[2018] KEELC 4777 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

PETITION NO. 7 OF 2017

PATEL BROTHERHOOD...........................................PETITIONER

VERSUS

COUNTY GOVERNMENT OF NAKURU...............RESPONDENT

JUDGMENT

(A petition alleging that fundamental rights and freedoms under Articles 40, 42 and 47 of the Constitution among others have been denied, violated or infringed, or threatened by the respondent’s action of constructing a wall blocking the petitioner’s only access to its property; the respondent offered no evidence in response to the petition but raised a preliminary objectionthat the petitioner being a society registered under the Societies Act, is an unincorporated body and does not have the capacity to sue or be sued in its own name; preliminary objection dismissed on the basis that the constitution discourages placing limits on access to justice on the basis of locus standi and procedural technicalities; judgment entered in favour of the petitioner)

Parties

1. The petitioner herein moved the court on 5th April 2017 pursuant to the petition dated 5th April 2017. The petitioner described itself as a society registered under the Societies Act Chapter 108 Laws of Kenya. Its objectives are to improve the educational, cultural and social welfare of its members and the community in general.

2. The respondent is a county government established pursuant to Article 176 of the Constitution of Kenya, 2010.

The Petition

3. The petitioner has brought the petition to challenge decisions made by the respondent to start erecting a wall which if continued and completed will block the petitioner’s access to its property known as Land Parcel Number Nakuru Municipality Block 10/340, the suit property. The petitioner alleges that the decision is a gross violation of its right to property and fair administrative action. The petitioner further alleges that its right to a clean and healthy environment has been violated since the respondent’s employee started digging the land to lay the foundation and offloading various construction material.

4. The petitioner cites Articles 40, 42 and 47 of the Constitution among others and seeks judgment for the following:

a) A declaration that the decision and process of commencing the process of erecting a wall by the respondent is opaque, clandestine, whimsical and flies in the face of Articles 40,42 and 47 of the Constitution of Kenya, 2010 hence unconstitutional and consequently null and void.

b) A declaration that the above actions by the respondent contravened Articles 2(1), 3(1), 10, 27, 40, 42,43(1) €, 47, 69(1) (d) and 73 of the Constitution of Kenya, 2010.

c) A declaration that the Respondent has abdicated is duty to respect and uphold the Constitution of Kenya, 2010 in its administrative actions contrary to Article 47 (1) and (2) of the Constitution of Kenya, 2010.

d) An order to issue directing the respondent, its agents, servants and/or employees or otherwise howsoever to forthwith stop the ongoing construction of the wall.

e) Costs incidental to this petition be awarded to the petitioner.

f) The honourable court do issue such orders and give such directions as it may deem fit to meet the ends of justice.

Supporting Evidence

5. The petition is supported by an affidavit sworn by Maendra C. Patel, a trustee of the petitioner. It is deposed in the affidavit that the petitioner is the registered proprietor of the suit property. A copy of Certificate of Lease dated 8th June 1998 was annexed. The only access to the suit property is Mosque road which terminates at the suit property.

6. The respondent, in disregard of the petitioner’s constitutional right to property, a clean and healthy environment and fair administrative action started to erect a wall which if completed would block access to the petitioner’s property. As a result, the petitioner and its members will not be able to access the property and the services offered therein. There will thus be a violation of the petitioner’s right to property.

7. The respondent did not inform the petitioner of its decision to construct the wall despite the fact that the construction would interfere with the petitioner’s right to property. Consequently, the respondent’s action is a violation of the petitioner’s right to fair administrative action. The petitioner annexed copies of maps showing the relationship of the suit property and Mosque road and Photographs of the respondent’s workers carrying out the construction.

Respondent’s Response

8. The respondent responded to the petition through Grounds of Opposition dated 4th May 2017 and filed in court on 5th May 2017 and also through “Notice of Raise Preliminary Point of Law” dated 18th July 2017 and filed on 19th July 2017. No replying affidavit was filed.

