[2024] KEELC 713 (KLR)

Njama (Suing as the Personal and Legal Representative of the Estate of Josphat Njama Nyota) v National Land Commission & 2 others (Environment & Land Petition 14 of 2018) [2024] KEELC 713 (KLR) (13 February 2024) (Judgment)

Neutral citation: [2024] KEELC 713 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Petition 14 of 2018

BM Eboso, J

February 13, 2024

Between

Lydia Mumbi Njama [Suing as the Personal and Legal Representative of the Estate of Josphat Njama Nyota]

Petitioner

and

National Land Commission

1st Respondent

Chief Land Registrar

2nd Respondent

Attorney General

3rd Respondent

Judgment

Introduction 1. The dispute in this Petition raises, among other issues, two key questions: (i) the constitutionality of the grants review decision that was conveyed to the late Josphat Njama Nyota through Gazette Notice No 6864 published by the 1st respondent on 17/7/2017; and (ii) the legality of the late Josphat Njama Nyota’s registration and title over land parcel number Kiambu Municipality Block 2/312. Before I dispose all the key issues that fall for determination in the petition, I will outline a brief background and a summary of the parties’ respective cases.

Background 2. Through a petition dated 18/9/2018, Josphat Njama Nyota [referred to in this Judgment as “the deceased”] challenged Gazettte Notice No 6864 published by the National Land Commission [referred to in this Judgment as “the Commission”] in the Kenya Gazette on 17/1/2017. The Commission published the impugned notice in furtherance of its grants review mandate under Section 14 of the National Land Commission Act as read together with Articles 67 (2) (e) and 68 (c) (v) of the Constitution of Kenya 2010. Through the Gazette Notice, the Commission conveyed and published its findings and recommendations in relation to what was described in the Gazette Notice as Land With House Block 2/312 Kiambu. On the face of the impugned Gazette Notice, the Commission found that the said land had been reserved as part of a Government House and had been illegally alienated to the deceased. The determination contained in the impugned Notice was that the title issued to the deceased in relation to the land was to be revoked by the Chief Land Registrar.

3. Aggrieved by the determination, the deceased brought this petition, contending that he was “never granted a proper and/or fair hearing of the review before the order was granted”. The deceased further contended that he was never given any written reasons before the said Gazette Notice was published.

4. The deceased prayed for the following verbatim reliefs:a.A declaration that the petitioner’s rights under Article 25 (c), 40, 47 (1) & (2), 50 (1) and 60(1) (b) of the Constitution were violated by the publication of Gazette Notice No 6864. b.A declaration that Gazette Notice 6864 is null and void and of no effect.c.The 1st respondent be directed to cancel, delete or remove all entries giving effect or made pursuant to Gazette Notice Number 6864 in the title to the suit property.d.The 1st and 2nd respondents or any other persons authorized on their behalf, be restrained from giving effect or implementing in any manner whatsoever the contents of Gazette Notice No 6864 in respect of the suit property.e.The petitioner be awarded general damages against the 1st respondent for losses and inconveniences suffered as a result of its unconstitutional actions.f.The petitioner be awarded costs of this petition.g.The 1st and 2nd respondents be directed to publish these orders in the Kenya Gazette within 21 daysh.The Honourable Court do make any such other or further orders as it may deem just and expedient in the circumstances to remedy the violation of the petitioner’s fundamental rights.

5. Peter Njama Nyota [the original petitioner] died during the pendency of this petition. He was substituted with his personal representative, Lydia Mumbi Njama, on 26/10/2020. The petition was amended to reflect the changes.

Petitioner’s Case 6. Through the amended petition, affidavit evidence and written submissions dated 30/10/2023, the petitioner contends that the deceased was registered as a leasehold proprietor of the suit property on 13/2/2006 for a term of 99 years from 1/5/1992. It is the case of the Petitioner that in 1986, the then Municipality Council of Kiambu advertised residential plots for sale to the public. Among the advertised plots was Kiambu Municipality Block 2/312 [the suit property]. The deceased successfully bid and was allocated the suit property by the then Municipal Council of Kiambu. He was subsequently issued with a Letter of Allotment dated 12/5/1997 by the Department of Lands, after which he paid the sum of Kshs 52,460 stipulated in the Letter of Allotment. He also paid all the other monies that the Municipal Council required him to pay. He was later registered as proprietor of the land and issued with a Certificate of Lease dated 13/2/2006. In February 2013, he applied for a change of user from residential single dwelling to commercial residential multiple dwelling flats, and the approval was granted in March 2014.

