Ernest Kevin Luchidio v Attorney General (for and on behalf of the Chief Magistrate’s Court Kakamega), Zachary Ndunde & Benjamin Lutta [2018] KEELC 3085 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT KAKAMEGA

ELC PETITION NO. 14 OF 2015

(F0RMER CONSTITUTIONAL PETITION NO. 15 OF 2015)

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND

FUNDAMENTAL FREEDOMS UNDER ARTICLES l3(3)(c), 2(1), 3(1), 10 (1) (b), 19,20. 21(1),22, 23(1)&(3), 25(c),27(1),40(1)&(3),47,48,50(1),60(1) (b),61(2),64(a),159,160,165(1),(3)(a) ,(b) & (e),169(1) (a),258&259  OF THE

CONSTITUTION, 2010

AND

IN THE MATTER OF A CONSTITUTIONAL PETITION BY ERNEST KEVIN LUCHIDIO AGAINST VIOLATION OF HIS RIGHTS AND FUNDAMENTAL FREEDOMS AS ENSHRINED UNDER THE CONSTITUTION BY THE KAKAMEGA CHIEF MAGISTRATE'S COURT

MISCELLANEUS AWARD No. 195 OF 2005

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OFRIGHTS AND FUNDAMENTAL FREEDOMS AND ENFORCEMENT OF THECONSTITUTION) PRACTICE AND PROCEDURE RULES, 2012

AND

IN THE MATTER OF SECTIONS 59 & 60(1)(a) OF THE EVIDENCE ACT,CHAPTER 80 LAWS OF KENYA

BETWEEN

ERNEST KEVIN LUCHIDIO..................................................................PETITIONER/APPLICANT

AND

THE HON. ATTORNEY GENERAL

for and on behalf of the CHIEF MAGISTRATE’S COURT KAKAMEGA)..............1stRESPONDENT

ZACHARY NDUNDE...............................................................................................2NDRESPONDENT

AND

BENJAMIN LUTTA...........................................................................................INTERESTED PARTY

JUDGEMENT

By a Petition dated 29/06/2015, the Petitioner herein instituted the present petition claiming threatened and actual violation of his constitutional rights attendant to property, fair administrative action, access to justice and fair hearing.He seeks remedies specified in the said petition against the Respondents. Despite service of the said petition, neither the 2ndRespondent nor the Interested Party entered appearance and or filed their responses. Regarding the 1st Respondent, though entered appearance, only proceeded to file grounds of opposition.The parties thus agreed to proceed to hear the said Petition by way of written submissions.

The Petitioner led evidence that he was the registered proprietor of the whole of that parcel of land known as BUTSOTSO/SHIBEYE/227 (suit parcel), having acquired it by way of purchase from the Interested Party herein. That the Petitioner and the Interested Party are Co -Respondents in Kakamega CM Miscellaneous Application No, 195 of 2005instituted by the 2nd Respondent purporting to adopt the decision arising from the proceedings of the then Lurambi Division Land Disputes Tribunal purporting to make determinations in favour of the said Respondent over alleged contractual obligations and proprietary rights between the Petitioner and the Interested Party.

The 1st Respondent herein, on an unclear day and upon application on part of the 2nd Respondent, without cogent, verifiable and or substantive justification whatsoever, purported to make orders excising, appropriating and or otherwise transferring a portion of the Petitioner’s parcel of land known as BUTSOTSO/SHIBEYE/227 measuring 0. 7 Acres to L.R. No. BUTSOTSO/SHIBEYE/2798 albeit to make it measure 2. 5 acres as soughtby the 2nd Respondent in total disregard to law, procedure and or requisite jurisdiction, any formal and or substantive proceedings and or recognized claim before court, regard to law and or procedure whatsoever.

The Respondents were thus seeking to execute an order made in the absence of the requisite jurisdiction or proper procedure on the part of the honourable court, the 1st Respondent herein, any substantive and or recognized claim before it nor requisite procedure or proceedings followed inthe course of the proceedings regarding the said Kakamega CM Miscellaneous Application No, 195 of 2005 as the 1st Respondent was neither seized of nor duly gazetted to hear and or determine such disputes or claim.

The 1st Respondent disregarded principles attendant to the nature of orders and or judgment as it made an order directing the transfer of 0. 7 acres from the parcel of land known as L.R. No. BUTSOTSO/SHIBEYE/227 to that known as L.R. No. BUTSOTSO/SHIBEYE/2798 disregarding the impersonality of land known as L.R. No. BUTSOTSO/SHIBEYE/2798 as a legally capable transferee.

The said order was made by the 1stRespondent in favour of the 2nd Respondent notwithstanding want of locus standi on the part of the said 2nd Respondent or to the statutory limitations relating to both enforceability ofcontract as well as claims to interest in land, legitimately expected to have been taken judicial notice of by the 1st Respondent, as the Petitioner had acquired and has been in continuous, uninterrupted and peaceful occupation of the said parcel of land for a period exceeding 12 years.

From the foregoing, the following issues may be fronted for determination:

i. Whether the Petition is Opposed

ii. Whether the Petitioner's Rights have been violated.

On the issue, Rule 15 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 prescribes the manner in which a Respondent may respond to a Petition. None of the Respondents or the Interested Party filed any Replying Affidavit in opposition to the said petition.

In Israel Otieno Agina v. the Attorney General (201 l) eKLR pg 4 para 2, Justice D.S. Majanja on 25/11/2011 observed that the effect of failure to file replying affidavit on evidence is to render the facts raised in the petition and affidavits uncontroverted and consequently to be taken as true and correct as they are. Consequently, they urge that the Petition be deemed as unopposed in the circumstances.

On the second issue as to whether the Petitioner's Rights have been violated, they proceed to submitted that preliminarily, orders of excision and transfer of parcels of land are substantive in nature and may only suffice and or arise from substantive claims and or suits. Under Section 2 of the Civil Procedure Act, a “suit'only refers to civil proceedings commenced in a manner prescribed.

Under Order 3 Rule 1(1) of the Civil Procedure Rules every suit may only be instituted by presenting a plaint to the court or such other manner as may be prescribed. As there was no formal suit, plaint or such other prescribed mode such as a petition pending before the lower court but a miscellaneous application on the basis of a Land Disputes Tribunal Decision, the orders complained of were not available without a substantive suit instituted in a manner as prescribed by law.They referred to the decision of Ngaa Jairus, Jin Philip Muchiri Mugo v. Mbeu Kithekwa (2015) eKLR pg. 2 paras. 4 & 5.

No reasons were granted as to why such mandatory procedure would not be complied with. In any case the procedure adopted in the grant of the orders was inefficient, unlawful, unreasonable and procedurally unfair. Consequently, these offended and violated Articles 47 of the Constitutionon fair administrative action as well as Articles 48 on Access to justice and 50(1) of the Constitutionon fair hearing in view of the wrong procedure and unfavourable forum adopted.

Indeed, in resorting to such summary mode of determining the Petitioner’s property rights vide Kakamega CM Miscellaneous Application No. 195of 2005, the Respondents, proceeded to infringe on Article 25(c) of the Constitutionthat prohibits limitation of right to fair trial.

While Articles 60(1), 61 and 64(a) of the Constitution recognize guiding principles of land policy, inter alia, security of land rights, ownership of land by inter alia, individuals and its classification as, among others, private land and recognition of private land to consist of land held by any person under any freehold tenure, including the whole of that parcel of land known as L.R. No. BUTSOTSO/SHIBEYE/227 acquired and held by the Petitioner-herein, failure to take judicial notice by the 1st Respondent of all these statutory provisions as provided for under Section 59 and 60(l)(a) of the Evidence Actin essence provided viable ground for the violation of the Petitioner’s right to property as guaranteed under Article 40 of the Constitution.

In Evelyn College of Design Ltd v Director of Children's Department & another [2013] eKLR pg. 4 paras 14 & 15D.S. Majanja, J. explained that the thrust of Article 40 of the Constitution is to protect proprietary rights under the law and that title once issued is indefeasible and cannot be taken away except in accordance with the constitution and the law.

Indeed, as the date of the said offending order remains unclear when on the application of the 2nd Respondent, the Respondent purported to make orders excising, appropriating and or otherwise allocating portions of the Petitioner’s parcel of land known as BUTSOTSO/SHIBEYE/227 to the 2nd Respondent in total disregard to both law, procedure and or jurisdiction, it unjustifiably denies the Petitioner legitimate access to sufficient information that would aid him to correct or delete the untrue facts or misleading information contrary to Article 35 of the Constitution.

In view of the foregoing, they submit that the Petitioner’s case is uncontroverted, raises legitimate claims and prays for the grant of the orders sought as follows:

a) A declaration that the joint, unlawful and illegal acts of the Respondents complained of herein are offensive to and violate the provisions of Articles l(3)(c), 2(1), 3(1), 10(l)(b), 19, 20, 21(1), 22, 23(1) & (3), 25(c), 27(1), 40(1) & (3), 47, 48, 50(1), 60(l)(b), 61(2), 64(a), 159, 160, 165(1), (3)(a), (b) & (e), 169(l)(a), 258 & 259 of the Constitution, 2010 and consequently unconstitutional.

b) A permanent injunction against the 2nd Respondent herein, his agents and or representatives and or anyone claiming under them or at their instruction or order, and to wit the District Surveyor Kakamega or such other Surveyor restraining them from implementing the said orders of the Respondent complained ofherein.

c) An order of certiorarito remove into this Honourable Court and quash the said order of the Respondent purporting to direct the transfer of 0. 7 acres from the Petitioner’s parcel of land known as L.R. No. BUTSOTSO/SHBEYE/227 to that parcel of land known as L.R. No. BUTSOTSO/SHIBEYE/2798 to as to albeit make it measure 2. 5 acres.

d) Costs of this Petition

These are the 1st Respondent written submissions in opposition to the Petitioner. Petition dated 29thJune, 2015 is on whether the 1st Respondent violated the rights of the Petitioner asenshrined under the Constitution. It is the 1st Respondent submissions that its actions with regard to Kakamega CM Miscellaneous Application No. 195 of 2005 in adopting the award arising from the proceedings of the then Lurambi Division Land Disputes Tribunal Proceedings which made determination in favour 2nd Respondent were within the law and did not any way violate the Constitutional rights and freedoms of the Petitioner under the Constitution.

That the role of the Magistrate’s Court in relation to adopting awards that emanated from the them Land Dispute Tribunal was very limited in that the Magistrate’s Court had no jurisdiction to alter, amend, set aside, revoke or in any other manner interfere with a land dispute Tribunal award as filed in court and hence the 1st Respondent could not be faulted for the decision made then in adopting the award presented to it by the then Lurambi Land Dispute Tribunal.

That the mere fact that the Tribunal may have acted unlawfully as alleged by the Petitioner did not justify the Respondent in declining the award and hence the Respondent cannot be said to have violated the Constitution when they were only following the law then. That section 7(2) of the Land Dispute Tribunal Act, 1980 only compelled the Magistrate’s Court to adopt the award.

That in KHAMONI -J in Republic vs Chairman Land Dispute Tribunal Kirinyaga District & another exparte Kariuki [2005] eKLR it was stated as follows;

“Thelegislature and definitely the framers of the Land Dispute Tribunal Act, knew that the Act was intended to give Land Dispute Tribunal jurisdiction to adjudicate over all land in Kenya including land registered under the Registered Land Act. ”

That Section 8 of the repealed Land Dispute Tribunals Act in which the 1st Respondent followed in adopting the award gave the Petitioner the right to appeal if they were dissatisfied with findings of the tribunal but the petitioner never appealed.

It is the Respondents submissions that the Constitutional rights of the Petitioner were not breached by its actions with regard to the adoption of the award of the Lurambi Division Land Disputes Tribunal as adopted in Kakamega CM Miscellaneous Application No. 195 of 2005 as the actions of the 1st Respondent were within the law and the 1st Respondent did not violate any law in arriving at their decision and hence we urge the Honourable Court to dismiss the Petition as against the 1st Respondent.

This court has carefully considered the petition and the submissions herein. The Petitioner herein vide Petition dated 29th June, 2015 filed against the Respondents and Interested Party sought the following orders from the Honourable Court. On the issue as to whether the Petition is opposed, the Respondent responded to the Petition through its grounds of opposition dated 22nd January, 2016 and filed on 25th January, 2016 in opposition to the Petition. Directions were then taken before this Court on 13th November 2017 that the petition be heard by way of written submissions. In the Kakamega CM Miscellaneous Application No, 195 of 2005the 2nd Respondent instituted the case to adopt the decision arising from the proceedings of the then Lurambi Division Land Disputes Tribunal which made determinations in favour of the said Respondent over alleged contractual obligations and proprietary rightsbetween the Petitioner and the Interested Party. The jurisdiction of the tribunals is very clear in the law. The Land Disputes Tribunal Act (now repealed). Section 3 of the Act stipulated as follows-

“3 (1) Subject to this Act, all cases of a civil nature involving a dispute as to-

(a) The division of or the determination of boundaries to, land including land held in common;

(b) A claim to occupy or work land, or,

(c) Trespass to land, shall be heard and determined by a Tribunal established under section 4. ”

In this case, the tribunal meandered beyond its boundaries. In M’Marete v Republic & 3 others, Court of Appeal, Nyeri, Civil Appeal 259 of 2000 [2004] eKLR the court held-

“In our view, the dispute before the Tribunal did not relate to boundaries, claim to occupancy or work the land, but a claim to ownership. Taking into account the provisions of section 3 of the Act and what was before the Tribunal, we are of the view that the Tribunal went beyond its jurisdiction when it purported to award parcels of land registered under [the] Registered Land Act to the appellant. In our view, the Tribunal acted in excess of its jurisdiction.”

The tribunals in the present case dealt with title to property. The dispute between the parties before the Land Disputes Tribunal was essentially a claim to title over the land. The tribunal made orders excising, appropriating and or otherwise transferring a portion of the Petitioner’s parcel of land known as BUTSOTSO/SHIBEYE/227 measuring 0. 7 Acres to L.R. No. BUTSOTSO/SHIBEYE/2798 albeit to make it measure 2. 5 acres as sought by the 2nd Respondent in total disregard of requisite jurisdiction. For those reasons, I  find that the proceedings and decision fell well outside the jurisdiction of theLand Disputes Tribunal. The proceedings prima facie violated the Land Disputes Tribunal Act (now repealed). In the case of Masagu Ole Naumo v Principal Magistrate Kajiado Law Courts & another, Nairobi, High Court, JR 370 of 2013 [2014] eKLR. In that case, Odunga J held as follows-

“In my view the view that the Tribunal had no powers to deal with registered land is incorrect.  What the Tribunal was prohibited from undertaking is a determination with respect to title to land”.

In the case of Republic vs Chairman Eastern Provincial Appeals Tribunal & 4 Others (2015) eKLR and in the Court of Appeal judgement in Asman Maloba Wepukhulu & Anor vs Francis Wakwabubi Biketi Civil Appeal No. 157 of 2001 Kisumu, both courts held that the tribunals under the said act lacked jurisdiction to deal with matters relating to title to land. From the foregoing, I find that this petition is merited and I grant the following orders;

1. A declaration that the joint, unlawful and illegal acts of the Respondents complained of herein are offensive to and violate the provisions of Articles 1(3) (c), 2(1) , 3(1) , 10(1) (b) . 19,20,21(10,22,23(1)& 3 25(c) . 27(1) a. , 40(1) , &(3) , 47,48,50(1) 60(1) (b) , 61(2) 64 (a) , 159,160,165 (1) 3(a) (b) &(e), 169 (1) (a) , 258 & 259 of the Constitution, 2010 and consequently unconstitutional.

2. A permanent injunction against the 2nd Respondent herein, his agents and or representatives and or anyone claiming under them or their instruction or order, and to wit the District Surveyor Kakamega or such other surveyor restraining them from implementing the said orders of the 1st Respondent complained of herein.

3. An order of certiorari to remove into this Honourable Court and quash the said order of the 1st Respondent purporting to direct the transfer of 0. 7 acres from the Petitioners parcel of land Known as LR No. BUTSOTSO/SHIBEYE/227 to that parcel of land Known as L.R NO. BUTSOTSO /SHIBEYE /2798 to as to albeit make it measure 2 ½acres.

4. Costs of the Petition to the Petitioner.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 31ST DAY OF MAY 2018.

N. A. MATHEKA

JUDGE