Aaron Kitura Matti, Samuel Kibaara Kaunga & John Nyaga Njagi (Suing as Chairman, Secretary & Treasurer of Revival & Harvest Ministry International) v National Land Commission,Chief Land Registrar & Attorney General [2021] KEELC 4125 (KLR) | Title Revocation | Esheria

Aaron Kitura Matti, Samuel Kibaara Kaunga & John Nyaga Njagi (Suing as Chairman, Secretary & Treasurer of Revival & Harvest Ministry International) v National Land Commission,Chief Land Registrar & Attorney General [2021] KEELC 4125 (KLR)

Full Case Text

REPUBLIC OF  KENYA

IN THE ENVIRONMENT AND LAND  COURT

AT THIKA

PETITION NO. 14 OF 2019

IN THE MATTER OF THE ALLEGED  CONTRAVENTION OF RIGHTS

UNDERARTICLES 22, 23, 40, 47 AND 50 OF THE CONSTITUTION  OF KENYA

AND

IN THE MATTER  OF THE ILLEGAL AND ARBITRARY  DEPRIVATION  OF PROPERTYAND

GAZETTMENT  OF CANCELLATION  OF TITLE NO. THIKA MUNICIPALITY/BLOCK 20/340

BETWEEN

AARON KITURA MATTI, SAMUEL KIBAARA KAUNGA & JOHN NYAGA NJAGI

(Suing as Chairman, Secretary & Treasurer of Revival & HarvestMinistry International)....PETITIONER

VERSUS

THE NATIONAL LAND COMMISSIO..........................................................................1ST RESPONDENT

THE CHIEF LAND REGISTRAR...................................................................................2ND RESPONDENT

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

JUDGMENT

By a Petition dated 1st November 2019, the Petitioner sought for Judgment against the Respondents  jointly and severally for the following orders;

1. A Declaration that by virtue  of the grant of lease and Certificate of lease  to the Petitioner  by and on behalf of the Government  of Kenya and the Petitioner  thereby holding  the same for well over  18 years , a legitimate expectation  arose  on the part of the  Petitioner  that it had a valid title  in Thika Municipality  Block 20/340, and that the Respondents  would at all times  uphold its property rights in the said property.

2. A Declaration  that the actions of  the 1st and 2nd  Respondents  in purporting to carry  out investigations and determinations  in relations  to the Petitioners land  and in relation to  Thika Municipality / Block 20/340  and in carrying out the same  without any reference  to the Petitioner  and without affording the Petitioner  an opportunity to be heard, amount to unfair administrative action  and are  contrary to the  requirements  of due process as enshrined  in Articles  47 and 50  of the Constitution of Kenya.

3.  A Declaration that in purporting to order  the recovery of/ nullification  of the Petitioner’s  land parcel  Thika Municipality  Block 20/340  without notice  or recourse  to the Petitioner , the 1st Respondent acted illegally , unconstitutionally , unfairly  and irregularly  and that the action constitutes  an arbitrary deprivation   of the Petitioner  of its property  contrary to Article  40 of the constitution.

4. That an order  of Certiorari do issue  removing the report  of the Thika  District Land  officer  dated 12th September 2018  and in particular  reference thereof  to Thika  Municipality/Block  20/340 to this Honourable Court  and quash it.

5. That an order of Certiorari  do issue removing  Gazette  Notice Number 1995 dated 1st March 2019 , Item No. 14  thereof referenced  NLC/HLI/537/2018  and in particular reference  to Title No.  Thika Municipality  Block 20/340 therein  to this Honourable Court  and quash it.

6. An order  directing the 2nd  Respondent  to unconditionally  and immediately  remove the restriction  placed on Thika Municipality  Block 20/340 therein  to this Honourable Court and  quash it.

7. An order directing  the 2nd Respondent  to unconditionally  and immediately remove the restriction  placed on  Thika Municipality  Block 20/340.

8. A Permanent Injunction  do issue retraining  the 1st and 2nd  respondents , their employees, and or agents  from revoking , cancelling  altering or in any way  interfering with the Petitioner’s  proprietary rights  over Thika Municipality / Block  20/340.

