respondents allege that the allocation of the suit property to them was irregular on the premises that the suit property had been acquired by the government for a specific purpose and was not available for alienation.

4. Flowing from the above, the main issue for determination according to the Petitioners is whether the ownership of the suit property was public or private before it was transferred to them. According to the searches they conducted at the time of purchase of the suit property, the suit property was available for sale and or allocation free from all encumbrances and without any defects whatsoever.

5. According to the Petitioners, it is imperative that the court confirms that all the necessary steps, as laid down in the Supreme Court case of Dina Management Limited –vs- County Government of Mombasa and 5 others (2023) eKLR, were undertaken before the suit property was transferred to the Petitioners. All that information is contained in the Deed and Correspondence files which the Chief Land Registrar holds as the custodian of the registered titles.

6. The Petitioners accuse the Chief Land Registrar of abdicating his role by providing piecemeal information thereby violating their rights to a fair hearing under Article 50 of the Constitution of Kenya.

Response by the Attorney General 7. The Petitioners’ application is strenuously opposed by the Attorney General by way of the grounds of opposition dated 11th September 2024 filed alongside the list and bundle of authorities of even date.

8. The Hon. Attorney General affirmed that litigation is a solemn process owned by the parties subject to the provisions of the law. Consequently, the court in exercising its discretion is not tasked to decree how the matter should be conducted and what witnesses should be called by which party. Our system of law being adversarial, each party is at liberty to choose the nature of pleadings to file and the evidence if any, to tender and produce before the court.

9. The Hon. Attorney General avers that the Petitioners have a duty to prove their case without seeking the assistance of the Respondents. The court on its part must remain an impartial arbiter and allow the parties to bring forth and propagate their respective cases.

10. It is the Hon. Attorney General’s case that the Constitution and the law provide an elaborate procedure for anyone who wishes to obtain any information or documents held by the state. The Petitioners are bound by the provisions of Article 35 of the Constitution and the Access to Information Act which provide the modalities for obtaining any information held by the state or any other person. The Hon. Attorney General terms the application by the Petitioners as an abuse of the court process intended to delay the hearing and determination of this matter.

Submissions by the Petitioners 11. In their submissions, the Petitioners admit that discovery is a formal pre-trial process through which a party to litigation may seek to discover documents or facts that are crucial to is case. However, they seek the indulgence of the court to invoke its inherent powers as guaranteed under Sections 3A of the Civil Procedure Act.

12. The Petitioners reiterate that the issue in this case is whether their title is a valid title. The prayers sought in the application are paramount in the determination of this issue.

13. The Hon. Attorney General relied on her the grounds of opposition dated 11th September 2024 and the list and bundle of authorities of even date.

Issues for determination 14. Considering the Petitioners’ application and the response by the Hon. Attorney General, the sole issue for determination is whether the Petitioners’ application is merited.

Determination 15. The Petitioners’ application was prompted by this Court’s ruling delivered on 9th July 2024 where the court after disallowing the Petitioners’ oral application directed them to file a formal application to allow the Respondents an opportunity to respond to the same formally.

16. The Petitioners have invoked the jurisdiction of this court under Section 3A of the Civil Procedure Act which allows this court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

17. The Hon. Attorney General in his grounds of opposition raised the fact that Article 35 of the Constitution and the Access to Information Act have elaborate procedures which provide the modalities for obtaining the information held by the state.

18. The Hon. Attorney General made reference to the binding Supreme Court decision in the case of Njonjo Mue & another –vs- chairperson of the Independent Electoral and Boundaries Commission and 3 others (2017) eKLR, where the Supreme Court elaborated in details the application of provisions of Access to Information as follows;“The right to access information is, however, not absolute and there may be circumstances in which a person may be denied particular information. Specifically, procedures are provided in law on how a person ought to access information held by another person and particularly a state organ or entity. Section 8 of the Access to Information Act in the above context thus provides that a person may apply in writing or where one is unable to write, may apply orally to an information officer who shall then put the request in written form and any such request for information must be processed within 21 days. …we also recognize that information held by the state or state organs, unless for very exceptional circumstances ought to be freely shared with the public. However, such information should flow from the custodian of such information to the recipients in a manner recognized under the law without undue restrictions to access of any such information. Further, a duty has also been imposed upon the citizens, to follow the prescribed procedure whenever they require access to any such information. This duty cannot be abrogated or derogated from as any such derogation would lead to a breach and or violation of the fundamental principles of freedom of access to information provided under the Constitution and the constituting provisions of the law. It is a two-way channel where the right has to be balanced with the obligation to follow due process.”

19. The Petitioners/Applicants in this case have not demonstrated that they have complied with Section 8 of the Access to Information Act. They, according to the above decision are obligation to follow the prescribed procedure.

20. The above decision is not only binding on this court but also accords with the well-established general rule that where there is a specific law or provision of law, the court cannot invoke its inherent powers. Inherent jurisdiction, according to the Halsbury’s Laws of England, 4th Edition, Volume 37 Paragraph 14, is;“…a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law to prevent improper vexation or oppression, to do justice between the parties and to secure a fair hearing”.

21. Consequently, the Petitioner’s failure to comply with Section 8 of the Access to Information Act renders their application premature. It is hereby dismissed with costs to the Respondents.It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF JANUARY 2025. M.D. MWANGIJUDGEIn the virtual presence of:Mr. Njuguna h/b for Mr. Ochieng’ Oduol for the Petitioners/ApplicantsMr. Allan Kamau for the 1st, 2nd, 3rd & 5th RespondentsN/A by the 4th RespondentCourt Assistant: Mpoye