7. The petitioner adds that on 2/2/2016, the deceased appeared before a Grants Review Panel of the Commission at Thika Municipality Hall and presented all the documents that he had to prove his lawful ownership of the suit property. The petitioner further contends that on 13/2/2017, the deceased wrote to the Commission forwarding the relevant part–development plan and the minutes relating to the alienation. It is, however, noted that, although the petitioner made reference to a Letter annexed as exhibit number “JNN 13”, the said exhibit did not have a copy of the alleged part - development plan. Indeed, no part - development plan was placed before this court as an exhibit.

8. The petitioner further contends that on 17/7/2017, the Commission published the impugned notice, directing the Chief Land Registrar to revoke the deceased’s title. The petitioner reiterates that the deceased was never granted a proper and/or fair hearing before the recommendation was made and that no written reasons were given for the decision.

1st Respondent’s Case 9. The 1st respondent opposed the petition through a replying affidavit sworn on 1/10/2019 by Mr Brian Ikol. The case of the 1st respondent was that, in the discharge of its grants review mandate, the Commission operated as a quasi - judicial body within the full meaning of Article 196 (1) of the Constitution. The review exercise entailed analysing of the process under which public land was converted to private land and making findings on the legality of the grants in question. The Commission conducted a grants review exercise to determine the legality of titles relating to various properties in Kiambu County, including the suit property.

10. The Commission added that during the grants review exercise, it invited the deceased to attend its hearings at Thika Municipality Hall. The deceased appeared before the Commission with documents supporting his ownership of the suit property on 3/2/2016. Further, the deceased prepared and served his submissions dated 13/2/2017 that were received by the Commission on 28/3/2017.

11. The Commission further contended that, through the grants review exercise, it established that the suit property was reserved for use as a Government House, adding that under Section 3 of the Government Lands Act, Cap 300 [now repealed], the suit property was not available for alienation without due process. The Commission contended that whereas the deceased contended that he was allocated the land following advertisement and a successful bid, he failed to prove that the correct procedure was followed leading to the allocation of the land, adding that the Municipal Council had no authority to advertise the land for sale.

12. It was the Commission’s case that the whole process, from the advertisement to the final allocation of the suit property to the deceased, was flawed, adding that the alienation was irregular, illegal and void ab initio. They Commission contended that the deceased obtained a defective title to the suit property from the start.

13. The Commission added that when making its determination, it took into consideration the deceased’s oral and written submissions and all the information that had been gathered. The Commission contended that the deceased was duly given an opportunity to be heard.

Petitioner’s Submissions 14. The petition was canvassed through written submissions. The petitioner filed written submissions dated 30/10/2023 through M/s Kinuthia Wandaka & Co Advocates. Counsel for the petitioner identified the following as the issues that fell for determination in the petition: (i) Whether the petitioner acquired lawful and legitimate rights over the suit property and not fraudulently obtained as alleged by the 2nd respondent; (ii) Whether the petitioner was accorded a fair hearing before the decision by the National Land Commission to recommend the revocation of title to the suit property; (iii) Whether the National Land Commission or Chief Land Registrar have power or jurisdiction to revoke titles to land; (iv) Whether the plaintiff is entitled to damages; and (v) What shall be the orders as to costs.

15. One whether the petitioner acquired lawful and legitimate rights over the suit property, counsel for the petitioner submitted that the petitioner had produced documentary evidence to show ownership of his title. Counsel added that the petitioner was among the applicants who attended the meeting for allocation of the advertised plots. Counsel argued that the petitioner was listed as the successful applicant for Plot 33 as evidenced by the Minutes of the Municipal Council of Kiambu dated 11/2/1989. Counsel submitted that the deceased was issued with notification of plot allocation for Plot Number 33 (Residential) and was subsequently issued with a letter of allotment on 12/5/1992 by the Department of Lands, adding that the deceased paid the requisite premium and other moneys amounting to Kshs 52, 460. Counsel added that upon the petitioner being allotted the land, he paid all other monies required by the Municipal Council of Kiambu. Counsel contended that on 3/2/2016, the petitioner appeared before the 1st respondent’s Panel at Thika Municipal Hall and submitted documents to prove his lawful ownership of the suit property.

