[2019] KEELC 2619 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC JUDICIAL REVIEW NO. 536 OF 2016

REPUBLIC.......................................................................................APPLICANT

VERSUS

THE CHAIRMAN NATIONAL LAND COMMISION.....1ST RESPONDENT

THE NATIONAL LAND COMMISSION............................2ND DEFENDANT

THE ATTORNEY GENERAL............................................3RD RESPONDENT

AND

MACHARIA KINYANJUI (Chairman,

Kamiti Anmer Development Association)...............1ST INTERESTED PARTY

MUUNGANO WA KAMITI SOCIETY ...............2ND INTERESTED PARTY

EX-PARTE

PETER NJORE WAKABA(Chairman Kamiti Forest Squatters Association)

JUDGMENT

What is before the court is the ex-parte applicant’s Notice of Motion application dated 27th January, 2016 which was filed pursuant to the leave that was granted by the court on the same date. In the application, the ex-parte applicant (hereinafter referred to only as “the applicant”) has sought the following reliefs:

1. An order of certiorari to remove to this court for the purpose of being quashed the decision of the respondents made on 5/10/2015 by which they purported to validate a seriously flawed and nullified process of allocating 419 acres of land known as Kamiti/Anmer/8390 (hereinafter referred to as “the suit property”) thereby rendering the applicant’s 1200 members landless.

2. An order of Prohibition prohibiting the respondents from proceeding with the proposed processing of ownership documents in respect of the suit property in favour of the interested party and others.

The applicant’s application was supported by a statutory statement dated 28th December, 2015 and a verifying affidavit of the same date sworn by the applicant, Peter Njore Wakaba. The applicant swore a supplementary affidavit on 12th November, 2018 in further support of the application. The applicant set out the facts giving rise to the application in his statutory statement to which he also annexed documents in support of the application. The applicant’s verifying affidavit was a short one consisting of six (6) paragraphs only. The affidavit had no annexures. In the case of Commissioner General Kenya Revenue Authority v Silvano Onema Owaki, Kisumu Court of Appeal Civil Appeal No. 45 of 2000, the court held that in judicial review applications, all facts relied on by an applicant must be contained in the verifying affidavit. In the circumstances, the facts that were set out in the applicant’s statutory statement and annexures hereto have no evidential value. As I have already mentioned, the applicant filed a supplementary affidavit. I am of the view that the affidavit did not cure the deficiency in the verifying affidavit. The supplementary affidavit had no annexures and it was to a large extent a response to the issues the 1st interested party had raised in an interlocutory application. It was in no way meant to fortifying the grounds upon which the judicial review application had been brought. I will revert to these issues later in the judgment.

In his statutory statement, the applicant narrated how members of Kamiti Forest Squatters Association (hereinafter referred to as “KAFSA”) of which he is the chairman came to occupy the suit property. The applicant stated that the members of KAFSA who are about 1200 had been squatters on the suit property which is forest land for over 30 years. The applicant stated that KAFSA comprises of two groups of squatters; the first group consists of the labourers who worked in the neighbouring coffee estates who sought accommodation on the suit property. The second group of squatters consisted of internally displaced people (IDPS) mainly from Rift Valley who sought refuge on the suit property as early as 1992.

The applicant stated that it was the members of KAFSA who pleaded with the government of the then President, H.E Daniel Toroitich Arap Moi to settle them on the suit property as they were threatened with eviction by the department of forestry which would have rendered them homeless. The applicant averred that in 1994, the government heeded their plea and made a decision to give the suit property which measures 419 acres to the squatters who are now members of KAFSA. The applicant averred that as soon as a decision to settle the squatters on the suit property was made, the entire process was hijacked by powerful individuals from the then Kiambu District. He averred that the said people allocated themselves the suit property which was meant for the squatters and used their influence to obtain letters of allotment and leases for portions thereof even before the property was de-gazetted.

The applicant averred that the squatters were totally ignored in the whole process of allocating the suit property which was to benefit them. The applicant averred that those who were irregularly allocated the suit property soon moved in to evict the squatters who were in occupation. The applicant averred that following outcry from the squatters, the government moved in to stop and nullify the purported land allocation exercise which was contrary to its intention of settling squatters. The applicant averred that after the exercise was stopped, they believed that justice would be done to the squatters only to realise later that they were mistaken as the clique that had grabbed their land did not give up on the land but fought hard to have the nullified allocations legitimised. The applicant averred that KAFSA was formed in 2004 to unite the squatters so that they could speak with one voice against the powerful clique that was out to emasculate them and drive them out of the suit property. The applicant averred that they pleaded with the forest department on several occasions to de-gazette the suit property so that the same could be allocated to them but they were turned down as the department maintained that the land was not available for settlement.

The applicant averred that when the National Land Commission was established, they hoped that at long last the truth shall prevail and they would get justice. The applicant stated that when KAFSA approached the National Land Commission, the 2nd respondent herein for assistance, other groups including the 1st interested party also approached the 2nd respondent at the same time laying a claim to the property. The applicant averred that as a result of these conflicting claims, it was necessary for the 2nd respondent to consider the matter fairly by giving all the parties a hearing.

The applicant averred that after about 2 years of pleas by KAFSA, the 2nd respondent scheduled a meeting of stakeholders on 8th August, 2015 at Kiambu County Hall to deliberate on the issue. The applicant averred that they did not receive a notice of the meeting until 13th August, 2015 after the meeting had been held and views of stakeholders taken. The applicant averred that the 2nd respondent had his contacts and should have given him a phone call or postponed the meeting when they did not appear because they were major stakeholders on the subject of inquiry. The applicant averred that KAFSA wrote a letter of complaint to the 2nd respondent and demanded that the issue be reopened but received no response from the 2nd respondent.

The applicant averred that the 2nd respondent proceed to determine the dispute in a decision that was contained in its letter dated 5th October, 2015 addressed to the Director of Kenya Forest Service. The applicant contended that in the said decision, the 2nd respondent went to great length to validate a tainted process by which land that was meant for the squatters was given a clique of powerful people. The applicant averred that in reaching that decision, the 2nd respondent ignored the fact that the allocation of the suit property was illegal as the property which is a forest had not been de-gazetted. The applicant averred further that the decision was invalid as it was arrived at in breach of the rules of natural justice. The applicant averred that it was ironic that the 2nd respondent could award the suit property to people who were completely undeserving of the same.

The applicant averred that the beneficiaries of the tainted allocations were now waiving the said letter by the 2nd respondent as if the same was a court order and were using the same to evict the members of KAFSA from the suit property using the local administration. The applicant averred that the decision of the 2nd respondent should be quashed and the implementation thereof prohibited until the squatters are given a hearing and a just and fair decision is made.

On 21st June, 2018, Muungano Wa Kamiti Society was granted leave to join the suit as 2nd interested party. The 1st and 2nd respondents opposed the applicant’s application by way of a replying affidavit sworn by Brian Ikol on 18th July, 2018. The 1st and 2nd respondents averred that the dispute over the suit property was referred to it for investigation because several parties including the applicant and the interested parties had claimed ownership of the same. The 1st and 2nd Respondents averred that the dispute over the suit property was flagged out as a security threat. The 1st and 2nd respondents (hereinafter referred to only as “the respondents” where the context so permits) averred that the 2nd respondent invoked its constitutional and statutory mandate under Article 87(sic) of the Constitution and Section 5 (f) of the National Land Commission Act in an attempt to resolve the dispute through alternative dispute resolution mechanism. The respondents averred that through a letter dated 29th July, 2015 they invited all the parties who had made a claim over the suit property which included the applicant and the interested parties for a meeting. They averred that the parties who were invited were requested to carry all the documents in support of their respective claims over the suit property. The respondents averred that despite all the activities on the suit property, the property remained a gazetted forest. The respondents averred that on 5th October, 2015 it wrote to the Director of Kenya Forest Service with its findings and recommended that the suit property be de-gazetted as a forest to enable the processing of documents of ownership. The respondents averred that although the applicant had made several allegations regarding the interest of the members of KAFSA in the suit property, he did not place any evidence before court in proof of the same.

The respondents contended that their letter dated 5th October, 2015 to the Director of Kenya Forest Service did not amount to a decision or a determination. The respondents contended that the said letter was only a recommendation and as such was not capable of attracting judicial review orders. The respondents averred that the letter contained a summary of the findings which they arrived at after investigations which they carried out and that Kenya Forest Service was not bound by their recommendations. The respondents averred that since they did not make any official determination on the dispute, the orders of judicial review sought against them were not available to the applicant. The respondents averred that they had no power to de-gazette a forest. They urged the court to dismiss the application.

The 3rd respondent did not respond to the application. The 1st interested party opposed the application through a replying affidavit sworn on 16th November, 2017 by John Kinyanjui Macharia and filed in court on 17th November, 2017. John Kinyanjui Macharia who is the Chairman of Kamiti Anmer Development Association (hereinafter referred to as “KADA”) narrated the circumstances under which the suit property was allocated to the members of KADA through Kiambu District Plot Allocation Committee. John Kinyanjui Macharia (hereinafter referred to only as “the 1st interested party”) stated that the suit property was reserved by the colonial government for public use and that in 1933 it was declared a forest. The 1st interested party averred that during the 1992 tribal clashes and the clashes that ensued after the subsequent general elections, hundreds of people from the Kikuyu community who were then living in Rift Valley were displaced and some were dumped at Kirigiti Stadium in Kiambu and became internally displaced persons (IDPS). The applicant stated that due to this state of affairs, local leaders petitioned the then President H.E Daniel Toroitich Arap Moi to settle the said IDPS and other squatters in Kiambu District on the suit property.

The applicant averred that the President acceded to the local leaders’ request and directed the then Provincial Commissioner for Central Province to oversee the settlement of the squatters on the suit property. The applicant averred that the settlement exercise was undertaken by the Kiambu District Plot Allocation Committee which identified genuine squatters and allocated them land. The 1st interested party averred that KADA was an association of people who were allocated land by Kiambu District Plot Allocation Committee and who had settled on their respective parcels. The 1st interested party averred that the Commissioner of Lands subsequently started issuing title deeds to the genuine squatters who had been issued with allotment letters and who had complied with the terms thereof. The 1st interested party averred that most of the members of KADA had been issued with title deeds for the parcels of land that were allocated to them. The 1st interested party averred that the process of issuing title deeds stopped when the Forest Department asserted its claim to the suit property.

The 1st interested party averred that KAFSA was a splinter group of the 2nd interested party and averred that KADA members had lived in peace on the suit property until the year 2005 when members of the 2nd interested party led by one, Irene Nadupoi attempted to invade the unoccupied portions of the suit property that were reserved for public use. The 1st interested party averred that since 2005 there had been competing claims over the suit property between members of KADA, KAFSA and the 2nd interested party, Muungano Wa Kamiti Anmer Society. The 1st interested party averred that it was this conflict that the 2nd respondent attempted to resolve when it invited all the parties concerned through a letter dated 29th July, 2015 for a consultative meeting at Kiambu County Hall on 11th August 2015. The 1st interested party averred that although the applicant who is the Chairman of KAFSA did not attend the meeting of 11th August, 2015 called by the 2nd respondent, there were about 20 members of KAFSA who attended the meeting. The 1st interested party stated that KADA members and members of the 2nd interested party also attended the meeting. The 1st interested party averred that it was not clear why the applicant did not attend the meeting.

The 1st interested party stated that all the parties and groups who attended the meeting were heard and produced documents in support of their respective claims over the suit property. The 1st interested party stated that while members of KADA produced letters of allotment and title deeds and members of the 2nd interested party produced some correspondence, members of KAFSA present did not produce any document in support of their claim over the suit property. The 1st interested party stated that after that meeting, the 1st respondent visited the suit property so that the various claimants could identify their respective parcels of land on the ground. The 1st interested party averred that it was after this that the 2nd respondent wrote to the Director of Kenya Forest Service recommending that the suit property be de-gazetted so that title documents could be processed.