9. The Grounds of Opposition are that:

1. The petition is incompetent and bad in law in that the petitioner has no locus standi to institute these proceedings.

2. The petition is defective, incompetent and bad in law as the petitioner has no proprietary right to the suit property capable of protection by the court of law.

3. There is no evidence that MAENDRA C. PATEL is a trustee of the petitioner hence has no capacity to execute any legal documents on behalf of the petitioner.

4. The petition is res-judicata as the issues herein have been litigated and determined by a court of competent jurisdiction and the same ought to be struck off with costs.

10. The preliminary point of law raised is:

That the petition is incompetent, bad in law and an abuse of court process and the same ought to be dismissed with costs, in that the petitioner lacks legal capacity to sue or be sued.

11. When the matter came up for directions, Mr. Ndolo learned counsel for the respondent informed the court that the respondent did not have any evidence to offer in response to the petition and that both the preliminary objection and the petition ought to be argued together by way of written submissions. Mr. Kisila, learned counsel for the petitioner being in agreement, the court accordingly ordered that both the preliminary objection and the petition be heard by written submissions.

12. The respondent’s submissions and authorities were filed on 26th July 2017 while the petitioner’s submissions and authorities were filed on 6th October 2017.

Respondent’s Submissions

13. Citing the authorities of HCCC No. 190 of 2006 (Nairobi) Living Water Church International –vs- City Council of Nairobi and HCCC 629 of 2005 (Milimani) Beth Wanjiru Kamau –vs- Savings and Loan (K) Ltd, counsel for the respondent argued that the petitioner being a society registered under the Societies Act, is an unincorporated body and does not have the capacity to sue or be sued in its own name. The respondent therefore urged the court to strike out the petition with costs.

Petitioner’s Submissions

14. The petitioner opposed the preliminary objection. Counsel for the petitioner submitted that under Articles 22 and 58 of the Constitution of Kenya, every person has a right to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened. The definition of “person” under Article 260 includes a company. Association or body of persons whether incorporated or unincorporated.

15. Citing the case of Michael Osundwa Sakwa –vs- Chief Justice and President of the Supreme Court of Kenya & Another [2016] eKLR, counsel submitted that courts have moved away from the strict interpretation of the locus standi rule in public interest litigation and that the petitioner was therefore entitled to bring these proceedings. Counsel further cited Malindi Law Society –vs- Attorney General & 4 Others [2016] eKLR where the petitioner was an association and successfully prosecuted a petition.

Analysis and Determination

16. I have considered the petition, the affidavit in support, the preliminary objection and the submissions. I will deal with the preliminary objection first.

17. The law on preliminary objections is settled. A preliminary objection must be on a pure point of law. In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, the locus classicuson preliminary objections in this region,LawJA stated:

So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.

Further on, Sir Charles Newbold JA, stated:

The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct…..

18. For a preliminary objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

19. In the present case, the preliminary objection has been raised on the basis that the petitioner is a society registered under the Societies Act and is therefore an unincorporated body which does not have the capacity to sue or be sued in its own name.

20. From the onset, it must be remembered that this is a constitutional petition. Article 22of theConstitution provides as follows:

22. Enforcement of Bill of Rights

(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated orinfringed, or is threatened.

(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their own name;

(b) a person acting as a member of, or in the interest of, a group or class of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its members

(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—

(a) the rights of standing provided for in clause (2) are fully facilitated;

(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of

informal documentation;

(c) no fee may be charged for commencing the proceedings;

(d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; …. [Emphasis supplied]

21. Similar provisions are also found at Article 258.

22. Acting pursuant to Article 22, the Chief Justice gazetted the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The rules define “person” thus:

“person”includes an individual, organisation, company, association or any other body of persons whether incorporated or unincorporated.

23. It is thus clear that the constitution deliberately intends to widen access to court and to justice for those seeking protection of Rights and Fundamental Freedoms as opposed to restricting it.

