Kahawa Sukari Limited v Livingstone Wakibia Waiganjo in capacity as Member of County Assembly Kahawa Sukari Ward, County Governmnet of Kiambu & National Land Commission [2021] KEELC 3898 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

MISC.JUDICIAL REVIEW CAUSE NO.10 OF 2019

IN THE MATTER  OF ARTICLES  21(1), 23(3) ,(F) , 25 (c),

27(1),47(1),49(1)(D),50(2) & 159  OFTHE CONSTITUTION

AND

IN THE MATTER OF SECTIONS 3, 4, 5, 7 OF THE FAIR ADMINISTRATIVE ACT 2015

AND

IN THE MATTER OF THE NATIONAL LAND COMMISSION ACT

AND

IN THE MATTER  OF LACK OF FAIR HEARING PRIOR TO REVOCATION OF

TITLES TO RUIRU KIUBLOCK 3/2692,927,1391,259,1392,2802,2415,2416,2466 AND 3009

AND

IN THE MATTER OF AN EXERCISE OF A STATUTORY DUTY BY PUBLIC ENTITIES

BETWEEN

KAHAWA SUKARI LIMITED.............................................................................APPLICANT

VERSUS

LIVINGSTONE WAKIBIA WAIGANJO in capacity as

MEMBER OFCOUNTY ASSEMBLY KAHAWASUKARI WARD.....1ST RESPONDENT

COUNTY GOVERNMNET OF KIAMBU...............................................2ND RESPONDENT

NATIONAL LAND COMMISSION.........................................................3RD RESPONDENT

JUDGMENT

By a Notice of Motion Application dated  4th June 2019,  the Applicant herein has sought for the following orders:

1.  THAT the  Honourable Court  grants Judicial Review Orders of Prohibition  barring  the Respondents  either jointly  or severally acting through themselves, agents, servants, employees or persons assigned  roles by them  from in any  way  entering, encroaching onto, trespassing, and or in any other way interfering with the Applicant’s possession  and proprietary  rights over  its suit property  known as Ruiru/ Kiu Block  3/2692, 927 , 1391, 259, 1392, 2808, 2415, 2416, 2466 and 3009.

2.  THAT  the Honourable Court  grants Judicial Review  Orders of Mandamus  compelling the  Respondents jointly  and severally to avail reasons, documents, minutes or proceedings  occasioning the revocation  of the Applicant’s above mentioned  title  to suit property  known as Ruiru/ Kiu Block 3/2692 ,927, 1391, 259, 1392, 2808, 2415, 2416, 2466 and 3009.

3.  THAT the Honourable   Court grants Judicial Review  Orders of Certiorari  bringing to this Court  proceedings , notices  of objection , if any, minutes or correspondences  or any document  relied  or utilized  by the Respondents jointly and severally  in revoking the Applicant’s  above mentioned  title to  suit property known as Ruiru/Kiu Block  3/2692, 927, 1391, 259, 1392,2808, 2415, 2416,2466 and 3009.

4.  THAT the  Honourable Court grants  Judicial  Review  Orders  of Certiorari quashing  the 3rd Respondent’s decision  to revoke the Applicant’s  title to  the suit property  known as Ruiru/Kiu Block 3/2692, 927, 1391, 259, 1392, 2808, 2415, 2416, 2466 and 3009.

5.  That Costs of this Application be provided for.

The Application is premised on the grounds that the suit property  belongs to the Applicant, from the General Welfare  of Kahawa Sukari  Estategranted for a period  of 99 years, which ends  on/or about2082. That without any lawful and reasonable cause being advanced to the Applicant, the 3rd Respondent revoked the title to the suit property   Vide Gazette Notice dated 9th November 2018. That failure to give reasonable cause for revocation of its title to the suit property amounts to blatant injustice, unfairness and bias. That the 3rd Respondent though statutory mandated to revoke title to land ought to exhibit fairness and reasonableness to avert an imputation of bias.

