[2023] KEELC 18634 (KLR)

Savannah Breweries Limited v National Land Commission & 3 others; Karati Farm & 2 others (Interested Parties) (Environment & Land Petition 17 of 2019) [2023] KEELC 18634 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEELC 18634 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Petition 17 of 2019

A Ombwayo, J

June 29, 2023

Between

Savannah Breweries Limited

Petitioner

and

The National Land Commission

1st Respondent

The Hon Attorney General

2nd Respondent

The Chief Land Registrar

3rd Respondent

The Kenya Agricultural And Livestock Research Organization

4th Respondent

and

Karati Farm

Interested Party

Top Farm

Interested Party

Ethics And Anti-Corruption Commission

Interested Party

Judgment

Petitioner’s Case 1. The petitioner’s case is that the property known as Land Reference NO 5211/12, Title Number 90279, registered under the Registration of Titles Act, cap 281 situate at Naivasha within Nakuru County which was curved from LR No 5211/2/5, Grant No IR No 82600 was bought from Kahunyuro Macharia Kimemia. In June 2019 one of the Directors of the Petitioner, Moses Ngechu Kimemia, went to access the suit property but was surprised to find police manning the property and they denied him access. When the said director inquired from the police why they were denying him access to the Petitioner's property, they said that they had orders from the 4th Respondent not to allow anybody access the property as it belonged to the 4th Respondent.

2. When he visited the offices of the 4th respondent, he was informed that the suit property belonged to 4th respondent subject to the decision of the 1st Respondent in revoking the Plaintiff’s title which comprised of LR No 5211.

3. The petitioner averred that the 4th respondent referred its director to gazette Notice Number 1716 of February 22, 2019 which revoked LR No 5211 and 5212. LR 5211 was the mother title to 5211/2 which was the petitioner’s property.

4. The petitioner averred that the said gazette notice indicated that it revoked the titles after conducting hearings and issuing notices to all affected persons to make submissions before making the appropriate recommendations.

5. The petitioner also averred that he was surprised as no notice was issued to it and efforts to obtain the said proceedings have proved futile. That had the 1st respondent conducted due diligence then it would have realised that the property had been subdivided and other individuals registered as the owners and would have issued the requisite notices to them. Therefore, there was fraud in the cancellation of the said title.

6. The petitioner alleged that the 1st respondent contravened Articles 47 and 50 of the Constitution of Kenya in its purported hearing and subsequent gazettement of its decision directing the 2nd respondent to revoke LR No 5211 which was the mother title to the petitioner’s property.The petitioner sought the following prayers;a.A declaration that the petitioner’s fundamental rights and freedoms enshrined under Articles 40(1), (2) (a), (3) (b) (i), 47(1) and (2) of the Constitution of Kenya, 2010 having been contravened and infringed upon by the respondent herein.b.An order of Certiorari be and is hereby issued to remove into this court and quash the revocation notice published by the National Land Commission in the Gazette Notice dated February 22, 2019 in respect of all that parcel of land known as Land Reference Number 5211 which is the mother title to the Petitioner's parcel of Land known as Land Reference Number 5211/12. c.An order of certiorari be and is hereby issued to remove into this court and quash any and or all Publication(s), proceeding(s} and/or decision(s) of the National Land Commission, its agents, employees and/or and other person(s) whosoever or howsoever acting on, with and/or under its instructions preceding and/or culmination of which is the Revocation Notice issued by the National Land Commission in the Gazette Notice dated February 22, 2019 in respect of all that parcel of land known as Land Reference Number 5211 which is the mother title to the Petitioner's parcel of Land known as Land Reference Number 5211/12.