16. On whether the petitioner was accorded a fair hearing before the impugned decision by the Commission was made, counsel submitted that the 1st respondent did not provide any particulars of the facts constituting any alleged illegality, irregularity and/or fraud in the alienation and/or acquisition of the suit property by the petitioner. Counsel added that the petitioner was entitled to the opportunity to know the allegations and/or case he was required to answer. Counsel argued that the impugned Gazette Notice did not satisfy the provisions of Article 47(1) of the Constitution.

17. On whether the National Land Commission had jurisdiction to revoke titles to land, counsel submitted that the 1st respondent erred in giving a determination for revocation of the grant as opposed to a recommendation. Counsel added that the Constitution of Kenya 2010 does not vest the 1st respondent with power to revoke titles, grants or dispositions of land. Counsel submitted that the 1st and 2nd respondents had not stated any case number to show that they approached a court of law and sought orders to have the petitioner’s title revoked. Counsel argued that the 2nd respondent’s act of revoking the petitioner’s title was null and void.

18. On whether the plaintiff was entitled to damages, counsel submitted that the Court has power to award damages as well as compensation under Section 13 (7) of the Environment and Land Court Act No 19 of 2011. Counsel added that the petitioner was entitled to damages since he had suffered a great deal given that he had not enjoyed use of his land for a lengthy period. Counsel urged the Court to award the petitioner Kshs 10,000,000 as general damages.

19. On the issue of costs, counsel submitted that the petitioner relied on Section 27 of the Civil Procedure Act and on the decision in the case of Mike Maina Kamau v Attorney General [2017]eKLR. Counsel urged the Court to award the petitioner costs of the petition.

1st Respondent’s Submissions 20. The 1st respondent filed written submissions dated 4/10/2022 through Ms Cecilia Masinde Advocate. Counsel for the 1st respondent identified the following as the issues that fell for determination: (i) Whether the Commission followed the rules of natural justice and afforded the petitioner a fair hearing; (ii) Whether the Commission had the jurisdiction to make its recommendation; and (iii) Whether the 1st respondent owes the petitioner damages and the costs of the petition.

21. On whether the Commission followed the rules of natural justice and afforded the petitioner a fair hearing, counsel submitted that the Commission published a notice containing a list of properties including the suit property, notifying the public that it would be carrying out review of grants and disposition proceedings at the Thika Municipal Hall. Counsel added that as a result of the aforementioned communication, the petitioner appeared before the Commission on 3/2/2016 with documents supporting his title and further filed written submissions dated 13/2/2017. Counsel added that the said documents were taken into consideration by the Commission when making its determination. Counsel argued that the petitioner had not provided any evidence to support the allegation that the Commission did not conduct a fair hearing in accordance with Article 47 of the Constitution of Kenya, 2010.

22. On whether the Commission had the jurisdiction to make its recommendation, counsel relied on Section 14 (5) of the National Land Commission Act, 2012 which provides that:“Where the Commission finds that the title was acquired in an unlawful manner, the Commission shall direct the registrar to revoke the title.”

23. Counsel submitted that the Commission did not revoke the title to the suit land as alleged by the petitioner but it instead directed the registrar, as required by Section 14 (5) of the National Land Commission Act, 2012.

24. On whether the 1st respondent owes the petitioner damages and costs of the petition, counsel submitted that the 1st respondent had adequately demonstrated that the petitioner was afforded an opportunity to be heard during the review of grants and dispositions proceedings and that the 1st respondent acted within its mandate when it directed the registrar to revoke the title to the suit property. Counsel added that the petitioner had not demonstrated the damage that was suffered due to the Commission's proceedings, adding that the land had not been developed and the entity that stopped any development of the land was not the 1st respondent. Counsel contended that the petitioner alleged that the 2nd respondent blocked the development on the land thus absolving the 1st respondent of culpability on the issue of development. Counsel added that Gazette Notice 6864 of 17/7/2017 clearly set out the basis of the proceedings and communicated the Commission's determination based on its findings. Counsel submitted that the 1st respondent's actions were not malicious or ultra vires in nature and no sufficient evidence to the contrary had been produced before this Court. Counsel further submitted that no basis or valuation report had been presented before the Court to support the claim of Kshs 10,000,000 as general damages. Counsel urged the Court to disallow the petitioner’s claim.

