Asthestics Limited & 3 others v Director of Public Prosecution & another [2023] KEHC 25617 (KLR)

Asthestics Limited & 3 others v Director of Public Prosecution & another (Constitutional Petition E162 of 2023) [2023] KEHC 25617 (KLR) (Constitutional and Human Rights) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25617 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E162 of 2023

LN Mugambi, J

November 17, 2023

Between

Asthestics Limited

1st Petitioner

Juzer Lamuwalla

2nd Petitioner

Salim Lamuwalla

3rd Petitioner

Rehana Lamuwalla

4th Petitioner

and

The Director of Public Prosecution

1st Respondent

The Inspector General of Kenya Police Service

2nd Respondent

Ruling

1. Through a notice of motion application dated 5th July, 2023, brought under Sections 1A, B, 3, 3A and 63, order 51 of Civil Procedure Act, Cap 21 Laws of Kenya and supported by affidavit of Ruth Bita Moraa sworn on 5th July, 2023 and attached certificate of urgency of even date; the applicant sought the following orders inter alia: -i.That the proposed interested parties be enjoined in this petition as the 1st and 2nd interested parties.ii.That the court do give directions as to the mode/manner of participation of the interested parties in this petition.

2. In the supporting affidavit of Ruth Bita Moraa, the deponent stated that she is one of the registered owners of the property namely; LR have been its lawfully registered owners since the year 2000.

3. She continued that the petitioner and others, without her lawful authority encroached on the land and put up permanent structures on strength of temporary occupation licence issued by Nairobi City County in respect of “Plot No. 51 Pembe Street Lusaka Road.” Yet there comprised nothing to indicate that the said plot No. 51 is in the suit land.

4. That in any event, the Nairobi City County has disowned the said temporary occupation licence the petitioners being relying on.

5. That in respect of the same property, the petitioner filed ELC No. E119 of 2023 and sought an injunction which ELC Court declined in its ruling of 29th June, 2023.

6. That she reported the matter to police who have been investigating it and this fact is disclosed in the affidavit filed in the ELC Case No. E119 of 2023 hence it is absolutely necessary to be enjoined in this petition.

7. The petitioners through Salim Lamuwalla, a Director of Aesthetics Kenya Limited, swore the replying affidavit dated 17th July, 2023 that the petitioners are in possessions on strength of valid temporary occupational licence granted by Nairobi County Government which has affirmed that position in its letter dated 11th October, 2022 through its defence filed in ELC No. 119 of 2023 – Aesthetic Limited Versus Ruth Bita Moraa and 2 others.

8. That the demised premises have always been an open ground reserved for public and formed the frontage of their premises and other owners/occupiers.

9. That they invested heavily in construction of Pharmaceutical Factory and the presence of kiosks there posed a major impediment to the factory and this caught the attention of Kenya Pharmaceutical Manufacturers who by letter of 13th January, 2009 asked then Nairobi City Council to deal with the kiosks.

10. That there was no hint that the land was alienated to private persons and on 8th February, 2011 he requested the Director of Environment of City Council of Nairobi “to beautify the frontage along “Pembe Street” Industrial Area by planting grass, flowers and securing it with sheet posts”.

11. When permission was granted through the letter of 1st March, 2011, he made the necessary payments per receipt of 2014/2011 and 5th May, 2011. That in 2016, the 1st petitioner was granted temporary occupation licence dated 24th February, 2016 upon payment of Ksh.7,500/- per month, and last payment is receipt dated 4th July, 2023.

12. That the subject property thus belongs to City Council of Nairobi and occupation by 1st petitioner is lawful, the title in the hands of the proposed interested party was illegally acquired in violation of the laws as the land was unavailable for demise under the Government Lands Act.

13. That the petitioners were visited in September, 2022 by a large contingent of officers from Directorate of Criminal Investigations (DCI) ostensibly to investigate land grabbing allegations yet the land has never changed hands from City Council to any person.

14. The petitioner argues that the application to join the interested parties is an act in furtherance of illegal scheme to justify the illegal takeover of a public property unlawfully transferred to individuals and that, the petitioners have not committed any criminal offence; but it is the Criminal Justice System which is being manipulated to aid an illegality.

15. I have considered the submissions filed.

16. In my view, the only issue for consideration is whether I should allow or reject the application for joinder by the proposed interested parties.

17. Under the Constitution of Kenya (Protection of Rights and fundamental Freedoms) Practice and Procedure Rules, 2013: Rule 7(1) provides as follows: -Interested Party7(1)A person may, with leave of court, make an oral or written application to be joined as an interested party.2)A court may on its own motion join an interested party to the proceedings before it.Under Rule 2‘Interested Party – means a person or entity that has an identifiable stake or legal interest for duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”

18. The question, therefore is, have the proposed interested parties demonstrated an identifiable stake in these proceedings?

19. To be able to answer the question comprehensively, one needs to examine underlying reasons behind this petition.

20. The reason why this petition is before the court is to stop investigations being conducted by 2nd Respondent in relation to a piece of land/or property that the petitioner is laying a claim to on the basis of a temporary occupation licence that was allegedly issued by the Nairobi City Council on 24th February, 2016.

21. On the other hand, the proposed interested parties have also staked a claim to the said land alleging to be its registered owners i.e. LR 209/1307 since the year 2000.

22. In the prayers to the petition, the petitioner references to the land and prays as follows: -(a)A declaration that the investigations concerning the subject property involving the petitioners by the Directorate of Criminal Investigations is fraught with illegality, unreasonableness and any intended prosecution of the petitioners or any of them is illegal, null and void.(b)An order of judicial review in the nature of prohibition to prohibit the respondents jointly and severally from investigating and/or prosecuting the petitioners concerning the subject plot in any manner whatsoever.

23. It is crystal clear that the bedrock of the alleged investigations is the disputed piece of land with the proposed interested parties and the petitioner claim the right either to own or possess.

24. The petitioner would just want the court to hear only his side of story castigating the ongoing investigations into this parcel of land and hear nothing from his adversary about the same. That would deny the court the opportunity of weighing and ascertaining whether the investigations are informed by reasonable or justifiable cause or is just pure malice as locking out proposed interested party in these proceedings would make it difficult for the court to determine the reasonableness or otherwise of these investigations yet it is the proposed interested party who lodged the complaint with the police.

25. The affidavit of the proposed interested party clearly demonstrates that they have an identifiable stake in the property which is the subject matter under investigations that are now being challenged in this petition.

26. I find that the application to join as interested parties merited and allow it.

27. Costs shall be in cause.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. ………………………………L N MUGAMBIJUDGE