It was contended that failure to give proper reasons  or avail any objections lodged leading to revocation of the said titles amounts to blatant violation of its rights to Fair administrative action. That the Applicant failed to defend its constitutional right of ownership  when the Respondents failed to give it  a fair hearing  amounting to an abuse of power and discretion. That the Respondents failure to abide by the  mandatory statutory provisions  prescribing process of cancelling a title  occasioned a decision  that was bad in law  rising from a  procedurally unfair process. That  the Respondents are required to act  fairly, transparently and disclosing all intervening circumstances  or reasons for revocation  of titles. That no reasonable and lawful  cause has been made to the Applicant  for revocation of the suit property  whereas it has been the absolute  owner and proprietor  of the suit property for 36 years which grant has not expired.

That the 1st Respondent  in his capacity as  Member of County Assembly of Kahawa Sukari Ward, has incited  members of public to claim  L.R Ruiru Kiu Block 3/2864, as public property  allegedly owned by the 2nd Respondent  while the same is owned by the Applicant  and is set apart as a Nursery School  for the utilization of the  community of Kahawa  Sukari residents. Further that the 2nd Respondent has claimed L.R 3/1391, as public property  allegedly owned by the 2nd Respondent  while the same is owned  by the Applicant and set apart  as a market place  for the utilization of the community of Kahawa Sukari residents. That the Application shall not prejudice any party.

In his Supporting Affidavit, Stephen Mbugua  Benson Mutuma, the Applicant’s Chairman and Managing Director  averred that the Applicant is a private developer  registered on 18th November 1982,under the Company’s Act. Further that the Applicant is the developer of Kahawa Sukari  Scheme on  L.R 10901/20,and has caused the  said property to be subdivided.  That the Applicant was created so as to develop a low density middle class  residential estate, with public utility facilities  commensurate to High standards. That  their proposed subdivision was approved  on 14th June 1983,  and on11th June  1993, they requested the planning authority  to  be allowed  to develop  and retain  the public  utility  plots set aside  in the scheme in order to ensure  high quality developments  in the Estate.  Further  they requested for some variations of the approved conditions  and the Planning Authority  consulted and gave no objections  to the variation  of the approval conditions . That in his  letter dated 27th July 1983, the Commissioner of Lands  varied condition (g)  of his letter dated  14th June 1983,  and the Applicant was allowed  to develop the plots. That the Commissioner of Lands  endorsed his final approval to the amended subdivision  vide his letter  dated 22nd March 1995,and the Director of Survey approved  the survey plan  and issued title numbers  in order to facilitate  the issuance of subdivision titles.  That the Applicant surrendered the  original title on 14th May 1995,and was issued with subdivision  titles for both residential  and public utility development.

Further that the Applicant surrendered areas  reserved for Secondary school (12 acres)  Nursery school (6acres) and Church  sites(2 acres) in exchange  for new grants  of the respective plots  for duration of  99 years  at an annual rent to be assed.  That the Applicant offered the Post Office plot to Kenya Postal Corporation for free,  but the same was  transferred to another party against their planning policy. Further, the Applicant offered a Police Post for free and a Police Station was constructed That the Company sold some plots  that it was allowed to develop   to third parties   with the clear  understanding  that the development conditions  were to be maintained and one such plot was a Nursery School  plot known as L.R   Ruiru/Kiu 3/2864 bought by Mukamwamu Investment, who were issued an allotment  Certificate  on 6th March  1990,and the total consideration was Kshs. 90,000/=. That  there were complaints from  the  Residents Association  that part of the suit property  should vests in the County Government  of Kiambu,  which claim  had been wrongfully alleged  by the then Member  of  County Assembly - Kahawa Sukari  Ward,PeterGeche  Karanja.

That the National Land Commission and  the Land Registrar were asked to look into the matter, and  Livingstone Wakibia Karanja Waiganjo, the Member of County Assembly - Kahawa Sukari Ward  has  commenced construction  on one of the suit properties L.R 3/2864, in the guise of it being the property of the  County Government of Kiambu. That the same is an ultra vires act of fraud, illegality and blatant dispossession of the Applicant of its property for the utilization of a Nursery School .  This decision to revoke the titles to the suit properties was never communicated  to the Applicant,   and   were never granted a fair hearing prior to such revocation  nor awarded an audience  to a seating whereby the 3rd Respondent  and other interested parties  could hear and acknowledge  their constitutional rights  of ownership over the suit property.  That the Court granted the Applicant leave to commence Judicial Review proceedings out of time and he urged the Court to consider the Application and grant the Applicant an opportunity  to present its case  before the Court for a fair hearing.

On 14th October 2019, the 3rd Respondent indicated that it had filed grounds of Opposition. The said Grounds of Opposition  dated 4th October 2019 and filed in Court on 7th  October 2019, appear to  oppose  Chamber Summons  dated 13th May 2019  on the grounds that;

1. That  Judicial Review  is concerned with the decision  making process and not the merits of the decision. Therefore an Applicant who wishes  to institute Judicial Review  proceedings must show  that the decision  in question was illegal , irrational  or procedurally defective.

2.    That pursuant  to Article (68)(v) of the Constitution and Section 14 of  the National  Land Commission  Act, 2012  the 3rd Respondent has jurisdiction  to review all grants and dispositions  of public land  either on its own motion  or upon receipt  of a complaint  from either the National and County Governments, Communities,  Organizations or individuals.

3.  That the Kenya  Gazette  Notice of 9th November 2018,  was a mere report by the Respondent intended  only for consumption  of the general public  and as such not  a decision capable  of being quashed  by an order of Certiorari.

4. That issues of legality  of the Applicant’s title  over the suit properties  cannot be sufficiently addressed  through the institution  of Judicial Review Proceedings  as the same would  require the production  of evidence , calling of witnesses and in some instances  site visits  which ordinarily would be carried out  in a normal civil suit.

5.  That the Application is scandalous  frivolous and vexatious  and an abuse of the Court process.

On 14th October 2019, the Court directed the parties to file written submissions. However,  only the Applicant  filed written submissions dated 2nd October 2020  with regards to a Chamber Summons in which the prayers listed did not commensurate with the ones sought for in the instant Notice of Motion Application  for determination.

The Court has now carefully read and considered the  Judicial Review Application and the  Grounds of Opposition. The issues for determination are;

a)  Whether the Ex Parte Applicant has met the grounds for granting of Judicial Review Order of Certiorari, Mandamus and Prohibition.

b) If so, whether the application dated 4th June 2019 is merited.

c)  Who is entitled to costs of these proceedings?

Judicial  Review is more concerned with the manner in which a decision is made than the merits or otherwise of the said  decision. The  Court is called upon to look at the decision  if it is made within the confines of the law.In the case of Municipal Council of Mombasa…Vs…Republic Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, the Court of Appeal held that:-

“The Court would only be concerned with the process leading to the making of the decision.  How was the decision arrived at. Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did  the decision maker take into account relevant matters or did they take into account irrelevant matters.  These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review.”

Further in the case of Republic…Vs… Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji(2014) eKLR the Court held that:-

“Judicial review applications do not deal with the merits of the case but only with the process. In other words, Judicial Review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings Judicial Review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties, the court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore, judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant......."

In the case of Kenya National Examination Council … Vs … Republic Exparte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No.266 of 1996, the Court elaborated on what Judicial Review Orders entails?

“That now bring us to the question we started with, namely the efficacy and scope of mandamus, prohibition and certiorari. These remedies are only available against public bodies such as the council in this case.  What does an Order of Prohibition do and when will it issue?  It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it, but also for a departure from the rules or natural justice.  It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See Halsbury’s Law of England, 4th Edition vol.1 at Pg.37 paragraph 128. ”

The above is the scope of the Judicial Review.  Is the Applicant deserving he Judicial Review orders sought?

a. Whether the Applicant has met the grounds or threshold for granting of Judicial Review Order of Certiorari , Mandamus and Prohibition.