2nd Respondent’s Submissions 25. The 2nd respondent filed written submissions dated 24/8/2023 through Ms J Motari Matunda, Principal State Counsel in the Office of the Attorney General. Counsel identified the following as the issues that fell for determination: (i) Whether the petitioner was granted the right of fair hearing; (ii) Whether the petitioner’s title was obtained fraudulently; and (iii) Who should bear costs of the suit.

26. On whether the petitioner was granted the right of fair hearing, counsel submitted that the petitioner appeared before the Commission and responded to the allegations that had been made against his title.

27. On whether the petitioner's title was obtained fraudulently, counsel submitted that the petitioner neither availed advertisements for the bidding, auctioning and allocation of the suit land nor produced the advertisement inviting him for allocation of the suit land. Counsel further submitted that the petitioner did not produce any approved physical development plan over the government land in between the two government houses. Counsel added that the land alienation was an illegal and fraudulent acquisition of public land hence the Court should uphold the finding of the 1st respondent by revoking the title in the name of the petitioner. Counsel relied on the decisions in the cases of Joseph Kuria Kiburu v Attorney General [2018]eKLR, Adan Abdirahani Hassan & 2 others v The Registrar of Titles , Ministry of Lands & 2 Others [2013] eKLR, Cycad Properties Limited v The Attorney General & Others , H.C Petition No. 70 of 2010 and Republic v Registrar of Lands in Kilifi ex-parte Daniel Ricci [2013]eKLR.

28. On who should bear costs of the petition, counsel submitted that the Court should consider the party who caused the filing of the suit and the party that ought to be condemned. Counsel also relied on the principle that cost follow the event as provided for under Section 27 of the Civil Procedure Act. Counsel for the 2nd respondent submitted that the court had discretion to award costs.

Analysis and Determination 29. I have considered the petition, the responses to the petition and the parties’ respective submissions on the petition. I have also considered the relevant constitutional and legislative frameworks, alongside the prevailing jurisprudence on the key issues in this petition. Taking into account the pleadings, evidence and submissions, the following are the key issues that fall for determination in the petition: (i) Whether the deceased was given a fair hearing by the Commission prior to the making of the grant review decision relating to title number Kiambu Municipality Block 2/312; (ii) Whether the deceased was given written reason for the grant review decision; (iii) Whether the deceased was entitled to prior written reasons before the publishing of the impugned Gazette Notice; (iv) Whether the Commission violated any of the deceased’s rights under Articles 25 (c), 40, 47(1) and (2), 50(1), and 60 (1) (b) of the Constitution by publishing the impugned Gazette Notice; (v) Whether the deceased’s title was impeachable under Section 26(1) of the Land Registration Act; (vi) Whether the deceased’s estate is entitled to any of the reliefs sought in the amended petition; and (vii) What order should be made in relation to the petition herein. I will dispose the seven issues sequentially in the above order.

30. Was the deceased given a fair hearing by the Commission? This petition was brought by the deceased in September 2018. Upon his demise, the petition was amended to reflect the deceased’s personal representative as the petitioner. The gist of the petition did not change. The gist of the petition is two–fold: (i) that the deceased was never granted a proper and/or fair hearing before the review determination was made; and (ii) that the deceased was never given any written reasons before the impugned Gazette Notice was published.

31. The court has looked at and considered the evidence presented in this petition. The power of the Commission to conduct the grants review exercise was donated by Articles 67(2(e) and 68(c) (v) of the Constitution as read together with Section 14 of the National Land Commission Act. It does emerge from the exhibited Hansard relating to the proceedings of the Commission that the deceased was invited for a grants review hearing and duly participated in the hearing. Indeed, the deceased confirmed in paragraph 10 of his supporting affidavit that on 3/2/2016, he appeared before a Panel of the Commission at the Thika Municipality Hall and presented all the documents which he had, to prove the lawfulness of his ownership of the suit property. He further stated in paragraph 11 of the same affidavit that he wrote to the Commission on 13/2/2017 forwarding Part – Development Plan Ref. PDP REF NO C 40/77/3B approved on 30/6/1981. Although the deceased failed to exhibit the alleged part-development plan, it is nonetheless clear that he was granted a fair opportunity to be heard and present his evidence during the grants review exercise. Indeed, the Hansard bears this fact out. Given the above evidence, this court does not, find merit in the allegation that the impugned determination was made without the deceased being given a fair hearing. Contrary to the petitioner’s contention, it is clear that the deceased was accorded the opportunity to be heard and was indeed heard. That is the court’s finding on the first issue.

32. Was the deceased given written reason for the grant review decision? The court has looked at the impugned Gazette Notice. The first part of the Notice contains a summary of the common background to the determinations that were made in relation to the titles that were the subject matters of the grants review exercise. It reads thus:“The National Land Commission is established under Article 67 of the Constitution. Its functions include managing public land on behalf of the national and County Governments.Under Section 14 of the National Land Commission Act, the Commission shall on its own motion or upon a complaint by the National or a County Government, a community or an individual, review all grants and dispositions (titles) to public land to establish their propriety or legality.Following complaint lodged on 6th May 2016 by the Ethics and Anti-Corruption Commission regarding the alleged unlawful and/or irregular allocation of land reserved for Government Housing within Kiambu County, the National Land Commission sought to review the legality of the grants listed herein.In line with Section 14(3) of the National Land Commission Act, the Commission issued notice of its intention to review the legality of the subject grants and or occupation of Government Houses by way of publication of notice on 30th October 2016 and 18th January 2017. Hearing of the matter was conducted from 1st to 3rd February 2017. Following review proceedings and following ground visit, the Commission hereby finds as follows;That the listed parcels either comprised government houses or fell within open spaces within government houses. In view of Section 3 of the Government Lands Act Cap 300, these parcels were therefore not available for alienation without due process. The properties the subject review, having been developed with government houses or hived off from parcels with government houses, in addition to the provisions of the Government Land Act on alienation, were also subject to the Exchequer and Audit Act Cap 412, and the Government Financial Regulations and Procedures.”

33. The second part of the impugned Gazette Notice contains six columns relating to: (i) item number; (ii) description of the property; the purpose for which the alienated public property was reserved; the parties affected by the grants review exercise; (iii) the decision of the Commission on each title; and (iv) the reasons for the decisions of the Commission on each title. It is clear from the face of the Gazette Notice that the suit property was captured in the Gazette Notice as item number 19. It was described as Land With House Block 2/312. The Gazette Notice indicated that the suit property was public land that had been reserved for use as a Government House. It further indicated that the determination made was a recommendation to the Chief Land Registrar to revoke the title. Lastly, the Gazette Notice indicated the reason for the recommendation as “illegal alienation of government land”.

34. From the foregoing, it is clear that the impugned Gazette Notice contained both the determination/decision and the reason for the decision. It is therefore not true that the deceased was never given a written reason for the impugned decision. That is the finding of the Court on the second issue.

35. Was the deceased entitled to prior written reasons? In paragraph 14 of both the original and the amended petition, lack of written reasons prior to the publishing of the impugned Gazette Notice was advanced as one of the two grounds for which the decision should be nullified. However, no constitutional or statutory basis was laid to demonstrate that the Commission was required to give to the deceased prior written reasons for its decision prior to publishing its determination. Indeed, the petitioner did not pursue this limb of the complaint in their written submissions. Consequently, the court finds that the deceased was not entitled to a prior separate notice of reasons.

36. Did the Commission violate any of the deceased’s rights under Articles 25(c), 40, 47(1), 50(1) and 60(1) (a) (b) of the Constitution by publishing the impugned Notice? Article 25(1) provides for the inalienable right to a fair trial. The grants review exercise which the commission carried out pursuant to Articles 67 (2) € and 68 (c) (v) of the Constitution as read together with the Section 14 of the National Land Commission Act was not a trial within the meaning of Article 25 (c) of the Constitution. It was an inquiry into the process through which public land was converted into private land, with a view to establishing the propriety or legality of the conversion and the title.

