[2017] KEHC 9112 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL ANDJUDICIAL REVIEW DIVISION

MILIMANI COMMERCIAL COURTS

JR. NUMBER 117 OF 2016

REPUBLIC…………..……………………………………………..APPLICANT

VERSUS

NATIONAL LAND COMMISSION……..........……………… RESPONDENT

AND

THE TRUSTEES, KENYA RAILWAYS STAFF RETIREMENTBENEFITS

SCHEME………...............….INTENDED INTERESTED PARTY/APPLICANT

EX-PARTE

CECILIA CHEPKOECH LETING,

MAUREEN CHEPTOO LETING AND

ANTONIO KIPROP LETING

(Suing as the Executors of the

Estate of Joseph Tendenei Arap Leting)

RULING

1. On 23rd November, 2016, this Court delivered a judgement herein in which it issued the following orders:

1) An Order of Certiorari removing into this Court and quashing the decision by the National Land Commission to issue a Notice and conduct a review and hearing in respect of the property known as Land Reference Number 209/6506/1 belonging to the Estate of Joseph Tendenei Arap Leting (Deceased) which said decision appeared in an advertisement in the Standard Newspaper and the Daily Nation issues of 22nd January, 2016 by the National Land Commission, and the same is hereby quashed.

2) An prohibiting the National Land Commission from conducting any hearing or review over the complaint in regard to the property known as Land Reference Number 209/6506/1 whether on the 15th March 2016 or any other date.

3) A declaration that the National Land Commission has no jurisdiction to hear or adjudicate and determine any proceedings touching on the property known as Land Reference Number 209/6506/1 either in the manner suggested by the Commission or at all.

4) The costs of these proceedings are awarded to the applicant to be borne by the Respondent.

2. By a Notice of Motion dated 13th January, 2017, the applicant herein/intended interested party, The Trustees, Kenya Railways Staff Retirement Benefits Scheme, (hereinafter referred to as “the Scheme”) seeks the following orders:

1. That the applicant herein be granted leave to be enjoined in this matter as the interested party.

2. That upon grant of prayer no.1 above, the judgement delivered on the 23rd November, 2016 and all consequential orders be set aside and or vacated and the suit herein be heard afresh inter partes.

3. That the ex-parte applicant and the respondent do serve the applicant herein with all court pleadings in respect of this matter.

4. That the costs of this application be provided for.

3. According to the Scheme, it is a pension scheme registered under the Retirement Benefits Act (Act No.3 of 1997) (hereinafter referred to as “the Act”) and caters for over ten thousand ageing retirees of the Kenya Railways Corporation (hereinafter referred to as “the Corporation”). The applicant averred that the Government of Kenya did grant the East Africa Railways and Harbour Administration all that parcel of land described as L.R. No.209/6525 situate at upper Hill, Nairobi for a term of 99 years from 1st January 1932 (hereinafter referred to as “mother title”) and that the Corporation as a successor of the East African Railways and Harbour Administration, was vested with all that property of its predecessor, inclusive of the said L.R.No.209/6525, the mother title.

4. According to the Scheme, in or about the year 2005, it was established by its sponsor, the Corporation, with a primary objective of providing pension to the past and current employees of the Corporation and that it is duly registered as such a pension scheme under the provisions of the Act.

5. According to the Scheme, to enable it meet its said primary obligation of paying pension, the sponsor, the Corporation, did vest unto the Scheme listed parcels of land as the only source of income to enable it meet its obligation, by among others, leasing and disposing off the vested properties amongst which is a portion of the said mother title.

6. It was therefore averred that as the bona fide owner of the said transferred and vested property,L.R.No.209/6525 (part), the interested party was duty bound to not only trace but also preserve the same for its intended purpose and it was in the process of tracing and preserving the said vested property that it came to the interested party attention that the subject property, a portion of the mother title as transferred and vested unto the Scheme, had been subdivided into smaller portions and vested unto private developers, one such subdivision being parcel of land described and known as L.R.No.209/6506/1 and occupied by the applicant herein. It was averred that it has been the consistent Scheme’s position that the subdivision of the mother title, L.R. No. 209/6525, and more so a portion thereof as transferred and vested unto the Scheme, culminating into, among others, L.R. No. 209/6506/1 was and remains irregular, illegal, null and void. The interested party’s pursuit for recovery of the suit land has been undiminished and which matter has been lately subjected to the Respondent herein, as the Constitutional and statutory body mandated to investigate and or review the legality or otherwise of land ownership within the Republic of Kenya. According to the Scheme, the proceedings before the Respondent have neither been heard nor concluded.

7. According to the Scheme, vide letter served upon the Scheme‘s advocates by the firm of Oraro and Co. Advocates in respect of Nairobi JR No.71 of 2016,it came to the Scheme’s attention that the applicant had filed the instant case in the High Court and failed to notify the Scheme and thereby proceeded in their absence and obtained judgement as delivered on 23rd November,2016. In the said proceedings, the Scheme was excluded and the ex parte applicant acquired the said judgement as delivered on the 23rd November, 2016 vesting the suit land to themselves.

8. It was the Scheme’s case that as a bona fide owner of the subject land, it stands irreparably prejudiced with the orders granted vide this judgement since they were never granted audience over the same yet the suit land has been permanently taken away from them. The Scheme therefore contended that its rights over the subject parcel of land are at stake thus the need that it be allowed to be enjoined (sic) as a party to this suit by re-opening the proceedings so that its response can be considered on merit. It disclosed that in a similar matter touching on a land adjacent to the suit property herein, the intended interested party herein was enjoined as a party to the suit same being Nairobi JR.No.71 of 2016 in which suit was heard with all parties arguing their respective cases and is now pending judgement before Justice Aburili.

9. The Scheme’s case was therefore that the suit herein was instituted with an ulterior motive, mala fide and an attack on the integrity of the judicial process as the applicants failed to notify the intended interested party of the existence of this suit and intentionally excluded them yet they are directly affected with the outcome of the instant suit.

10. Based on legal advice the Scheme averred that the law requires that a party who is directly affected by the outcome of a judicial review process be joined in a suit prior to the determination of any of the parties legal rights hence it is in the wider and overriding interests of fairness and justice that the judgement and consequential orders of 23rd November, 2016 be set aside and or vacated. In its view, no prejudice shall be visited upon the parties herein if this application is allowed as the Scheme intends to bring to the court factual and legal expositions that are necessary to inform the court’s reasoning prior to determination of any issues as presented by the ex parte applicant.

11. The application was however opposed by the ex parte applicant.

12. According to them, they are the Executors of the Estate of Joseph Tendenei Arap Leting(deceased).

13. Based on legal advice, they averred that this Application is incompetent, bad in law and is predicated under inapplicable and inappropriate provision of the law.

14. It was their view that the provisions of Order 53 Rule 3 under which this Application has been lodged, the Court can only order for the service of pleadings on the Scheme who are parties to a case or proceedings in a Court of law, which is not the case with the proceedings herein. They ex parte applicants therefore contended that this Application is res judicata and in violation of the express provisions of section 7 explanation 6 of the Civil Procedure Act.

15. It was their case that at all material times, they were not aware of any interest as alleged by the Scheme at all. However, a representative of the Scheme appeared before the National Land Commission during its proceedings in relation to this property but as they failed to serve a copy of the alleged complaint to the Commission on the Applicants’ Advocates but, the Applicants were unable to discern what its interest was to enable the Applicant decide whether it should have been served with the pleadings herein.

16. According to the ex parte applicants, it is a falsehood for the Scheme to allege that it was not aware of the existence of this case until when it received a copy of the judgment herein from Oraro and Company Advocates since during the proceedings of National Lands Commission aforesaid on 23rd March, 2016 the ex parte applicant’s from the firm of A. H. Malik & Company Advocates expressly pointed out to the Commission that these proceedings had been commenced and the Commission confirmed having been served with the same. Accordingly, since the representatives of the Scheme as well as their Advocates were present at the proceedings, they cannot now claim not to have been aware.

17. It was therefore the ex parte applicants’ case that this Application is an afterthought and the same is bare and completely baseless. In any event, the ex parte Applicants’ Application was largely in regard to the National Land Commission’s conduct of this matter on which it had no jurisdiction and this does not concern Scheme at all.

18. To the ex parte applicants, the Scheme is a busy body in this case as its claim is bogus and can only be litigated against the Corporation who appear, from the exhibits attached to the Scheme’s Application, to have misled the Scheme that it owned the suit property when actually it did not.

19. The ex parte applicants disclosed that they have a letter from the deceased’s file written by the Commissioner of Lands, the predecessor of the National Land Commission dated 30th March, 2005 to the Corporation in reply to the Corporation’s dated 4th March, 2005, reiterating that the Title known as Land Reference Number 209/6525, which the Scheme has exhibited to its Application was extinguished upon its voluntary surrender to the Commissioner of Lands.

20. The ex parte applicants reiterated that the main issue in this cause is not about ownership of the Applicant’s property but, the jurisdiction by the National Land Commission to adjudicate on the same, a matter that cannot in any way involve the Scheme.

Determinations

21. I have considered the application and this is the view I form of this matter:

22. The first issue for determination, based on the submissions filed on behalf of the parties is whether the doctrine of res judicata applies to these circumstances. Section 7 of the Civil Procedure Act provides:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

23. In this case since the Scheme was not a party to the proceedings giving rise to the judgement sought to be set aside, the doctrine of res judicata does not apply since it is not contended that any of the parties thereto was a party under whom the Scheme was claiming or litigating.

24. The second issue is whether this Court has jurisdiction to review, set aside or vary its orders made after the hearing of a judicial review application. The question whether the Court can revisit its decision made on a judicial review was dealt with by the Court of Appeal in Nakumatt Holdings Limited vs. Commissioner of Value Added Tax [2011] eKLR where the Court held that the superior court in the matter before the court has the residual power to correct its own mistake. Accordingly, where a mistake is shown to have been committed which is remediable by the Court the same ought to be corrected by the Court in the exercise of its inherent jurisdiction and not necessarily under section 3A of the Civil Procedure Act which strictly speaking does not apply to judicial review proceedings. That section in any case does not confer inherent jurisdiction on the Court but only reserves the same. In Ryan Investments Ltd & Another vs. The United States of America [1970] EA 675 it was held that section 3A of the Civil Procedure Act is not a provision that confers jurisdiction on the court but simply reserves the jurisdiction which inheres in every court. The court has inherent jurisdiction not created by legal provisions, but which only manifests the existence of such powers.

25. Dealing with inherent powers of the Court it was held in Republic vs. The Public Procurement Complaints, Review and Appeals Board & Another Ex Parte Jacorossi Impresse Spa Mombasa HCMA No. 365 of 2006 that the Court has power under its inherent jurisdiction to make orders that may be necessary for the ends of justice and to enable the Court maintain its character as a court of justice and that this repository power is necessary to be there in appreciation of the fact that the law cannot make express provisions against all inconveniences.

26. I therefore find that this Court has power to revisit its decision made on judicial review and whether such course is referred to as review, vacation of orders or setting aside in irrelevant in my view.

27. That brings me to the merits of the present application. The Scheme’s case is that although it has interest in the suit property, it was never served nor joined to these proceedings. The ex parte applicants on the other hand seem to be of the view that since the Scheme was a party to the proceedings before the Commission, it was aware of these proceedings hence there was no need to serve it. Further that as the applicants were not aware of the exact nature of the Scheme’s interest in the suit land, the applicants could not join the Scheme as a party herein.

28. Order 53 rule 3(2) of the Civil Procedure Rules provides:

The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.

29. It is therefore a mandatory requirement that the notice of the application ought to be served on all persons directly affected. In this case, it is contended that the interested parties are persons directly affected by the decision sought to be set aside since they claim interests in the suit land. It is not in doubt that the Scheme was neither a party to the application which gave rise to the judgement herein nor was it served.

30. As was held in Onyango Oloo vs. Attorney General [1986-1989] EA 456:

“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...To “consider” is to look at attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to think, hold the opinion... “Consider” implies looking at the whole matter before reaching a conclusion...A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...It is improper and not fair that an executive authority who is by law required to consider, to think of all the events before making a decision which immediately results in substantial loss of liberty leaves the appellant and others guessing about what matters could have persuaded him to decide in the manner he decided...In the course of decision making, the rules of natural justice may require an inquiry, with the person accused or to be punished, present, and able to understand the charge or accusation against him, and able to give his defence. In other cases it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decision-making body or person, who, having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected. The extent to which the rules apply depends on the particular nature of the proceedings...It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard renders any decision made null and void ab initio.”[Emphasis mine].

31. It is therefore clear that it is not the perceived hopelessness of a person’s case that determines whether or not he ought to be heard in a decision likely to adversely affect him since under Article 19 of the Constitution the right to be heard is a fundamental human right that is not given by the State as human rights are generally universal and inalienable rights of human beings only given recognition by the Constitution.

32. Therefore the omission to afford the interested parties an opportunity of being heard by omitting them from the proceedings altogether, though the ex parte applicants were aware that they were making some claim to the suit property, was a breach of their fundamental rights as envisaged under Article 47 of the Constitution and that is a reason to set aside the proceedings herein.

33. As was held by the Court of Appeal in CMC Holdings Ltd vs. Nzioki [2004] KLR 173:

“In an application for setting asideex partejudgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle. In the instant case the learned trial magistrate did not exercise her discretion properly when she failed to address herself as to whether the appellant’s unchallenged allegation that its counsel did not inform it of the hearing date for the hearing that took place ex parte and hence it would appear was true and not if true, the effect of the same on the ex parte judgement was entered as a result of the non-appearance of the appellant and on the entire suit. The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate...The second disturbing matter which arises from the decision of the learned magistrate in dismissing the application for setting aside the ex parte judgement is that in so dismissing the same application, the learned trial magistrate does not appear to have considered whether or not the defence which was already on record was reasonable or raised triable issues. The law is now well settled that in an application for setting aside ex parte judgement, the Court must consider not only the reasons why the defence was not filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex parte judgement. In the instant case, the defence and counterclaim was already in the file when the matter was heard ex parte and the trial magistrate stated that she considered the same and dismissed the same defence and counterclaim when the appellant was not in court to put forward its case. Further it appears that certain matters raised in the defence were not considered at all and indeed could not be considered without the appellant’s input...What the Trial Court should have done when hearing the application to set aside the ex parte judgement was to ignore her judgement on record and look at the matter afresh considering the pleadings before her and see if on their face value a prima facie triable issue (even if only one) was raised by the defence and counterclaim. If the same was raised, then whether the reasons for the appellant’s appearance were weak, she was in law bound to exercise her discretion and set aside the ex parte judgement so as to allow the appellant to put forward its defence. Of course in such a case, the applicant would be condemned in costs or even ordered to pay thrown away costs. The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered whether a triable issue was raised by the defence and if so, then the appeal should have been allowed”.

34. In Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22, Oder, JSC stated:

“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered”.

35. Consequently I find merit in the application.

Order

36. In the result, I hereby grant the Motion dated 13th January, 2017 and grant leave to the Trustees, Kenya Railways Staff Retirement Benefits Scheme to be joined to these proceedings as an interested party. I further direct that the orders made by this Honourable Court on 23rd November, 2016 and the consequential orders pursuant thereto be and hereby set aside and/or vacated. The ex parte applicant is hereby directed to serve the Trustees, Kenya Railways Staff Retirement Benefits Scheme, the interested party herein with all its pleadings for the purposes of hearing de novo.

37. The costs of the application shall however be in the cause.

Dated at Nairobi this 19th day of July, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Ongicho for the ex parte applicant

Mr Wahome for the Respondent

Mr Masivo for Mr Milimo for the interested party

CA Mwangi