The 1st interested party contended that the letter dated 5th October, 2015 which is the subject of these proceedings was issued by the 2nd respondent pursuant to the powers conferred upon it under Section 5(1) (e) and (f) of the National Land Commission Act, 2012. The 1st interested party contended that the meeting held on 11th August, 2015 was consultative in nature and in holding the same, the 2nd respondent was merely acting as a mediator and not as a tribunal which could give a decision capable of being quashed. The 1st respondent contended further that the letter dated 5th October 2015 was merely a recommendation. The 1st interested party contended that the letter did not confer rights upon any party and as such could not be construed to have prejudiced any of the parties. The 1st interested party contended that the 2nd respondent had no power to determine the issue of the ownership of the suit property which was vested upon Kenya Forest Service.

The 1st interested party contended that there were two suits on the issue of the ownership of the suit property which were pending before this court and before the Environment and Land court at Thika. The 1st interested party averred further that the prayer for prohibition sought by the applicant was not available because the suit property was still vested upon the Kenya Forest Service and as such the same was not available for allocation to the public. The 1st interested party contended that the prayer for prohibition sought was superfluous since the suit property had not been de-gazetted and no attempt had been made by the 2nd respondent to process new titles after the process was stopped about 15 years ago. The 1st interested party urged the court to dismiss the application.

The judicial review application was heard by way of written submissions. The applicant filed his submissions on 14th November, 2018 while the 1st interested party filed his submissions on 11th December, 2018. The respondents and the 2nd interested party did not file submissions. I have considered the applicant’s application together with the statutory statement and the verifying and supplementary affidavits which were filed in support thereof. I have also considered the affidavit by the 1st and 2nd respondents and, the 1st interested party which were filed in opposition to the application. Finally, I have considered the submissions by the respective advocates for the parties. As I have stated earlier in this judgment, the verifying affidavit that was filed by the applicant fell short of establishing his claim against the respondents. The facts giving rise to the applicant’s claim were set out in his statutory statement. The applicant also purported to annex exhibits in support of his case to the statutory statement. The verifying affidavit which was supposed to verify the claim does not state what the applicant’s complaint is all about and as such has no evidential value. In the absence of any evidence to support the applicant’s claim, the application before the court has no leg to stand on and must fail. The situation is similar to that which obtained in the case of Commissioner of General Kenya Revenue Authority v Silvano Onema Owaki (Supra) in which the Court of Appeal held that an application for judicial review in which the facts and supporting documents were set out in the statutory statement had no basis.

The foregoing finding would have been sufficient to dispose of the application before the court. However, to avoid being accused of determining the matter solely on technical grounds, I would consider the merit of the application on the basis of the material before me the irregular manner in which they have been placed before the court notwithstanding.

In Halsbury’s Laws of England, 4th Edition at paragraph 46, the author has stated as follows:

“The courts have inherent jurisdiction to review the exercise by public bodies or officers of statutory powers impugning on legally recognized interests. Powers must not be exceeded.”

The applicant has sought an order of Certiorari to bring before this court for the purposes of being quashed the decision of the 1st and 2nd respondents allegedly contained in the letter dated 5th October, 2015. The applicant has also sought an order of prohibition to prohibit the 2nd respondent from implementing the said decision. In the book, H. W. Wade and C. F. Forsyth, Administrative Law, 10th Edition, the authors have stated as follows at page 509 on the remedies of Certiorari and Prohibition:

“The quashing order and prohibiting order are complementing remedies, based upon common law principles …..A quashing order issues to quash a decision which is ultravires. A prohibiting order issues to forbid some act or decision which will be ultravires. A quashing order looks to the past, a prohibiting order to the future.”

In the case of Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the court stated as follows on the scope and efficacy of remedies of Prohibition and Certiorari:

“…..prohibition is an order from the High Court directed to an inferior tribunal or body which prohibits that tribunal or body to continue proceedings in excess of its jurisdiction or in contravention of the laws of the land…. Only an order of Certiorari can quash a decision already made and an order of Certiorari will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.”

In the case of Attorney General v Ryath (1980) AC 718 at 730, Lord Diplock stated that:

“It has long been held that a decision affecting the legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority.”

In determining the issue as to whether the applicant is entitled to an order of Certiorari, the first question to ask is whether the letter dated 5th October, 2015 by the 2nd respondent to the Director of Kenya Forest Service constituted a decision which was amenable to judicial review. It was common ground that there was a dispute over the ownership of the suit property and that the applicant’s association, KAFSA, the 1st interested party’s KADA and the 2nd interested party, Muungano Wa Kamiti Society all laid a claim to the property. The applicant claimed that it was KAFSA which approached the 2nd respondent first to assist in resolving the dispute. The applicant did not state in which manner they approached the 2nd respondent and the mode of dispute resolution they wanted the 2nd respondent to adopt in settling the matter. According to the letter dated 29th July, 2015 through which the 2nd defendant invited Muungano Wa Kamiti Society, KAFSA and KADA for a consultative meeting at Kiambu County Hall on 11th August, 2015, it is clear that the 2nd respondent had invoked its mandate under Article 67(2) (f) of the Constitution and Section 5 (2) (f) of the National Land Commission Act, 2012. It is clear from the tone of that letter that the intention of the 2nd respondent was to help the parties to resolve the dispute over the ownership of the suit property. I am in agreement with the 2nd respondent that in presiding over this consultative meeting, the 2nd respondent was not sitting as a tribunal to determine the rights of the various parties over the suit property. The 2nd respondent in my view was only acting as a mediator to assist the parties to reach an amicable settlement of their dispute. The 2nd respondent was therefore not expected to make any decision after the consultative meeting which could affect the legal rights of any of the parties. There is no evidence that after the consultative meeting on 11th August, the 2nd respondent made a formal decision on the rights of the parties. What the applicant has referred to as a decision of the 2nd respondent is a letter that was addressed to a third party which was not a party to the meeting of 11th August, 2015.

In the said letter dated 5th October, 2015, the 2nd respondent merely communicated to the Director of Kenya Forest Service its findings on the dispute over the suit property following investigations and consultations that it had carried out. I am of the view that the contents of the said letter did not amount to a decision made by the 2nd respondent in exercise of its mandate to review grants and dispositions of public land or to investigate complaints regarding historical land injustices. It is my finding that the letter dated 5th October, 2015 was not a decision amenable to judicial review as it was not of a nature that would affect the legal rights of the members of KAFSA. From the material placed before this court, there are two suits pending over the ownership of the suit property. In my view, it will be in those suits that the interests of the various parties claiming ownership of the suit property would be determined.

Even if it is assumed that the letter dated 5th October, 2015 was amenable to judicial review, I would still not have granted an order of Certiorari. This is due to the fact that I am not satisfied that valid grounds have been put forward to warrant such order. Evidence was placed before the court showing that KAFSA was invited to the consultative forum. Apart from the allegations the applicant made in the statutory statement, no evidence was placed before the court showing that the letter of invitation to the consultative forum was received on 13th August, 2015 after the meeting. The applicant did not also refute the 1st and 2nd respondents’ claim that about 20 of KAFSA members attended the consultative meeting and participated in the same. The members of KAFSA having been given an opportunity to attend the consultative meeting and to be heard and having not utilised the opportunity cannot claim that the meeting was conducted and a decision made in breach of the rules of natural justice.

The applicant had also taken issue with the merit of the purported decision by the 2nd respondent which it claimed had validated a flawed allocation which the government had nullified. The law is settled that in judicial review, the court is concerned more with the process and not the merit of the decision. This court cannot determine on the affidavit evidence before it whether the alleged decision by the 2nd respondent was right or wrong. For the foregoing reasons, it is my finding that the applicant is not entitled to an order of Certiorari.

With regard to the order of Prohibition, again, I am of the view from my findings above that no valid grounds have been put forward to warrant the grant of the same. I am not convinced that there is in existence a decision that has been made by the 2nd respondent which is ultravires its powers and which it is in the process of executing to justify the grant of an order of Prohibition.

The upshot of the foregoing is that the Notice of Motion dated 27th January, 2016 fails wholly. The application is dismissed accordingly. Each party shall bear its own costs.

Delivered and Dated at Nairobi this 4th day of July, 2019

S. OKONG’O

JUDGE

Judgment read in open court in the presence of:

Ms. Wambua h/b for Mr. Angima for the Applicant

Ms. Masinde for the 1st and 2nd Respondents

Mr. Kamau for the 3rd Respondent

N/A for the 1st Interested Party

N/A for the 2nd Interested Party

Mr. Waweru - Court Assistant