Dominic Mukui Kimatta v National Land Commission; Samson Kiplagat Ng’etich (Interested Party) [2020] KEELC 2937 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC JR 3 OF 2019

DOMINIC MUKUI KIMATTA....................................................APPLICANT

VERSUS

NATIONAL LAND COMMISSION.....................................RESPONDENT

AND

SAMSON KIPLAGAT NG’ETICH........................INTERESTED PARTY

J U D G  M E N T

1. The Exparte Applicant was granted leave to institute Judicial Review Proceedings on 20th March 2019. The  substantive  Notice  of Motion dated 21st  March  2019 was filed  on 22nd March  2019 and prayed  for the  following  orders: -

(a) That  this Honourable  Court  be pleased to issue an order of certiorari  to bring  to the court for purposes of being quashed  and to actually  quash the Respondent’s  proceedings and findings contained  in the  Respondent’s letter /document dated 15th January  2019.

(b) That the costs of the Motion and the chamber summons for leave be borne by Dr clement Lenachiru and /or Mr  Kosiom Ole Kibelekenya the officials  of the Respondent.

2. The application was supported on the affidavit sworn by Dominic Mukui Kimatta verifying the facts and the statutory statement annexed to the chamber summons seeking leave to institute Judicial Review proceedings dated 20th March 2019. It was the Exparte applicant’s contention that he validly and properly  purchased land parcel  Dundori /Mugwathi  Block 2/81 from one Rael  Kandagor  which was duly transferred to him  and he was issued with a Title  Deed in his name on 8th August  2014. The Applicant averred that at the time he entered into the sale agreement for purchase of the land  on 11th September  2012 ( sale  agreement marked “DMKIII”) the suit land was free of any encumbrances as per the records  held at the  Lands office at Nakuru.

3. The  exparte  applicant  further averred that after he purchased  the suit land in 2013 some persons trespassed onto the land  prompting  him to file  Nakuru  ELC No.317 of 2013 where the interested party, Samson Kiplangat Ngetich, was the 9th  defendant. The suit was duly heard and a judgment was on 29th March 2017 delivered in favour of the exparte applicant. The Court decreed  the exparte applicant to be  the rightful owner of the suit  property and the 9th defendant ( present interested party) was ordered to move out of the suit property and was restrained by way of permanent injunction from entering, cultivating, leasing or in any other manner dealing  with the suit land . The exparte applicant further stated the judgment in Nakuru ELC No.317 of 2013 was never challenged and/or appealed against  by anybody.

4. The applicant averred that on 2nd August 2018 he was served a letter by the National Land Commission Nakuru County Summoning him to participate in proceedings initiated by the  interested party who was the 9th defendant in the already  determined suit which proceedings were intended to inquire into the ownership of land parcel Dundori/Mugwathi Block 2/81 which  the Court  had   already  dealt with.

5. The exparte application responded to the National Land  Commission vide a letter dated 24th August 2018 and drew the Respondent’s Notice to the fact that they lacked jurisdiction  to deal  with the matter as it fell outside their mandate. Further the applicant explained the matter had been the subject of litigation in ELC No. 317 of 2013 and that the Court had rendered its judgment on the matter.

6. The applicant therefore put forth the following grounds in support of the application for judicial review:-

1. That the Respondent’s actions, proceedings and findings were all undertaken in excess of and without any jurisdiction.

2. That the actions, proceedings and findings were all conducted ultravires  the powers of the Respondent.

3. That  the Respondent  allocated  itself the appellate jurisdiction in investigating  and making  a finding /judgment  relating to land parcel No.Dundori Mugwathi Block 2/81,a matter  which had  been heard and decided on merits in Nakuru  ELC No 317 of 2013: Dominic Mukuri Kimatta  -vs-  Regina Ngoiri & 8 others.

7. The  National  Land  Commission, the Respondent  herein  did not   appear or file any response in spite of being  served with the Notice of Motion  and all the other accompanying  documents.

8. On  9th  April  2019 the interested party  vide an application of even date applied  to be enjoined in these proceedings  as an interested  party. The court allowed the application for joinder on 24th July 2019. The interested party subsequently on 22nd October 2019 filed a replying affidavit in response to the applicants substantive motion dated 21st March 2019. In the replying affidavit the interested party stated he was the representative of the estate of Kipsoi Arap Kerich who he said was the original proprietor of the suit property. The interested party acknowledged there was a suit ELC No.317 of 2013 involving the suit premises where he was named as the 9th defendant. He acknowledged judgment was entered against him in the suit which he stated he intended to apply  to be set aside  and/or  appeal. He stated that it was upon realizing that a judgment had been made against him in the suit  that he decided to lodge a complaint  with the National  Land Commission. He contended that the National Land Commission had the mandate to handle the matter.

9. Parties filed written submissions which I have duly considered. The primary issue in this application is whether  the National  Land  Commission  had jurisdiction  to deal with the dispute relating  to land parcel Ndundori/Mwangwathi Block2/81 firstly,  because the court vide ELC 317 of 2013 had  dealt with the dispute and the National  Land Commission could not exercise appellate jurisdiction over the decision of the Environment and Land Court and secondly, that the National Land Commission had no jurisdiction to investigate titles relating to private land unless the land was initially  reserved for public purposes.

10. Both the exparte application and the interested party admit there was a suit Nakuru ELC 317 of 2013 where the exparte applicant was the plaintiff and the interested party was the 9th Defendant. The suit against the 1st – 8th defendants was withdrawn and the plaintiff proceeded with the suit as against the 9th defendant (the present interested party). Judgment in the suit was delivered on 29th March 2017. The court in the judgment  made the following  orders: -

(i) That it is hereby declared that the 9th defendant, Samson Kiplangat Ngetich, has no rights whatsoever over the land parcel Dundori/ Muguathi Block 2/81 which land is registered in the name of Dominic Mukui Kimatta, the plaintiff herein.

(ii) That a mandatory injunction is hereby issued directing the 9th defendant, Samson Kiplangat Ngetich and/or his servants/agents and assigns, to forthwith upon service of this judgment and/or decree, move out of the land parcel Dundori/Muguathi Block 2/81 and in default an order of eviction to issue.

(iii) That a permanent injunction is hereby issued restraining the 9th defendant, Samson Kiplangat Ngetich from entering, being upon, cultivating, utilizing, leasing, or in any other way dealing with the land parcel Dundori/Muguathi Block 2/81.

(iv) The plaintiff shall have the costs of this suit as against the 9th defendant, Samson Kiplangat Ngetich.

11. The National Commission Act did not provide that  the Commission would have exclusive jurisdiction  in handling  matter falling  within its jurisdiction and besides its mandate under section  14 (1) of the  Act  was limited to 5 years from the date of the commencement of the Act. Further  and  significantly  there was  no provision that the commission  would have jurisdiction  to review and/or reopen any matters that may have been heard and determined  by the courts or  such matters as would be pending before any competent court. If such a situation were to be permitted  it would  definitely breed confusion  and legal  anarchy  as matters which were long  settled would be liable to  be re-opened  and/or  that there would  be ongoing  parallel  proceedings where  a matter was active before a competent court  and another party  opted to commence proceedings before the National Land Commission.

12. This  court in the case  of Republic  -vs- The National Land Commission & 2 others (Nakuru ELC Misc  Civil Application No 15 of 2019) 2020 eKLR in a situation  where a party  initiated  proceedings before the National  Land Commission  when there was a pending active litigation before this Court  and one of the parties  objected to the Commission  handling the matter on the basis  that the commission  lacked jurisdiction as the matter was pending  before  the court, this court  in its judgment interalia  stated:-

“—Through  the preliminary  objection, the National  Land  Commission  was notified  that there was in existence a suit before  the High Court  where  the land  that was the subject  of their  investigation  was in issue . The High Court  and now the Environment and Land Court  had the  competence and jurisdiction  to deal with  the suit  instituted  by KACC against  the 2nd interested  party and 3 others.

The National  Land  Commission could not properly oust the jurisdiction of the High Court  and confer  upon  itself jurisdiction to handle  the matter  to the  exclusion of the  High Court /ELC  which was already  seized  of  the matter. That amounted to usurping the jurisdiction of the Court and constituted an affront to the administration of justice.”

13. Olola J  in the case of Azzuri  Ltd –Vs- George Kadenge Ziro & 5 others (2017)  eKLR  held and I agree with him that the National  Land Commission could not legitimately proceed to hear and determine a matter that was pending  before the court  as that would  of necessity offend the subjudice rule within  the meaning  of section 6 of the Civil  Procedure  Act, Cap  21 Laws of  Kenya . the judge in his judgment  stated  thus:-

“ As it is evident from  the material  placed  before  this court  the proceedings and determination by the commission were made while  these proceedings were pending before  this court . Those proceedings in my considered view amount to nothing but any affront to the powers granted to this court under Article  162 of the constitution. To the extent that the Commission proceeded to deal with a matter pending consideration, their  findings are but a nullity  and of no consequence in law.”

14. Equally in the case of Republic -vs- National Land Commission & 2 others (2015)  eKLR Korir J held  that even  though the National  Land  Commission  and the Environment  and Land Court may have concurrent jurisdiction in that Environment and Land Court could competently  handle  the matter reserved  for the National Land Commission the two cannot have parallel proceedings concerning  the same subject  matter.

15. In my view  in the same manner the National  Land Commission  cannot handle a matter that is actively pending in a Court  competent to hear the matter, the National Land Commission  cannot  investigate,  review  and/or handle  a matter  that such  court has heard and made a determination. To do so the National Land Commission would be exercising a power that it does not have. It cannot exercise powers of review or appeal over the decisions of a court with competence to handle the matter. Once the court has made a determination, the matter is rendered resjudicata unless the appeal process is invoked.

16. In the present matter, the court had heard and made a determination respecting the same subject matter that the interested party invited the National Land Commission to investigate and review in exercise of their mandate under section 14 of the National Land Commission Act. The National Land Commission could not purport to investigate and/or review a matter that the ELC  had heard had and rendered a decision  on. The National Land Commission  lacked  jurisdiction  to handle  the matter as it did not have any appellate jurisdiction over the decision of the ELC . Their proceedings relating to the matter   were simply a nullity and of no legal effect.

17. Although  what I have  discussed above is sufficient  to dispose  of this  matter there  was the other issue whether  the land the subject  matter of the dispute  constituted  public land  so as to fall within  the mandate of the National  Land Commission. Section 14 (1) of the National Land Commission Act  sets out  the broad mandate of the Commission  as follows:-

14(I) Subject  to Article  68 (c) (v) of the constitution,  the  commission shall,  within  five years of the commencement of this Act, on its own motion  or upon a  complaint  by  the national  or a county  government  a community  or an individual  review all grants or dispositions  of public   land to establish  their property  or legality.

Article  68 (c) (iv) of the constitution  provides: -

68 parliament shall:-

( c) enact  legislation-

(v) to enable   the review  of all  grants or disposition  of public land to establish  their propriety  or legality .

18. There is ample judicial decisions that have amplified the extent of the Land Commissions mandate. In the case of Japheth Kipkemboi Magut -vs- National  Land Commission and 2 others (2017) eKLRcited by the interested  party, Ombwanyo, J stated that the National  Land  Commission  could review  grants of public land as defined under Article 62 of the constitution that had been, converted  from public  land to private land. In the case of Republic -vs- National Land Commissioner  & Another  (2016) eKLR Emukule , J stated:-

“In the light of clear provisions of the Constitution and the National Land commission, the Commission has no power to revoke titles in respect of private land. The suit land had been alienated and a grant made to the predecessor in title of the applicants and from whom the applicants bought it. The Respondents had no jurisdiction to revoke such title under section 14 (7) of the National  Land Commission  Act, 2012 in without  reference to the applicants. The purported revocation is therefore  null and void.”

19. In the instant matter, there is no evidence that the suit property was at any time reserved for a public purpose. What is evident is that the property was never at any time reserved for a public purpose. What is evident is that the property formed part of land that was owned by a land buying company. Members of the company who had subscribed shares were at the time of dissolution of the company allocated land based on their shareholding. The Applicant  purchased  the suit  property  from one Rael Kandagor  who was  registered  as proprietor  pursuant  to the  agreement  of sale dated 11th  September  2012. The sale transaction was completed and the Applicant was registered as owner and issued a title deed. The title issued to the applicant was absolute and indefeasible and could only be challenged under the provisions of Section 26 (1) (a) & (b) of the Land Registration Act 2012. I am  satisfied  that the suit  property was never public land and the disposition  to the applicant  could not be subject  of  investigation and/or  review  by the National  Land  Commission  under the provisions of the National Land Commission Act, 2012. The Commission simply had no jurisdiction over the subject proceedings that gave rise to the decision/recommendation carried in the commission’s letter dated 15th January 2019 were a nullity and of no effect.

20. In the premises the Applicant’s Notice of Motion dated 21st day of March 2019 has merit and I grant the same in terms of prayer (a). As I am not persuaded the officials of the National Land Commission were  acting  maliciously, and being  cognizant that the officers are shielded  from personal  liability  while  executing  their  duties in good faith, I decline  to grant  prayer (b)  of the Notice  of Motion.  In exercise of my discretion, I order that each party will bear their own costs of the application.

21. Orders accordingly.

Judgment dated signed and delivered electronically at Nakuru this 30th day of April 2020.

J M MUTUNGI

JUDGE