[2023] KEELC 21883 (KLR)

Seme & 10 others v County Government of Narok & 3 others; National Land Commission (Proposed Interested Party) (Environment & Land Petition E002 of 2023) [2023] KEELC 21883 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21883 (KLR)

Republic of Kenya

In the Environment and Land Court at Kilgoris

Environment & Land Petition E002 of 2023

EM Washe, J

November 7, 2023

IN THE MATTER OF ENFORCEMENT OF HUMAN RIGHST AND PROTECTION OF FUNDAMENTAL FREEDOMS UNDER ARTICLES 2,3,10,19,21,22,23,27,40,47,60,62,67,162(b), 258 &259 OF THE CONSTITUTION OF KENYA,2010 AND IN THE MATTER OF VIOLATION OF THE RIGHT TO OWN PROPERTY IN FLAGRANT CONTRAVENTION OF ARTICLE 40 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF VIOLATION OF THE RIGHT TO FAIR ADMINISTRATIVE ACTION GUARANTEED BY ARTICLE 47 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF UNCONSTITUTIONAL AND ILLEGAL DEPRIVATION LIMITATION OF HUMAN RIGHST AND FUNDAMENTAL FREEDOMS OF A PERSON CONTRARY TO THE VALUES AND OPEN DISREGARD TO THE SPIRIT AND OBJECT OF THE BILL OF RIGHST AND CONCTITUTINAL PRINCIPLES AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHST AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURES RULES, 2013 AND IN THE MATTER OF INTERFERENCE WITH THE OPERATIONAL INSTITUTION AND FUNCTIONAL INDEPENDENCE OF THE NATIONAL LANDS COMMISSION IN CONTRAVENTION OF ARTICLES 249 (1) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 62(2),62(3) AND 67(1) 67 (2) (a) OF THE CONSTITUTION OF KENYA ,2010 AND IN THE MATTER OF SECTIONS 3, 5(2)( e) & 18 OF THE NATIONAL LANDS COMMISSION ACT NO.5 OF 2012 AND IN THE MATTER OF CONTRAVENTION OF SECTIONS 6,8,10,12,15,19,20 & 23 OF THE LAND ACT BO.6 OF 2012 AND IN THE MATTER OF SECTION 6 OF THE LAND REGISTRATION ACT NO.3 OF 2012 AND IN THE MATTER OF FLOUTING THE PRINCIPLES AND VALUES OF PHYSICAL PLANNING AND LAND USE AND PROCEDURE FOR THE REVISION/MODIFICATION OF THE PHYSICAL AND LAND USE DEVELOPMENT PLAN FOR LOLGORIAN TOWN IN VIOLATION OD SECTIONS 3,4,5,42 & 43 OF THE PHYSICAL AND LAND USE PLANNING ACT NO.13 OF 2019 AND IN THE MATTER OF FAILING TO ADHERE TO THE EDICTS OF THE LAND (ALLOCATION OF PUBLIC LAND) REGULATIONS,2017 AND IN THE MATTER OF THE PLANNING OF LOLGORIAN TOWN TRADING MARKET CENTRE.

Between

Leonard Ole Seme

1st Petitioner

Abel Moranga Ongwacho

2nd Petitioner

Noormirishi Oloildikir

3rd Petitioner

Patrick Sakaja

4th Petitioner

Patomir Ole Seme

5th Petitioner

Konchory Samwel

6th Petitioner

Julius Tome

7th Petitioner

Maseto Odupoi Daniel

8th Petitioner

Naramat Kataka

9th Petitioner

Kipangas Sereny Konchori

10th Petitioner

David Sakaja

11th Petitioner

and

The County Government Of Narok

1st Respondent

County Executive Committee Member For Land, Urban Development And Physical Planning

2nd Respondent

County Director Of Physical Planning & Land Use, Narok County Government

3rd Respondent

The County Physical And Land Use Planning Consultative Forum, Narok County

4th Respondent

and

The National Land Commission

Proposed Interested Party

Ruling

1. The 1st – 4th Respondents (hereinafter referred to as “the Applicants”) filed a Preliminary Objection dated 5th April 2023 (hereinafter referred to as “the Preliminary Objection”) seeking for the Notice of Motion Application dated 24th March 2023 (hereinafter referred to as “the Petitioner’s application”) to be struck out for the following grounds;-a.The Petitioner’s application herein and subsequently the entire Petition is incurably defective and filed in contravention of the mandatory provisions of Order 1 Rule 13 Rule 1 and 2 of the Civil Procedure Rules in that the deponent of the supporting Affidavit dated 24th March 2023 had not duly authorised by the other applicants/petitioners to sue and depone on their behalf.

2. The Preliminary Objection was indeed served on the Respondents who confirmed receipt of the same on 27. 07. 2023 and sought leave to file their submissions in opposition of the same.

3. The Honourable Court granted the Respondents a period of 30 days to prepare, file and serve their submissions in opposition of the Preliminary Objection and directed the file to be mentioned on the 20/09/2023 to confirm compliance.

4. Unfortunately, on the 20/09/2023, the submissions by the Respondents as regards the Preliminary Objection had not been filed and their Counsel was also not present in Court despite the mention date being fixed by consent.

5. The Applicants in support of their Preliminary Objection have filed their submissions dated 12th May 2023.

6. The Preliminary Objection filed by the Applicants relate to the provisions of Order 1 Rule 13 (2) of the Civil Procedure Rules, 2010 which provides as follows; -“(1)Where there are more Plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one of them may be authorised by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case.”

7. The Applicants in the Preliminary Objection submit that the Respondents are more than one and therefore, the deponent should attach an Authority to Swear on his own behalf and on behalf of the other Respondents both in the substantive Petition dated 24th March 2023 as well as the Petitioners’ Application.

8. The Applicants submit that the provisions of Order 1 Rule 13 (2) of the Civil procedure Rules,2010 are couched in a mandatory manner and any non-compliance would render both the Petition and the Petitioner’s application fatally defective.

9. The Applicants then presented before the Honourable Court various authorities in determining the legality of proceedings that do not comply with the provisions of Order 1 Rule 13(2) of the Civil Procedure Rules, 2010.

10. The Respondents have not filed any submissions in opposition to the Preliminary Objection before this Honourable Court despite being aware of it and/or granted sufficient time to do the needful.

11. In essence, the Respondents have not opposed the Preliminary Objection before the Honourable Court.

12. Be as it may, the Honourable Court has still taken time to evaluate the legal position relating to the Preliminary Objection filed by the Applicants.

13. Indeed, the Petition herein has been instituted by 11 Plaintiffs who are all Respondents in the Preliminary Objection.

14. Clearly therefore, the Petition as well as the Petitioners’ Application have been filed by more than one Petitioner.

15. The provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010 provide through the use of the word “SHALL” the filing of an Authority to Swear on behalf of one’s self as well as the other Plaintiffs and/or Defendants.

16. In the Petition and the Petitioner’s Application before this Honourable Court, the 1st Petitioner/Respondent did not attach the required Authority to Swear in compliance to Order 1 Rule 13 of the Civil Procedure Rules, 2010.

17. It is strange that even after the Respondents were served with the Preliminary Objection before the Honourable Court, no action was taken to salvage the proceeding by seeking to comply with the said provision of the law.

18. Be as it may, the significance of the provisions of Order 1 Rule 13 were discussed in the case of KIPSIWO COMMUNITY SELF HELP GROUP -VERSUS- THE ATTORNRY GENERAL & 6 OTHERS (2013) eKLR where the Court made the following observation.“the person bring action has to demonstrate that he has permission to bring the action on behalf of the members of the group, or on behalf of the people he seeks to represent, if it is a representative suit. The importance of this is so as to recognise the persons who seek redress, and so that orders are not issued in favour or against people who cannot be precisely identified. This may look minor, but it is extremely significant. In litigation, rights and duties will be imposed on the litigants. If the Court does not know who the litigants are, then it becomes impossible for the Court to enforce its own orders, for it will never be clear, who the beneficiary of the order was, or who had the obligation to obey or enforce such orders.”

19. In essence therefore, in the absence of the Authority to Swear provided under Order 1 Sub Rule 13 of the Civil Procedure Rules, 2010, this Honourable Court is not in a position to ascertain if indeed the Petitioners outlined hereinabove are aware of this suit and/or ready to be held accountable for the possible outcome of the Petition or the Petitioner’s application.

20. In conclusion therefore, both the Petition and the Petitioners’ Application are hereby fatally defective and both are hereby struck out.

21. The costs of this Preliminary Objection shall be borne by the Petitioners/Respondents in favour of the Respondents only.

DATED, SIGNED & DELIVERED VIRTUALLY IN KILGORIS ELC COURT ON 7THNOVEMBER 2023. EMMANUEL.M.WASHEJUDGEIn the presence of:Court Assistant: Mr.ngenoAdvocate For The Plaintiff: N/aAdvocate For The Respondent: Mr.kere For 5Th-20Th Respondent.