[2019] KEELC 2625 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC PETITION NO. 48 OF 2017

(Formerly High Court Petition No. 556 Of 2013)

YORK WORLDWIDE HOLDINGS LIMITED....................PETITIONER

VERSUS

KENYA FOREST SERVICE..........................................1ST RESPONDENT

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

FRIENDS OF KARURA COMMUNITY

FOREST ASSOCIATION........................................ INTERESTED PARTY

JUDGMENT

The petitioner brought this petition on 22nd November, 2013 seeking the following reliefs:

a) That the court be pleased to hold and declare that as the registered proprietor of L.R No. 20851(0. 6120 ha.), L.R No. 20852(0. 8160ha.) and L.R No. 20853(3. 060 ha.) (hereinafter referred to as “the suit properties”), the petitioner’s right to the properties can only be upset by due process, after following all laid down procedures.

b) That the court be pleased to hold and declare that the findings and recommendations by the Commission of Inquiry into the illegal/irregular allocation of land also known as the “Ndungu Commission” that titles to the suit properties be revoked without heeding the process laid down in section 75 of the Constitution (repealed) is void, un-implementable and no reliance can or should be placed upon it by any arm, department or office of the Government of Kenya in deciding, facilitating or dealing with an issue of right, privilege or legal entitlement of the petitioner.

c) That the court be pleased to find and hold that the recommendations and findings by the Commission of Inquiry into the illegal/irregular allocation of land also known as the “Ndungu Commission” that the excision of 3 hectares of land allocated to the International Centre for Research and Agro-Forestry (ICRAF) be legalized while the remaining 5. 1 hectares of the excised 8. 10 hectares of land which 4. 5 hectares comprise the suit properties belonging to the petitioner be revoked, contravened the petitioner’s right to equal protection of law and freedom from discrimination as guaranteed by Article 27 of the Constitution.

d) That the court be pleased to find and hold that the actions of the 1st respondent in erecting a perimeter fence on the suit properties is illegal, unconstitutional and contravenes the petitioner’s right to protection of property guaranteed under Article 40 of the Constitution.

e) That the court be pleased to find and hold that the 1st respondent contravened the petitioner’s right to fair administrative action guaranteed by Article 47 of the Constitution.

f) A mandatory order of injunction to issue directing the 1st respondent to remove the perimeter fence erected on the suit properties within 7 days of the order of the court at its cost.

g) An order of a permanent injunction directing the 1st respondent, its agents, officers or any person howsoever acting on its behalf from interfering with the proprietorship of the suit properties by the petitioner.

h) General damages against the respondents for losses and inconvenience suffered and exemplary damages against the 1st respondent for breach of the petitioner’s fundamental rights.

i) The costs consequent upon the petition be borne by the respondents in any event on indemnity basis.

j) Such other or further orders as the court may deem just and expedient in the circumstances in enforcing violation of fundamental rights of the petitioner.

The petition was supported by affidavit and further affidavit of Bernard Haissly sworn on 1st November, 2013 and 6th May, 2014 respectively. The petitioner averred that in December 2002, it purchased L.R No. 20851(0. 6120 ha.), L.R No. 20852(0. 8160ha.) and L.R No. 20853(3. 060 ha.) (hereinafter referred to as “the suit properties”) from Masai Villas Ltd., Sian Enterprises Ltd. and Star Prime Ltd. respectively. It averred that after purchasing the suit properties, it was registered as the owner thereof and issued with certificates of title under the Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed). The petitioner averred that before purchasing the suit properties, it had conducted due diligence on the properties which revealed that the titles for the suit properties had no defect. The petitioner averred that it had legitimate expectation that its interest in the suit properties would be protected and that it would enjoy all the benefits and privileges of proprietorship in accordance with the law. The petitioner averred that it was not a party to the original alienation of the suit properties by the Government of Kenya and that it was a bona fide purchaser for value without notice of any defects in the titles of the properties.

The petitioner contended that the registration of the suit properties in its name as the proprietor thereof conferred upon it an absolute and indefeasible title under section 23(1) of the Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed) and Article 40 of the Constitution and guaranteed it protection against unlawful and un-procedural deprivation or interference. The petitioner averred that it purchased the suit properties with the sole intention of developing hotels, offices and serviced apartments to serve the diplomatic community at Gigiri and that its application for change of user from residential to hotel, offices and serviced apartments was not objected to.

The petitioner averred that the Commission of Inquiry into illegal/irregular allocation of public land (“the Ndungu Commission”) had in its report at page 675 made a finding that the procedure that was used by the Minister for Environment and Natural Resources to excise a portion of land measuring 8. 10 hectares of which the suit properties form part from Karura Forest was illegal. The petitioner averred that the said commission recommended that title to part of the said parcel of land measuring 3 hectares that had been allocated to International Centre for Research and Agro Forestry(ICRAF) be legalised while titles to the remaining part measuring 5. 1 hectares of which 4. 5 hectares had been allocated to Masai Villas Ltd., Sian Enterprises Ltd. and Star Prime Ltd. (the suit properties) and sold to the petitioner be revoked. The petitioner averred that the said recommendation was discriminative and un-procedural. The petitioner averred that the Ndungu Commission violated Article 27 of the Constitution of Kenya and section 75 of the repealed Constitution.

The petitioner averred that following the said recommendation by the Ndungu Commission, the 1st respondent without any basis in law and/or notice to the petitioner, unlawfully, un-procedurally and arbitrarily erected a perimeter fence around the suit properties. The petitioner contended that as result of the capricious invasion of the suit properties by the 1st respondent, it had been obstructed from accessing the same as a result of which its investment of USD. 13 million as at 2003 was scuttled. The petitioner averred that the 1st respondent’s act of erecting a fence around its properties without any reasonable cause violated its right to property and fair administrative action protected under Articles 40 and 47 of the Constitution. The petitioner annexed to its affidavit in support of the petition among other documents copies of its titles to the suit properties.

In its further affidavit filed on 12th May, 2014, the petitioner contended that due process was followed in excising land measuring 8. 1 hectares from which the suit properties were created from Karura Forest. The petitioner contended that its titles to the suit properties had not been challenged in any court of law. The petitioner contended further that its titles could only be challenged on grounds of fraud or misrepresentation to which it was proved to be a party which was not the case herein. The petitioner averred that the invasion of the suit properties by the 1st respondent while allowing ICRAF to enjoy land that was similarly excised from Karura Forest was an act of discrimination against the petitioner.

The 1st respondent opposed the petition thorough a replying affidavit sworn by Esther Keige on 8th April, 2014 and a supplementary affidavit sworn by Evans Kegode Aluda on 12th August, 2014. The 1st respondent averred that the petition was misconceived and had no basis in law and in fact as the suit properties fell within its jurisdiction pursuant to proclamation number 44 issued under the Forest Ordinance by the Colonial Secretary on 30th April, 1932. The 1st respondent averred further that the land from which the suit properties were created was subsequently declared a Central Forest through Legal Notice 174 of 1964. The 1st respondent contended that as part of a gazetted forest, the land from which the suit properties were created could not be alienated without following the due process for allocating forest land.

The 1st respondent averred that sometimes in the year 1989, the then Commissioner of Lands through a letter dated 5th May, 1989 requested the Permanent Secretary Ministry of Environment and Natural Resources to authorise a surrender of part of Karura Forest for the development of USAID headquarters. The 1st respondent averred that the process of degazetting land measuring 8. 1 hectares from Karura Forest for use by USAID as aforesaid commenced. The 1st respondent averred that the Minister of Environment and Natural Resources issued a 28 days gazette notice to the public of his intention to alter the boundaries of Karura Forest to exclude the said portion of land measuring 8. 1 hectares.

The 1st respondent averred that after the expiry of the said 28 days notice, no other notice was issued as provided in the Forest Act declaring that the boundaries of Karura Forest had been altered to exclude the said portion of land measuring 8. 1 hectares that was to be allocated to USAID. The 1st respondent averred that that the intended excision of the said portion of Karura Forest was never finalised because USAID which was the intended recipient of the land declined to take the same for its headquarters thereby rendering the excision unnecessary. The 1st respondent averred that the entire parcel of land measuring 8. 1 hectares which includes the suit properties and a portion thereof measuring 3 hectares which was allocated to ICRAF after USAID declined to take the land, remained under its custody as part of Karura Forest. The 1st respondent averred that the suit properties are part of the 5. 1 hectares of land left after ICRAF took 3 hectares of the initial 8. 1 hectares of land that had been set aside for USAID. The 1st respondent averred that in the absence of a gazette notice removing the said portion of land measuring 8. 1 hectares from Karura Forest, no valid alienation could be carried out in respect thereof. The 1st respondent averred that the titles held by the petitioner in respect of the suit properties were void ab initio. The 1st respondent denied that it had discriminated against the petitioner.

The 1st respondent contended that titles issued through a flawed process could not confer a valid interest capable of protection under the Constitution which only guarantees protection where property rights are validly acquired. The 1st respondent averred that the alleged invasion of the suit properties without notice was untrue since the suit properties had not been removed from its jurisdiction. The 1st respondent contended that the suit properties remained part of forest land and that activities by the petitioner thereon if any amounted to acts of trespass. In its supplementary affidavit sworn by Evans Kegode Aluda filed in court of 15th August, 2014, the 1st respondent reiterated much of what was contained in the affidavit of Esther Keige.

The 2nd respondent opposed the petition through a replying affidavit sworn by Edwin Munoko Wafula on 12th June, 2014. Edwin Munoko Wafula was a land registrar in the Ministry of Lands, Housing and Urban Development. In the affidavit, the 2nd respondent averred that the suit properties were and had always been part of Karura Forest. The 2nd respondent contended that the suit properties were irregularly and unlawfully acquired and as such the petitioner’s claim was unmaintainable. The 2nd respondent averred that the suit properties were among parcels of land which the Ndungu Commission found to have been irregularly and illegally acquired.

The 2nd respondent reiterated the history of the suit properties as stated in the affidavits filed by the 1st respondent. The 2nd respondent averred that following the inconclusive excision of the said parcel of land measuring 8. 1 hectares from Karura Forest as a result of the refusal by USAID to take up the land, any alienation of the land was irregular. The 2nd respondent denied the allegations of discrimination made by the petitioner and averred that the 1st respondent had the power and mandate to protect the suit properties which are within its jurisdiction. The 2nd respondent contended that the legal protection sought by the petitioner did not meet the threshold set out in Article 40(6) of the Constitution.

Submissions:

The petition was heard by way of written submissions. The petitioner, the 1st respondent and the 2nd respondent filed their submissions on 24th May, 2017, 28th July, 2017 and 19th September, 2017 respectively. In its submissions dated 22nd May, 2017 the petitioner cited the case of Patrick Musimba v National Land Commission & 4 others (2015)eKLR and Articles 23(1) and 165(3)(b) of the Constitution and submitted that this court has jurisdiction to hear claims relating to violation of human rights including right to property. The petitioner submitted that the respondents had breached its right to property guaranteed under Article 40 of the Constitution. The petitioner averred that rights including a right to property can be limited under Article 24 of the constitution but subject to fulfilment of the laid down conditions. The petitioner averred that the constitution provides mechanisms aimed at checking abuse of power and arbitrary limitation of rights. The petitioner submitted that where the government desires to acquire land, due process must be followed which include giving notice to the owner thereof and affording him an opportunity to be heard as well as prompt payment of compensation. In support of this submission, the petitioner relied on the cases of Vekariya Investments Ltd. vKenya Airports Authority & 2 others [2014]eKLR and Evelyn College of Design Ltd. v Director of Children’s Department & another [2013]eKLR.