d.An order of certiorari to remove into this Honourable Court and quash the decision and recommendation dated February 22, 2019 directed to the Land Registrar, 2nd Respondent herein to effect the cancellation of the Certificate of title registered as IR No 82600 in respect of LR No. 5211 which is the mother title to the Petitioner’s Property Known as LR NO 5211/12. e.A conservatory order in the nature of permanent injunction directed towards the Respondents restricting/prohibiting the Respondents, their agents, officers and any person acting under them from interfering in whatever nature with the quiet possession by the Petitioner of all land parcel known as LR 5211/12 situated In Naivasha.f.An order of prohibition to issue as against the Respondent restraining themselves their agents and appointees from evicting the Petitioner herein from ail that land parcel known as LR No 5211/12 situated in Naivasha.g.In the event that the title has already been cancelled and vested upon the 4th respondent, an order;a.Cancelling the transfer and/or entries on the original grants, to the suit property herein namely grant No IR 82600 for title LR No 5211 which is the mother title to the Petitioner’s parcel of Land known as LR 5221/12 and an order for rectification and restoration thereof of LR No 5211/12 to the petitioner.b.Cancelling the grant and all entries thereon issued in favour of the 4th Respondent and transferred to the 4th Respondent namely grant No 82600, LR No 5211. h.Costs of this Petition.i.Or that such other Orders as this Honourable Court shall deem just.

7. The petition was supported by the affidavit of Moses Ngechu Kimemia, the managing director of the petitioner who annexed various documents in support of the petition.

4th respondent’s response to the petition 8. In response to the petition, the 4th respondent filed a replying affidavit sworn by Evans D Ilatsia on March 9, 2020 on the same day. He deposed that the petition though presented as a request for reliefs on account of violation of rights, the claim is basically for an interest in LR No 5211. He also deposed that the suit property has always been in possession of the 4th respondent as public research land since the pre-colonial era and its ownership has never changed in favour of the petitioner. He further deposed that Nakuru Environment & Land Court case No 82 of 2019 was instituted against the petitioner to stop it from encroaching onto the suit property by grazing animals there. That the petitioner was not evicted because it was not in occupation but was only grazing animals. That the alleged violations of the Constitution were far-fetched and clearly demonstrate that the petition was made in bad faith. That the petition did not meet the threshold requirement for a constitutional reference in relation to the claims against the 4th respondent as it did not articulate with clarity, the petitioner’s complaint against the 4th respondent and the particular provisions of the Constitution that were said to be offended. The 4th respondent then sought that the petition be dismissed with costs to it.