9. Costs of the suit.

10. Such other and /or further  remedy as this  Honourable Court may deem fit and just to grant .

It was averred in the Petition that the Petitioner purchased the suit property from Ngoingwa  Company Limited in 2001,for a consideration of Kshs 4, 4000,000/= and was subsequently issued with a lease  by the Government of Kenya. That before the purchase, the Petitioner was informed  by the seller and ascertained from  contemporary  records available  at the Commissioner of Lands  Offices at  Ardhi House,  Nairobi that  Ngoingwa Company  Limitedoriginally owned the  land comprising L.R No. 4914 and L.R 11342,  as private land which was later amalgamated  and converted  to registration  under the  Registered Land Act ( Cap 300)  to form  Thika  Municipality Block  20, which block  was then subdivided into various  parcels  for allocation to the membership of the Company . That as part of the subdivision, the Commissioner of lands  while approving the subdivision  of the mother title  had designated  the user of  parcel 340, as reserved for Educational purposes. Further, the Commissioner  of Lands had allowed the vesting of the title to this land upon Ngoingwa  Company Limited or its transferee  subject only that the  parcel was to maintain the Educational user and that if the user thereof changed, then the title would lapse  and the land would automatically revert to the Government. That the Company  then decided to sell off  the land  to meet  some of the costs attendant  to the subdivision process.

That  since the user tallied  with the Petitioner’s intended use for building a school and as the condition  attached to the approval  of the subdivision did not adversely  affect the Petitioner, the Petitioner purchased  the property and the  Commissioner of Lands  proceeded to issue  the Petitioner  with a lease and a Certificate of Lease  for the same. That the Lease issued to the Petitioner  contained special  conditions; one  of which was that  the land  and buildings shall  always be used for Educational purposes  and accommodation for the Headmaster/ Principal. It was  contended that since the purchase of the property, the  Petitioner has been raising funds  for the construction  of the school and has engaged  the Kiambu County Government, for  waiver of  the rates payable  and in any event the Petitioner has paid rates  through to 2022 and at no time has the Petitioner been in breach of the lease as would entitle the Commissioner  of Lands   to recall the title.

That the Petitioner has enjoyed quiet possession since 2001, until   it discovered that  the 1st Respondent  had issued a Gazette Notice  Number 1995 dated 1st March 2019, in which the National Land Commission  under item 14  thereof reference  NLC /HLI /537 /2018  which purports to nullify  the Petitioner’s title claiming  that the title should revert to the  National  and County Government. That the said Gazette Notice  was issued without any recourse  to the Petitioner not withstanding  that the suit property  being a parcel affected by the gazettement  is registered in the Petitioner’s name. That the Petitioner has visited  the 1st and 2nd   Respondent’s offices  as well as the Land Registrar  office in Thika  with view to obtaining  information  but the said offices have been opaque in providing information   to the Petitioner  to enable it take relevant action. That the  Petitioner’s investigations reveal that  the mother parcels  namely L.R 4914 & L.R No. 11342, which gave rise to Thika Municipality   Block 20,  were private land belonging to Ngoingwa  Company limited. Further that the Commissioner of Land gave his consent  to subdivision and user of titles  for the public user  plot . That at no time did  parcel No. 340  comprise public land  that would be subject to the Respondents recovery  proceedings and neither would the same be   subject to the 1st Respondent’s  Historical Injustices Committee  under which  the purported recovery was made.

Further that the Petitioner’s investigations revealed that   an officer of the 2nd Respondent  purportedly issued  a report dated 12th September 2018, touching on  parcels within Thika  Municipality Block 20, and which purportedly recommended  that the suit property amongst  other plots be  surrendered to the National  and County  Governments  on the  pretext  that the same constitutes  public land. That  the Lands Officer in  his report erroneously and mischievously  listed the suit property as a playground  whereas a subsequent search done by the  Petitioner reveals the true user  of the land as for Educational purposes. Further that the Petitioner was at no point informed or contacted for information  by the Thika  District Lands Officer,  during his purported investigations or ultimate preparation of the report  despite the fact that it is a matter of public record that the Petitioner is the  registered owner of the suit property.

That the report dated 12th September 2018,is full of factual errors on the face of it. Further that an entity  known as Mangú Block  19 Residents  CBO  appears to have presented a complaint  upon which the 1st Respondent  purported to have conducted a hearing  after which it issued its report dated 7th February 2019,  adopting the report by the Thika  District Lands officer  and purporting to recover  the suit property  recommending its surrender  to the National and  County Governments. That   the Petitioner’s officials  were neither given a chance  to be heard nor were they notified  of the hearing notwithstanding the fact that the Petitioner is the registered owner of the suit property. That the purported complaint was never properly lodged with the secretariat  at the historical injustices committee  of the National Land Commission,but was merely inserted  in their records. The  Petitioner has realized that a restriction was  placed by the 2nd Respondent  on the suit property on the grounds that the same is a public utility.   Further that the purported  hearings  conducted and the  report  issued thereof  by the 1st Respondent and the report by the Thika  District Lands Officer  are clear violations  of the Petitioner’s  right to be heard  and are contrary to the principles of  natural justice and reek of mischief.

It was further contended that  the 1st Respondent’s Historical  Land injustice Committee  had no mandate  to purport to conduct  hearings over  the suit property as  Block 20  was originally owned   by Ngoingwa Company as private land. That the Petitioner was issued  with a lease and Certificate   of  Lease and has  held the title   for over 18 years,  thereby creating a legitimate expectation  that the Respondents had issued  a valid title  and they would uphold the Petitioners right.The Petitioner  particularized unconstitutionality and illegality  as;  the 1st and 2nd Respondents  actions complained of  were carried out without  any reference to the Petitioner  and therefore without affording the Petitioner  an opportunity to be heard, contrary to the requirements  of due process as enshrined  in Article  50 of the Constitution, that the gazettment and  revocation of the suit property  by the 1st Respondent  amounts to  arbitrary deprivation  of property contrary to Article  40 (2) of the Constitution, the action  of the Respondents complained  of are  a gross violation of the Petitioner’s  constitutional guarantee of title and are  unprocedural, unreasonable   and amount to unfair  administrative action  contrary  to Article 47 (1) of the Constitution, the actions are  repugnant  to the principles  of natural justice .

The Petition is supported by the Affidavit of  Aaron  Kiura Matti  the Chairman of the Petitioner. He averred that  at the time of purchase of the suit property , the title was registered  in the names of  its officials  Aaron Kiura  Matti, Gabriel  Matumo  Njagi  and Paul  Murianki Ragwato hold in trust  for the Petitioner. That  the ultimate  conditions for subdivision  approval given  by the then  Commissioner of Lands did not  include the requirement  to surrender public utility  plots to the Government,  except the plot for Police use  and the affected parcels  remained private  land registered  to the Petitioner  with the only restriction  being that the public user was to be maintained. That the Petitioner is aggrieved by virtue of being the registered owner. He further averred that  unless conservatory orders  are issued by the Court, the Respondents  may proceed to arbitrarily  deprive the Petitioner  of its property  for the benefit  of vested interest without having afforded the Petitioner a hearing.

The Petition is opposed and the  2nd and 3rd Respondents  filed grounds of opposition dated  16th January  2020,  on the grounds that;

1. That  the Petition is misconceived, frivolous , vexatious  and an open abuse of the Court process.

2. That  the Commissioner of  Lands Vide letter  of allotment  dated 23rd November  2000 Ref 37789/11(anenexture AKM6) gave approval of subdivision  f L.R No. 11342 and gave  consent  for allocation  of Thika municipality / Block 20/340  to Ngoingwa  Company Limited on condition that the same would  be used for educational purposes (Primary School).

3. That the suit  property  having been surrendered by Ngoingwa Company limited for public utility  and the 1st Respondent  could therefore deal with it as it had mandate to deal  with claims of historical injustices.

4.  That the suit property having been surrendered  by Ngoingwa company  Limited  for  public use  ceased to be private property  and the  use for which  it was reserved  could not be altered  unless with authority  of the Commissioner of Lands  who authorized  the subdivision of  the scheme.

5.  That the Petitioners / Applicants irregularly  fraudulently  and or illegally  obtained the certificate  of lease issued  on 17th January, 2001 for Thika  Municipality/Block 20/340 as a result of misrepresentation  that they would establish  an education facility  on the suit property.

6. That  the Petitioner failed to honour  the conditions of lease , specifically  Condition No. 3(annexture AKM 3  of the lease registered on 17th January 2001  by not constructing an Educational facility  and accommodation  for principal/ Headmaster  thereafter constructing a church.

