[2016] KEELC 1181 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET

E & L CASE NO. 479 OF 2012

TIMOTHY INGOSI AND 87 OTHERS...............................................PLAINTIFFS

VERSUS

KENYA FORESTRY SERVICES....................................................1ST DEFENDANT

HON. ATTORNEY GENERAL.......................................................2ND DEFENDANT

COMMISSIONER OF LANDS.......................................................3RD DEFENDANT

JUDGMENT

Timothy Ingosi and 87 Others went to the High Court before the establishment of this court by way of plaint claiming that they are beneficiaries of Land Parcel Block No. 7561/R issued to them by a grant of Presidential Decree in accordance with the Government Lands Act. The 1st defendant is a state corporation established by an Act of Parliament to administer Forest Reserves. The 2nd defendant is the Government Chief Legal. The 3rd defendant is described as the Legal Depository of all land matters in the Republic of Kenya then before the advent of the new constitution, and so used to execute all instruments and instructions on land matters in the Republic of Kenya.

The plaintiffs claim to be residents of Likuyani Serekenya Scheme Operationalized after East African Tanning Company sold its interest in Turbo to the Government of Kenya for distribution amongst former employees, purchasers and workers of one Presidential west king then the former legal and lawful registered owner. The subject matter is between Turbo Police Station, the National Youth Service, Turbo Quarry, the Anglican Church, PCEA Church, Health Centre and the Eldoret-Uganda Road.

Pursuant to the President's grant, the plaintiffs' did ballot for individual plots and were alloted plots for a limited share of acreage. The plaintiffs proceeded to survey and consolidate the area for mutation through the district surveyor; pursuant to the Presidential Grant herein and prepared the part development plan for approval.

The plaintiffs' complaint and claim is that they are unable to process titles to their alloted individual land parcels as the director of adjudication has granted the Kenya Gazette but the government press has yet to publish the de-gazzettement notice hence the suit.

The plaintiff's claim against the 1st defendant is for a prohibitory order restraining the defendant from harassing the plaintiff's peaceful occupation of the land parcel and any order compelling the 2nd defendant to issue the land titles to the plaintiffs pursuant to the balloting and surveyors as done. Notice has been issued and several meetings held between the provincial administration and the plaintiffs yielding a non-published de-gazettement order.

The land is at Turbo within the court's jurisdiction and is currently occupied by the plaintiffs in part who cannot fully utilize their interest in the land as they lack the documents of title that can enable them develop the land or utilize the titles as collaterals elsewhere.

The plaintiffs pray for judgment against the defendants jointly and severally for a declaration that the plaintiffs are lawful owners of all those parcels of land through a presidential decree and an order compelling the Director of adjudication to prepare the legal notice to degazzette the parcels of land and an order compelling the 3rd defendant to register and issue the plaintiffs with titles accordingly. The plaintiffs further pray for an order of Prohibition restraining the defendants from harassing, trespassing or in any other manner disturbing the plaintiffs' peaceful occupation of the suit land.

The 1st defendant filed amended defence and counterclaim on 11. 9.2014 stating that the plaintiffs are not in occupation of the suit property. Moreover the existence of Presidential grant alluded to in paragraph 8 of the plaint is denied and the 1st defendant avers that if there was such a grant, then it is illegal as the President is only allowed to alienate un-alienated government Land through the Procedure set out in the Government Land Act and not otherwise.

In the view of the foregoing, the 1st defendant avers that the plaintiffs' claim is untenable and that if there was any gazettement then the same must be done in compliance with the provision of the Forest Act No. 7/2005. The 1st defendant further avers that the suit land herein is gazette forest land vide gazette notice No. 145 of 17. 5.64 and legal Notice 167 of 12. 8.1971. Consequently, the plaintiffs are stopped from claiming it. That the suit land is forest land and as admitted by the plaintiff the same has never been degazetted. Notice of intention to sue has never been served upon the 1st defendant. The plaintiffs' suit is statutory time barred. The jurisdiction of this Honourable court is admitted.

In the counter claim the 1st defendant claims against the plaintiffs that the land parcel Block No. 7561/R belongs to the Kenya Forest Service pursuant to the Kenya Forest Service Gazette Notice No. 145 of 1715/64 and Legal Notice No. 167 of 12. 8.1971. The grant of the land parcel 7561/R by the president to the plaintiffs was illegal, null and void. The allocation of the land parcel 7561/R by the 3rd defendant to the plaintiffs was concluded through fraud and illegality.

The particulars of fraud and illegality by the 3rd defendant are;-

(a) Irregularly allocating land parcel 7561/R and issuing title to the plaintiffs knowing that the said land was public land reserved as forest land.

(b) Illegally and irregularly registering the suit property to the plaintiffs.

(c) Illegally issuing title deeds to the plaintiffs knowing or ought to have known that the said parcel was hived off irregularly as it was excised from forest land.

The 1st defendant prays for a declaration that all the titles over land parcel Block No. 7561/R were irregularly acquired by the plaintiffs. The 1st defendant seeks a declaration that the land parcel Block No. 7561/R is forest land and therefore the suit should be dismissed with costs and judgment entered in favour of the 1st defendant.

When the matter came for hearing, the 1st plaintiff testified that they are 37 in court but those affected are more. He testified that he is the chairman of Serekenya Residents of Likuyani Group, a voluntary group of settlers at Turbo Seregea Area. The plaintiffs are beneficiaries of Land parcel Block No. 7561/R issued to them by a grant of Presidential Decree in accordance with the Government Lands Act. That pursuant to the President's grant, the plaintiffs did ballot for individual plots and were allocated the plots for a limited share of acreage as shown:-

ENTRY NO. NAME OF ALLOTTEE BALLOT PLOT NO. ACREAGE (HA)