The 3rd Interested Party’s Response to the Petition 8. The 3rd interested party filed a replying affidavit sworn by Agosta Mecca on March 4, 2020 on the same day. He deposed that he was a forensic investigator with the commission and sometime in 2018, the commission received a complaint that the 4th respondent’s land had been grabbed leaving it with insufficient resources to execute its mandate. That KARI was launched under Section 17 of the Science and Technology Act of 1979 (repealed) and LR No 5210, 5211 and 5212 were set aside for a livestock experiment farm in 1904. That the investigations revealed that LR 5211 and LR 5212 commonly known as Top Farm and Karati Farm were set aside as government farms. That the investigations further revealed that LR No 5211 was illegally subdivided into six portions and allocated to private individuals and yet there was a plan showing that it was a government farm. That the deed plan attached to the certificate of title LR No 82600 for LR 5211/2 had the same deed plan number 220141 as the original deed plan number proposed during the setting aside of LR 5211 and 5212 in 1904. That LR 5211/1 remained under the ownership of the 4th respondent and the rest of LR No 5211 was allocated to Kimonda Limited and Kingpin Limited in 1997. That they requested that the property be changed from leasehold to freehold because they could not afford the capital value of the land. That the freehold valuation of LR No 5211/2 was Kshs 14,720,000/= , stand premium as Kshs 5,495,520/= and annual rent as Kshs 137,390/=. That the two companies sought to have the land transferred to the Land Adjudication and Settlement Department as it was agricultural land and would have been resurveyed to leave out 103 hectares which had been leased out to M/s Homegrown. That the two companies sought compensation but the Commissioner of Lands responded and indicated that they could not be compensated because the land belonged to KARI. That LR No 5211/2 was transferred to Wazazi Farmers by the Settlement Fund Trustees on March 3, 2000 upon payment of Kshs 1,040,300/= for 346 acres for Kshs 3000/= per acre. That LR 5211/12 (Originally 5211/2/5) measuring 4. 047 hectares was a subdivision of LR No 5211 which had been subdivided into LR 5211/2/2-6 which were converted to LR No 5211/9-13. That the directors of Wazazi Farmers were John Kimemia and Kahunyuro Macharia Kimemia. That LR No 5211/12 was on October 12, 2002 transferred to Kahunyuro Macharia Kimemia who was a main director in Wazazi Farmers Limited. That it was the petitioner’s claim that it bought land from Kahunyuro Macharia Kimemia and yet he was both the vendor and purchaser since he was the director of the petitioner. That LR No 5211/7 was voluntarily surrendered back to the government and registered in the name of the 4th respondent. That the Ministry of Agriculture wrote to the Ministry of Lands on November 6, 2009 inquiring about the encroachment by private individuals. That on January 22, 2015, the 4th respondent wrote to the NLC seeking that it investigates their land. That the secretary lands department also wrote to the NLC seeking that it investigates the allocation of the 4th respondent’s land to private developers. That the NLC wrote to the Director of Surveys inquiring on the original and current status of the suit property. That the office of the Director of Public Prosecution also wrote to the NLC inquiring about the progress of investigation. That on February 22, 2019, the NLC revoked the titles at 5211/2 based on the investigations and the land reverted back to the 4th respondent. That EACC then processed the title of LR No 5211/2 in the name of the 4th respondent. That LR 5211 and 5212 were not under the scheduled areas for purposes of the Agriculture Ordinance 1955 (a) of January 1, 1955 and so it was not available for purchase by the Settlement Fund Trustees. That the only recourse available to the petitioner was for it to seek for a refund of the consideration that was paid to Wazazi Farmers. That the 1st Respondent was well within his statutory power pursuant to Sections 14(1) and (6) of the National Land Commission Act to correct the register.

The 2nd and 3rd respondents response to the petition 9. The 2nd and 3rd respondents then filed their response to the petition on March 9, 2022 dated July 16, 2021. They admitted the contents of paragraphs 1 to 14 of the petition and denied the rest of the allegations in the petition. They indicated that Section 14(3) of the National Land Commission Act gave the commission power to review all grants or dispositions of public land. That the petitioner should provide proof of ownership of the suit property and that if it had such a right then the commission would have been obligated to give them an opportunity to appear before it and be heard. That the petition did not meet the threshold set out in the case of Anarita Karimi as it did not disclose the manner in which the 2nd and 3rd defendants violated the petitioner’s constitutional rights.

Petitioner’s Further Affidavit 10. The Petitioner filed a further affidavit sworn by Moses Ngechu Kimemia on June 30, 2022. He deposed that he was not aware of any investigations that had been conducted by the respondents and the 3rd interested party. He also deposed that he was not summoned and so he was condemned unheard. That it was clear from the 3rd interested party’s affidavit, the respondents were aware of the petitioners interest but they did not involve it. That there was a copy of the said investigation report which was not availed. That the 3rd interested party’s affidavit confirmed that the suit property was acquired by the Settlement Fund Trustee before it was transferred to Wazazi Farmers Co. Limited who sold LR 5211/12 to Kahunyuro Macharia who later sold the land to the petitioner. That the 1st respondent can only recommend revocation of certificate of title. That it was not true that on February 22, 2019, the NLC revoked the titles of 5211/2 based on the outcome of the investigations and instructed the land registrar to revert back the land to the 4th respondent because the term of office of the National Land Commission ended on February 19, 2019 and so the gazette Notice dated February 22, 2019 was done illegally and without authority as there was no commissioner legally in office on that date. That the only document that the petitioner was able to access was a report dated January 13, 2017 that was annexed in the documents filed by the 4th respondent in Nakuru ELC No 82 of 2019 KALRO vs Savannah Breweries Ltd.

