[2024] KEELC 6004 (KLR)

Saha v Chigulu (Environment & Land Case 50 of 2017) [2024] KEELC 6004 (KLR) (23 September 2024) (Judgment)

Neutral citation: [2024] KEELC 6004 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 50 of 2017

EK Makori, J

September 23, 2024

Between

Tsuma Chitsaya Saha

Plaintiff

and

Mdigo Mbaji Chigulu

Defendant

Judgment

1. The suit herein relates to a land dispute over parcels of land known as Plot 402 and Title No.Kilifi/Kaliangombe/Jimba /522 situate at Kaliangombe/Jimba Adjudication Section -Kilifi County. The Plaintiff filed Plaint dated 6th March 2017 seeking injunctive orders against the Defendant for interfering with the Plaintiff’s alleged Plot 402, damages for trespass, a declaration that his property rights under Article 40 of the Constitution have been infringed, and costs of the suit.

2. Simultaneously with the suit, the Plaintiff filed a Notice of Motion application on 6th March 2017, seeking an injunction directed at the Defendants, restraining them, their agents, servants, or any other person acting on their instructions from interfering with the Plaintiff's Plot until the suit is heard and determined.

3. The Defendant, through his former advocate, Mwawasi & Company Advocates, filed grounds of opposition on 21st July 2017, challenging the jurisdiction of the ELC to entertain the matter on account of the Land Adjudication Act and the doctrine of exhaustion of avenues available before approaching the ELC.

4. The Plaintiff abandoned the Application to prepare for the determination of the main suit; however, the Court did not issue interim orders, and the parties took direction for pre-trial.

5. The Defendant filed a statement of defence dated 20th November 2019 and filed in Court on 1st November 2019, denying the Court's jurisdiction and a counterclaim of even date out of what is described as an abundance of caution if the Court decides to determine the dispute.

6. On 28th January 2020, Defendant filed a Preliminary Objection dated 27th January 2020 to the Plaintiff's suit centred on three grounds:a.That this Court lacks the jurisdiction to hear, entertain, and determine the dispute preferred before it pursuant to Section 30 of the Land Adjudication Act;b.That the suit herein constitutes matters which are res judicata contrary to the provisions of the Civil Procedure Act;c.That the suit is bad in law and an abuse of the Court process and should, therefore, be dismissed with costs.

7. Plaintiff Tsuma Chitsaya Saha testified as PWI, adopting the written and filed statements and the documents attached as a list of documents produced as exhibits. He said he was the lawful owner of all that parcel of land known as Kilifi/Kalingombe/402. He said he inherited the same from his father and had been using it without interference until 2014, when Defendant invaded it, subdivided it, and started to sell it to third parties. Efforts to resolve it through the Alternative Dispute Resolution Mechanism have been futile. He attached a map of the Kalingombe Adjudication Section to show that Plot No. 402 differs from Plot No. 522.

8. On the other hand, Defendant Mdigo Mbaji Chigulu, who testified as DW2—adopted his witness statement and produced the listed documents as exhibits—stated that the Defendant's deceased father, Mr. Katimbo wa Chigulu, was a Senior Chief in the 1950s and owned initially Plot No. 522 of about approximately 75 acres, which was allocated to him by the then Governor Sir Evelyn Baring. Defendant subsequently acquired title to parts of the land known as Title Number Kilifi/Kaliangombe/Jimba /522.

9. The Plaintiff's father, Mr. Njoga Saha (now deceased), encroached on a section of the Defendant's parcel of land by cultivating the land and planting trees. Plaintiff’s deceased father allegedly claimed that he owned Plot No 402, and Defendant had no right to claim that a section of Plot 402 in which he had planted trees formed part of his father’s land, now known as Title No. Kilifi/Kaliangombe/Jimba /522. The Plaintiff's father subsequently sued the Defendant because Plot 402 did not form part of the Defendant’s land. In particular, in 2005, the Plaintiffs sued the defendant in Land Dispute Tribunal Case Reference Number LMD/KAL/42/2005, and the Tribunal dismissed the matter. The Resident Magistrate Court at Kaloleni in Land Award Case Number 20 of 2006 - Ngoja Saha v Mdigo Mbaji upheld the decision of the Land Dispute Tribunal and entered judgment in favour of the Defendant; a decree dated 22nd October 2013 was extracted - Defendant’s item No. 2 and 3 in the list of documents dated 20th November 2019. The Court and the Land Disputes Tribunal found that the Defendant was the rightful owner of the said portion of land in dispute and that his deceased father's Estate should continue to live in the undisturbed land. Mr Ngoja Saha passed on, and Plaintiff lodged an objection against Defendant with the Land Adjudication officer in Kilifi District, alleging that Defendant had demarcated his land and included Plot No 402. The objection was heard on 10th April 2014, and the Plaintiff’s objection was dismissed. The Plaintiff appealed to the Ministry of Interior and Coordination of National Government. The Deputy County Commissioner served the Defendant with a summons to appear before the Minister Appeal Panel on 29th November 2018. After the Land Adjudication Officer dismissed the objection, the Plaintiff further instituted the current suit, and the Court proceedings coincided with the appeal proceedings before the Minister.

10. From the materials and the parties' submissions, I frame the issues for this Court to determine - whether this Court has jurisdiction to resolve the dispute arising out of a suit land situated in an adjudication area. Did Defendant trespass unto Plaintiff’s Plot No. Kaliangombe/Jimba/402 and entitled to the orders sought in the plaint? Is the Defendant’s counterclaim merited? Who should bear the costs of these proceedings?

11. Mr. Kenzi, learned counsel for the Plaintiff, submits that prima facie with the production of the Map of Kaliangombe Adjudication Section showing the distribution in ownership, the Plaintiff has proved, minus title document that he is the owner of the property both in law and Equity nine-tenth citing the case of Caroline Awinja Ochieng & Anor. v Mbithe Mitau & Anor Civil Appeal No. 129 of 2019 (Nai) [2015] eKLR.

12. On the pending Appeal to the Minister, Mr. Kenzi avers that by dint of Article 162(2)(b) of the Constitution and Section 4 of the ELC Act 2012 is clothed with jurisdiction to handle any matter that touches on the Environment and Land and that this is one of such disputes. He urges the Court to find for the Plaintiff.

13. Mr.Onyango, learned counsel for the Defendants, on the other hand, contends that this Court lacks jurisdiction to hear this matter from the onset since, by virtue of Section 30 of the Land Adjudication Act, an Appeal concerning the subject matter herein is pending before the Minister, no consent was granted from the Land Adjudication Officer to originate this matter.

14. Further, pursuant to Section 26 of the Act, of the Act, elaborate steps are provided upon which a person aggrieved with the adjudication register has to follow in objecting to the finality of the register.

15. It is submitted for the Defendants that a mechanism of an Appeal arising from the objection proceedings to the Minister is as provided in Section 29 of the Act. The Defendant contends that by dint of the provisions in that section, the jurisdiction of the ELC is ousted – see the decision in Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others (Civil Appeal E033 of 2021) [2023] KECA 1280 (KLR) (27 October 2023) (Judgment) cited with approval in the case of Julia Kaburia v Kabeera & 5 others [2007] eKLR. See also Tobias Achola Osindi & 13 others v Cyprian Otieno Ogalo & 6 others [2013] eKLR.

16. Defendant also believes that Plaintiff’s claim is defeated by the operations of the doctrine of res judicata since the same issues involving the same parties and subject matter were dealt with in Resident Magistrate Court in Kaloleni Land Award Case 20 of 2006. The Plaintiff and his deceased father sued the defendant several times regarding the subject matter. The issue was determined on merits, and the Plaintiff lost to the father of the Defendant.

17. The Defendant believes that there is a mechanism under the Land Adjudication Act on how grievances under the Act are to be decided before approaching the ELC. It is averred, therefore, that that mechanism has not been exhausted, and any proceedings brought before the ELC offend the doctrine of exhaustion. See the decisions in Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR, Speaker of National Assembly v Karume [1992] KLR 21 and Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR.

18. Defendant further states that Plaintiff has been concurrently participating in the proceedings at the Appeal Panel and in this Court. The Court should take judicial notice that the Appeals Panel delivered its judgment relating to the dispute herein on 16th May 2022, and Section 29 of the Land Adjudication Act is definite that the decision of the Minister is final and not subject to appeal in a Court of law. Even if it was to be hypothetically assumed that the decision is somewhat pending, which it is not, the Court is still prevented from deciding the subject matter. The Plaintiff is bound to strictly follow the statutory provisions of the Land Adjudication Act about dispute resolution of land situated in a declared adjudication area.

19. The Defendant strongly believes that bringing this matter up during the pendency of an appeal to the Minister amounts to an abuse of the Court process. The plaintiff is well aware of the pendency of that Appeal, and proceeding to bring this suit expecting a favourable outcome also amounts to forum shopping and a waste of judicial resources and time. See Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 [2009] eKLR 229.

20. On the merits of the case, Defendant submits that Plaintiff never owned the disputed portion regarding adjudication section plot 402 at all and, therefore, trespass as defined under Section 2 of the Trespass Act Chapter 294 Laws of Kenya, and the attendant damages cannot attach. See the definition of trespass as elaborated in Nyangeri Obiye Thomas v Yunuke Sakagwa Nyoiza ELC Case No.277 of 2018 citing Clerk & Lindsell on Torts 18th Edition at paragraph 18-01, which defines trespass as.“Any unjustifiable intrusion by one person upon the land in possession of another.” …. Trespass is actionable at the instance of the person in possession, and that proof of ownership is prima facie proof of possession” ………The acts of putting up structures on the land and taking occupation of the same forcefully surely do amount to trespass.’

21. Defendant finally asserts that there is no prima facie evidence demonstrating that Plaintiff is a registered owner or lawful occupier of the suit property Kilifi/Kaliangombe/Jimba Plot 402 /522 since Plaintiff did not adduce any documentation to show that he was the registered proprietor.

22. Whenever the question of jurisdiction arises at any trial stage, the Court needs to probe it immediately because it can potentially dispose of a matter. See Motor in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

23. As submitted by the Defendants - correctly so - the jurisdiction question of a Court can neither be implied nor conferred by agreement of parties, by judicial craft, or legal sophistry. It must be expressly provided for in the Constitution or in the Statute. This was the holding of Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the apex Court held:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”

24. The issue of jurisdiction was initially raised in the Preliminary Objection dated 27th January 2020. It could not be heard immediately as parties failed to comply with the Court's directions. Parties later in the proceedings agreed that the matter be heard on merit, but the issue lingers.

25. The parties agree we are dealing with land under an Adjudication Section called the Kalingombe Adjudication Section. Therefore, the appropriate regime under which the subject matter lies is to be reckoned under the Land Adjudication Act Chapter 284 Laws of Kenya, which deals with the ascertainment of rights and interests of parties in an adjudication section and an elaborate adjudication mechanism. The parties agree that the matter was adjudicated in the stages provided by the Act and that the Plaintiff had simultaneously appealed to the Minister regarding this matter. The Defendant contends the appeal was decided during the pendency of this suit. Even though so, Section 30 of the Act ousts the jurisdiction of the Courts in this manner:“Staying of land suits30(1) Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act.”

26. Section 26 of the Act provides for the steps upon which a person aggrieved with the adjudication register is to appeal as follows:Objection to adjudication register(1)Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.”

27. Appeals arising from an objection are provided under Section 29 of the Act thus:“AppealAny person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by-a.delivering to the Minister an appeal in writing specifying the grounds of appeal; andb.sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just, and the order shall be final.”

28. The ELC and the Superior Courts have provided the interpretations of the above provisions – for example the Court of Appeal in the case Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others (Civil Appeal E033 of 2021) [2023] KECA 1280 (KLR) (27 October 2023) (Judgment cited with the approval the case of Julia Kaburia v Kabeera & 5 others [2007] eKLR, where it expressed itself on Section 30 of the Act inter alia:“The Land Adjudication Act provides an exclusive and exhaustive procedure for ascertaining and recording land rights in an adjudication section. By Section 30 (1) (2), the jurisdiction of the court is ousted once the process of land adjudication has started until the adjudication register has been made final ...In our respective view, the consent envisaged by Section 30 to institute or continue with civil proceedings is not a consent to file a suit challenging the decision of the Land Adjudication Officer himself on the merits of his decision. Rather, the consent is given to a person to file a suit or continue with a suit against persons who have a competing claim on the land under adjudication.

29. The ELC (Okongo J.) commenting on the role of the Court vis-a-vis that of the adjudicating bodies under the Act, in Tobias Achola Osindi & 13 others v Cyprian Otieno Ogalo & 6 Others [2013] eKLR, held as follows:“The whole process leading up to the registration of land as aforesaid is undertaken by the Adjudication Officer together with other officers appointed under the Act for that purpose. It follows from the foregoing that once an area has been declared an adjudication area under the Act, the ascertainment and determination of rights and interests in land within the area is reserved by the law for the officers and quasi-judicial bodies set up under the Act…The Act has given full power and authority to the Land Adjudication Officer to ascertain and determine interests in land in an adjudication area prior to the registration of such interest. As I have mentioned above, the process is elaborate. …….. The court has no jurisdiction to ascertain and determine interests in land in an adjudication area. In my view, the role of the court is supposed to be supervisory only of the adjudication process. The court can come in to ensure that the process is being carried out in accordance with the law. The court can also interpret and determine any point or issue of law that may arise in the course of the adjudication process. The court cannot, however, usurp the functions and powers of the Land Adjudication Officer or other bodies set up under the Act to assist in the process of ascertainment of the said rights and interests in the land...”

30. From the foregoing, it follows that this Court has no jurisdiction to entertain the Plaintiff’s suit considering that the process of land adjudication had effectively come to its logical conclusion and determination of rights and interest in the suit land could not be re-opened otherwise than in the manner contemplated by the law. This issue ought to have been settled earlier in the life of the case to save the Court time - the precious resource to hear other matters. The Plaintiff alleges the Minister's decision is out. If it has, it is final. The ELC, as correctly stated by my brother Okongo J, can only come under its supervisory jurisdiction, the judicial review jurisdiction. I down tools. I need not consider the other fronts – the doctrine of exhaustion, res judicata, et al. – it adds to one thing - the Court has no jurisdiction.

31. If we were to venture to the merits of the case, as an academic exercise, the land in issue being unregistered, there is no prima facie evidence to invoke ownership on the part of the Plaintiff. The map produced was relevant at the Adjudication level. Trespass and accrued damages cannot be granted.

32. On the Counterclaim filed—it was filed out of an abundance of caution, as stated by the Defendant, and I need not venture there given the collapse of the Plaintiff’s case.

33. The upshot is that the Plaintiff’s suit is hereby dismissed with costs to the Defendant. The counter-claim is dismissed with no order regarding costs.

Dated, signed, and delivered virtually at Malindi on this 23rd day of September 2024. E. K. MAKORIJUDGEIn the Presence of:Mr. Kenzi, for the PlaintiffMs. Mulomi, for the DefendantHappy: Court Assistant