B & 7 others v Gacanja & 8 others; Ethics and Anti-Corruption Commission & 3 others (Interested Parties) [2024] KEELC 7425 (KLR)

B & 7 others v Gacanja & 8 others; Ethics and Anti-Corruption Commission & 3 others (Interested Parties) (Environment & Land Petition E073 of 2024) [2024] KEELC 7425 (KLR) (6 November 2024) (Ruling)

Neutral citation: [2024] KEELC 7425 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition E073 of 2024

MD Mwangi, J

November 6, 2024

Between

Magare-Gikenyi B

1st Petitioner

Dishon Mogire Keroti

2nd Petitioner

Pauline Nduta Kinyanjui

3rd Petitioner

Philomon Abuga Nyakundi

4th Petitioner

Shallum Kaka Nyaundi

5th Petitioner

Agnes Wanzuu Waambua

6th Petitioner

Semere Godwill

7th Petitioner

Mark Fortune Omondi

8th Petitioner

and

Wilson Gacanja

1st Respondent

Elizabeth Gitiri Gacanja

2nd Respondent

Soneth Limited

3rd Respondent

National Land Commission

4th Respondent

County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County

5th Respondent

Nairobi City County

6th Respondent

Chief Land Registrar

7th Respondent

Chief Land Surveyor

8th Respondent

Attorney General

9th Respondent

and

Ethics and Anti-Corruption Commission

Interested Party

Law Society of Kenya

Interested Party

Kituo cha Sheria

Interested Party

Katiba Institute

Interested Party

Ruling

Introduction 1. The Petitioners in this matter describe themselves as Law abiding citizens of Kenya, public spirited individuals and human rights defenders. Their Petition seeks amongst other orders a declaration that plot L.R 209/381/2 subdivided into L.R 209/11401 and L.R 209/11402 (hereinafter referred to as “the Suit Property”) is a public land. Their position is that the illegal allocation and alienation of the public land to private persons is a violation of the Constitution and tantamount to violation of rights of Kenyans who are affected by such misappropriation of public land.

2. The Preliminary Objection by the 3rd Respondent seeks to strike out with costs both the Petition and the Notice of Motion application dated 10th September, 2024 on the grounds that: -a.That the issues raised in the Petition primarily concern investigations to establish whether the suit property is private or public land, which investigations are a preserve of the Ethics and Anti-Corruption Commission (EACC) under Section 11 (1) (j) and Section 13 of the Ethics and Anti-Corruption Commission Act.b.That Article 79 of the Constitution establishes the Ethics and Anti-Corruption Commission which is vested with the powers to conduct investigations on its own initiative or on a compliant made by a member of the public.c.That the Petition and the Notice of Motion Application are premature and unripe and offend the doctrine of exhaustion and the doctrine of ripeness and constitutional avoidance as the Petitioners have not exhausted the mechanisms under Article 252 of the Constitution and Sections 11 (1) (j) and 13 of the Ethics and Anti-Corruption Commission Act.d.That where there exists sufficient and adequate mechanism to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the Court should not be invoked until such mechanisms have been exhausted. (International Center for Policy and Conflict and 5 Others –vs- The Attorney General & 5 Other)e.In the circumstances the Petitioners’ Petition and Notice of Motion Application are incompetent, unripe, bad in law, fatally defective and an abuse of the Court process.

Issues for determination 3. The Court has keenly read through and perused all the pleadings filed in this matter, the comprehensive written submissions by the parties, the cited authorities, and the relevant provisions of the law as pertains to the preliminary Objection herein.The issue at hand is whether the preliminary objection is merited.

Determination 4. In the case of Matemu –vs- Trusted Society of Human Rights & 5 others [2014] eKLR, the Supreme Court of Kenya was categorical that,“Article 22 and 258 of the Constitution have empowered every person, whether corporate or non-incorporated, to move the courts, contesting any contravention of the Bill of Rights, or the Constitution in general.”

5. I wish to particularly accentuate the provisions of Article 258 of the Constitution that expressly allows every person a right to institute court proceedings claiming that the Constitution has been contravened or is threatened with contravention. ‘Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest.’

6. The fact that there are Constitutional or Statutory bodies created and mandated to protect and preserve public land like National Land Commission (NLC) and the Ethics and Anti-Corruption Commission (EACC), as proposed by the 3rd Respondent is not a bar to public spirited citizens instituting legal proceedings to protect and contest what they perceive to be unlawful allocation and or misappropriation of public land.

7. Whether the Petitioners succeed or not in their earnest endeavor is a different matter altogether. At this point the court is not concerned with the merits of the petition. What the Court has been called upon to determine by the raising of the preliminary objection by the 3rd Respondent is whether the Petitioners have a right to institute those proceedings as they have.

8. The Court’s determination is that the Petitioners do have a right to institute proceedings pursuant to the provisions of Articles 22 and 258 of the Constitution as well as Article 3 of the Constitution.

9. I will say no more at this juncture, considering that these proceedings are pending determination. The preliminary objection by the 3rd Defendant is disallowed, and dismissed with costs to the Petitioners.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF NOVEMBER, 2024. M.D. MWANGIJUDGE.In the virtual presence of:Dr. Magare Gikenyi one of the Petitioners in personMs. Njenga h/b for Mr. Bashir for the 3rd RespondentMs. Masinde for the National Land CommissionMs. Nderitu h/b for Mr. Jackson Awere for the 5th & 6th RespondentsN/A for the Interested Parties and 1st, 2nd, 4th, 7th – 9th RespondentsYvette: Court AssistantM.D. MWANGIJUDGE.