24. Further, under Article 259, the court is enjoined to interpret the constitution in a manner that promotes its purposes, values and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; permits the development of the law and contributes to good governance. This purposive interpretation applies to issues of locus standitoo.

25. In Re The Matter of the Interim Independent Electoral Commission [2011] eKLR, the Supreme Court of Kenya reiterated that the Constitution must be purposively interpreted in

“a manner that eschews formalism, in favour of the purposive approach” adopted with approval pronouncements by the Namibian Supreme Court in S. vs. Acheson, 1991 (2) S.A.805 that “the spirit and the tenor of the Constitution must, therefore, preside and permeate the processes of judicial interpretation” to avoid what, in yet another decision of the Namibian Supreme Court, was referred to as “the austerity of tabulated legalism”(Minister of Defence, Namibia vs.Mwandinghi (1992(2) SA 366 at p. 362)

26. The petitioner has moved the court claiming that fundamental rights and freedoms under Articles 40, 42 and 47 of the Constitution among others have been denied, violated or infringed, or threatened. The court has a duty to ensure that the petitioner’s access to justice is not curtailed through technicalities and a narrow interpretation of the law.

27. There is no dispute that the petitioner is a society registered under the Societies Act. The respondent’s sole complaint which forms the basis of the preliminary objection is that the petitioner is an unincorporated body and that it does not therefore have the capacity to sue or be sued in its own name. In view of the lofty goals set by the constitution on matters of locus standi and access to justice whenever protection of Rights and Fundamental Freedoms is sought by a litigant, the preliminary objection raised by the respondent cannot stand.

28. The authorities of HCCC No. 190 of 2006 (Nairobi) Living Water Church International –vs- City Council of Nairobi and HCCC 629 of 2005 (Milimani) Beth Wanjiru Kamau –vs- Savings and Loan (K) Ltd, cited by the respondent are distinguishable since they are decisions that were made prior to the promulgation of the Constitution of Kenya 2010 and in suits that were commenced by way of plaints. For all these reasons, I find no merit in the preliminary objection. It is dismissed.

29. The respondent did not offer any evidence in response to the petitioner’s case. It follows therefore that there is no dispute that the petitioner is the registered proprietor of the suit property and that the respondent started to erect a wall which if completed would block the only access to the petitioner’s property. Similarly, it is not disputed that respondent did not inform the petitioner of its decision to construct the wall.

30. Under Article 40, every person has the right, either individually or in association with others, to acquire and own property while under Article 42, every person has the right to a clean and healthy environment. Rights of a registered proprietor of land include the right of access. To the extent that the wall would block the petitioner’s members’ access to the suit property, I find that

31. Under Article 47, every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. While reaching the decision to construct the wall, the respondent knew or ought to have known that the petitioner would be affected. The respondent was therefore under a duty to accord the petitioner a hearing prior to making the decision. The respondent failed to do so.

32. In view of the foregoing, I find that the petitioner’s and the petitioner’s members’ fundamental rights and freedoms under Articles 40, 42 and 47 of the Constitution have been threatened, violated and infringed.

33. I therefore enter judgment in favour of the petitioner as follows:

a) A declaration is hereby made that the decision and process of erecting a wall by the respondent blocking access to Land Parcel Number Nakuru Municipality Block 10/340 flies in the face of Articles 40,42 and 47 of the Constitution of Kenya, 2010 hence unconstitutional, null and void.

b) An order is hereby issued directing the respondent, its agents, servants and/or employees or otherwise howsoever to forthwith stop the ongoing construction of the wall blocking access to Land Parcel Number Nakuru Municipality Block 10/340.

c) Costs of this petition are awarded to the petitioner.

34. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 24th day of January 2018.

D. O. OHUNGO

JUDGE

In the presence of:

Mr. Akango holding brief for Mr. Kisila for the petitioner

Mr. Ndolo for the respondent

Court Assistants: Gichaba and Lotkomoi