Jackson Kamau Ndegwa v Attorney General, J.N. Nthuku, Japheth Mwirichia, Daniel Nyatike, Mercy Makena, Vijay Shah, Sophia Mburu & Muhatia Paul Auctioneers [2018] KEHC 3554 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

PETITION NO. 29 OF 2017

(FORMERLY NAIROBI PETITION NO. 368 OF 2017)

JACKSON KAMAU NDEGWA..........................................................PETITIONER

VERSUS

HON. ATTORNEY GENERAL..................................................1ST RESPONDENT

HON. SRM. J.N. NTHUKU........................................................2ND RESPONDENT

JAPHETH MWIRICHIA – D/OCPD........................................3RD RESPONDENT

DANIEL NYATIKE – LAND REGISTRAR

NAKURU DISTRICT..................................................................4TH RESPONDENT

MERCY MAKENA.....................................................................5TH RESPONDENT

VIJAY SHAH ..............................................................................6TH RESPONDENT

SOPHIA MBURU........................................................................7TH RESPONDENT

MUHATIA PAUL AUCTIONEERS..........................................8TH RESPONDENT

RULING

1. This Petition was initially filed in the High Court Nairobi by the Petitioner under a Certificate of Urgency dated 7/7/2017. It was transferred to the High Court Nakuru as the subject touched on proceedings before the Chief Magistrate’s Court in Nakuru.

2. The Petitioner seeks a raft of declaratory and orders which I reproduced verbatim herein below.

(a) A DECLARATION that the Petitioner’s right to human dignity as provided for by Article 28 of the Constitution has been, is being and is likely to be contravened by the Trial Court SRM JN Nthuku who have failed/ignored to observe dispensation and administration of equity, fairness and justice by declaring Petitioner has a case to answer while the complainant has disowned him contrary to Section 210 of the Penal Code.

(b) A DECLARATION that the manner - Trial Court SRM AK Mwichigi (Mr.) in Nairobi Children’s Case No. 148/2004 illegally alienated the suit parcel land Nakuru Municipality/Block 12/223 to Mercy Makena Chweya instead of the advertised one Nakuru Municipality/Block 12/123 without jurisdiction and paid off the entire sale sum of Kshs.5million instead of the decreed sum of Kshs.500,000 contravening the Petitioner’s  right to human dignity as provided for by the Article 29 (a), (c), (f) of the Constitution which has been, and is being contravened by the said trial court decision to date.

(c) A DECLARATION that the manner in which the suit Parcel Land Nakuru Municipality/Block 12/223 was alienated to Vijah from Mercy Makena CONTRARY to the court injunction contravenes the Petitioner’s right to human dignity as provided for by the Article 40 (2 (a),(b), 3(b), 4 of the Constitution which has been, and is being contravened by the D/OCP Japheth Mwirichia and Mercy Makena continued holding stolen household goods worth over Kshs.3million and continued forceful occupation by Vijay Shah.

(d) The Nakuru Chief Magistrate’s court Criminal Case CMCR 1130/2013 be terminated against me/Petitioner with an acquittal under Section 210 of the Penal Code and the cash bail returned forthwith.

(e) D/OCPD Japheth Mwirichia, Mercy Makena enjoined by auctioneer Muhatia, Daniel Nyatike and Vijay Shah pay compensation for loss of user of the suit property by the Petitioner calculated at the monthly rent amount of Kshs.212,000 plus accrued interest at compound annuity rate of 21% p.a. thereon w.e.f. material time on 14. 5.2013 of illegal and unlawful forceful trespass occupation and alienation unto Mercy Makena and thereafter to Vijay Shah.

(f) Vijay Shah be ordered to vacate and render in vacant possession under the quiet occupation and possession of this Petitioner forthwith the suit property land parcel registration Nakuru Municipality/Block 12/223 in good repair and habitable status acceptable to the Petitioner.

(g) An order to Daniel Nyatike Nakuru Land Registrar to effect the restitution of suit property Nakuru Municipality/Block 12/223 back unto to Jackson Kamau Ndegwwa PO Box 1130-20100 Nairobi ID/No. 6633017 and conveyance cost to be borne by Mercy Makena.

(h) An order requiring SRM AK Mwicigi (Mr.) to refund to the Nairobi Children’s court case file no. 148/2004 Kshs.4. 5million illegally paid out by himself.

(i) An order be made to D/OCPD and   Mercy Makena to return back the household goods worth over kshs.3million they took/stole form Nakuru Municipality/Block 12/223 in the same sate they were in then.

(j) The auction sale held by Muhatia Pala auctioneers on 14. 4.2011 be nullified and voided ab initio.

(k) An order cancelling the auctioneering to Muhatia Pala Auctioneers for gross misconduct as a court officer.

(l) The Hon. Court to issue all such other orders as shall deem just.

(m) The Respondents be condemned with the costs of this Petition at the higher cost.”

3. Along with the Petition, the Petitioner filed a Notice of Motion dated 7/7/2017 seeking an array of orders principally armed at staying proceedings in the Nakuru Chief Magistrate’s Court Criminal Case No. 1130/2013; an injunction against the 6th Respondent from entering Nakuru Municipal/Block/2/223; an order to compel the 5th and 8th Respondents to return the Petitioner’s goods; a nullification of the auction and sale held on 15/4/2011 by the 8th Respondent and committal of the 5th, 6th and 3rd Respondents for contempt of court.

4. The parties took directions to respond to the Petition.  The main prayer in the application was the recusal of the Magistrate (Hon. Nthuku) from the Criminal Case No. 1130/2013 and stay of the proceedings in the matter. During the pendency of the application however Hon. Nthuku was transferred from the station.  The prayer for recusal was however overtaken by events and consequently the court directed the parties to proceed with the substantive Petition.

5. The 1st, 2nd, 3rd and 4th Respondents were represented by Mr. Ondieki for the Attorney General in the proceedings. They filed Grounds of Opposition dated 5/9/2017. They state inter-alia that the Petition and application does not disclose particulars in support of the alleged violation of the Constitution to enable the court grant the reliefs sought. That the Petition and application are general, speculative and do not disclose a real dispute capable of resolution by the court and as such are scandalous frivolous, vexatious and the abuse of the court process.

6. The 6th Respondent filed a Replying Affidavit sworn by himself on 12/10/2017. He states that the issues raised in the Petition against the 6th Respondent were before another court in ELC No. 359 of 2013 and that the reliefs being sought by the Petitioner against the 6th Respondent were the same. On the allegations made against him in the Petition, the 6th Respondent stated that he was a bona fide purchaser for value of LR No. Nakuru/Municipality Block 12/223 which he bought from the 5th Respondent.

7. The 5th, 7th and 8th Respondents did not respond to the Petition.

8. The Petitioner filed a response to the Attorney General’s grounds of opposition. In the Response which is worded in fairly strong language he accuses the litigation counsel of purporting not to understand the Petition and turning a blind eye to the wrongs visited on him (the Petitioner) by the Respondents. The Petitioner also filed a response to the 6th Respondent’s Replying Affidavit. In it he restates his case that the 6th Respondent colluded with the 5th Respondent to illegally disposes him (the Petitioner) of LR. Block/2/223 and that the OCPD (6th Respondent) facilitated them arresting and detaining him.

9. In his submissions dated 30/11/2017, the Petitioner set out what he considers to be the role each Respondent has played in violating his (the Petitioner’s) constitutional rights. According to him the Attorney General has failed to assist the court dispense justice. According to the Petitioner, the 2nd Respondent proceeded to conduct Criminal Case No. 1130in contempt of court orders in ELC 359/2013. The 3rd Respondent is alleged to have conspired to steal goods from the Petitioner’s house and effected unlawful arrest and detention of the Petitioner. The 4th Respondent is alleged to have effected the transfer of the land despite a court order. The 5th Respondent is accused of facilitating the transfer from the 5th Respondent to the 6th Respondent who in turn is alleged to have used his money to unlawfully take possession of the Petitioner’s property.  The 7th Respondent is accused of fraudulently effecting the sale of the said property. The 8th Respondent is accused of having conspired with the Trial Magistrate in Nairobi Children’s Court Case No. 148 of 2004 to alienate the Petitioner’s matrimonial home.

10. The gist of the 6th Respondent’s submissions is that the present Petition is an abuse of process of court.  According to him the issues raised in the Petition against him were the subject of ELC No. 359 of 2013 pending before the Environmental and Land Court.

11. I have considered the affidavits and submissions of the parties as aforestated.   The two issues in this Petition are whether the Petition as crafted can be sustained and whether the orders sought are merited.

12. The Petition is brought under numerous Articles of the Constitution including Articles 1, 2, 3(i), 10, 19, 20, 21, 23, 24, 25, 26, 27, 35, 40 43, 47, 48, 50 75(3), 76(2), 156(6), 159(2)(b) and (d), 165 and other laws as stated on the face of the Petition.  In the case of Anarita Karimi Njeru -Vs- Republic (1976-1980) EA 14the Court of Appeal set the principle that constitutional pleadings should have a degree of precision. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR the Court of Appeal further stated in respect to the need for clarity of pleadings that:-

“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court . . . The principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution  . . . Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”

13. The present Petition cannot by any standards be said to be concise. Right from the orders sought as reproduced verbatim at page one of this Ruling to the submissions of the Petitioner, it is clear that the Petitioner has a multitude of complaints and claims against the various Respondents individually and severally. The Petitioner has however failed to demonstrate to the court how the Respondents individually and severally have violated the various Articles of the Constitution.  In effect the Petitioner has just thrown the Constitution at the court for the court to decipher any violations.

14. Notwithstanding the imprecise nature of the Petition, I have understood the thread of the claims as follows: Firstly, the Petitioner was a party to a dispute in Nairobi Children’s Court Case No. 148/2004.  The particulars of that case have not been disclosed to the court. The Petitioner however makes an allegation that the judicial officer (SRM. AK. Mwicigi) who was handling the case issued irregular orders.  If that be the case, then a Constitutional Petition of this nature would not be the right forum for the resolution of such a claim. The right forum would be a review or appeal process as the case might be.

15. Secondly, the Petitioner seeks an order to stay Criminal Proceedings in CMCR 1130/2013 on account of what he perceives as bias by the Trial Court and violation of his constitutional rights. Whereas this court has power under Section 362 of the Civil Procedure Code to call up and examine the record of a lower court, it must do so on a sound basis. The Petitioner has not presented material before this court to warrant the grant of such an order.

16. Thirdly, it has been brought out by both the 6th Respondent and the Petitioner that there is in existence an active suit between the Petitioner and the 6th Respondent being Nakuru ELC No. 359 of 2013.  I have looked at the amended Plaint annexed to the 6th Respondent’s Replying Affidavit. The parties are Jackson Kamau Ndegwa (Plaintiff and now Petitioner); Mercy Makena Chweya (1st Defendant and now 5th Respondent); District Land Registrar Nakuru (2nd Defendant and now 4th Respondent); and Vijay Laxmi Shah (3rd Defendant and now 6th Respondent). The suit is principally on the ownership of LR Nakuru Municipality Block 12/224. It is clear that the parties are principally the same and the suit property is the same. Section 6 of the Civil Procedure Act automatically bars this court from proceeding with the aspect of the petition with respect of the said land. Furthermore Article 162 of the Constitution vests jurisdiction on land matters exclusively on the Land and Environment Court. I have no doubt in my mind that the Petitioner can raise any constitutional issues in the matter before the Land and Environment Court.

17. What I have said above qualifies this Petition for striking out.

18. The petition is struck out with no orders to costs.

Orders accordingly.

Ruling signed on this .... day of July, 2018.

R. LAGAT-KORIR

JUDGE

Ruling dated, delivered and signed at Nakuru this 26th day of September, 2018.

.............................

JANET MULWA

JUDGE

In the presence of:

..........Court clerk

..........For the Petitioner

..........For the 1st, 2nd, 3rd & 4th Respondents

..........For the 5th Respondent

..........For the 6th Respondent

..........For the 7th Respondent