7. That the protection  offered under Article  40 of the  Constitution  does not extend  to property that has been illegally acquired.

8. That where land has been allocated or title issued  without due observance  of procedure or through  fraud, the title therefrom  would be null and void.

9. That granting of the order sought by the Petitioners  would in  essence be perpetuating an illegality.

10. That the Public interest herein superseded private interest of the petitioners.

The Respondents urged the Court to dismiss the Petition with costs.

The Court directed the parties to file written submissions and in compliance thereof the Petitioners through the Law Firm of Wanyaga & Njaramba  Advocates filed  their written submissions  dated 12th March 2020. The 1st Respondent did not participate in the proceedings as this Court has not seen any pleadings inthis file by the 1st Respondent nor their submissions.  The 2nd and 3rd  Respondents filed their written submissions  through  Mwihaki Ndundu, Litigation Counsel on behalf of the Attorney General.

The Court has carefully read and considered the Petition, the grounds of opposition and the written submissions. The issues for determination are  as follows:-

1. Whether the 1st Respondent had Jurisdiction to deal with the property

2. Whether the Applicant was accorded fair Administrative action.

3. Whether the 1st Respondent’s decision to revoke the Petitioner’s  title contravened the rules of natural Justice and the Petitioners right to be heard as well as his legitimate Expectation

4.  Whether the Petition is merited.

1. Whether the 1st Respondent  had  jurisdiction to deal with the suit property

It is the Petitioner’s contention that the suit property is private land and has never been public land and therefore the  1st Respondent did not have jurisdiction to deal with the matter.  However, the  2nd and 3rd Respondent’s submitted that  the relationship between the  Petitioner and the government is governed by  lease and since the title is leasehold with a specific term , it is owned  by the Government .

The Court has considered the provisions of Section 14(1)of theNational Land Commission Act  that grants the 1st Respondent powers to review all grants or disposition of public land to establish their propriety or legality.  Further Section 14of theNational Land Commission Act gives the 1st Respondent powers to deal with review of public land, but not privately owned freehold titles.  It is not in doubt that the suit land is a leasehold which this Court finds and holds is within the purview of the Land Commission as the same was public land before it was allotted.   See the  case of  Republic …Vs… National Land Commission & Another Exparte Muktar Saman Olow [2015] eKLRwhere the Court held that;

“Under Section 14 of the National Land Commission Act, 2012 the Respondent is given jurisdiction to enforce Article 68(c)(v) of the Constitution and review all grants or dispositions of public land to establish their propriety or legality.  In my view, the Respondent can only fulfil this mandate by probing the process under which public land was converted to private land.  It would defeat the purpose of the Constitution to imagine that unlawfully and irregularly acquired land once registered as private property is no longer within the reach of the Respondent.”

It is not in   doubt that the suit  property initially  belonged to the government and the process through which the National Land Commission investigates how the same was  converted to public land is well within its purview and mandate. It is important to stress that while land may be private land, the process through which it was converted to  private  land  falls within the purview of theNational Land Commission,and the only  time theNational Land Commissioncannot have jurisdiction over the same is where a private  person  sold  the property to a private person. In this instant if the  Commission was to probe how the  suit property  was transferred fromNgoingwa Company Limitedto  the Petitioner then the same would be  ultra vires.

The Court therefore finds and holds that the 1st Respondent had jurisdiction to deal with the  matter.

2. Whether the Petitioner  was accorded fair administrative action.

It is the Petitioner’s contention that they were not afforded an opportunity to be heard before the 1st Respondent  recommended that  their title over the suit property be cancelled. The  Petitioner’s further contended that they learnt  of the cancellation through the Gazette Notice. The 1st Respondent did not participate in the proceedings.  The  2nd and 3rd Respondents though filed  grounds of opposition did not controvert the assertions by the  Petitioners that  they were not given an opportunity to be heard. The Court has further seen the proceedings by the 1st  Respondent  that led to the revocation of the  Petitioner’s title to the suit property. It is thus clear that there is no indication that the Petitioners who are the registered owner of the suit property  as per the documents produced in Court participated in the said proceedings and  were even invited to participate in the said proceedings.

Therefore, the Court finds and holds that the Petitioners were  condemned unheard which is against the cardinal rule of natural justice.  See Halbury Law of England, 5th Edition 2010 Vol.61 at para 639, which states:-

“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alterman partem rule) is a fundamental principle of justice.  This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”

Fair administrative action is described in Article 47 of the Constitutionas follows:

“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Article 47 of the Constitution requires just fair administrative action should be lawful reasonable and procedurally fair.  This Court finds that it is  clear  that the Petitioner were never given an opportunity to ventilate their issues and therefore their  rights to fair Administrative Action were breached  thereby making the actions by the  1st Respondent unconstitutional as the Petitioner was not  issued with a Notice before its title was revoked.

3. Whether the 1st  Respondent’s decision to revoke the Petitioner’ s title contravened the rules of natural Justice and the Petitioners right to be heard.

In the case of Sceneries Limited v National Land Commission (2017) eKLR,the Court held that;

“the right to a fair hearing under Article 50(1) of the Constitution encompasses several aspects. these includes, the individual being informed of the case against her/him, the individual being given an opportunity to present/her/his side of the story or challenge the case against her/him and the individual having the benefit of a public hearing before a court or other independent and impartial body.’’

This Court finds that on 28th September 2018, when the hearing was conducted, the Petitioner was  not present and drastic orders were issued against them. The Petitioner was thus not accorded a fair hearing as provided by Article 50 of the Constitution.  By failing to afford the Petitioner a fair hearing as  provided by the Constitution, the Court finds that the same  was in contravention of the rules of Natural Justice and therefore the  decision to revoke the Petitioner’s  title over the property contravened the rules of Natural Justice.

4. Whether the Petition is merited

The Petitioners have sought for various  declarations and orders in their Petition. The Court has already held above that the 1st Respondent acted illegally and against the rules of Natural Justice in failing to give the Petitioner an opportunity to be heard before revoking the Title Deed. Therefore, it follows that its actions are unconstitutional and cannot be left to stand.  See the case ofMsagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553 where the Court held that:

“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialisation of the globe during the hey-days we of the British Empire.  An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision…It is paramount at this juncture that this court establishes the ingredients and/or components of natural justice. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.

Therefore, the orders sought by the Petitioner seeking to  quash  the decision by the  1st Respondent are  merited.

Further it is clear that the  Petitioners were granted the  Lease by the government of Kenya with certain conditions  including a condition that the suit property would be used for Educational purposes. From the Lease document produced in evidence, there is no indication that the  suit property ever reverted to the government as the  Lease provided for instances in which the property  would revert to the Government.  No evidence has been produced to prove that any of the conditions thereof has been breached despite the allegations made by the 2nd and 3rd Respondents.  Further, from the subdivision scheme produced by the Petitioner, it clear that the  lease to the suit property was issued toNgoingwa Company Limitedwith a caveat that it uses the same for Educational purposes which Company subsequently sold the same to the Petitioner.  As the Lease was issued by the Government, the Court finds that  a legitimate expectation arose  on the part of the Petitioner that it had a  valid title deed and there is no evidence to suggest otherwise. It is clear that the land was never  public land as it was leased toNgoingwa Company Limited.

The Petitioners have  also sought  for an order to quash the report  by the Thika District Lands officer dated12th September 2018. The Court notes that   in his report, the said Lands officer noted that the suit property had been set aside  as a play ground. From the lease and the Subdivision scheme dated23rd November 2000, it is not in doubt that the  suit property was for educational purposes. The Lands office was represented in Court  and it would only have been fair for it to produce the basis of such averments.   Given that none was produced, the Court finds that the same being  non factual then the said report is ripe for quashing.

The Petitioner is the registered owner of the suit property and is  entitled to all the rights and privileges over the suit property.

Having now carefully read and considered the instant Petition, the Affidavits in Support, the Grounds of Opposition and the written submissions by the parties and the annextures thereto, the Court finds and holds that the Petition herein dated1st November 2019ismeritedand the same is allowed entirely in terms of prayers no.1, 2, 3, 4, 5, 6, 7and8with costs to the Petitioner.

It is so ordered

Dated, signed andDelivered atThikathis4thDay of March 2021

L. GACHERU

JUDGE

4/3/2021

Lucy - Court Assistant

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic and in light of the directions issued by the Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Wamai for the Petitioner

M/s Masinde for the 1st Respondent

M/s Ndundu for the 2nd  and 3rd Respondents

L. GACHERU

JUDGE

4/3/2021