37. Article 40 protects the right to acquire and own property. Article 40 (6) qualifies the right to own property by providing that property that has been found to have been unlawfully acquired does not enjoy the protection. Indeed, the framers of the Constitution were aware of the provisions of Article 40 when they anchored the grants review provisions in the Constitution. A determination made in furtherance of the constitutional framework on review of grants relating to hitherto public land cannot, in my interpretation of the Constitution, be regarded as a violation of Article 40 of the Constitution.

38. Article 47 (1) and (2) provides for the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and the right to written reasons for an action. The court has made a finding that the deceased was given a proper written reason for the grants review decision. The court has also made a finding to be effect that the deceased was accorded a fair hearing during the grants review exercise leading to the impugned decision. The grants review exercise was provided for under Article 67(2) (e) and 68 (c) (v) of the Constitution and Section 14 of the National Land Commission Act. No evidence was tendered to demonstrate presence of the negative elements set out under Article 47 (1) and (2) of the Constitution. Consequently, there was no proof of violation of Article 47 (1) and (2) of the Constitution.

39. Article 50 (1) of the Constitution protects the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or an independent and impartial tribunal or body. From the evidence presented by court, the petitioner and the 1st respondent, it is clear that the Commission, as an independent body, duly complied with the requirements of Article 50(1).

40. Lastly, Article 60(1) (b) of the Constitution provides for security of land rights as one of the principles of land policy in Kenya. From the Constitutional and legislative frameworks, it is clear that the grants review exercise was a dictate of the Constitution. It is also clear that Parliament enacted appropriate legislative framework to guide the review exercise. No evidence was tendered by the petitioner to demonstrate a violation of the principle of security of land rights.

41. The totality of the foregoing is that the petitioner failed to demonstrate the alleged violation of Articles 25(c), 40, 47(a) and (2), 50(1) and 60(1)(b) of the Constitution.

42. The fifth issue is whether the deceased’s title was impeachable under Section 26(1) of the Land Registration Act. Under the above framework, a registered title to land is impeachable on ground of fraud or misrepresentation to which the registered proprietor is proved to be a party or on the ground that the certificate was acquired illegally, unprocedurally or through a corrupt scheme.

43. There was evidence before the Commission and there is evidence before this court, demonstrating that the suit property is public land that was converted into private land. Indeed from the evidence, it does emerge that the suit property was part of a parcel of land on which a Government House stood. Put differently the land had been committed for use as a Government House. Under Section 3 of the repealed Government Lands Act, which was in force at the time of the purported alienation, the land was not unalienated Government Land that was available for alienation through an allotment letter by the Commissioner of Lands. Secondly, under Section 144 of the repealed Local Governments Act, sale or appropriation of land belonging to a local authority required the approval of the Minister in charge of Local Authorities. No such approval was tendered in evidence by the petitioner. Further, whereas the petitioner alluded to a part-development plan, none was tendered as evidence before this Court.

44. The totality of the foregoing is that, the procurement of the title held in the name of the deceased was irregular and illegal and for that reason, the title was and is impeachable under Section 26(1) of the Land Registration Act.

45. Having arrived at the above findings, it follows that the estate of the late Njama is not entitled to any of the substantive reliefs that were sought in the petition. On costs, it is clear that at the centre of the irregular and illegal conversion of public land into private land were operatives in the Municipal Council of Kiambu and in the Lands Department in the then Ministry of Lands. Those operatives are not parties to this petition. For that reason, parties to this petition will bear their respective costs of the petition.

46. In the end, this petition is devoid of merit and is accordingly dismissed. Parties shall bear their respective costs of the petition.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 13TH DAY OF FEBRUARY 2024B M EBOSOJUDGEIn the presence of:Mr Mshindi for the petitionerMs Masinde for the 1st RespondentMs Masinde holding brief for Mr Motari for the 2nd and 3rd respondentCourt Assistant: Hinga