[2021] KEELC 4474 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CONSTITUTIONAL PETITION NO. 22 OF 2019

IN THE MATTER OF ARTICLES 2, 10, 20, 21, 22, 23, 28, 40, 47, 48, 50 AND 259 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF THE ENVIRONMENT AND LAND COURT ACT

AND

IN THE MATTER OF THE LAND ADJUDICATION ACT CAP 284

AND

IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015

BETWEEN

TILI NGUUTU........................................................PETITIONER

AND

THE CABINET SECRETARY FOR LANDS, HOUSING

AND URBAN DEVELOPMENT..................1ST RESPONDENT

THE HON. ATTORNEY GENERAL.........2ND RESPONDENT

PATRICK KAVIU KITHUSI......................3RD RESPONDENT

RULING

1. In the Notice of Motion dated 14th October, 2019, the Petitioner has prayed for the following orders:

a) That the Honourable Court be pleased to stay the determination and/or any consequential orders made by the 1st Respondent in Appeal No. 111 of 1988 pending the hearing and determination of the Petition;

b) That costs be borne by the Respondents.

2. The Application is supported by the Affidavit of the Petitioner who has deponed that he inherited parcel of land known as Mutonguni/Kakeani/2160 (the suit property)from his father Nguutu Nzonga; that he has been residing on the suit property since he was born peacefully until the 3rd Respondent’s father made a claim on the land and that the 3rd Respondent is the son of the late Kaviu Kathusi.

3. According to the Petitioner, dissatisfied with the decision of the land adjudication process, he appealed to the 1st Respondent who made a decision granting the 3rd Respondent’s father the suit property and that the 1st Respondent’s decision is in utter breach of his rights to ownership of the suit property.

4. According to the Petitioner, the 1st Respondent’s decision was made in bad faith by failing to consider the evidence on record and therefore unreasonable and tainted with bias; that the conduct of the 1st Respondent and actions offends his proprietary rights as enshrined in the Constitution and that the law requires the 1st Respondent to uphold the principles of fair administrative action.

5. In his response, the 3rd Respondent deponed that what is before the court is an Appeal against the decision of the 1st Respondent veiled as a Constitutional Petition; that the decision of the 1st Respondent cannot be challenged by way of a Constitutional Petition because there were no constitutional issues before the 1st Respondent and that a tribunal or public body cannot be held to have acted unconstitutionally when it executes its mandate.

6. In his Further Affidavit, the Petitioner deponed that the nature of orders being sought in the Petition are provided for under Article 23 of the Constitution; that his claim is properly before this court for hearing and determination and that he is not challenging the constitutionality of the relevant laws used by the 1st Respondent herein, but the process or procedure which was used by the 1st Respondent and the omissions thereof before reaching the decision.

7. The Petitioner deponed that the process used by the 1st Respondent herein to arrive at his decision was procedurally flawed, was tainted with bias, was unfair and that it is in the interest of justice that the orders sought are granted.

8. In his submissions, the Petitioner’s advocate submitted that unless the orders sought in the Application are granted, the Applicant will suffer monumental and irreparable harm owing to the fact that he has been on the said land utilizing it with his family since he was born and that he does not know any other place to call home and will be rendered homeless and destitute.

9. Counsel submitted that from the annexed proceedings by the 1st Respondent, it is evident that the Applicant herein has always been occupying the said land and cultivating it and that the Applicant herein has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules 2010.

10. The 3rd Respondent’s counsel submitted that no breach of constitutional rights has been established by the Petitioner and that the decision being appealed in Appeal Number 111 of 1988 where the 1st Respondent dismissed the Appeal and upheld the decision that the 3rd Respondent was the owner of the suit land and the Petition violates the provisions of Rule 4 (1) of the Mutunga Rules.

11. Counsel submitted that the Petition is an abuse of the court process to the extent that it seeks to appeal against the finding of the 1st Respondent in disguise that it raises constitutional issues and that in any event, the Petitioner has not satisfied the requirements for the grant of stay. Counsel submitted that all parties were granted a fair hearing by the 1st Respondent and that the Application should be dismissed.

12. This suit was commenced by way of a Petition dated 14th October, 2019. In the Petition, the Petitioner has sought for a declaration that he is the rightful owner of the land known as Mutonguni/Kakeani/2160; and for an order of Judicial Review of certiorari to quash the decision of the 1st Respondent.

13. According to the Petitioner, the decision that was rendered by the 1st Respondent in Appeal Number 111 of 1988 was not lawfully and procedurally fair and that the 1st Respondent’s decision was not reasonable and was tainted with bias.

14. In the meantime, the Petitioner is seeking for “a stay of the determination and/or any consequential orders made by the 1st Respondent in Appeal No. 111 of 1988 pending the hearing and determination of the Petition.”

15. The Petition before this court is essentially an Appeal against the decision of the 1st Respondent which was made on 30th April, 2019. In the said decision, the 1st Respondent dismissed Appeal Number 111 of 1988 and awarded to the 3rd Respondent the suit property.

16. Section 29 of the Land Adjudication Act provides as follows:

“(1) Any 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; and

b. 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.”

17. As stated in the above provision, the decision of the 1st Respondent is final. The only avenue that was available to the Petitioner was to file a Judicial Review Application to challenge the said decision pursuant to the provisions of the Law Reform Act and Order 53 of the Civil Procedure Rules. The above provisions of the law allow this court to exercise supervisory jurisdiction over Tribunals and quasi-judicial bodies, notwithstanding that their decisions might be final. In Re Marles’ Application, (1958) 153 at 155, it was held as follows:

“It is well settled law that the jurisdiction of this court to exercise its power of supervision over inferior courts and tribunals will not be taken away unless there are express words clearly defining the intention of the legislature to do so. The expressions that decisions of tribunals shall be final and without appeal or final and conclusive, have effect….only so far as an appeal on the facts are concerned, but do not preclude the issue of certiorari for excess of jurisdiction or for error of law (Re Gilmore’a Application (1) (1957) All E.R, 796).”

18. The decision being appealed in Appeal Number 111 of 1988 where the 1st Respondent dismissed the Appeal and upheld the decision that the 3rd Respondent was the owner of the suit land and the Petition violates the provisions of Rule 4(1) of the Mutunga Rules which provides as follows:

“Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.”

19. To the extent that the Petition seeks to Appeal against the finding of the 1st Respondent, and considering that all parties were granted a fair hearing by the 1st Respondent, it is my finding that the Petitioner, prima facie, has not raised any constitutional issues in the Petition that is pending before this court. Indeed, the issue of whether the 1st Respondent’s decision was fair and reasonable can never amount to a constitutional issue considering that the 1st Respondent was exercising a mandate donated to him by the law.

20. For those reasons, it is my finding that the Petitioner has not established a prima facie case with chances of success. The Application dated 14th October, 2019 is therefore dismissed with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF JANUARY, 2021.

O.A. ANGOTE

JUDGE