The petitioner reiterated that it purchased the suit properties in good faith for value without notice of any defect whatsoever on the titles of the same. The petitioner submitted that it acquired absolute and indefeasible titles over the suit properties pursuant to section 23(1) of the Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed). The petitioner cited the cases of Joseph N. K. Arap Ng’ok v Moijo Ole Keiwua & 4 others (1997)eKLR and Samuel Murimi Karanja & 2 others v Republic (2003)eKLR and Article 60(1)(b) of the Constitution and submitted that having acquired the suit properties lawfully and procedurally, it was entitled to protection from arbitrary deprivation of the said properties.

In response to the respondents’ assertion that the suit properties which were part of Karura Forest were not lawfully excised from the said forest through a notice in the Kenya Gazette as provided in the Forest Act, Chapter 385 Laws of Kenya (now repealed), the petitioner argued that no evidence had been produced showing that land measuring 3 hectares which was allocated to ICRAF which was similarly part of the gazetted Karura Forest was degazetted. The petitioner contended that before issuing titles in respect of the suit properties and the parcel of land that was allocated to ICRAF, the Commissioner of Lands must have satisfied himself that all processes had been followed to make the said parcels of land available for allocation. The petitioner relied on the case of Samuel Murimi Karanja & 2 others (supra) and submitted that it was only expected to conduct an official search to establish the legal status and ownership of the suit properties.

The petitioner conceded that the protection accorded to title to land under Article 40 of the Constitution ceases where it is found that the property has been unlawfully acquired. The petitioner contended however that the finding by the Ndungu Commission in relation to the suit properties which formed the basis of the respondents’ actions complained of was not the finding contemplated under Article 40(6) of the Constitution. In support of this submission, the petitioner cited the cases of Evelyn College of Design v Director of Children’s Department (supra) and Shalein Masood Mughal v Attorney General & 5 others [2014]eKLR in which it was held that a finding of unlawful acquisition referred to in Article 40(6) of the Constitution must be through a legally established process.

The petitioner submitted that even if the suit properties were acquired illegally, the respondents could not dispossess the petitioner of the same without following due process. The petitioner submitted that the 1st respondent’s action of fencing off the suit properties without prior notice to it was a breach of its right to due process protected under Articles 40, 47 and 50 of the Constitution. In support of this submission, the petitioner relied on the cases of Shalein Masood Mughal v Attorney General & 5 others (supra) and Multiple Hauliers East Africa Ltd. v Attorney General & 10 others [2013]eKLR where it was held that even in cases where there is an illegality, failure to follow due process violated the complainants’ right to fair administrative action.

The petitioner reiterated that the report by the Ndungu Commission was discriminatory. The petitioner contended that although the Ndungu Commission made a finding that the excision of the entire 8. 10 hectares from Karura Forest was irregular, in its report, it recommended that the 3 hectares which was allocated to ICRAF be formalised while the remaining 5. 1hectares of which the suit properties formed part be revoked. In support of this submission, the petitioner relied on among others, the case of Rose Wangui Mambo v Limuru Country Club & 17 others [2014]eKLRfor the definition of discrimination. In conclusion, the petitioner submitted that the court had jurisdiction to grant the reliefs sought in the petition.

In its submissions dated 28th July, 2017, the 1st respondent argued that as a gazetted forest, Karura Forest land could only be alienated for other uses through the procedure of degazettement provided in the Forest Act, Chapter 385 Laws of Kenya (now repealed). The 1st respondent submitted that the requisite procedure was not followed in the acquisition of the suit properties which were excised from Karura Forest and as such, no valid titles were issued that could enable the petitioner to lay claim to the suit properties. The 1st respondent argued that the suit properties remain part of the gazetted Karura Forest.

The 1st respondent submitted that since the root of the petitioner’s titles was in question, it was not sufficient for the petitioner to wave its titles for the suit properties as proof of ownership. In support of this submission, the court was referred to the Court of Appeal case of Munyu Maina v Hiram Gathiha, Nyeri C.A No. 239 of 2009 [2013]eKLR where the court stated that where a title is under challenge, a registered proprietor must go beyond the instrument of title and prove the legality of how he acquired the title. The 1st respondent argued that the petitioner had a duty to demonstrate that it legally acquired the suit properties by producing evidence showing that the process of degazetting the land from which the suit properties were created was completed.

The 1st respondent submitted that it had demonstrated that the suit properties were part of a gazetted forest land and that the same could not be validly alienated. The 1st respondent contended further that the documents held by the petitioner could not give rise to any legitimate expectation since they did not give rise to valid titles over the suit properties. The 1st respondent argued that sanctity of title and protection of the law were subject to validity of title which was lacking in the petition herein. The 1st respondent contended that the issue of compulsory acquisition of the suit properties did not arise because the 1st respondent did not acquire the suit properties compulsorily but was just exercising its statutory mandate over forest land. The 1st responded contended that the petitioner had never taken possession of the suit properties and was not in occupation thereof. The 1st respondent submitted that the suit properties were at all material times in its possession.

The 1st respondent argued further that the petitioner’s titles could not enjoy the protection accorded to a registered proprietor of land under section 23 of the Registration of Titles Act, Chapter 281 (now repealed) since the said titles were invalid. The 1st respondent contended that it could not be faulted for carrying out its mandate and that having been in possession of the suit properties throughout, it had an overriding interest over the same. The 1st respondent argued that since the titles held by the petitioner in respect of the suit properties were invalid, the petitioner could not enjoy the protection accorded to property under Article 40 of the Constitution. The 1st respondent submitted that the petitioner had no right capable of being enforced and as such it could not allege discrimination. The 1st respondent submitted that in any event, ICRAF’s title had not been validated or acknowledged by the 1st respondent and as such the same could not be used to justify the petitioner’s claim.

In its submissions dated 12th September, 2017, the 2nd respondent submitted that the land claimed by the petitioner was gazetted as a forest in 1964 and had always been in the possession of the 1st respondent. The 2nd respondent submitted that the suit properties were not lawfully acquired by the petitioner in accordance with the provisions of the constitution and relevant statutes. The 2nd respondent submitted that the procedure for alienating the suit properties was never completed and that the acquisition of the same by the petitioner offended Article 62(4) of the Constitution. The 2nd respondent cited the case of Norbixin Kenya Ltd vAttorney General Nairobi HCCC No.1814 of 2002 where the court dismissed a claim over land that was reserved for public use.

The 2nd respondent submitted that the Ndungu Commission in whose report the suit properties among others were declared to have been illegally acquired was set up through a legally established process. The 2nd respondent submitted that the case of Shalien Masood v Attorney General (supra) that was relied on by the petitioner had been overturned by the Court of Appeal in Kenya National Highways Authority v Shalien Masood Mughal, Nairobi CA No. 327 of 2014.

The 2nd respondent cited the case of Adan Abdirahani Hassan & 2 others v Registrar of titles, Ministry of Lands & 2 others[2013]eKLR and submitted that the Commissioner of Lands could only alienate unalienated government land and not land already set aside for public purpose. The 2nd respondent argued that the petitioner’s titles over the suit properties were void ab initio since the suit properties were not available for alienation. The 2nd respondent submitted that no rights accrued to the petitioner in respect of the said properties.

The 2nd responded cited sections 25 and 28 of the Land Registration Act, 2012 and the case of Cycad Properties Ltd. v Attorney General & others H.C Petition No. 70 of 2010 and submitted that the petitioner’s titles were defeasible to the extent that they were in respect of land which formed part of Karura Forest. The 2nd respondent also cited the case of R v Registrar of Lands, Kilifi ex parte Daniel Ricci (2013) eKLR where the court stated that it had an obligation not to recognise land reserved for public use which had been allocated to an individual since public interest in the property outweighed an individual’s rights to the same property.

Determination:

The main issues arising for determination in the petition before the court are whether the petitioner’s rights under Articles 27, 40 and 47 of the Constitution were violated by the respondents and what remedies if any are available to the petitioner. It was common ground that the suit properties were created from land that was excised from Karura Forest which is a gazetted forest. It was also common ground that the petitioner held titles to the suit properties issued under the Registration of Titles Act (now repealed) by the Commissioner of Lands on 23rd August, 1995 and registered on 24th August, 1995. The issues that were contested were; whether the alienation of the suit properties to the initial allottees was lawful; whether the titles held by the petitioner in respect of the suit properties were valid and whether the petitioner had any interest in the suit properties which could be protected by law.

The respondents contended that the suit properties were not lawfully alienated and as such the same still formed part of Karura Forest. The respondents placed before the court copies of Proclamation No. 44 dated 30th April, 1932 through which the boundaries of Karura Forest were declared and Legal Notice No. 174 dated 20th May, 1964 through which Karura Forest was declared a Central Forest. It was not disputed that Karura Forest land was protected and that the same could not be alienated for any other purpose unless the land or any portion thereof sought to be alienated had ceased to be a forest. It was also not disputed that there was a procedure laid down in law for converting forest land to ordinary land. Under the Forest Act, Chapter 385 Laws of Kenya (now repealed), in case there was need to alter the boundary of a forest, the Minister in charge of forests had to give a 28 days notice in the Kenya Gazette of his intention to make a declaration altering the said boundary. After the expiry of the 28 days notice, if there was no objection, the Minister could go ahead and alter the boundary of the forest to add or exclude land from the forest through a declaration in the Kenya Gazette. In this particular case, it was not disputed that the Minister for Environment and Natural Resources gave a 28 days notice of his intention to alter the boundaries of Karura Forest to exclude an area measuring 8. 1 hectares lying within and adjoining the western boundary of the said forest.

The respondents contended that this parcel of land measuring 8. 1 hectares was to be allocated to USAID by the Government of Kenya for its headquarters. The respondents contended that USAID declined the government’s land offer as a consequence of which the Minister for Environment and Natural Resources stopped any further process of altering the boundaries of Karura Forest. It was the respondents’ contention that after the 28 days notice which the Minister had given, he did not declare the alteration of the boundaries of Karura Forest to exclude the said 8. 1 hectares from which the suit properties were created. The respondents contended that the said parcel of land measuring 8. 1 hectares remained part of Karura Forest.

I am satisfied from the material placed before the court by the respondents that the suit properties were created from a gazetted forest. The respondents having established that the suit properties were created from forest land, the burden of proof shifted to the petitioner to show that the land from which the suit properties were created had been degazetted and did not form part of the forest. In the Court of Appeal case of Funzi Island Development Ltd & 2 Others v County Council of Kwale (2014)eKLR the court stated as follows:

“In this case, the appellants asserted that the suit land is forestland and as proof of that fact, they cited Legal Notice No. 174 of 1964 as read with Proclamation No. 44 of 1932. I have already found that under that Legal Notice and Proclamation, the suit land was indeed declared a forest area. In the circumstances, the burden of proof shifted to the 3rdrespondent to show that the suit land ceased to be forestland. There is nothing on record to show that the Minister subsequently degazetted the suit land as a forest area. The 3rdrespondent therefore failed to discharge that burden of proof. In the circumstances, I find that the suit land was and still is forestland which was not available for alienation.”

I am in agreement with the respondents that the petitioner failed to discharge this burden. A part from the 28 days notice that was given by the Minister of Environment and Natural Resources of its intention to alter the boundaries of Karura Forest to exclude land measuring 8. 1 hectares, the petitioner did not place before the court a notice if any that was issued by the Minister after the expiry of the said 28 days notice altering the boundaries of Karura Forest to exclude the said land measuring 8. 1 hectares. From the evidence before the court, I am in agreement with the contention by the respondents that after USAID declined to take the land that was offered by the government for its headquarters, that was the end of the process that had been initiated by the Minister to excise a portion of Karura Forest measuring 8. 1 hectares.

The process of excising a portion of Karura Forest measuring 8. 1 hectares having aborted, the said parcel of land remained part of forest land and could not be alienated the same having been reserved as a forest. It appears that after USAID declined to take the land that was offered by the government, land grabbers and speculators stepped in to fill the vacuum. Three companies, Masai Villas Limited, Sian Enterprises Limited and Star Prime Limited emerged and were allocated a portion measuring 4. 5 hectares of the initial land measuring 8. 1 hectares. 3 hectares of the said initial parcel of land was allocated to ICRAF which was already owning land in the neighborhood. According to its petition, the petitioner purchased the suit properties from Masai Villas Limited, Sian Enterprises Limited and Star Prime Limited which were the initial allotees. The court was not furnished with the particulars of the sale transactions between the three companies and the petitioner which in my view would have demonstrated that the petitioner acted in good faith while purchasing the suit properties and had nothing to hide. It is also not clear how the petitioner would have purchased L.R No. 20852 from the original allotee, Sian Enterprises Limited while it appears from the record that the property was transferred to another company, Chemusian Company Limited on 29th September, 1997.

As I have stated above, the land that was allocated to Masai Villas Limited, Sian Enterprises Limited and Star Prime Limited was part of Karura Forest. The land was not available for alienation to these initial allottees. It follows therefore that the purported allocation of the suit properties which were created from a gazetted forest to Masai Villas Limited, Sian Enterprises Limited and Star Prime Limited and ICRAF was unlawful. In my view, the titles which were issued to Masai Villas Limited, Sian Enterprises Limited and Star Prime Limited having been created illegally following unlawful allocation of forest land could not confer upon them any valid interest in the suit properties. In the absence of a valid proprietary interest in the suit properties, Masai Villas Limited, Sian Enterprises Limited and Star Prime Limited had nothing to transfer to the petitioner. The titles that were conveyed to the petitioner by the three companies were in the circumstances invalid, null and void.

In Chemey Investment Limited v Attorney General & 2 others [2018] eKLR, the Court of Appeal stated as follows:

“Decisions abound where courts in this land have consistently declined to recognise and protect title to land, which has been obtained illegally or fraudulently, merely because a person is entered in the register as proprietor. See for example Niaz Mohamed Jan Mohamed v. Commissioner for Lands & 4 Others [1996] eKLR; Funzi Island Development Ltd & 2 Others v. County Council of Kwale (supra); Republic v. Minister for Transport & Communications & 5 Others ex parte Waa Ship Garbage Collectors & 15 OthersKLR (E&L) 1, 563; John Peter Mureithi & 2 Others v. Attorney General & 4 Others [2006] eKLR; Kenya National Highway Authority v. Shalien Masood Mughal & 5 Others (2017) eKLR; Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others [2015] eKLR: Munyu Maina v Hiram Gathiha Maina [2013] eKLR and Milan Kumar Shah & Others v. City Council of Nairobi & Others, HCCC No. 1024 of 2005. The effect of all those decisions is that sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense.”

I am in agreement with the respondents that neither statutory law nor the constitution protect an invalid title however well-intentioned and innocent the holder was when acquiring the same. The provisions of Section 23 of the Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed) and Article 40 of the Constitution which were cited by the petitioner in its submissions only protect property acquired lawfully. Article 40(6) of the constitution provides that protection given to a right to acquire and own property does not extend to property that has been acquired unlawfully. It is my finding that the petitioner has no valid proprietary rights in the suit properties capable of protection by law. I therefore find no merit in the petitioner’s contention that its rights to property under Article 40 of the Constitution were violated by the respondents.

The petitioner had also claimed that its right to fair administrative action guaranteed under Article 47 of the constitution was breached. In this regard, the petitioner contended that the 1st defendant entered into and fenced off the suit properties without notice to it. The 1st respondent’s response to this allegation was that the suit properties were always under its control and management and that at no time did the original allottees or the petitioner take possession of the same. I have already made a finding that the suit properties were not lawfully alienated from Karura Forest and that they still formed part of forest land. The petitioner did not place any evidence before the court showing that they had at any time taken possession of the suit properties. Since the suit properties formed part of the forest, the 1st respondent which is in charge of protecting and managing forests cannot be faulted for fencing off the said properties as part of Karura Forest. No evidence was placed before the court that the 1st respondent was aware of the petitioner’s interest in the suit properties. The 1st respondent would have been expected to consult the petitioner before fencing the suit properties only if it was aware of the petitioner’s presence or interest in the suit properties. In Chemey Investment Limited v Attorney General & 2 others (supra), the court stated as follows:

“The appellant has made heavy weather of the fact that the respondents repossessed the illegally transferred suit property in an equally illegal manner, without a court order. This Court cannot give a seal of approval to self-help, high-handed tactics, or violation of the law in order to right what is perceived to be a wrong. However, in this case we are confronted by two wrongdoers, one having fraudulently acquired land set aside for public use and the other having restored the land back to public use without following the prescribed procedure... Both the appellant and the respondents would be entitled to invoke public interest in aid of their respective cases. To the respondents, it is in public interest to ensure that property set apart for public use that is fraudulently transferred to a private individual is restored back to public use. To the appellant, it is in public interest to ensure that the law is strictly followed to address any grievance the respondents may have; otherwise the result will be the law of the jungle and utter chaos. The learned judge below preferred to err on the side of public interest that would resort in restoration of the suit property to public use. In the peculiar circumstances of this appeal, we are not persuaded that there is any basis for us to interfere with his decision, even though we do not approve of the self-help tactics adopted by the respondents.”

As can be seen in the foregoing case, courts abhor employment of self-help remedies. In this case however, I am not convinced that the 1st respondent used force or violence to take possession of the suit properties from the petitioner. I am not satisfied therefore that the petitioner’s right to protection of the law and fair administrative action was violated by the 1st respondent.

The petitioner had also contended that its right not to be discriminated against which is secured under Article 27 of the Constitution was violated by the Ndungu Commission. I find no basis for this claim. The Ndungu Commission found that the entire land measuring 8. 1 hectares that was allocated to Masai Villas Limited, Sian Enterprises Limited, Star Prime Limited and ICRAF had been illegally excised from Karura Forest. The said commission made a recommendation that the titles that were issued to Masai Villas Limited, Sian Enterprises Limited and Star Prime Limited be revoked and that of ICRAF which was equally invalid be regularised. I am of the view that the Ndungu Commission was within its mandate to make recommendations in its report. The recommendations were however not binding on the respondents. There is no evidence that the recommendation by the commission with regard to ICRAF’s title was implemented. The Ndungu Commission having found that the entire land was irregularly excised from the forest and there being no evidence that the title held by ICRAF had been regularised, I see no merit in the petitioner’s argument that it was discriminated against. In any event, ICRAF was not made a party to the petition to enable the court to interrogate in more detail under what circumstances the recommendation in their favour complained of by the petitioner was made.

In the final analysis and for the foregoing reasons, I find no merit in the petition dated 19th November, 2013. The petition is dismissed with costs to the respondents.

Delivered and Dated at Nairobi this 4th day of July 2019

S. OKONG’O

JUDGE

Judgment read in open court in the presence of:

Ms. Wambua h/b for Mr. Ochieng for the Petitioner

N/A for the 1st Respondent

Mr. Kamau h/b for Mr. Motari for the 2nd Respondent

N/A for the Interested Party

Mr. Waweru-Court Assistant