[2020] KEELC 3277 (KLR)
The court found that there was no necessity to substitute the Commissioner of Lands with the National Land Commission, as the National Land Act's saving provisions secure the claims of land. The court also held that the parties sought to be added had not sworn affidavits to declare their interest, nor had their...
Source-derived case information.
- Citation
- [2020] KEELC 3277 (KLR)
- Parties
- Applicant: Paul Otieno Akeyo, Joseph J. Achola, Maureice Onyango Rocho, Joseph Otogo Nyagiri, William Akello Sidede, Douglas Owala Olago, Abik Ongota, Joseph Awambo Mathonye, Patrick Okech Oranga (suing for and on behalf of themselves and for and on behalf of the Kogony Land Council of Elders Welfare); Respondent: Kenya Airports Authority; Respondent: The Attorney General; Respondent: National Land Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 71 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Application to Amend Petition
- Outcome
- application dismissed with costs
- Judges
- TM Olando
- Legal Topics
- Amendment of Pleadings, Representative Suits, Public Land Acquisition, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Otieno Akeyo, Joseph J. Achola, Maureice Onyango Rocho, Joseph Otogo Nyagiri, William Akello Sidede, Douglas Owala Olago, Abik Ongota, Joseph Awambo Mathonye, Patrick Okech Oranga (suing for and on behalf of themselves and for and on behalf of the Kogony Land Council of Elders Welfare)
Applicant
Kenya Airports Authority
Respondent
The Attorney General
Respondent
National Land Commission
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Amend Petition
Legal Issues
- 1 Whether the petitioners should be granted leave to amend the petition to include an additional 507 acres of land allegedly acquired by the Colonial Government.
- 2 Whether substitution of the Commissioner of Lands with the National Land Commission is necessary.
- 3 Whether additional representatives should be added to the suit.
Ratio Decidendi
The court found that there was no necessity to substitute the Commissioner of Lands with the National Land Commission, as the National Land Act's saving provisions secure the claims of land. The court also held that the parties sought to be added had not sworn affidavits to declare their interest, nor had their particulars been disclosed. As the suit was representative in nature, adding more parties was deemed superfluous and intended to delay the hearing. The application to amend the petition was therefore found to be without merit and dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to amend the petition is dismissed with costs.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC PETITION 71 OF 2017
PAUL OTIENO AKEYO
JOSEPH J. ACHOLA
MAUREICE ONYANGO ROCHO
JOSEPH OTOGO NYAGIRI
WILLIAM AKELLO SIDEDE
DOUGLAS OWALA OLAGO
ABIK ONGOTA
JOSEPH AWAMBO MATHONYE
PATRICK OKECH ORANGA
(Suing for and on behalf of themselves and for and on Behalf of the
KOGONY LAND COUNCIL OF ELDERS WELFARE)...........................................PETITIONERS
VERSUS
KENYA AIRPORTS AUTHORITY.........................................................................1ST RESPONDENT
THE ATTORNEY GENERAL.................................................................................2ND RESPONDENT
NATIONAL LAND COMMISSION.......................................................................3RD RESPONDENT
RULING
The Petitioners have come to court seeking orders that they be allowed to amend the petition on grounds that currently the National Land Commission replaced the Commissioner of Lands. The applicants/petitioners at the time when filing his suit did not include the 507 acres of land that had also been acquired. It is imperative for an amendment of the pleadings to include the said acres of land. Since the inception of the suit some of the representatives have passed on hence the need to add more representatives.
In the supporting affidavit, it is stated that at the time of filing the pleadings they had not included the 507 acres of land that had been acquired by the Colonial Government for the expansion of the Airport in Kisumu.
That it is imperative for an order of amendment of the pleadings to be made to include the said 507 acres of land as it would be detrimental on the applicants if it were not a part of the prayers. The Respondents will not suffer any prejudice from the granting of the said orders.
Their representatives have passed on since the inception of the suit hence a need to add more representatives.
In the grounds of opposition filed by D.O Otieno advocate, he states that:
1) There is no explanation tendered to explain why the Petitioners failed to bring their entire claim with this petition as originally filed. There is therefore no basis for inviting the court to exercise its discretion in favour of the Petitioners.
2) There is not a single piece of the evidence to support the request for the proposed amendment. The amendment is conjectural and is only made because there is a provision in law for the amendment of pleadings while overlooking the cost element of introducing sun a substantial variation to their case to the 1st Respondent.
3) It is on record that the Petitioners have always wanted to proceed with the hearing of this matter. The claim for the additional 502 acres sought to be introduced vide the amendment is an abuse fo the court process as the Petitioners seem to want to use the court process as a lottery.
4) The parties had agreed by consent that the dispute herein be resolved through an investigation by the 3rd Respondent. The 3rd Respondent has substantially carried out the investigation within the parameters of the petitioners’’ case as originally presented. Any attempt to expand the scope of the petitioners’’ case will unduly interfere with that process and would be inimical to the overriding objective, the Rules as well as article 159 of the Constitution.
I have considered the application and I do find that there is no necessity for removal of the Commissioner of Lands and substitution with to National Land Commission as the National Land Commission Act provides for the security of the claims of lands.
The saving provisions in Section 30(b) of the National Land Act provides as follows:-
Notwithstanding the provisions of this Act—
(b) any function or transaction, civil proceedings or any other legal or other process in respect of any matter carried out in relation to the administration of public land administration, by or on behalf of the Ministry of Lands before the commencement of this Act, shall be deemed to have been carried out under this Act.
The parties being added in the petition have not sworn any affidavit to declare their interest. Their particulars have not been disclosed. Moreover this representative suit and therefore adding more parties is superfluous and meant to delay the hearing of the case. I do find that the application is not merited. The same is dismissed with costs. Orders accordingly.
DATED AND DELIVERED THIS 28th DAY OF FEBRUARY, 2020.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
In the presence of:
M/S KEMBOI FOR QIEU FOR APPLICANTS
N/A FOR RESPONDENTS
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE