[2022] KEHC 26972 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 6 OF 2016

IN THE MATTER OF

CONSTITUTIONAL INTERPRETATION, PROTECTION AND ENFORCEMENT OF HUMAN

RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 1, 19, 20, 21, 22, 23, 24, 27,

28, 48, 159, 165, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF

THE CONSTITUTIONAL INTERPRETATION AND THE ALLEGED CONTRAVENTION OF

RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 40, 47, 50, 60 AND 64 OF

THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF

SECTION 106 OF THE LAND REGISTRATION ACT NO. 3 OF 2012

AND

IN THE MATTER OF

SECTION 23, 60, AND 61 OF THE REGISTRATION OF TITLES ACT, CAP. 281 (REPEALED)

AND

IN THE MATTER OF

GAZETTE NOTICE NO. 15580 IN VOLUME CXII- NO. 124 OF THE KENYA GAZETTE

OF 26TH NOVEMBER 2010 WITH REGARD TO LAND REFERENCE NOS. 209/13539/124,

209/13539/82, 209/ 13539/ 47, 209/ 13539/148, 209/13539/108, 209/13539/140, 209/13539/113,

209/13539/109, 209/13539/114, 209/13539/107, 209/13539/97, 209/13539/61, 209/13539/42,

209/13539/74 AND 209/13539/94

AND

IN THE MATTER OF

THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS)

PRACTICE AND PROCEDURE RULES, 2013

BETWEEN

TAMBAYYA ENTERPRISES LIMITED & 14 OTHERS.........................PETITIONERS

AND

NATIONAL LAND COMMISSION.....................................................1ST RESPONDENT

REGISTRAR OF TITLES ...................................................................2ND RESPONDENT

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

ETHICS AND ANTI- CORRUPTION COMMISSION.............. INTERESTED PARTY

JUDGMENT

THE PETITION

1. The Petitioners in the instant Petition dated 31st December 2015 seek the following reliefs: -

a) A declaration that Gazette Notice No. 15580 in Volume CXII – No. 124 of the Kenya Gazette of 26th November 2010 and its effects violate the principles of the Constitution and is thus unconstitutional

b) A determination that Gazette Notice No. 15580 in Volume CXII – No. 124 of the Kenya Gazette of 26th November 2010 violates the fundamental rights and freedoms of the Petitioners to own land and to equal benefit and protection of the law.

c) A declaration that Gazette Notice No. 15580 in Volume CXII – No. 124 of the Kenya Gazette of 26th November 2010 violates the principle of expeditious, efficient, lawful, reasonable and procedurally fair administrative actions enshrined in Articles 27, 47, 48 and 50 of the Constitution.

d) An order for judicial review to move into the High Court and quash the decision of the Registrar of Titles revoking the Petitioners’ titles to L.R. No. 209/13539/124, L.R. No. 209/13539/82, L.R. No. 209/ 13539/ 47, L.R. No. 209/13539/148, L. R. No. 209/13539/108, L.R.No.209/13539/140, L.R. No. 209/13539/113, L.R. No. 209/13539/109, L. R. No. 209/13539/114, L.R.No.209/13539/107, L. R. No. 209/13539/97, L. R. No. 209/13539/61, L. R. No. 209/13539/42, L.R. No. 209/13539/74 AND L. R. No. 209/13539/94

e) Cost of this Petition.

f) Any other or further relief that this Honourable Court considers appropriate and just to grant.

THE PETITIONERS’ CASE

2. The Petitioners’ case as presented in the Petition and supporting affidavit sworn by Samuel Kamuiru on 31st December 2015 is that, the Nairobi City Council, is the grantee of L.R. No. 209/13539 for a term of 99 years from 1st July 1948 vide grant No. 76717 issued by the Commissioner of Lands by order of the President of the Republic of Kenya on 8th June 1990.

3. The City Council of Nairobi after subdividing the said property leased L.R. Nos. 209/13539/124, 209/13539/82, 209/ 13539/ 47, 209/ 13539/148, 209/13539/108, 209/13539/140, 209/13539/113, 209/13539/109, 209/13539/114, 209/13539/107, 209/13539/97, 209/13539/61, 209/13539/42, 209/13539/74 and 209/13539/94 to the 1st to 15th Petitioners on diverse dates and for varying considerations for the term of 99 years from 1st July 1948.

4. The Petitioners have held leasehold interests in the said parcels of land until when the 2nd Respondent vide Gazette Notice No. 15580 in Volume CXII- No. 124 of the Kenya Gazette of 26th November 2010 purported to cancel or revoke the Land Titles to the parcel of land held by the Petitioners herein. The said actions by the 2nd Respondent contravened Article 40, 27, 47, 48 and 50 of the Constitutionand Sections 23, 60 and 61 of the Registration of Titles Act (now repealed).

1ST RESPONDENT’S CASE

5. The 1st Respondent filed grounds of opposition dated 25th April 2016 as follows;-

i) That it has been wrongly enjoined in these proceedings since there are no allegations made against it and there are no allegations that it has denied, violated or threatened to deny, violate or infringe the Petitioners’ rights or fundamental freedom.

ii) That there is no adverse order against it sought by the Petitioners.

iii) The Petition does not disclose any constitutional issues against it.

iv) The Petition is therefore frivolous, vexatious, and scandalous and an abuse of the court process.

v) It should therefore be disjoined from the proceedings as the suit had no merit.

2ND & 3RD RESPONDENT’S RESPONSE

6. The 2nd & 3rd Respondents filed grounds of opposition dated 30th October 2020 as follows;-

i) That the Petitioner has not demonstrated how the Respondents have breached any specific provisions of the Constitution.

ii) That the Petition has not been pleaded with precision, it does not provide adequate particulars of the claim relating to any alleged violation of the Constitution.

iii) That the Petition as framed does not raise any constitutional issues for deliberation as envisaged under the cited articles and as such should be dismissed with costs.

iv) That it is unequivocal that the Petitioner has failed to demonstrate how his constitutional rights were violated and the harm he suffered.

v) The Petitioners have failed to demonstrate how the 2nd Respondent directly or indirectly violated their constitutional rights.

vi) That the right under Article 40 is inoperative where the property in question was unlawfully acquired.

vii) That the government of Kenya retains the powers to revoke all titles found to have been unlawfully registered.

viii) That under Article 40(6) of the Constitution, the right to property does not extend to any property that has been found to have been unlawfully acquired.

ix) That this Honourable court lacks jurisdiction to hear this matter which should be entertained by the Environment and Land Court.

x) The Petitioner has failed to meet the threshold for grant of the orders sought in the Petition as such should be dismissed.

INTERESTED PARTY’S RESPONSE

7. The Interested party filed Replying Affidavit sworn by Pius Maithya on 5th June 2017. He deposed that the registration of various leases in favour of the Petitioners were illegal, null and void as the set-out procedures in the Government Land Act (now repealed) and the Local Government Act (now repealed) were not followed in the subdivision, allocation and subsequent sale of the houses, the prerequisite consents from both the Commissioner for Lands and Minister of Local Government were never obtained. As such it challenged the registration of the said leases in the Environment and Land Court against some of the Petitioners herein.

8. He averred that due to the fraud and the fact that the Woodley estate is a public asset of the Nairobi City Council, the 2nd Respondent revoked the leases after it realized that the City Council of Nairobi had nullified the alleged sale in a meeting on 14th September 1999, brought the resolution to the public through a public notice published by the council on 19th July 2002 and the lessors were given time to surrender the leases and get a refund on premium upon proof of payment. As such no legal interests or rights passed to the alleged purchasers of the houses. Further they were obligated to carry out due diligence and cannot claim that they were purchases without notice.

9. He averred that the cases where the courts have ruled in favor of the applicants and quashed the Gazette Notice, the courts were not privy to the evidence of illegality due to the fact it was not party. Moreover, not all fundamental Rights and Freedoms given under the Constitution are absolute. Under Article 40 (6) of the Constitution such a right is limited where the property was acquired unlawfully such as the case herein.

10. He averred that the Petitioners had failed to demonstrate how their rights were violated and had not come to Court with clean hands as they were informed by the county government about the cancellation of the transaction due to illegalities and given a demand notice by the Interested Party.

11. He averred that because of the resolution and subsequent advertisement of the public notice, many persons who had purchased the houses falling under the Woodley estate surrendered the leases and those that had innocently made the requisite payments were refunded by the council.

ANALYSIS AND DETERMINATION

12. Having carefully considered the Petition, the Respondents’ response, the Interested Party’s response, and parties’ submissions and noting that the 1st Respondent during the proceedings indicated that it wished to withdraw its Grounds of Opposition to file a substantive Response, it has failed to file both response and submissions and from the same the following issues arise for determination:-

a) Whether this Court has jurisdiction to hear ad determine this Petition.

b) Whether the gazette notice is unconstitutional.

A. WHETHER THIS COURT HAS JURISDICTION TO HEAR AD DETERMINE THIS PETITION.

13. The 2nd & 3rd Respondents while relying on Article 162(2) of the Constitution, Section 13(2) of the Environment and Land Court Act, 2011 and the cases of Samwel Kamau Macharia & another vs Kenya Commercial Bank and 2 others (2012) eKLR and Ernest Kevin Luchidio v Attorney General & 2 others [2015] eKLR urged that this matter should be entertained by the Environment and Land Court.

14. The Respondents further relying on Omar Tahir Said v Registrar of Titles & another [2013] eKLRargued that the Environment and Land Court has the powers to entertain applications for redress of a denial or violation or threat to a right or fundamental freedom in the Bill of Rights.

15. The Petitioners on their part stated that this court by dint of Articles 23(1), 165 (3) (b) and 165 (3) (d) of the Constitution is vested with the jurisdiction to handle this Petition which raises issues on contravention of their rights under Articles 40, 47, 60 and 64 of the Constitution and to grant the orders sought under Article 23 (3) (a) and (f) of the Constitution.

16. The issues raised by the Petitioners herein are on violation of fundamental rights, which this court has jurisdiction to hear and determine by virtue of Article 165 (3) (b) and (d) of the Constitution. This court also by virtue of Article 23(3) of the Constitution has the power to grant the orders sought in the Petition. The Petition in my view raises constitutional issues which this court is mandated to determine. I therefore agree with the Petitioners that this court has jurisdiction to hear and determine this Petition as the Petition as drawn is not concerning ownership of property but concerns breach of rights.

B. WHETHER THE GAZETTE NOTICE IS UNCONSTITUTIONAL

17. The Petitioners submitted that the 2nd Respondent’s decision to revoke their title in L.R. No. 11927/ 38 contravened their right under Article 40 of the Constitution since the said revocation was not done within the confines of the law. The Petitioners urge that they were not compensated for the purported deprivation of their property nor given a chance to be heard on the manner in which they acquired the suit premises or given written reasons for the said deprivation contrary to Article 47(1) and (2) of the Constitution. In support of the aforesaid reliance is placed on the cases of Republic vs Commissioner of Lands & another Exparte Simon Kimondo (2013) eKLR and Power Technics Limited vs The Hon. Attorney General & 2 others [2012] eKLR.

18. Relying on Charles Malenya & 22 others v Registrar of Titles Nairobi & Another [2012] eKLR; Republic v Commissioner of Lands & another Exparte Simon Kimondo Mubea (supra); and J.R. Misc. Civil Application No. 44 of 2011 Republic vs Commissioner of Lands & another Exparte Carolizanne Gathoni Kuria, the Petitioners urged the court to find for them and grant the prayers sought by dint of Article 27(1) of the Constitution.

19. Further relying on Republic vs Commissioner of Lands & another Exparte Simon Kimondo (supra), the Petitioners argued that the 2nd Respondent contravened Sections 23, 60 and 61 of the Registration of Titles Act (repealed) in purporting to deprive them of their property when it was not empowered to revoke their title under any law of the Republic of Kenya, hence they contend that the Gazette Notice No. 15580 is void and of no legal effect and prayers sought in the Petition should be granted.

20. The 2nd & 3rd Respondents, in response argued that the 2nd Respondent’s actions of revoking the title to the Petitioners’ properties does not amount to an infringement of the Petitioners’ rights. They further contend that the right under Article 40 of the Constitution is not an absolute right and is inoperative where the property in question was unlawfully acquired. The Respondents further argued that by virtue of Article 67 of the Constitution, the National Land Commission is mandated to revoke title and the Petitioners have not demonstrated that such power has been misused.

21. Further in response and on relying on Kenya National Highways Authority v Shalien Masood Mughal & 5 others [2017] eKLR the Respondents contended that according to the Gazette Notice, the land in question was illegally acquired and as such lacks legal protection under Article 40 of the Constitution. Additionally it is averred the Petitioners have failed to demonstrate how this particular right was infringed and whether they legally acquired the property or otherwise.

22. The Respondents further relied on Henry Muthee Kathurima v Commissioner of Lands & another [2015] eKLR; Kenya Anti- Corruption Commission vs Paul Moses Ngetha and Others [2020] eKLRand Daudi Kiptugen v Commissioner of Lands & 4 others [2015] eKLR, submitting that the title in question was revoked as it was unlawfully acquired and that by dint of Article 40(6) of the Constitution the rights to property do not extend to any property found to have been unlawfully or illegally acquired.

23. The Interested Party wholly relied on its Replying Affidavit filed together with the annexures attached thereto. It submitted that the basis for the alleged violations by the Petitioners stems from a dispute surrounding ownership of the suit properties which formed part of the Woodley/ Joseph Kang’ethe Estate. The dispute was heard and determined in ELC No. 2054 of 2007 KACC vs Paul Moses Ngetha & Anor (2020) eKLRwhere the court found that the houses were fundamentally flawed and as such no valid title could be passed by the County to the registered persons. Thus this court cannot grant orders sought as they were equally affected by the said judgment of the Court.

24. It is argued that the Petitioners although citing Articles 27, 40, 47, 48 and 50 of the Constitutionthey did not provide the particulars of the alleged complaints, the manner of alleged infringement or the jurisdictional basis of the action before the court in respect to the said rights hence failed to meet the principle in Anarita Karimi Njeru vs The Republic (1976-1980) KLR 1272.

25. It is argued by the Interested Party that with regards to infringement of Article 40 of the Constitution, the same does not extend to property found to be unlawfully acquired and dismissed Section 23 of the Registration of Titles Act (now repealed) on indefensibility of title relied upon by the Petitioners. For this argument the Interested Party relied on Republic vs Minister for Transport & Communications & 5 others exparte Waa Ship Garbage Collector & 15 others [2006] 1KLR (E&L)andCA No. 349 of 2012 Chemey Investments Limited vs The Attorney General & 2 otherswhich reiterated the holding in Nairobi Petition No. 94 of 2005 Chemey Investments Limited vs The Attorney General & others.

26. The Interested Party further maintained that by virtue of the Judgment in ELC No. 2054 of 2007 (supra) made on 27th February 2020 the same affects the Petitioners’ Petition as the question of ownership has been determined and urged this Court to dismiss the suit with costs.

27. It is noted that the Registrar on his own motion has no power to cancel or revoke a title to land by way of Gazette Notice as observed in Kuria Greens Limited v Registrar of Titles & Another (2011) eKLR ; Kongowea Market Estate Ltd v Registrar of Titles [2011] eKLR;and Power Technics Limited v The Hon. Attorney General & 2 others [2012] eKLR.

28. In Kuria Greens Limited (supra) the learned judge stated as follows:-

“ if the respondents were satisfied that the suit land had been unlawfully alienated and that it was in the interest of the public that the land reverts to the state…, appropriate notice ought to have been given to the petitioner and thereafter the respondents ought to have exercised any of the following options:-

a) Initiate the process of compulsory acquisition of the suit land and thus pay full and prompt compensation to the Petitioner.

b) File a suit in the High Court challenging the petitioner’s title and wait its determination, one way or the other.

