JOHN NDUNG'U v ATTORNEY GENERAL AND 2 OTHERS [2004] KEHC 60 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 786 of 2003

JOHN NDUNG'U..................................................................... PLAINTIFF

VERSUS

ATTORNEY GENERAL AND 2 OTHERS...................DEFENDANTS

RULING

The Plaintiff filed suit on 30th July 2003. By his Plaint thePlaintiff brought action against 3 Defendants.

After the 3rd Defendant had filed her Defence, the plaintifffiled an application on 6th November 2003, seeking leave toamend the Plaint.

One of the significant steps that the Plaintiff undertookwas to file an application to withdraw the suit against the 1stand 2ndDefendants. The Plaintiffs said application came up for hearing before the Principal Deputy Registrar, MrsMatheka, on 23/1/04, and the parties recorded a consentorder, granting the prayers sought. In effect, there was only one Defendant in this case by the time that the matter came before me, on 10/2/04. The application that was canvassed before me was the Defendant's chamber summons dated 8/10/03. By the saidapplication, the Defendant was seeking orders to dismiss thesuit and all proceedings predicated on it, including the plaintiffs application dated 12/8/03.

During the hearing of the application, the Plaintiffsadvocate, Mr, Seneti pointed out to the court that theapplication dated 12/8/03 had been withdrawn, through aNotice filed in court on 28/10/03. 1 have ascertained from thecourt records that the Plaintiff did file a "Notice of Withdrawalof Application dated 12th August 2003". To that extenttherefore, Mr. Seneti was completely correct to say that theprayer for the dismissal of that particular application (dated12/8/03) had been overtaken by events.

Should the suit itself be dismissed, summarily?

The Defendant has submitted that the suit must bedismissed for 4 reasons:

(a)  The Plaintiff has no locus standi to bring theseproceedings,

(b)  The suit is time-barred,

(c)  Any such proceedings could only have been broughtby way of judicial review,andd)  The prayers sought cannot be granted, as it wouldotherwise be tantamount to granting an injunctionagainst government.

Locus standi

It is the contention of the Defendant that the suit land isGovernment property. The said land is clearly described by thePlaintiff as being a road reserve and public utility land Thatbeing the case, the Defendant faults the Plaintiff for trying toagitate for rights over public land. As far as the Defendant isconcerned, the only person who could have any colour of rightto institute legal proceedings in respect of the suit property isthe Commissioner of Lands. Section 130 of the GovernmentLands Act, Cap 280, is cited as the foundation for thatpreposition. The said section provides asfollows:

"{11When any person without right, title orlicence, or whose right, title or licence hasexpired or been forfeited or cancelled, is inoccupation of unalienated Government Land, theCommissioner or some person appointed by him in writing may enter to a suit in any court ofcompetent jurisdiction to recover possessionthereof*.

To my mind this section relates to Government Land.,which has not been alienated. Thus if the suit property fittedthat description, and the Government wished to recoverpossession of it from the Defendants, the only person whocould institute legal proceedings in that regard would be theCommissioner of Lands.

Mr. Seneti Advocate has submitted that the land in issueis a portion of a bigger piece of land that had been purchasedby the Kwirera Housing Company, of which the Plaintiff is amember. In effect, although the material before me isinsufficient for determining the question of ownership of thesuit property, there appears to be a distinct possibility that theland in issue may not be Government Land.

The Plaintiffs contention is that Kwirera HousingCompany did subdivide the land, and allotted the subdivisionsto its members. A few parcels of land were apparently set asidefor public utility, including a right of way. The Plaintiff hasbrought these proceedings to try and have the Defendant compelled to re-establish the said right of way. As far as I can see, the said action is not intended to have been suit property given to either the Plaintiff or the Government of Kenya

efore, I am unable to accept the Defendant's contention that in order to institute this kind of action, the Plaintiff would have needed to adduce evidence that he had been authorized or instructed by the Commissioner of Lands.

Time-barred?

Section 136 of the Government Lands Act (Cap 280} stipulates as follows;

"(1)  All actions, unless brought on behalf of theGovernment, for anything done under thisAct shall be commenced within one year after the cause of action arose and notafterwards".

The Defendant submits that the suit is time-barredbecause the structures about which the Plaintiff iscomplaining were constructed in 1992, In effect; the suitshould have been instituted before the end of the year 1993. The court holds the view that the defendant would be correct ifthe proceedings herein were in respect of something doneunder Cap 280. However, as I have indicated earlier in this Ruling, there is a real possibility that that statute may not havean application to the suit property.

But then the Defendant has gone further to submit thateven if the proceedings are founded on tort, the suit would stillbe time-barred. I must say that this submission sounds veryattractive. Obviously, if the Defendant's structures have beenon the suit property since 1992, the Plaintiff is going to find itvery difficult to explain the delay of 11 years, before heinstituted legal proceedings. It may very well be that the suitwill ultimately be dismissed on that ground; however, I declineto do that at this stage. I have arrived at this conclusionbecause I did not find any assertion by the Plaintiff that theactions of the Defendant were founded on tort. The Plaintseeks a declaration that the Plaintiff is entitled to a right ofway though the suit property, upon which the Defendant hasbuilt some structures. The Plaintiff also seeks injunctive reliefagainst the Defendant, so that they do not continue to blockthe plaintiffs right of way. These claims are not said to befounded on trespass or such other tortuous actionsattributable to the Defendant. But then again, what is the cause of action founded on? The Plaint does not appear toprovide any ready answer to this question. It is for that reasonthat I expressed the view that the case might ultimately fail.,when the Plaintiff is faced with the question as to the legalbasis for the case. But until that stage is reached, the courtchooses not to assume that the case is founded on tort.  Wrong Procedure?The Defendant submitted that the Plaintiff's only possiblerecourse would have been by way of judicial review directed atthe Government authorities, so as to compel them to performtheir obligations.

The Defendant has also submitted that the injunctiverelief sought would effectively be directed against theGovernment. It was therefore pointed out that as section 16(2)of The Government Proceedings Act (Cap 40) precludes thecourt from granting injunctive relief against the government,this suit was bound to fail. I am not sure that I understoodthis submission, as the Government is not a party, nor is anyrelief sought against it. Perhaps the submission was advancedbecause the application was filed at a time when there were still 3 Defendants, including The Attorney General. However,by the time the application was being canvassed in court, thesuit against The City- Council of Nairobi and The AttorneyGeneral had been withdrawn.

Insofar as the Defendant is concerned, the Plaintiff oughtto have instituted judicial Review proceedings, to compel theGovernment authorities to take action to re-establish the rightof way. In that respect, the Defendant, once again, has an attractive preposition. But whereas that might have been aneasier and more direct way of achieving the ends sought by thePlaintiff, does that mean that the route chosen by the Plaintiffherein is fatally flawed? Not necessarily.

I think that the introduction of the EnvironmentalManagement and Co-ordination Act 1999 has given residentsof Kenya a much greater legal say in issues touching on the environment. I say no more on that statute for now. However, Iam not prepared to summarily shut out the Plaintiff fromventilating his claims for legal relief. I should think that thelegal interests of the parties herein would be best servedthrough a full trial. I say so, because my reading of the pleadings does indicate that the Defendant does not appear tobe saying that she owns the suit property. On the other hand,it does appear that the Defences are largely technical.  Although I am not suggesting that technical defences shouldnot be used, if available to a Defendant. I would nonethelesshope that in situations such as that prevailing in this case.,wherein a person appears to have utilized public utility landfor his own benefit, the said person should actually berequired to tender the justification of their action. Andwhereas there might be other forums at which such anexplanation may be demanded, I believe that the best place for doing so is the judicial system, as by law established.

In conclusion, I dismiss the application dated 8/10/03. However, I do order that the costs of the said application shall be in the cause, as the application was not wholly unmeritorious. The parties are directed to take appropriateaction to enable the trial of this suit proceed soonest possible.

Dated at Nairobi this 1st day of March 2004.

FRED A. OCHENG

Ag. JUDGE