11. He reiterated that the petitioner held a valid certificate of title for LR 5211/12 and yet it was not served with a notice of review of its grant. That the NLC does not have the authority to revoke a title and can only recommend such a revocation. He deposed that he does not agree with the valuation report annexed to the 3rd interested party’s affidavit as it shows that LR No 5211/2 as a whole and yet it was subdivided into parcel No 5211/9-13. He also deposed that the petitioner has no relationship with Kimonda Limited and that the petitioner was not aware of the circumstances of the surrender of LR 52211/7 by Kimonda Limited.

12. He further deposed that the 3rd interested party failed to disclose whether the investigations covered the neighbouring farms owned and occupied by white settlers and what they have done so that the petitioner does not suffer from discrimination on the ground of race and place of origin. That the petitioner has no relationship with Karati Farm or Top farm.

SubmissionsApart from the petitioner, no other party filed their submissions. 13. The petitioner filed its submissions dated February 16, 2023 on the same date. The petitioner submitted that while the present suit was pending for determination, this court heard and determined a related petition ELC Petition No 8 of 2019 (consolidated with petition No 24 of 2019) on September 27, 2022 which was in respect to the same gazette notice as the present one.

14. The petitioner relied on paragraphs 30 and 38 of the said judgement and submitted that there was no evidence to the effect that LR 5211/12 had been alienated to the 4th respondent before it was allocated to Settlement Fund Trustee who allocated the property to Wazazi Farmers Co Limited and later to Kahunyuro Macharia Kimemia who transferred the suit property to the petitioner herein.

15. The petitioner submitted that it was not aware of any investigations that were conducted by the respondents and the 3rd interested party as there was no evidence that it was served with information as to the nature of investigations. The petitioner relied on Sections 4(3) and (4) of the Fair Administration Actions Act, the case of Sceneries Ltd vs National Land Commission [2017]eKLR, Mwangi Stephen Muriithi vs National Land Commission & 3 others [2018] among other cases and submitted that the court held that there was no appropriate service of notice effected on the affected parties and the decisions reached would be ultra vires and void and in breach of the rules of natural justice. The petitioner further relied on Sections 25 and 26 of the Land Registration Act and submitted that there was no evidence that the petitioner was guilty of any fraud or misrepresentation and sought that its petition eb allowed as prayed.

Analysis and determination. 16. After considering the petition, replying affidavits and the responses thereto, it is my view that the following issues arise for determination;a.Whether the Petition meets the threshold of a Constitutional petition.b.Whether the petitioner is entitled to the orders sought.The court in the case of Anarita Karimi v Republic 1976-1980 KLRheld as follows:'We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.'

17. The court in the case of Ostenah Ogero Taracha v Ethics & Anti-Corruption Commission & Attorney General [2017] eKLRheld as follows:'It is not however, enough to allege that one’s fundamental freedoms or rights have been violated. The violation must be proved. Section 107 (1) of the Evidence Act Cap 80 Laws of Kenya is clear in this regard and provides as follows;'Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist'The letter and spirit of the above provision has been captured in several decisions of the superior courts including but not limited to the cases of Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. Ancillary to the foregoing is the requirement that any prospective petitioner ought to set out his or her complaint with precision and clarity to enable the court to ascertain whether or not a given right or fundamental freedom has been infringed.'

18. In the present petition, it was the petitioner’s case that it was the registered owner of LR 5211/12, title number 90279 which was curved from LR No 5211/2/5 Grant No. IR No 82600. It was also the petitioner’s case that sometime in June 2019, it’s director went to the suit property and found police officers who informed him that the suit property belonged to the 4th respondent. It was further the petitioner’s case that when its director went to the 4th respondent, he was informed that the suit property now belonged to the respondent by virtue of the decision by the 1st respondent to revoke the title to LR 5211. The petitioner alleged that it was not issued with any notices by the 1st respondent and that it was not involved in the process that led to the revocation of LR No 5211. The petitioner also alleged that its rights under Article 47 and 48 of the Constitution were infringed.

19. The 1st respondent did not file any response to the petition while the 2nd and 3rd respondents in their response merely denied the petitioner’s claim and argued that the petition did not disclose the manner in which the 2nd and 3rd respondents violated the petitioner’s rights. The 4th respondent argued that LR No 5211 belonged to it and it had instituted ELC case No 82 of 2019 against the petitioner for unlawfully trying to encroach onto the suit property. The 4th respondent alluded to a court order restraining the petitioner from encroaching on the suit property but no such order was annexed to the replying affidavit. It is important to note that the petitioner admitted to the existence of the said suit in its further affidavit where it indicated that it was able to access a report dated January 13, 2017 that was annexed in the documents filed by the 4th respondent.

20. The 3rd interested party on the other hand went into detail on the investigations it conducted on the acquisition of LR 5211 and as pointed out by the petitioner, the 3rd interested party admitted that LR No 5211/12 on October 22, 2002 was transferred to Kahunyuro Macharia Kimemia who sold the suit property to the petitioner even though the it was alleged that the said Kahunyuro Macharia Kimemia was also a director of the petitioner.

21. The 3rd interested party made reference to a letter written by the 1st respondent to the Director of Surveys seeking for the original and current status of the suit property but it did not annex the response from the Director of Surveys.

22It is not disputed that the 1st respondent revoked the titles of LR 5211/2 based on its investigations. What the petitioner is alleging is that the respondents violated its rights under articles 47 and 48 of the Constitution of Kenya leading up to the cancellation of LR 5211 as it was not given a chance to be heard. It is my view that the petitioner’s petition raises issues of violation of constitutional provisions.

23. The 3rd interested party argued that the 1st respondent was within its statutory mandate under Sections 14(1) and (b) of the National Land Commission Act by revoking the petitioner’s registration as the proprietor of the suit property.Section 14 of the National Land Commission Act provides as follows;14. (1) Subject to Article 68 (c)(v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality.(2)Subject to Articles 40, 47 and 60 of the Constitution, the Commission shall make rules for the better carrying out of its functions under subsection (1).(3)In the exercise of the powers under subsection (1), the Commission shall give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.(4)After hearing the parties in accordance with subsection (3), the Commission shall make a determination.(5)Where the Commission finds that the title was acquired in an unlawful manner, the Commission shall, direct the Registrar to revoke the title.(6)Where the Commission finds that the title was irregularly acquired, the Commission shall take appropriate steps to correct the irregularity and may also make consequential orders.(7)No revocation of title shall be effected against a bona fide purchaser for value without notice of a defect in the title.(8)In the exercise of its power under this section, the Commission shall be guided by the principles set out under Article 47 of the Constitution.(9)The Commission may, where it considers it necessary, petition Parliament to extend the period for undertaking the review specified in subsection (1)

24. The court in the case ofProsperity Developers Limited v National Land Commission & 3 others (Environment and Land Constitutional Petition 8 & 24 of 2019 (Consolidated)) [2022] KEELC 12651 (KLR) (27 September 2022) (Judgment) relied on by the petitioner held as follows;'In exercising its review mandate, the commission in terms of section 14 (3) of the Act was required to give every person who had any interest or appeared to have an interest in the grant or disposition the subject of the review, a notice of such review and an opportunity to appear before it and to inspect any relevant documents. The commission was also in the exercise of its review mandate required to be guided by the principles set out under Articles 47 of the Constitution.Articles 47 of the Constitution provides as follows:-(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.39. The National Land Commission did not file a replying affidavit in answer to the petitions and it is therefore not evident how they carried out the investigations. The petitioners have averred that they were never given any notice regarding the review and have averred that in spite of requesting to be furnished with the proceedings and the decisions of the commission, the same have not been availed to them. It was the responsibility of the 1st Respondent (the Commission) to ensure that due process was observed while undertaking the review. Under Article 47 (2) of the Constitution where a right of a person has been or is likely to be adversely affected by administrative action, such person must be given written reasons for the action.'

25. Similarly in the present matter, the 1st respondent did not file a response to the present petition. Section 4(3) and (4) of the Fair Administrative Act provides as follows;'(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;(d)a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or(g)information, materials and evidence to be relied upon in making the decision or taking the administrative action.(4)The administrator shall accord the person against whom administrative action is taken an opportunity to–(a)attend proceedings, in person or in the company of an expert of his choice;(b)be heard;(c)cross-examine persons who give adverse evidence against him; and(d)request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

26. It is my view that it is quite evident in this matter that the petitioner was not given an opportunity to be heard before the 1st respondent purported to revoke LR 5211. The 1st respondent was required by law to comply with the provisions of Article 47 of the Constitution together with Section 4(3) and (4) of the Fair Administrative Act in the conduct of their investigations by giving the petitioner notice of the said investigations, the information it was relying on and giving them an opportunity to be heard which was not done.

27. Even the said gazette Notice No 1716 does not have the particulars of the petitioner and is only addressed to the 4th respondent, the 1st and 2nd interested parties and yet the petitioner clearly had an interest in the suit property. Consequently, it is my finding that the petitioner has demonstrated infringement of its rights under the Constitution and the orders sought in its petition are allowed as follows:-

28. a.A declaration that the petitioner’s fundamental rights and freedoms enshrined under Articles 40(1), (2) (a), (3) (b) (i), 47(1) and (2) of the Constitution of Kenya, 2010 having been contravened and infringed upon by the respondent herein.b.An order of Certiorari be and is hereby issued to remove into this court and quash the revocation notice published by the National Land Commission in the Gazette Notice dated February 22, 2019 in respect of all that parcel of land known as Land Reference Number 5211 which is the mother title to the Petitioner's parcel of Land known as Land Reference Number 5211/12. c.An order of certiorari be and is hereby issued to remove into this court and quash any and or all Publication(s), proceeding(s} and/or decision(s) of the National Land Commission, its agents, employees and/or and other person(s) whosoever or howsoever acting on, with and/or under its instructions preceding and/or culmination of which is the Revocation Notice issued by the National Land Commission in the Gazette Notice dated February 22, 2019 in respect of all that parcel of land known as Land Reference Number 5211 which is the mother title to the Petitioner's parcel of Land known as Land Reference Number 5211/12. d.An order of certiorari to remove into this Honourable Court and quash the decision and recommendation dated February 22, 2019 directed to the Land Registrar, 2nd Respondent herein to effect the cancellation of the Certificate of title registered as IR No 82600 in respect of LR No. 5211 which is the mother title to the Petitioner’s Property Known as LR NO 5211/12. e.A conservatory order in the nature of permanent injunction directed towards the Respondents restricting/prohibiting the Respondents, their agents, officers and any person acting under them from interfering in whatever nature with the quiet possession by the Petitioner of all land parcel known as LR 5211/12 situated In Naivasha.f.An order of prohibition to issue as against the Respondent restraining themselves their agents and appointees from evicting the Petitioner herein from all that land parcel known as LR No 5211/12 situated in Naivasha.g.In the event that the title has already been cancelled and vested upon the 4th respondent, an order;h.Cancelling the transfer and/or entries on the original grants, to the suit property herein namely grant No IR 82600 for title LR No 5211 which is the mother title to the Petitioner’s parcel of Land known as LR 5221/12 and an order for rectification and restoration thereof of LR No 5211/12 to the petitioner.i.Cancelling the grant and all entries thereon issued in favour of the 4th Respondent and transferred to the 4th Respondent namely grant No 82600, LR No 5211. j.Costs of this Petition to the respondent.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 29TH DAY OF JUNE 2023. A. O. OMBWAYOJUDGE