Short of that, the respondent’s’ purported action revoking the petitioner’s title is an affront to private proprietary rights which are guaranteed by our Constitution and such an action must be frowned upon by the law.”

29. The Courts inRepublic v The Registrar of Titles, Mombasa & 2 others Exparte Emfil Limited [2012] eKLR also found that the Registrar had no authority in law to revoke or cancel titles to land, whether in public interest of otherwise. Judge W. Korir further while concurring with this case in Charles Malenya & 22 others v Registrar of Titles Nairobi & Another [2012] eKLR stated that even where the Respondent purports to act in the public interest and need, it must do so within the law that is in place and that the court will not uphold an illegality for the reason that it could correct another wrongdoing. I therefore agree with the Petitioners that the Respondents acted without its mandate in revoking the titles and to that extent the said Gazette Notice was illegal and unconstitutional.

30. The rules of natural justice were also not followed. The 2nd Respondent did not consult nor give the Petitioners an opportunity to be heard before revoking their titles. The Petitioners were not given an opportunity to present their claims, or defend themselves against the Respondents claim that the property was acquired fraudulently and without the due legal process. Hence a contravention of Articles 47, 48 and 50 of the Constitution. To this extent I do agree with the Petitioners that such action by the 2nd Respondent violated constitutional principles hence unconstitutional.

31. The Interested Party has submitted that the title was acquired illegally and a fact proven by the decision in ELC No.ELC No. 2054 of 2007 KACC vs Paul Moses Ngetha & Anor(2020) eKLRand therefore this court cannot grant the orders sought. Well I do agree with the Respondent’s and the Interested Party that going by the decision of the Environment and Land Court, the suit premises were acquired without following the due legal process hence the Petitioners had no claim to it.

32. However, a point to note is that the judgment being referred to was delivered on 27th February 2020 while this Petition was instituted in 2016. By the time this Petition was being instituted the 2nd Respondent as discussed above did not have the mandate to revoke the Petitioners’ titles. Hence the said action by the Respondents were not justified at the time they issued the Gazette Notice revoking the Petitioners’ titles and was thus unconstitutional.

33. One cannot however negate the fact that the said decision has an impact on the orders being sought by the Petitioners herein. Having read the said decision, it is clear that the requirements under the Government Lands Act and the Local Government Act were not complied with, hence the process was illegal and no Title could pass to the Petitioners as held by the learned Judge. As noted, the Petitioners’ rights to the property under Article 40 of the Constitution were violated at the time the 2nd Respondent issued the Gazette Notice as the 2nd Respondent did not have the power to revoke the titles without hearing the Petitioners or without a court order. The Court order is now in place.

34. The Court in the ELC case held that the Defendant in that case did not have a valid title and made reference to the case of Daudi KiptugenvCommissioner of Lands & 4 Others [2015] eKLRwhere the court stated that:-

“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were not the position then all one would need to do is to manufacture a Lease or a Certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.”

35. Looking at the prayers sought by the Petitioners herein and what has since transpired, it is clear that the said prayers have been overtaken by events by virtue of the said Judgment and granting the said orders would be an exercise in futility and an academic exercise as the Petitioners do not have valid titles to the properties they are claiming hence no right to property. It is therefore impracticable to enforce the orders sought even if this Court granted them. The court cannot grant orders in vain as held by Mativo J in Daniel Kaminja & 3 others (suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR. This suit should therefore be dismissed.

36. The upshot is that the Petition has been overtaken by events as enumerated herein above and by virtue of ELC Court Judgment in ELC 2054 of 2007 KACC vs. Paul Moses Ngethe & another (2020) eKLR. I find that Court cannot issue orders in vain as granting orders sought herein would be futile and an academic exercise. The Petition is accordingly dismissed. Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF MARCH, 2022.

………………………

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA