[2014] KECA 214 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: GITHINJI, MWERA & GATEMBU, JJ.A)

CIVIL APPLICATION NO. SUP 5 OF 2014 (UR. 3/2014)

BETWEEN

TOWN COUNCIL OF AWENDO ………………………..……………….APPLICANT

AND

NELSON ODUOR ONYANGO & 13 OTHERS…………………......RESPONDENTS

(Application for leave to appeal to the Supreme Court against the Judgment of Court of Appeal sitting at Kisumu delivered on 18th October, 2013

in

C. A. NO. 161 OF 2010)

*****************

RULING OF THE COURT

The applicant, Town Council of Awendo, seeks leave of this Court under Article 163(4)(b) of the Constitution of Kenya, 2010 to appeal to the Supreme Court against a decision of this Court given on 18th October 2013. The applicant contends that the intended appeal involves a matter of general public importance.

Background

By a notice published in the Kenya Gazette pursuant to the provisions of the Land Acquisition Act (Now repealed) as Gazette Notice No. 2996 on 24th September 1976 the Government of Kenya gave notice of intention to compulsorily acquire land comprised in numerous titles owned by the respondents (among other registered land owners) for purposes of “the South Nyanza Sugar Scheme in South Nyanza District.” Subsequently the Government compulsorily acquired those parcels of land and Gazette Notice No. 3737 dated 24th December 1976 to that effect published.

It later transpired that not all the land that was compulsorily acquired was required or could be utilized for expansion of South Nyanza Sugar Scheme. Some of it remained unutilized. Indeed there are concurrent findings by the High Court and by this Court that some of the respondents who were the owners of some of the parcels of land prior to the compulsory acquisition continued to live on some parts of those parcels, that were not utilized for the expansion of South Nyanza Sugar Scheme.

The appellant, Town Council of Awendo, considered itself entitled to use the unutilized parcels of land for purposes of its expansion. It took steps to take possession of those parcels and to evict those of the respondents in possession thereof. It also embarked on allocating those parcels of land to third parties. The respondents were aggrieved by the appellant’s action and took the view that it (the appellant) did not have the legal right to take over those parcels or to evict them therefrom. The respondents sought the intervention of the Chief Land Registrar demanding to be issued with titles for the unutilized parcels of land. In a letter dated 29th February 1996 the Chief Land Registrar directed the District Land Registrar, Homa Bay to sort out the matter in consultation with the District Surveyor Migori. That does not appear to have been done.

The respondents then commenced suit by way of originating summons against the appellant in the High Court at Kisii, being High Court Civil Case Number 133 of 2005 in which the respondents framed 17 questions for determination by that court. The central question for determination in that suit was whom, as between the appellant and the respondents, had a right over and entitled to the unutilized portions of the land

After hearing the parties the High Court (Musinga J, as he then was) held that it was not open to the appellant to claim the unutilized portions of land; that it is unacceptable that the respondents were forced to sell their properties to the Government so as to establish South Nyanza Sugar Scheme and later for the appellant to force them out of the unutilized portions and to allocate them to other people; and that there was no basis for the appellant to have assumed any rights over the unutilized portions of the suit land. It is necessary to reproduce at length the views expressed by the High Court in that regard. The learned trial Judge stated:

Section 19 (4)of theLand Acquisition Actprovides that after taking possession of land that has compulsorily been acquired the land vests in the Government absolutely free from encumbrances. But here is a situation where the Government or SONY did not take possession of the entire parcels of land which it had compulsorily acquired but only took possession of parts thereof. The plaintiffs remained in occupation of the remainder. Between the plaintiffs and the defendant, who has a better claim over the remainder of the suit lands if the Government, the legal owner is not interested in the same? Is it equitable for the defendant to evict the plaintiffs out of the land and cause the same to be subdivided and allocated to other people? I do not think so. Equity requires that the unutilized portions be surrendered back to the persons from whom the land was compulsorily acquired, even if they have to pay back a proportionate amount of the compensation sum that had been paid to them. It must be borne in mind that these were private properties that were compulsorily acquired by the Government for a particular purpose. The plaintiffs did not voluntarily choose to sell their ancestral lands to the Government. One of the plaintiffs testified that his late father was buried on the remainder of the land which he was still occupying. It is unconstitutional for the Government to compulsorily acquire a citizen’s ancestral land, having paid minimal compensation, ultilize only a portion of the land and then allocate the unutilized portion to other people. That is what the defendant is purporting to do, saying that it is holding the land in trust for the Government.”

The appellant was aggrieved by the judgment of the High Court and appealed to this Court complaining that:

“1. That the learned trial Judge erred in finding that the acquisition of the suit parcels of lands was not meant for the benefit of the appellant contrary to the Gazette Notices.

2. That the learned trial Judge erred in finding favour of the respondents without taking into account the fact that the Government which acquired the said parcels was never made a party to this suit.

3. That the learned trial Judge erred in finding in favour of the respondents in a claim that was statutorily time barred and therefore the court had no jurisdiction to entertain the claim.

4. That the learned trial Judge erred entertaining (sic) the suit brought by way of origination summons when the issues involved are not suitable for determination by way of origination summons.

5. That the learned trial Judge’s finding was against the weight of evidence.”

In its judgment delivered on 18th October 2013, this Court upheld the judgment of the High Court and dismissed the appellant’s appeal. It is against that background that the applicant intends to appeal to the Supreme Court.

The intended appeal to the Supreme Court and submissions by counsel

The grounds appearing on the face of the application in support of the application for certification are that this is a matter of public importance; that thousands of Awendo Town (residents?) are due for eviction (sic); that the status on the ground has changed so much; and that the applicant has a lot to lose in this matter.

At the hearing of the application before us, Mr. J. A. Mwamu learned counsel for the applicant referred us to his affidavit and those sworn by Joshua Otieno Mbani, Michael Ogutu, Michael Oyata, Pastor George Otieno Alaka, Dr.Simeon Odede, Zachary Masawa, Amos Odhiambo Onyango, Pastor Kennedy Dwasi,Paul Kuria, Mohammed Odie, Pastor Abel, Reverend Father Tom Nicholas Mboya and further/supplementary affidavit of John Okoth Okelo in support of the application. The substance of those affidavits is that numerous entities represented by the deponents of those affidavits were allocated and allotted portions of the unutilized parcels of land by the applicant; that they have since developed and occupied those parcels; that they have built offices, churches, schools, hospitals, financial institutions and other developments; that they were not aware of the dispute between the parties in the Court of Appeal and only became aware of it after delivery of the judgment by the Court of Appeal; that the decision of the Court of Appeal “should be reconsidered in light of public interest as this is the center of the town…”and that the decision of the “Court of Appeal should be revisited as its decision was totally against the facts on record and a matter of general public importance”; that over 10,000 people reside on the affected lands and the judgment will interfere with the proprietary rights of the allotees who have been on the lands from as early as 1980’s but were unaware of the dispute between the parties; that the judgment will interfere with the rights of residents to housing, schools, health and wealth contrary to Articles 28,29,40 and 41 of the Constitution of Kenya 2010 despite the fact that the respondents were compensated for the compulsory acquisition; that the plans for the provision of agriculture, health services, transport, county planning and development of the Awendo sub county will be adversely affected by the decision of this Court.

Mr. Mwamu submitted that on account of the matters set out in those affidavits the intended appeal to the Supreme Court involves a matter of utmost public importance; that the welfare of the public is involved; that proprietary interests of third parties have been interfered with and there is likelihood of miscarriage of justice if leave is not granted; that the effect of the judgment of this Court is that the discharge of the functions and powers of the county government in the implementation of Articles 185, 186 and 187 of the Constitution as read in conjunction with the Fourth Schedule will be hampered; that this Court dealt with the issue whether land compulsorily acquired should be returned and based its decision on section 75 of retired Constitution; that there is need for the Supreme Court to strike a balance between public interest and the different classes of land interests and the rights thereto under Articles 61,62,63,64 of the Constitution; that the decision of the Court of Appeal was rendered without according the allotees of the land, who include banks, churches, schools, police stations, county commissioners offices, a hearing as they were not privy to the suit; that there are difficulties in implementing the judgment of this Court as noted by the Migori County Surveyor in a report dated 29th January 2014 who says it is impossible to implement the judgment of this Court as those to be affected are an entire community that have been using the land since the 1980’s relative to the small number of 13 respondents in this proceedings who are the beneficiaries of the judgment; that the land in question comprises the entire Awendo town and its expansion plans and the rights of the entire population of Awendo will affected by the decision; that the respondents were compensated and paid and they must have moved or relocated to other places where they currently stay.

For all those reasons, Mr. Mwamu submitted that there are issues that merit canvassing in the Supreme Court. To further support the application counsel referred us to the decision of this Court in Koinange Investment and Development Ltd vs. Robert Nelson Ngethe Civil Application No. 15 of 2012-[2013] eKLR saying that there is uncertainty in the law and that it is for the common good that such law should be clarified by the Supreme Court. Counsel also referred to the Supreme Court decision in Hermanus Phillipus Steyn vs. Giovanni Gnechi-Ruscone Supreme Court Application No. 4 of 2012[2013] eKLR and submitted that the matter involves the general welfare of the public and it touches on the subject of land rights affecting a large number of people. Referring to the dissenting opinion of Ibrahim and Ojwang, SCJJ, counsel submitted that that the intended appeal will establish legal principles of general application in future cases and is therefore a proper case for reference to the Supreme Court. Counsel also cited Gatirau Peter Munya vs. Dickson Kithinji and others Supreme Court Application No. 5 of 2014 [2014] eKLR; Nathif Jama Adam vs. Abdikhaim Osman Mohammed and others Supreme Court Application No. 18 of 2014[2014] eKLR with regard to the question of public interest.

In support of the applicant’s prayer for an order for injunction to restrain the respondents from dealing with the suit lands pending determination of the intended appeal by the Supreme Court, counsel submitted that this Court has jurisdiction under rule 5(2)(b) to grant such relief and referred us to the decision of this Court in Stanley Kangethe Kinyanjui vs. Ketter and others Civil Application No. 31 of 2012[2013] eKLR and urged us to order that the status quo be maintained. Mr. Mwamu concluded by saying that the applicant has filed a notice of appeal and that the record of appeal to the Supreme Court can only be filed upon certification under Article 163(4)(b) being granted.

14. Opposing the application Mr. Nyamori Nyasimi, learned counsel for the 1st to 13th respondents referred us to the replying affidavits sworn by Nelson Oduor Onyango, the 1st respondent on 10th May 2014 and 3rd March 2014 deposing that no specific matters or elements of general public importance attributable to the suit that merit engagement of the Supreme Court have been identified; that the applicant is effectively and wrongly attempting to introduce new parties and also seeking admission of new or additional evidence; that the deponents to the affidavits in support of the application were not parties to the proceedings in this Court or in the High Court and the matters raised in those affidavits are irrelevant; that the deponents of the said affidavits do not have any legal interest in the land parcels awarded to the respondents namely parcel numbers LR NOS. North Sakwa/Kamasonga/46, South Sakwa/Waware/204, North Sakwa/Kamasoga/34, North Sakwa/Kamasoga/1081, North Sakwa/ Kamasoga/1093, North Sakwa/Kamasoga/1111, North Sakwa/Kamasoga/1193,North Sakwa/Kamasoga/1067, South Sakwa/Waware/207, North Sakwa/Kamasoga 45. North Sakwa/Kamasoga/111, South Sakwa/Waware/202 & South Sakwa/Waware/168; that any person aggrieved by the implementation and enforcement of the judgment has recourse in the lower court; that the judgment of the Court has in any event been fully implemented and all suit parcels re-surveyed and identified in accordance with the judgment of this Court and the respondents are in possession, use and occupation as demonstrated in a survey plan annexed to the affidavit; that the applicants have not filed an appeal in accordance with Rules 33(1) and 37 of the Supreme Court Rules and certification would therefore be a futile exercise.

Counsel went on to say that there is a difference between the land occupied by the Awendo Council and land that reverted to the respondents and others; that based on the survey plan the land for Awendo and the land given to the respondents and others is different; that the parcels that reverted to the respondents do not form part of Awendo; that it is only the of parcels that were to be resurveyed.

Citing Hermanus Phillipus Steyn vs. Giovanni Gnechi-Ruscone (supra) counsel argued that the criteria for certification set out therein is not met and that specific elements of public importance must be identified and that the applicant has not done so in this case; that no substantial point of law the determination of which has a bearing on the public interest has been demonstrated; that we should hold, as the Supreme Court held in Malcolm Bell vs. Daniel Toroitich Arap Moi Supreme Court Application No. 1 of 2013 that the appellant has failed to establish that a matter of general public importance is involved; that the so called allotees or third parties do not exist as the judgments of the lower courts determined that the letters of allotment on the basis of which they claimed were not legal documents for the conferment of title; that there is no indication that the parcels of land referred to in the third parties affidavits are the same as those to which the respondents claim; that matters that were not before the trial court are being introduced at this late stage in the form of new causes of actions, new evidence, and new parties, and that the Supreme Court is not the forum for that.

Adverting to the prayer for temporary injunction, counsel submitted that rule 5(2)(b) of the rules of this Court does not apply as the intended appeal is not to this Court but to the Supreme Court; that the applicants remedy if aggrieved by the execution of the judgment would have been to apply for a review; that the survey report of 29th January 2014 to which counsel for the applicant referred in relation to challenges in executing the judgment was not part of the evidence in the lower court; that it is ironical that the author of that report is the same person who supervised the exercise that resulted in the titles given to the respondents with respect to the unutilized portions; that it is a year since a notice of appeal was filed but no appeal has been instituted in the Supreme Court under rules 33 and 37 of the Supreme Court rules which requires a record of appeal with or without certificate to be filed.

Opposing the application Mr. J. E. M. Maroro learned counsel for the 14th respondent referred us to his replying affidavit filed on 7th October 2014 stating that the parcels of land in question were compulsorily acquired by the Government for sugarcane growing; that after the completion of the compulsory acquisition some portions of the land were found to be unsuitable for sugarcane growing; that the acquisition was undertaken under the provisions of the Land Acquisition Act, Act No. 47 of 1968; that the retired Constitution and the current Land Act, Act No. 6 of 2012 provides how the residue from acquired land is to be handled by the Government and that the intended appeal does not therefore involve matters of general public importance.

Mr. Maroro stated that the 14th respondent was joined in the proceedings in the Court of Appeal and did not participate in the proceedings before the trial court; that issues that should have been raised in the lower court are belatedly being raised at this stage; that the question that arose for determination is what happens to the residue of land that was compulsorily acquired in accordance with section 75 of the retired Constitution but was not utilized for the purpose for which it was acquired; that the Land Act, Act No.6 of 2012 contains provisions under section 110(2) that provides that the residue may be given to original owners or their successors.

According to Mr. Maroro the matters being raised as befitting reference to the Supreme Court were not canvassed in the High Court or in the Court of Appeal and the Supreme Court will have no material on the basis of which to arrive at a just decision as to ownership as there is no record, no map where the land is or who owns what and all that is available are submissions made in the High Court as to the ownership.

On the contention that an issue of public importance is involved, counsel argued that it is common ground that the land in question was acquired by the central government which remains the owner to date as there is no evidence of the land having been handed over or transferred to the county government; that the contest involves the residue of the unutilized land; that the land that was suitable for sugar was identified and fenced off and the court then directed that the residue could be identified through survey in order to locate where the plots are; that in any event the Government has the power to acquire the land a second time should it be required for public purpose.

Analysis

We have considered the application and the rival submissions. The sole question for our determination is whether the intended appeal is deserving of certification as involving a matter of public importance under Article163 (4)(b) of the Constitution that provides:

“(4) Appeals shall lie from the Court of Appeal to the Supreme Court—

(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).”

The guiding principles for determining whether a matter is one of general public importance under Article 163(4)(b) of the Constitution were outlined by the Supreme Court in Hermanus Phillipus Steyn vs. Giovanni Gnechi-Ruscone, Sup. Ct Appl. No. 4 of 2012. The applicant is required to satisfy us that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case and has significant bearing on public interest; where a point of law is raised, that such a point is a substantial one the determination of which will have a significant bearing on the public interest; the question or questions of law must have arisen in the courts below and must have been the subject of judicial determination; that where the certification is occasioned by a state of uncertainty in the law arising from contradictory precedents, the Supreme Court may either resolve the uncertainty or refer the matter to this Court for determination; that mere apprehension of miscarriage of justice is not a proper basis for granting certification and the matter must still fall under Article 163(4)(b) of the Constitution; that the applicant must identify and concisely set out the specific elements of general public importance which he or she attributes to the matter for which certification is sought; and that determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.

What then are the grounds on which the applicant seeks certification? In a bid to fulfill the requirement that an applicant must identify and concisely set out the specific elements of general public importance which he or she attributes to the matter for which certification is sought, the applicant filed a further affidavit and “issues for determination” in which the applicant asserts that the intended appeal involves a matter of great public importance in that:

“1. Cardinal issues of jurisprudential moment requiring input by the Supreme Court are involved.

Matter involves welfare of the public.

That the interpretation given by the Court of Appeal to Section 75 of the retired Constitution, the Land Acquisition Act failed to balance public interest under Articles 61,62,63,and 66 of the Constitution and that the Land Act has created a conflict and confusion.

That the judgment affects the proprietary rights of persons who were not privy to the proceedings and who have been on the property since the 1980’s and there rights under Articles 61,62,63,and 66 of the Constitution have been interfered with.

That the judgment will, in contravention of Articles 28,29,40 and 43 of the Constitution, interfere with the social economic rights of the residents of the town.

The judgment will interfere with the applicant’s ability to discharge its functions to implement Articles 185,186 and 187 of the Constitution in that it will be hampered in its ability to plan for agriculture, health and transport services, county planning among other things.

There is apprehension of miscarriage of justice.”

According to the applicant, the matters identified under items 3,4,5,6 above are matters of general public importance because they involve the interpretation or application of the Constitution. For matters that involve the interpretation or application of the Constitution the applicant has an automatic right of appeal to the Supreme Court under Article 163(4)(a) of the Constitution and does not require leave. As the Supreme Court stated in THE KENYA SECTION OF INTERNATIONAL COMMISSION OF JURISTS V ATTORNEY GENERAL & 2 OTHERS, CRIM. APP. NO. 1 OF 2012,:

“The effect of the foregoing decisions is that:

(i) appeals to the Supreme Court, in general, require grant of leave by the Court of Appeal – except where the Court of Appeal’s refusal of leave has been reversed by the Supreme Court;

(ii) in matters of interpretation or application of the Constitution, an appeal will be entertained by the Supreme Court as of right;

(iii) the issue for interpretation or application of the Constitution coming on appeal to the Supreme Court, is not to be a collateral question, only minimally related to the substantive cause pending in the Court of Appeal, and if it is such, then leave of the Court of Appeal is required – unless the Supreme Court has reversed the refusal togrant leave by the Court of Appeal;(Emphasis added).

(iv) subject to the foregoing principles, an appeal to the Supreme Court is not limited by the mere fact of the issue being preliminary or interlocutory”

Recently, this Court in Mwangi Stephen Muriithi vs. Daniel Arap Moi and Anothercivil application no. sup 10 of 2014 (ur 7/2014) stated that:

“When there is a genuine issue of interpretation or application of the Constitution, an intended appellant has unhindered access to the Supreme Court under Article 163(4)(a) of the Constitution and does not require any leave or certificate (even as a matter of general public importance) from this Court. In NICHOLAS KIPTOO ARAP KORRIR SALAT V. IEBC & 7 OTHERS, SC APP No. 16 OF 2014,the Supreme Court stated that whether or not a matter before it has properly invoked the Court’s jurisdiction under Article 163(4)(a) of the Constitution on matters of interpretation and application of the Constitution “is a substantive matter to be decided in the main appeal if and when it is filed.”And latter in the same judgment the Supreme Court stated as follows:

“Whether or not the constitutional questions as framed by the applicant were indeed canvassed and determined by the Court of Appeal is a substantive question that rightly falls for determination during the hearing of the appeal if and when filed.”

To entitle the intended appellant to invoke the jurisdiction of the Supreme Court under Article 163(4)(a), the issue of interpretation or application of the Constitution must be a real issue which was before this Court and or arising directly from the judgment intended to be appealed in the Supreme Court”

In our view, quite apart from the fact that the matters allegedly relating to Articles 28, 29, 40, 43 61, 62, 63, 66, 185,186 and 187 of the Constitution were never canvassed or addressed before this Court, they are matters relating to interpretation or application of the Constitution for which certification is not required.

According to the applicant, there are two other matters or questions that arose before the trial court and before this Court, which the Supreme Court should settle. The first matter or question is this: where land is compulsorily acquired for a specific purpose and it is not used for that purpose, should it revert to the persons from whom it was acquired notwithstanding that they have been compensated for the same? The second matter or question on which the Supreme Court should pronounce itself on is the effect of the judgment on the proprietary rights of a large number of residents who have since been allocated the residue lands and the resultant difficulties in executing or carrying into effect the judgment given the circumstances obtaining on the ground.

The High Court pronounced itself on those two matters as follows:

“In my view, the unutilized portions of the suit lands should revert back to original owners. Other than the Government of Kenya, no other person has any better right over the unutilized portions than the original owners whom, I would state, have equitable interest over the same.”

And later the learned trial Judge stated:

“Having established that the unutilized portions of the suit lands were found to be unsuitable for sugarcane farming and were not therefore occupied by SONY, and considering that Section 75 of the Constitution requires that once land has been compulsorily acquired ought to be used for the designated purpose only, the original owners of the suit lands ought to be registered as the lawful owners of the unutilized parcels of the suit lands. Those parcels that were not utilized by SONY should be re-surveyed and title deeds thereof issued to the rightful persons by the area Land Registrar.”

This Court did not see that there would be any difficulties in giving effect to the judgment of the High Court. It expressed itself in the judgment as follows:

“In short, much as the sizes of the unutilized parcels of land in dispute are as yet not clear, the owners are known and some of them are the respondents, and as the utilized land is known, a re-survey of the unutilized parcels will reveal the real sizes and the respondents will each be registered as appropriate. This would not be a difficult task, nor would it be a matter of law if the entire parcels had been registered and their acreages known and were cited in the relevant Gazette Notices. It would be surveyor’s duty to resurvey the residues and have the original owners registered as appropriate.”

We do not think that the intended challenge on those matters involves matters of general public importance merely because there may be challenges in executing the orders of the High Court. The court executing a decree has the powers, under section 34 of the Civil Procedure Act, to determine questions relating to execution. Further the existence of circumstances that might justify a court to review its own judgment does not in itself elevate it to the status of a matter of great public importance. Furthermore under Part VIII of the Land Act, elaborate provisions relating to compulsory acquisition have been enacted. Section 110 of that Act renders further input by the Supreme Court on the matter for purposes of settling the question unnecessary for it provides that:

“(2) If, after land has been compulsorily acquired the public purpose or interest justifying the compulsory acquisition fails or ceases, the Commission may offer the original owners or their successors in title pre- emptive rights to re-acquire the land, upon restitution to the acquiring authority the full amount paid as compensation.”

The jurisdiction of the Supreme Court under Article 163(4)(b) is not to be invoked for purposes of rectifying errors with regard to matters of settled law. (See Malcolm Bell vs. Daniel Toroitich Arap Moi and Another). Even if there was merit in the applicants complaint that this Court and the lower court erred in taking the view that the residue of the unutilized lands reverts to the original owners, the law in that regard is now settled by an Act of Parliament, and if it ever was, the question ceases to be one of jurisprudential moment to warrant certification to the Supreme Court. If the issue is one whose repeated occurrence would continually engage the workings of judicial organs, that is the case no more, Parliament having addressed it in legislation.

For those reasons we have come to the conclusion that the intended appeal to the Supreme Court does not involve matters of general public importance under Article 163(4)(b) of the Constitution. We therefore dismiss the applicants Notice of Motion dated 11th February 2014 with costs.

Dated and delivered at Nairobi this 28th day of November, 2014.

E. M. GITHINJI

………………….

JUDGE OF APPEAL

J. W. MWERA

…………………

JUDGE OF APPEAL

S. GATEMBU KAIRU

…………………………

JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR