George M Kimani v County Government of Kiambu, Dominic Mbugua Kiranga & Registrar of Lands, Kiambu County [2021] KEELC 2471 (KLR) | Compulsory Acquisition | Esheria

George M Kimani v County Government of Kiambu, Dominic Mbugua Kiranga & Registrar of Lands, Kiambu County [2021] KEELC 2471 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

PETITION NO. 1 OF 2019

GEORGE M KIMANI......................................................................PETITIONER

VERSUS

COUNTY GOVERNMENT  OF KIAMBU................................1ST RESPONDENT

DOMINIC MBUGUA KIRANGA .............................................2ND RESPONDENT

REGISTRAR  OF LANDS, KIAMBU COUNTY.....................3RD RESPONDENT

JUDGMENT

By a Petition dated 3rd January 2019, the Petitioner herein sought for the following orders against the Respondents:-

a. A Declaration that the 1st and 2nd Respondents  arbitrary, unilateral acquisition, invasion, trespass and conversion  of the Petitioner’s  private property, known aEscarpment /Kinari Block  1/2763, to or for public  use from  on or about  the 20th December 2018 has violated  the Petitioner’s right  to own and freely  use his  property as guaranteed by Article 40  of the Constitution and has violated the Petitioner’s right  to natural justice  and fair administrative  action.

b. An order of prohibition prohibiting  the 1st & 2nd  Respondents, their supporters, agents and associates and any person  purporting  to be a member of the public  from entering  into, remaining in, using, appropriating, alienating, annexing, disposing of the Petitioner’s property known as Escarpment /Kinari Block  1/2763,and or in  perpetuity in any manner  whatsoever  from interfering  with the Petitioner’s  proprietary rights  over the said property.

c. Costs and Interest.

The Petitioner averred  that he became the registered owner of the suit property  on 30th June 1997, and he took possession therefore. That on 20th December 2018, the 1st & 2nd  Respondents  trespassed   onto and  unilaterally  purported to acquire   the suit property by  claiming that  it is public utility and earmarked  for public use  thereby causing the Petitioner to suffer  harm by invasion of his property by  people purporting to be members of the public, who are using it and therefore denying  him the  free use  of his property  and thus violating his right to own property  under Article 40 of the Constitution.

That the 1st Respondent’s actions were carried out without any Noticeand without affording the Petitioner any right to be heard and therefore violating his  right to natural justice. That the Respondents actions have resulted in appropriating the Petitioner’s land for public use  and has violated his right  to fair administrative action   that requires reason for  annexation of his property  be given,  which is inconsistent  with Article 47 of the  Constitution.

He particularized Violation of   Articles 40 and 47  by the  1st and 2nd Respondents as; trespassing and invading  on his land without any lawful authority; converting his land to public use; purporting to unlawfully acquire his land without exercising  any power of eminent domain. Allowing trespassers to use his land;  appropriating his land without any lawful cause; purporting to  re assign the  suit property as public  property without giving   the Petitioner an opportunity  to make his representations; disregarding the  protection of the land  that come with issuance and  registration  of  the grant and  Title Deeds; failing to demonstrate that the acquisition of the suit property was necessary.

The Petitioner particularized harm suffered as denial of free use of his property;  infringement on his proprietary rights, causing invasion on his land, destroying fencing on the suit property, allowing public to use the land in a manner inconsistent  with his private rights,  destruction of his  livestock and farm produce, Violation of his constitutional rights. That if the acquisition was compulsory, then he is entitled to compensation.

In his Supporting Affidavit, the Petitioner reiterated the contents of the  Petition.

The Petition is contested and the   1st Respondent through its County Secretary  Dr. Martin N. Mbugua,filed a Replying Affidavit sworn on  4th July 2019, and averred that  the suit property is a subdivision from  Escarpment  Kinari/2463, and is public property that was irregularly acquired by the Petitioner  between 1987 and 2000. That the Petitioner has failed  to disclose to the Court that there is  due process that is being undertaken  by the National Land Commission for  verification  of the authenticity of the title.

That as a result of the irregularities in the acquisition of the properties, the Ministry of Lands placed an embargo on issuance of titles and caused the already issued titles to be recalled for purposes of determining authenticity in acquisition of the said titles. Further that the embargo has not been lifted as the verification of clean titles is still ongoing. That the Petition has been presented with the intention of defeating the   ends of justice. That the photos annexed to the Petition is a sign post  by  the County Government of Kiambu,  indicating  the purpose of which  the land  it is erected was set aside for, and does not prove it is the suit property. Further that the photograph does not  disclose any form of  trespass or destruction  by the 1st Respondent.

He averred that he  has been informed by his Advocate which advice he believes to be true that it is the mandate of the County Government to  hold in trust for the people  resident in the County any  public land. That it is in the interest of justice that public space within the County be protected. That the Petitioner has not disclosed to the Court how the land was acquired and that title is not absolute where it is shown that there existed an irregularity. Further that the letter and spirit of Article 40 does not seek to sanctify, sanitize and justify  and or protect property  unlawfully or irregularly acquired.

The 2nd Respondent Dominic  Mbugua  Kiranga,  swore a Replying Affidavit on  22nd May 2019, and averred that he is the Member of the County Assembly,  Kinale Ward. That the Petition does not disclose a cause of action founded in law, as he does not have  any legal mandate to exercise  the acts complained of by the Petitioner. That on 18th to 21st  December 2018, he was in Sweetlake  Naivasha, at a workshop  organized by the County Government of Kiambu, and therefore  the Petition  is a blatant falsehood.  He denied trespassing, invading, converting or  compulsorily acquiring the suit property.  That there is no nexus between the photographs and the copy of title.   Further that he made inquiries and it emerged that the land depicted constitutes a well serving Kinale dispensary, and did  not belong to the Petitioner;  That the Petitioner embarked on trees cutting  which is not common of someone  laying a legitimate claim. That the Petitioner has not demonstrated the process of acquisition of the suit property.

The Petitioner filed a Supplementary Affidavit  sworn on  8th October 2020, and averred that  Respondents have not exhibited any decisions  or resolution  that his title to the suit property  would be cancelled or that the same would be repossessed, hence their interference is in violation of Article 40 of the Constitution. That he is a lawful and bonafide purchaser for value,  in possession and there is no reason for the trespass. That his title deed is still valid as it has never been impugned. That he had written to the  National Land Commission,  about the 3rd  Respondent’s failure  to release certificate of search  over his property and the National Land Commission,  wrote to the  3rd Respondent and demanded  a report on the issue   and it is thus clear there is no embargo on his property.

That he purchased his property from  Mr. Yusuf Kimutai,  vide  a sale agreement dated 20th March 1997, and the process went through the  Land Control Board. That he took possession upon purchase   of the suit property which was a subdivision ofL.R 1/2463,that had been allocated to Yusuf Kimutai. Further that the land had previously been part of Kikuyu Escarpment Forest, which was degazetted  on 20th January 1998,and ceased being a public land. That his property is recognized by the government as  the District Surveyor excised a water point on his property. That though he reported the matter to the Police, he did not receive help, as the  violations are being championed by  public officials.

The 3rd Respondent filed Grounds of opposition dated 10th April  2019, and opposed the Petition on the grounds that  it lacks merit  as against the 3rd Respondent. That it has not disclosed any cause of action as against the 3rd Respondent. The 3rd Respondent has not violated any of the alleged Constitutional right of the Petitioner.

The Petition was canvassed by way of written submissions which the Court has carefully read and considered. The Court has also read and considered  the Petition, the Affidavits and the relevant provisions of law and finds that the issue for determination is whether  the Petition is  merited.

The Petitioner  has sought for a Declaration  that the 1st and 2nd Respondents  arbitrary, unilateral acquisition, invasion, trespass and conversion  of his   private property, for public  use violated  his  right  to own and freely  use his  property, to natural justice  and fair Administrative  action. He has therefore sought for an order of prohibition,  prohibiting  the 1st & 2nd  Respondents  their agents  from interfering  with his   proprietary rights  over the said property. The Petitioner claims to have bought the suit property and  duly acquired registration of the same. That the 1st  and 2nd Respondents arbitrarily  sought to    violate  his right to own the suit property, when they  acquired the same without following due process.

The Petitioner  has produced in evidence  a title deed issued to him of  30th June 1997. Section 26 of the Land Registration  Act provides that a  certificate of title issued to a person is to be taken by a Court to be prima facie  evidence that the person is the absolute and indefeasibleowner of the said property, unless it is proved  that the person acquired the same through fraud or unprocedurally.  However, it is not in doubt that only a  Court of law and or  competent tribunal are the  authorities in a position to make  such a finding. See the case  of Evelyn College of Design Ltd v Director of Children’s Department & another [2013] eKLR,where the  Court held that;-

“While I agree that the Commissioner has no right to alienate land which has been reserved for public purpose, the process of such a determination must be through a process recognized by the law. Likewise, if the land has been illegally acquired, then the State must use due process to recover it.  The requirement of due process is underpinned by several provisions of the Constitution. First, it is implicit inArticle 40(2)(a)which prohibits the legislature from passing legislation that arbitrarily deprives a person of any interest in or right over any property of any description.  Second,Article 40(6) is clear that rights acquired under this Article do not extend to any property that is found to have been unlawfully acquired.  Such “finding” cannot be by any other means other than due process. Third,Article 47(1)guarantees every person fair administrative action which includes due process.”

Though the  1st Respondent  claim that the suit property is public land, as it was set aside for public use, it has not produced any evidence to show that  lawful process was conducted and a determination  made that the suit property was  public land. What has been produced in evidence is a report by a task force which in no way invalidates the Petitioner’s registration and therefore cannot be that the Petitioner’s registration was invalidated. Given that the Petitioner is the registered owner of the suit property, it therefore follows that he holds all the rights and interests unless his title  is procedurally impeached.

The  Petitioner has accused  the 1st and 2nd  Respondents  of arbitrarily taking away his rights to the suit property and forcibly allowing other members of the public to use his  property without affording him an opportunity to be heard. The 2nd Respondent has denied these allegations and further produced in evidence a list of names that he alleges proves that he was  away on official duty and therefore could not have been in the suit property on 20th December 2018,  to carry out any acts as alleged by the  Petitioner. Though the Court is not satisfied  by the list produced by the 2nd Respondent as the list  only lists names with no evidence shown of what it is meant for or what  the list of names are for,  the Petitioner apart from alleging has also not produced in evidence any documents that will satisfactorily lead  the Court to find that the  2nd  Respondent  acted as alleged and or allowed the members of public to trespass on his property.

The Petitioner has produced in evidence an O.B and  Chief’s  letter confirming that he had reported the trespass. The Petitioner has also produced in evidence a photograph bearing a sign post   that states that the land was set aside for a public  use. It is not in doubt that the said sign post bears the 1st Respondent’s logo and though the 1st Respondent has alleged that  the sign post only shows caution  and does not prove that  it is in the suit land, it has not produced any evidence to counter the allegations by the Petitioner that the same is on the  suit land. The Court therefore does not find any reason not to believe the Petitioner that the said sign post is on the suit land considering the circumstances of the case.

The Court therefore finds and holds that the action by the 1st Respondent were arbitrarily. Further the contention by the Petitioner that the said action were  a deprivation of his rights to fair administrative actions have also not been rebutted. Article 47 of the Constitution is in the following terms;-

47 (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right of fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3)  ……………………

The Court finds and holds that the 1st  Respondent’s actions of  erecting the sign post alleging the suit property was set aside for public use and therefore connoting that the same is public land  without following due process were a violation of the Petitioner’s rights.

Having now carefully read and considered the Petition, the affidavits and the annextures thereto, the written submissions and the  provisions of law, the Court finds and holds that the Petitioner has proved the allegations in his Petition as against the 1st Respondent and therefore the same is merited. However, the case against the 2nd Respondent is dismissed.

Further the Court finds that no orders  were sought against the 3rd Respondent and therefore its grounds of opposition are merited and the case against the 3rd Respondent is dismissed. Therefore, the Court makes the following orders;

a. A Declaration   be and is hereby made that the 1st Respondent  arbitrary, unilateral acquisition, invasion, trespass and conversion  of the Petitioners  private property, known as Escarpment /Kinari Block  1/2763, to or for public  use from  on or about  the 20th December 2018 has violated  the Petitioner’s right  to own and freely  use his  property as guaranteed by Article 40  of the Constitution  has violated the Petitioner’s right  to natural justice  and fair Administrative  action.

b. An order of prohibition be and is hereby made prohibiting the 1st Respondent, its supporters, agents and associates and any person  purporting  to be a member of the public  from entering  into, remaining in, using, appropriating, alienating, annexing, disposing of the Petitioner’s property known as Escarpment /Kinari Block  1/2763 and or in  perpetuity in any manner  whatsoever  from interfering  with the Petitioner’s  proprietary rights  over the said property.

c. The 1st Respondent will bear the costs of the  Petition.

It is so ordered

DATED, SIGNED AND DELIVERED AT THIKA THIS 26TH  DAY OF JULY 2021.

L. GACHERU

JUDGE

26/7/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consents. 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. Otieno holding brief for Mr. Ombwayo for the Petitioner

No appearance for the 1st Respondent

M/s Osembo for Mr. Wambugu for the 2nd Respondent

No appearance for the 3rd Respondent

L. GACHERU

JUDGE

26/7/2021