[2021] KEHC 12998 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E229 OF 2020

PATRICK NGUNJIRI......................................................................................PETITIONER

VERSUS

Ms FARIDA KARONEY- CABINET SECRETARY, MINISTRY

OF LANDS AND PHYSICAL PLANNING...........................................1ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL....................................2ND RESPONDENT

AND

LAW SOCIETY OF KENYA.......................................................1ST INTERESTED PARTY

KENYA BANKERS ASSOCIATION..........................................2ND INTERESTED PARTY

JUDGEMENT

PETITION

1. The Petitioner, Patrick Ngunjiri who is an advocate of the High Court of Kenya, through his Petition dated 27th July, 2020 prays for the following orders:-

a) A declaration that the 1st Respondent violated articles 6 (3), 10, 129 (2) and 232 of the Constitution of Kenya 2010, the constitutional rights of the Petitioner under articles 40, 46 and 47 of the Constitution of Kenya 2010, sections 6 and 7 of the Public Service (Values and Principles) Act, 2015 and Rule 32 (I) of the Land Registration (General) Regulations, 2017.

b) An order directing the 1st Respondent to reopen both Nairobi District and Central land registries otherwise known as Ardhi House and render land registry services to the petitioner and members of the public in a manner that is efficient, responsive, prompt and effective.

c) Subsequent to prayer (b) an order prohibiting the 1st Respondent from closing both Nairobi District and Central land registries otherwise known as Ardhi House.

PETITIONER’S CASE

2. The Petition is brought pursuant to Articles 20 (1), (2), (3), (4), 21 (1), (3), 23 (1), (3) and 165 (3) (a), (b), (d) (i) and (ii) of the Constitution of KenyaandRule 12 the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice & Procedure Rules, 2006. It is supported by the Affidavit of the Petitioner sworn on 27th July 2020.

3. It is the Petitioner’s case that the closure of the Nairobi District and Central Land Registries by the 1st Respondent for purposes of auditing all land records in Nairobi City County violated her constitutional duty to grant reasonable access to services in all parts of the Republic and to exercise executive authority in a manner compatible with the principle of service to the people of Kenya.

4. The Petitioner avers that the 1st Respondent violated her constitutional duty to offer public services of reasonable quality and by closing both registries and offering none or delayed services and using public resources in a manner that reduced the effectiveness of the public service. Furthermore, the 1st Respondent is alleged to have violated the national values and principles of governance for failure to involve the public in the decision to close the registries.

5. It is additionally averred that the 1st Respondent has violated the Petitioner’s and Kenyans’ right to acquire and own property as they cannot register any disposition involving land, and dispositions which have been successfully registered have been after inordinate delays.

6. The Petitioner asserts that it was not constitutional, reasonable, lawful, justified or procedurally fair to close all services at Nairobi and Central land registries for an indeterminate period. He suggests that it would have been better to carry out an audit in a phased manner as opposed to a blanket closure.

RESPONDENTS CASE

7. The Respondents filed Grounds of Opposition dated 17th August 2020, seeking for the Petition to be dismissed on the grounds that the Petitioner has not pleaded with sufficient clarity and precision the basis for his claim of violation of his constitutional rights and fundamental freedoms.

8. It is further argued that the Petitioner bears the legal and evidential burden, which he has not discharged. Moreover, it is alleged that the Petitioner’s Petition is based on generalities and speculation.

9. The Respondents claim that the Petition is unmerited and militates against the general public interest which inter alia consists of the efforts to contain the spread of Covid-19 in the country and it is therefore unmerited.

THE 1ST INTERESTED PARTY’S CASE

10. The 1st Interested Party filed a Supporting Affidavit to the Petitioner’s Petition dated 27th July 2020, sworn by Collins Odhiambo on 21st October 2020. The Deponent is the Acting Chief Executive Officer (CEO) of the 1st Interested Party herein.