As was stated in the case of Kenya National Examination Council …Vs…Republic (Exparte Geofrey Gahenji & Another (Supra), the Order of Certiorari can quash a decision already made and the same  can issue  if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons. So has  the Exparte Applicant established existence of the above conditions to warrant this Court quash the decision ofthe  3rd Respondent  to revoke title to the suit property?.

The Applicant has contended that the  3rd Respondent purported to revoke titles to the suit properties without giving  the registered proprietors a chance to be heard and therefore  not affording them a fair administrative action. The Applicant has contended that it was not given a fair administrative action and that it was not given a chance to be hared before the  titles to the suit properties were cancelled.  If the  above allegation is the issue herein, then this Court finds that the exparte applicant has met the threshold for grant  of Judicial Review orders.

b)  If so, whether the Application dated 4th June 2019    is merited.

It is the Ex parte Applicant’s  contention that    being the registered owner of the property in issue herein,  it was not given a chance to be heard before  a decision was arrived at to revoke the title to the suit property.  The 3rd Respondent though duly served did not participate in the instant proceedings. The 1st and 2nd Respondents filed grounds of opposition and alleged that  the  Notices to the Kenya Gazette  dated9th November  2018,were not a decision capable of being quashed.  The Court has seen the said Gazette Notice and it is clear that  the 3rd Respondent directed the  Chief Land Registrar to revoke the said titles.

The Court has seen the letter dated12th July 1993,referenced  variation of approval of  conditions in which the Applicants was allowed to developed various plots . The Court has also seen the Certificate of title evidence that the Applicant was the registered owner ofL.R   10901/20,and that it surrendered the said title and was issued with subdivision titles. There is no evidence that the Applicant was given a chance to be heard before the said titles were  revoked by the 3rd Respondent herein.  The 3rd Respondent did not  file any Submissions to depend its position.

Natural justice was outlined in the Halsbury Laws of England Volume 1(1) page 218, as follows:-

“Natural justice comprises two basic rules; first that  no man is to be a judge in his own cause (nemojudex in causa sua), and second that no man is to be condemned unheard (audi alteram partem).  These rules are concerned with the manner in which the decision is taken rather than with whether or not the decision is correct”.

In the  case ofMsagha vs. Chief Justice & 7 Others, Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJJ on 3/11/06) (HCK)

[2006] 2 KLR 553, the Court held that:

“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialisation of the globe during the hey-days we of the British Empire.  An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision…It is paramount at this juncture that this court establishes the ingredients and/or components of natural justice. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.

The exparte  Applicant  has alleged that it  was not given a chance to be heard before the decision to revoke the titles was made.  This allegation was not reported by the 3rd Respondent.  The Court find  that the 3rd Respondent failed to accord the Applicant fair administrative action  making its decision a nullity. Therefore, the Courts finds   the Exparte Applicant is entitled to Judicial Review Orders sought.  For the above reasons, the Court finds the Exparte applicant’s  application  herein is merited.

c) Who is entitled to costs of these proceedings?

Section 27 of the Civil Procedure Actgives the Court the discretion to award costs. However costs usually follow the events, and  unless there are special circumstances  and in this case the Court finds  there is none . The Applicant being the successful party is entitled to the costs.

Having now carefully analysed the available evidence, the Court finds that the Ex parte Applicant has successfully established that this is a case that deserves Judicial Review Orders ofCertiorari, Mandamus andProhibition as prayed in the instant Application.

The upshot of the foregoing is that the Ex parte Applicant’s Judicial Review Application dated 4th June 2019, is found  merited and the same is allowed entirely with costs being borne by the 3rd Respondent herein.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 11TH DAY OF MARCH, 2021

L. GACHERU

JUDGE

11/3/2021

Lucy - Court Assistant

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic and in light of the directions issued by the Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consent. 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

i.  Judgement delivered in the absence of the parties who have not been attending Court for a while now.

ii. Notice of delivery of Judgement to be issued by the ELC Registry.

L. GACHERU

JUDGE

11/3/2021