1. Charles Agalo 320 1. 2790

2. Ephraim Lanoka 226 0. 5033

3. James Ombima 323 0. 7700

4. Salome Kagoitsa 316 0. 2690

5. Alice Khalibwa 310 0. 5890

6. Timothy Ingosi 213 0. 6280

7. John Muswanyi 307 0. 2613

8. Francis Masongo 259 0. 4710

9. Hassan Noor 240 0. 3764

10. Ingati Cyrus 334 0. 3450

11. Florence Lugalia 317 0. 3868

12. Wilfred Ondeche 318 0. 4225

13. Til Quary 214 9. 4560

14. Vicky Khadaka 311 0. 6142

15. Raphael M. Kahi 295 1. 4157

16. Elijah Isiye 315 0. 3019

17. Flavia Kageha 321 0. 4142

18. Phisca M. Lubanga 219 0. 5005

19. Steward Kabala 243 1. 1700

20. Julius O. Buyeka 314 6. 6340

21. Samson Maina 319 8. 8340

22. George Tindi 313 9. 9900

23. Benjamin Seven 308 1. 2495

24. Seth Liyayi 305 1. 2495

25. Edward Kagira 212 1. 2495

26. Rabin Khavosi 324 1. 2495

27. Joseph Likuyani 219 1. 0600

28. Terlica Iramwenya 168 1. 2935

29. Joash Ingatitsa 221 3. 3220

30. Vincent Idagasi 239 3. 3950

31. Vamatete Group 261 2. 4000

32. Mourice L. Ingati 259 4. 1195

33. Pius Muteti 326 2. 6000

34. Amai Chaglin 325 1. 0800

35. Phoebe Chaoko 293 1. 7550

36. Naboth Kombe 303 1. 9660

37. Betty Mutai 326 1. 2710

38. Meshack Shitakwa 290 1. 2660

39. Richard Isiaho 300 1. 5050

40. John Mwanga 260 1. 5050

41. Joash Mwenje 279 1. 2420

42. Janet Khasandi 262 1. 2720

43. John M. Muturo 221 1. 5630

44. Floise A. Bosco 223 1. 4730

45. Felistus A. Mbasa 224 3. 1350

46. Caroline Khavele 226 1. 3820

47. Ester Lusangula 120 1. 2770

48. Moses Kombe 225 2. 9380

49. Samson Andambi 280 9. 7710

50. Larry Muhanji 328 7. 1420

51. Apilly Wawire 331 2. 371

52. John Chira 330 2. 0040

53. Moses O. Ayira 156 3. 6440

54. John Chepkirui 333 3. 6520

55. John Muswanyi 337 19. 080

56. Phlister A. Ngache 336 3. 1480

57. Robinson Lusichi 327 2. 7740

58. Mary Gavagi 334 2. 9260

59. Philis A. Lukwa 332 5. 1930

60. Salome Minyada 335 4. 3400

61. E. Ekonya 305 6. 7500

62. John Misole 302 9. 7270

63. Alice Assis 301 9. 4580

64. Charles Ongina 300 1. 9500

65. Joashi Dolia 299 2. 7040

66. Faith Ramwea 296 2. 8670

67. George K. Kamu 215 2. 9010

68. John Omwanda 216 3. 2860

69. Joseph Ayora 218 7. 7120

70. Joseph Omulipi 338 7. 2670

71. Rebecca Gasale 217 2. 6760

72. Sammy G. Boit 159 2. 2150

73. Kennedy Otunga 155 3. 1310

74. Gracious Ingaitsa 157 8. 6460

75. Shadrack Rotich 222 5. 5440

76. Festus Khayambi 160 4. 6870

77. Safina Zinjenga 154 3. 3250

78. Alfred O. Letepen 154 2. 8700

79. Chemesis Tavevi 154 3. 1710

80. J. Rotea Muswanyi 167 9. 7270

81. D. Ongaro 213 5. 6500

82. Mary Iramwenya 213 5. 6500

83. Aseka Miriamu 213

84. Edward Kagira 213

85. J. Tanui 213

86. F. Sirma 213

87. F. Ndambuki 213

88. Patrick M. Lindambitsa 171

89. Emily Jumba 169

90. Hellen N. Auka 172

91. Dennis Kheitsi 70

The plaintiffs' claim is therefore for a prohibitory order restraining the defendants from harassing the plaintiff's peaceful occupation of the land parcel and an order compelling the 2nd defendant to issue the land titles to the plaintiff's pursuant to the balloting and survey as done.

The plaintiffs proceeded to survey and consolidate the area for mutation through the District surveyor pursuant to the Presidential Grant and prepared the part development plan for approval.

Some of the plaintiffs have been issued with title Deeds. Titles have not been issued in respect to the other plaintiffs as the government press is yet to publish a degazettment notice.

The plaintiffs' claim is therefore for a prohibitory order restraining the defendants from harassing the plaintiffs' peaceful occupation of the land parcel and an order compelling the 2nd defendant to issue the land titles to the plaintiffs pursuant to the balloting and survey as done. The plaintiffs also pray for a declaration that they are lawful owners of the parcel of land under Block No. 7561/R through a Presidential Decree.The plaintiffs also pray for an order compelling the director of adjudication to prepare the Legal notice to degazzete the parcels of land.The plaintiffs also pray for costs of the suit.

Sarah Mwihaki Kamau testified that she is a beneficiary of land parcel Block No. 7561/R having been issued with the same by way of a grant of Presidential Decree in accordance with the then Government Land Act. That she has been in occupation of the parcel of land and do not have any other place of abode. That upon being issued with the parcel of land, they proceeded to survey and consolidate the area for mutation through the District Survey or pursuant to the presidential grant and prepared the part development plan for approval. Some of the plaintiffs have been issued with the Title Deeds but the same have not been issued in respect to the other plaintiff as the government is yet to publish a degazettement notice. She prays for an order that they are the lawful owners of the parcel of land under Block No. 7561/R through a Presidential Decree.

She further prays for a prohibitory order restraining the defendants, from harassing the plaintiff's peaceful occupation of the land parcel and an order compelling the 2nd defendant to issue the land titles to the plaintiffs pursuant to the balloting and survey as done and and for an order compelling the Director of adjudication to prepare the Legal Notice to degazzette the parcels of land.

The 1st defendant called Stanley Irungu Mwangiwho states that he hails from Kahawa West Division Kasarani District, Nairobi County. He is employed by the Kenya Forest Service as the Zonal Forest Manager for the Lugari Zone, where disputed parcel of land (forest) is part of the Turbo Forest. According to this witness, what the plaintiffs are is part of the gazetted forest. It was gazetted in 1971 vide legal notice No. 167 of 1971. Being the forest manager of that area, to the best of his knowledge, this gazette notice has not been revoked nor has any excision been done, therefore, for all practical purposes, it is still part of the Turbo forest, within Lugari Zone.

The plaintiffs submit that they have proved their case on a balance of probability as they were allocated the plots by the Plot Allocation Committee. They received letters of allotment and title deeds as evidence of ownership of the plot. They argue that having obtained registration of some of the parcels of land, they have an absolute and indefeasible title to the suit parcels. There was no proof of fraud or illegality on the part of the plaintiffs.

The 1st defendant submits that under the Government Land Act, Cap. 280 (now repealed) Section 3 thereof gave the President powers to make grants and dispositions of un-alienated government land. Under the repealed Constitution and the Government Land Act, the government could allocate to individuals un-alienated government land and such alienation could only be effected legally after the planning process was completed. The Physical Planner is supposed to ascertain if indeed the land in question is available for allocation and advise the Commissioner of Lands accordingly. In this case your honour, there is no evidence adduced before this Honourable Court that the same was carried out before the said allocation.

The respondents rely on the case of Norbixin Kenya Limited V The Attorney General Hccc No. 1814 of 2002, the court stated that the Commissioner of Lands must bear the blame for the predicament that has befallen the plaintiff as the said office issued it with title to the suit property despite full knowledge that the property was reserved for a public utility. The court declined to make orders in favour of the plaintiff even though he had been given title to it because the plaintiff's allotment was irregular as the land was not available for allotment.

In the case of Niaz Mohamed Jan Mohamed Vs Commissioner for Lands & 4 Others Hccc No. 423 of 1996, the court held that land acquired in public interest cannot be alienated and allocate to private individuals, even a portion thereof.

In another case of Kenya Industrial Estates Limited Vs Anne Chepsiror & 5 Others E & L No. 71 of 2013, it was stated that the Commissioner of Lands ought not to have offered such land to private individuals if the public purpose for which the land was reserved still existed.

Under the Constitution of Kenya, 2010, it is only the National Land Commission that has the constitutional mandate to manage, alienate and allocate pubic land. All un-alienated government land is classified as Public land and ought to vest and be held by the County Government in trust for the people resident in the county and administered on their behalf by the National Land commission as provided for under Article 62.

The procedure for de-gazettement of a forest land before allocation is provided for under the Forest Act. A notice of variation of boundaries or revocation of State or local authority forests shall only be published where the proposal is recommended by the Service and subsequently approved by resolution of Parliament as provided for under Section 28 of the Forest Act, Cap. 385, Laws of Kenya. The suit land Block No. 7561/R belongs to the 1st defendant pursuant to Kenya Gazette Notice No. 145 of 1715/64 and Legal Notice No. 167 of 12. 8.1971. On this issue, the 1st defendant submits that it has never recommended any proposal to have the above parcel of land be varied in any way. The suit land is forest land and as admitted by the plaintiffs in paragraph 10 of the plaint and even in evidence, it has never been degazetted. It is therefore public land and the same cannot be alienated and allocated to private individuals.

The respondents argue further that while the plaintiffs were seeking orders to compel the adjudication officer to degazette of the suit land from being a forest land so that titles can be issued, they actually went ahead and procured titles during the pendency of the suit. No degazettement had been done and there has been no government resolution to have the suit parcel degazetted for purposes of allocation. Titles issued over the suit land are therefore tainted with illegality and thus cannot be allowed to pass any interest and should be cancelled. They were obtained illegally and thus they are a nullity. They pray that this honourable court orders for the cancellation of all the titles issued over the suit parcel.

I have considered the evidence on record and do find that the plaintiffs are registered as owners of parcels of land that fall within a Gazetted forest which has never been degazetted to-date. The main issue in this matter is whether the suit property herein was lawfully and legally acquired and registered in the plaintiff's names. In the plaint, the plaintiffs have stated that the suit properties herein were lawfully acquired and that the title deeds issued to the plaintiffs in accordance with the law.

It is important to note that the Forest Act, Cap 385 was repealed by The Forest Act, 2005, No. 7 of 2005. (See section 64 of the foregoing Act, No. 7 of 2005). However, in the instant suit the applicable law is the repealed Act, Cap 385. Section 4 of the said Cap 385 states as follows;

“4. (1) The minister may, from time to time, by notice in the Gazzete-

(a) declare any unalienated Government land to be a forest area;

(b) declare the boundaries of a forest and from time to time alter those boundaries;

(c) declare that a forest area shall cease to be a forest area.

(2) Before a declaration is made under paragraph (b) or paragraph (c) of subsection (1), twenty -eight days notice of the intention to make the declaration shall be published by the minister.”

The sad situation in this case is that due process was not followed. In my view, without altering the boundaries of the forest by degazettement the and following the due process, the land in dispute was not available for allocation and therefore the title deeds issued over the suit land were and remain questionable until due process is followed.

The Minister concerned was supposed to delineate the suit land from the Kapkurere Forest, it is my humble view that by dint of the provisions of the Government Land Act, Cap 280, (now Repealed) and the Physical Planning Act, Cap 286 Laws of Kenya, the said land was to become unalienated Government land after delineation. This is so because section 2 of the said Government Land Act defines Government land as follows;

“Government land” means land for the time being vested in the Government by virtue of sections 204 and 205 of the Constitution (as contained in Schedule 2 to the Kenya Independence Order in Council, 1963), and sections 21, 22, 25 and 26 of the Constitution of Kenya (Amendment) Act, 1964;” (See section 2 of Cap 280)

On the other hand, the foregoing Act defines unalienated government land as;-

“unalienated Government land” means Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment ”

While section 3 of the Physical Planning Act defines unalienated Government Land as;

“unalienated Government land” means Government land which is not for the time being leased to any person, or in respect of which the Commissioner of Lands has not issued any letter of allotment or reservation.”

It follows therefore that since the suit land had not been excised from the Kapkurere Forest, by the Minister in charge by virtue of section 4 of the Cap 385, it remained government land. The question to be answered is therefore How was the government land allocated and or re-allocated.

Section 3 of the Government Land Act states as follows;

“3. The President, in addition to, but without limiting, any other right, power or authority vested in him under this Act, may—

(a)* subject to any other written law, make grants or dispositions of any estates, interests or rights in or over unalienated government land; ”(See section 3 of the Government Land Act)

In view of the foregoing provision of the law, The powers of the President under paragraph (a) above are delegated to the Commissioner of Lands. It follows therefore that the Commissioner of Lands by then had powers to make grants or disposition of any interests in land.

It is submitted that the suit property was illegally acquired and that the same was public property belonging to the Kenya forest services as the forest had not been degazetted.

Article 40 of the Constitution states as follows;

“40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and ownproperty––

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of anydescription; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specifiedor contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of anydescription, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, inaccordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act ofParliament that—

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over,

that property a right of access to a court of law.

4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may nothold title to the land.

(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.

(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired. ”

In my earlier findings, I have noted that the suit land in question was irregularly allocated without due regard to lawful procedure. It follows therefore that by dint of the provisions of Article 40(6), the plaintiffs cannot seek refuge and any protection under the provisions of Article 40(1)-(5) that seeks to protect property rights. However, the Government of Kenya can ratify the process by following the right procedure in view of the fact that the disputed parcels of land are fully occupied by the plaintiffs with amenities such as schools, hospitals, prisons, churches and a police station.

The suit is dismissed with and the counterclaim by the 1st defendant is allowed thus a declaration is hereby issued that parcel No. 7561/R is forest land and therefore not available for allocation until due process is followed. This court finds that the allocation of the land parcel 7561/R by the 3rd defendant to the plaintiffs was conducted through an irregularity and therefore all titles issued over the land parcel Block No. 7561/R were irregularly acquired by the plaintiffs. I do direct that the Ministry of Environment and Natural Resources and the Kenya Forestry services in consultation with the office of the Attorney General do consider the plight of the plaintiffs, who have settled on the suit land, with a view of completing the due process of allocation which appears to have been improperly fast tracked without due process. In the meantime the declaration that land parcel no 7561/R is forestland is suspended for two years as the plaintiffs wait for the consideration by the Government of Kenya as aforesaid. I do order that each party to bear it's own costs as the plaintiffs appear to have been victims of an irregular process by the defendants. Orders accordingly.

DATED AND DELIVERED AT ELDORET THIS 8TH DAY OF JANUARY, 2016.

ANTONY OMBWAYO

JUDGE