11. It is deponed therein that the 1st Interested Party appreciates the peculiar circumstances precipitated by the Covid-19 pandemic but recognises that the pandemic does not operate to suspend or abrogate the constitutional order and any decision by the 1st Respondent ought to meet the constitutionality test.

12. The Deponent argues that the decision by the 1st Respondent to close the Nairobi and Central land registries had the effect of affecting the legal rights and/or interests of the Petitioner, the Members of the 1st Interested Party and the general public, and further amounted to an unfair administrative action contrary to Article 47 of the Constitution and Section 3 of the Fair Administrative Action Act.

13. It is additionally alleged that the decision to close the registries does not meet the constitutionality threshold as it was arrived at without due regard to the constitutional values and principles that underpin land administration; it doesn’t meet the threshold of Article 24 (1) as it is not the least restrictive means of meeting the purpose of closing the said registries; it limits the land transaction rights of the Petitioners, the Members of the 1st Interested Party and the general public so far as to derogate from the core and/or essential content and value of the said rights; and the closure was arrived at without participation and/ or consultation of the Petitioner, the Members of the 1st Interested Party and the general public and without affording them a fair administrative action contrary to Article 47 and the provisions of the Fair Administrative Action Act.

THE 2ND INTERESTED PARTY’S CASE

14. The 2nd Interested Party filed a Replying Affidavit sworn by Dr. Habil Olaka on 22nd September 2020. The Deponent is the Chief Executive Officer of the 2nd Interested Party herein. The Deponent confirms that the closure of the land registries negatively affects their members as delays were being occasioned with registering charged documents.

15. It is further deponed that the closure of the land registries affected the turnaround time expected of the 2nd Interested Party’s advocates in registering security documents. The Deponent contends that the closure of the land registries has an impact on the economy of the country due to many transactions and processes that are delayed.

PETITIONER’S SUBMISSIONS

16. The Petitioner filed his Submissions dated 30th October 2020, in which he submits that the Petition meets the requirements of Rule 10 (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013.

17. On the violation of Articles, 6 (3), 10, 129 (2) and 232 of the Constitution of Kenya 2010,andSection 6 and 7 of the Public Service (Values and Principles) Act, 2015andRule (32) (I) of the Land Registration (General) Regulations, 2017, the Petitioner asserts that by closing the Registries the 1st Respondent has violated her constitutional duty to offer public services that are of high standards of professional ethics. Furthermore, the 1st Respondent is alleged to have violated the national values and principles of governance for failure to involve the public while closing the Registries.

18. On the violation of the Petitioner’s rights under Articles 40, 46 and 47 of the Constitution, it is submitted that due to the closure of the Registries the Petitioner and Kenyans’ right to acquire and own property is violated as they cannot register any disposition involving land. It is additionally argued that the Petitioner and Kenyans right to services of reasonable quality and to the protection of their economic interests have been infringed as the 1st and 2nd Interested Parties and many members of the public have been deprived of their livelihood/business from dealings involving land. Lastly, the 1st Respondent is accused of having violated the values and principles of public service and the Petitioner’s and Kenyans’ right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair as the decision by the 1st Respondent was unilateral.

19. On the Respondents’ reasons for closing the land registries, the Petitioner argues that the initial closure occurred before the first case of Covid-19, was reported in Kenya. Moreover, government services are open and various government ministries, departments and offices are only required to observe measures announced by the Ministry of Health.

20. The Petitioner urges the Court to issue an order directing the 1st Respondent to re-open the Registries in order to enforce the foregoing constitutional provisions.

RESPONDENT’S SUBMISSIONS

21. The Respondents filed their Submissions dated 18th January 2021, in which they submit that the Registries were not closed but operations were scaled down for reasons that were partly administrative and partly force majeure. The Respondents contend that the Petitioner and the public are aware of the reasons behind the scaling down of operations at the land registries.

22. It is further submitted the Court has pronounced itself severally on the operations of the Government in attempting to curb the spread of Covid 19 in: Zeitun Juma Hassan Petitioning on Behalf of the Estate of Abdul Ramadhan Biringe (Deceased) v Attorney General & 4 others [2014] eKLR; and Law Society of Kenya v Attorney General & another; National Commission for Human Rights & another (Interested Parties) [2020] eKLR. The Respondents argue that the scaling down of operation of the Registries was for the larger public good.

23. On the issue of whether the decision to close the Registries was done without consultations, the Respondents contend that their actions should be considered necessary precautionary measures taken to protect lives and contain the spread of the Covid-19 virus. Reliance is placed on the decisions in Law Society of Kenya v Ag & another (supra), and Hillary Mutyambai, Inspector General National Police Service & 4 others; Kenya National Commission on Human Rights & 3 others (Interested) [2020] eKLR.

24. The Respondents aver that the Petition is unmerited, has no probability of succeeding and militates against the general public interest to contain the spread of the Covid-19 virus in the country.

ANALYSIS AND DETERMINATION

25. I have carefully considered the Petition herein, the Respondents response and Interested Parties response as well as, the Petitioner’s submissions and the Respondents submissions and from the aforesaid the issues for consideration can be summed up as follows:-

a) Whether the petition meets the requirements of clarity on provisions of Constitution violated and how.

b) Whether the 1st Respondent violated Articles 6(3), 10, 129(2) and 232 of the Constitution of Kenya 2010; Sections 6 and 7 of the Public Service (values and Principles) Act, 2015 and Rule 22(1) of the Land Registration (General) Regulations 2017.

c) Whether the 1st Respondent violated the Constitutional rights of the Petitioner under Articles 40, 46 and 47 of the Constitution of Kenya 2010.

d) Whether the 1st Respondent has raised proper grounds for limitation of Constitutional provisions and rights and freedoms.

e) Whether an order directing the 1st Respondent to re-open both Nairobi District and Central Land Registries otherwise known as Ardhi House and render Land Registry services to the Petitioner and members of public in a manner that is efficient, responsive, prompt and effective should be made.

A. WHETHER THE PETITION MEETS THE REQUIREMENTS OF CLARITY ON PROVISIONS OF CONSTITUTION VIOLATED AND HOW.

26. The Respondents in their grounds of the opposition to the Petition contend, that the Petitioner did not plead with sufficient clarity and precision, the basis of his claim of violation of his constitutional rights and fundamental freedoms. The Respondents in seeking to buttress the proposition seek reliance in the case of Anarita Karimi Njeru vs. Republic (1976-1980) KLR 1272recently with approval by the Court of Appeal in the case of Mumo Matemu vs. Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012 (2013) eKLR:-

27. It is conteded by the Respondents that the Petitioner has not attached any evidence of carrying out such bookings and therefore it obviously becomes difficult to respond to the claim of the existence of such bookings or documents. It is further averred the Application and Petition are based on generalities and speculation and therefore fatally defective. Specifically, they are based on general pleading and speculation that:-

i. That the closure of registries have negatively affected members of the public;

ii. That members have been unable to honour professional undertakings;

iii. That the public has suffered the payment of penalties and

iv. That closure of registries will cause the Petitioner’s clients irreparable harm.

28. It is Respondents contention that it is trite that a Petition must disclose among other details the facts relied upon, the Constitutional provisions violated; the nature of injury caused or likely to be caused to the Petitioner or the person in whose name the Petitioner has instituted the suit; or in a public interest case to the public, class of persons or community.

29. A quick perusal of the Petition herein clearly reveal that all the above requirements are contained within the Petition herein and further with clarity. The facts relied upon are contained at paragraphs 7 – 23 of the Petition. The legal provisions violated and relied upon are to be found at paragraphs 24 – 38 of the Petition. The rights and issues violated are contained at paragraphs 34 – 41 of the Petition. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (otherwise referred to as the Mutunga Rules) under Rule 10 (d)provides, what a Petitioner is required to disclosure. I have looked at the Petition herein and the aforesaid Rule 10(2) of the Mutunga Rules, and have no doubt, that the Petition meets the requirements of the form of a Petition under the said Rules. I find therefore the Petition as drawn and filed cannot be faulted in any way. The Petition is plead with sufficient clarity and precisions, the basis for the claim of violation of the constitutional rights and fundamental freedoms in such manner that the Respondents cannot claim that they do not understand the matters in issue. I find no baiss to dismiss the Peition on this point.

B. WHETHER THE 1ST RESPONDENT VIOLATED ARTICLES 6(3), 10, 129(2) AND 232 OF HE CONSTITUTION OF KENYA 2010; SECTIONS 6 AND 7 OF THE PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT, 2015 AND RULE 22(1) OF THE LAND REGISTRATION (GENERAL) REGULATIONS 2017.

30. Devolution and access to services is well provided for under Article 6 of the Constitution of Kenya 2010. Article 6(3) which states that national state organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so, having regard to the nature of the service. This Article clearly guarantees the Petitioner and Kenyan public reasonable access to services from national State organs, in all parts of the Republic so, far as it is appropriate to do so having regard to the nature of the service.

31. The Respondents do not deny having closed both the Nairobi District and Central Land Registries but aver that it issued notices. It is acknowledged by the Petitioner also, that the initial purpose of the closure was to audit all land records in Nairobi County but later on the Respondents extended the closure on account of Covid-19 pandemic outbreak. The closure took effect from 18th February 2020.

32. The Petitioner herein contend that in closing both Nairobi District and Central Land Registries, the 1st Respondent violated her constitutional duty to grant reasonable access to services in all parts of the Republic and to exercise executive authority in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit. The closure also violates the provisions of Article 129(2) of the Constitution of Kenya (2010) which provides that executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.

33. Further Article 10 of the Constitution dealing with the National Values and Principles of governance include participation of the people, good governance, integrity, transparency and accountability. Article 232 of the Constitution of Kenya (2010)provides for the values and principles of public service which include high standards of professional ethics, responsive, prompt, effective, impartial and equitable provisions of services, involvement of the people in the process of policy making and accountability for administrative acts, Section 6 of the Public Service (Values and Principles) Act, 2015requires a public officer to use public resources in a manner that does not reduce the effectiveness of the public service. Section 7 of the Public Service (Values and Principles) Act, 2015requires public service are provided promptly, effectively, impartially and equitably. Section 7(2) of the Act provides that public service is not prompt where there is unreasonable delay.

34. It is further noteworthy to consider that provisions of Rule 32(1) and the Third Schedule to the Land Registration (General) Regulations, 2017 provides the following timelines for registration of document at any land registry;

Registration of Instruments / Service Time Frame

Transfer Within 10 days

Charge Within 10 days

Discharge Within 7 days

Succession, correction of names,

mutation /partition Within 10 days

Power of Attorney Within 7 days

Lease Within 10 days

Cautions/withdrawals of caution Within 10 days

Court orders/decree Attestation Within 7 days

Issuance of Search certificate Within 5 days

Other instruments Within 10 days.

35. The Respondents in response contend that the Petitioner and the Interested Party herein, were aware of its scaling down of operations at the Registries in question at all material times, and further that the Petitioner and public were aware of the reason, behind the scaling down of operations at the Land Registries in Nairobi and across the county. It is urged the reason were partly administrative and partly force majeure. The Respondents further seek to rely on what they refer to as precautionary principle and the Right to life as well as consultative and precautionary principle. The Respondents did not adduce evidence through an affidavit nor did they provide any evidence in support but sought to rely on Court’s judgments in other unrelated matters.

36. In view of the above and in absence of affidavit evidence or any other material evidence, I am constrained to find, that the 1st Respondent violated her constitutional duty to offer public services, that are of high standards of professional ethics, responsive, prompt, effective, impartial and equitable for closing both Nairobi District and Central Land Registries. The 1st Respondent was in violation of Petitioners rights by offering none of the services as required or offering delayed services and using public resources in a manner that reduce the effectiveness of the public service.

37. It has been demonstrated that Rule 32(1)and Third Schedule to the Land Registries (General) Regulations 2017 provides timelines for registration of documents at any land registry. No provision was made to ensure compliance upon closure of the land registries by the 1st Respondent. It is not uncommon for registration of land transactions to take way longer beyond the timelines set out to the above Rule and Schedule.

38. The 1st Respondent has not shown compliance under Article 10 of the Constitution as regards public participation before proceeding to have registries closed. It therefore follows that the 1st Respondent in failing to comply with Article 10 of the Constitution, violated National Values and Principles of governance for failure to involve the people, while closing both Nairobi District and Central Land registries. The decision to close Nairobi District and Central land registries or deciding to be offering delayed services, was short of what, amounts to good governance, integrity, transparency and accountability as no reasons in writing have been given.

39. In view of the above I am satisfied that the 1st Respondent violated Articles 6(3), 10, 129(2) and 232 of the Constitution of Kenyaas well asSection 6 and 7 of the Public Service (Values and Principles Act 2015 of Rule 32(1) of the Land Registries (General) Regulations 2017.

C. WHETHER THE 1ST RESPONDENT VIOLATED THE CONSTITUTIONAL RIGHTS OF THE PETITIONER UNDER ARTICLES 40, 46 AND 47 OF THE CONSTITUTION OF KENYA 2010.

40. Article 40 of the Constitution of Kenya deals with Protection of Right to property. In essence the Article guarantees the Petitioner and Kenyan Public the right to acquire and own property of any description in any part of Kenya. The 1st Respondent violated the Petitioner’s and Kenyan’s right. The 1st Respondent closure of the Registry without reasonable basis and without following the provisions of the law violated the Petitioner’s and Kenyan’s rights to acquire and own property of any description in any part of Kenya. Due to closure of Nairobi and Central Land Registries, the Petitioner and other members of the public cannot register any disposition involving land dispositions and any, which have been successfully registered have been after inordinate delays.

41. Further under Article 46 of the Constitution of Kenya 2010, guarantees the Petitioner and Kenyan Public the right to goods and services of reasonable quality and to the Protection of their health, safety, and economic interests. The 1st Respondent violated the Petitioner’s and Kenyans’ right to services of reasonable quality and to the protection of their economic interests. Services, if any, offered by Nairobi and Central land registries are delayed or non-existent and thereby short of services of reasonable quality envisaged by the Constitution of Kenya 2010. The Petitioner, members of the 1st and 2nd Interested Parties and many members of the public derive their livelihood/business from dealings involving land and closure of the land registry at Nairobi has caused them loss or diminished source of livelihood/business. In addition therefore Article 47 of the Constitution of Kenya (2010) guarantee the Petitioner and Kenyan Public the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. By failing to involve the Petitioner and Kenyan Public while closing Nairobi and Central land registries, the 1st Respondent violated the values and principles of public service and the Petitioner’s and Kenyans’ right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The ministerial decision by the 1st Respondent was made unilaterally without consultation and in complete violation of the Petitioner’s and Kenyan Public right to administrative action, that is supposed to be in accordance guidance withArticle 47 of the Constitution of Kenya, 2010.

42. This Court has considered that while there might have been need to audit Land records in Kenya, the 1st Respondent did not act in accordance with the constitution nor was her action reasonable, lawful, justified or procedurally fair to close all services at Nairobi and Central land Registries for an indeterminate period. No plausible explanation has been offered why the audit could not have been carried out in a phased manner as opposed to blanket closure nor why there was no public participation and compliance with the law, even during the Covid – 19 period. Covid-19 is no a justification for any constitutional violation of individual Bill of Rights as provided by the Constitution.

D. WHETHER THE 1ST RESPONDENT HAS RAISED PROPER GROUNDS FOR LIMITATION OF CONSTITUTIONAL PROVISIONS AND RIGHTS AND FREEDOMS.

43. It is of great importance to consider whether the 1st Respondent has raised reasonable ground for limitation of Constitutional provisions and rights and freedoms. Article 24 of the Constitution deals with Limitation of Rights and Fundamental Freedoms and provides that:-

“24: Limitation of Rights

(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.”

44. From the 1st Respondent’s grounds of opposition, it is noted that the 1st Respondents have sought to explain that the closure of land registries was because of COVID–19 pandemic. The Covid-19 measures have not been shown by the Respondents to have required that government ministries, departments and offices were required to be closed in observing measures announced by the Ministry of Health so as to contain COVID-19.

45. The 1st Respondent is a state officer and is bound by Article 2(2) of the Constitution which clearly states no person may claim or exercise state authority except as authorized under this constitution. Further Article 21 of the Constitution provide that it is a fundamental duty of the state and even state organ to observe, respect, protect and fulfil the rights and fundamental freedoms in the Bill of Rights. Further Article 10(1) states that the national values and principles of governance in this Article bind all state organs, state officers, public offices and all persons whenever any of them:-

“a)applies or interprets this Constitution;

b)enacts, applies or interprets any law; or

c)makes or implements public policy decisions.”

46. The 1st Respondent was therefore under both a constitutional and legal obligation to allow the Petitioner and other Kenyans to access land registry services. This is an inviolable constitutional duty and or right, and any limitation must meet the constitutional test and only then can one raise limitation as a ground. Indeed, the provisions of Articles 6(3), 10, 129(2) and 232 of the Constitution of Kenya 2010 can in no way be suspended. The provisions guarantee access to public services in an efficient and prompt manner. The 1st Respondent in closing both the Nairobi District and Central Land Registries, upon issuing notices acted unconstitutionally and violated clear constitutional provisions as stated herein above.

E. WHETHER AN ORDER DIRECTING THE 1ST RESPONDENT TO RE-OPEN BOTH NAIROBI DISTRICT AND CENTRAL LAND REGISTRIES OTHERWISE KNOWN AS ARDHI HOUSE AND RENDER LAND REGISTRY SERVICES TO THE PETITIONER AND MAMBERS OF PUBLIC IN A MANNER THAT IS EFFICIENT, RESPONSIVE, PROMPT AND EFFECTIVE SHOULD BE MADE.

47. The 1st Respondent is a State Officer, who as per Constitution and relevant statues is constitutionally duly bound to offer public services, that are of high standards, of professional ethics, responsive, prompt, effective, impartial and equitable. The 1st Respondent has a duty to promote the good governance in discharging her duties as a public officer. I find as demonstrated by the Petitioner, that the Petitioner and other Kenyans have a constitutional right to acquire and own property of any description in any part of Kenya, get services of reasonable quality and to the protection of their health, safety, and economic interests and administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

48. In view of the conclusion that, I have come to, I am satisfied that the Petitioner has established his case on the balance of probability as required by law and I proceed to grant the following orders:-

a) A declaration be and is hereby issued that the 1st Respondent violated Articles 6(3), 10, 129(2) and 232 of the Constitution of Kenya 2010; the Constitutional rights of the Petitioner under Articles 40, 46 and 47 of the Constitution of Kenya; Sections 6 and 7 of the Public Service (Values and Principles) Act 2019 and Rule 32(i) of the Land Registration (General) Regulations, 2017.

b) An Order be and is hereby issued directing the 1st Respondent to set phase re-opening even if it is half a day due to COVID – 19 to both Nairobi District and Central Land Registries otherwise known as Ardhi House and render Land Registry services to the Petitioner and members of public in a manner that is efficient, responsive prompt and effective but without compromising on Covid-19 health Protocols.

c) An Order be and is hereby issued prohibiting the 1st Respondent from closing both Nairobi District and Central Land Registries otherwise known as Ardhi House as directed herein above under (b).

d) I have considered the nature of the Petition and reasons for further closure of the registry and for those reasons I direct that each party bears its own costs.

Dated, Signed and Delivered at Nairobi on this 3rd day of June, 2021.

………………………

J. A. MAKAU

JUDGE