Maathai & 2 others v City Council of Nairobi & 2 others [1994] KEHC 4 (KLR)
Full Case Text
Maathai & 2 others vCity Council of Nairobi & 2 others
High Court, at Nairobi March 17, 1994
Ole Keiwua J
Civil Case No 72 of 1994
Civil Procedure and Practice -preliminary objection – locus standi –
capacity of the plaintiffs to sue for the purpose of preventing public wrongs
Land– title - indefeasibility of title –Registration of Titles Act (cap 281)
section 23
The plaintiffs moved to court as rate payers to the Nairobi City Council
seeking inter aliaan injunction to restrain the 3rd defendant from selling
or carrying out construction upon a particular piece of land, due to its
alleged illegal acquisition. The 3rd defendant raised a preliminary objection
citing that the plaintiff had no locus standito bring the suit.
Held:
1. The plaintiffs had no locus standito seek injunctive relief as they did
not have sufficient interest to bring the action.
2. Only the Attorney General could sue on behalf of the public for the
purpose of preventing public wrongs.
3. A private individual is able to sue on behalf of the public where he has
sustained particular injury as a result of a public wrong.
4. The plaintiffs in this case failed to show that there had been any failure
of any public duty in which they alone had a unique interest as opposed
to that of the general public.
5. The title issued to the 3rd defendant could not be challenged in the
absence of the matters set out in Section 23 of the Registration of Titles
Act.
Suit dismissed
Cases
1. Gouriet v Union of Posts Office Workers[1977] 3 All ER 70; [1978]
AC 435; [1977] 3 WLR 300
2. IRC v National Federation of Self–Employed and Small Businesses
Ltd[1982] AC 617; [1981] 2 All ER 93; [1981] 2 WLR 722
Texts
1. Wade, HRW (1982) Administrative LawLondon: Stevens & Sons 5th
Edn
2. Jowell, JL; McAuslan, JP (1984) The Judge and the LawLondon: Sweet
and Maxwell
Statutes
1. Registration of Titles Act (cap 281) sections 24, 23
2. Local Government Act 1972 section 222
Advocates
Mr Khaminwafor the Plaintiffs
March 17, 1994, Ole Keiwua Jdelivered the following Ruling.
The plaintiffs sued the defendants and sought these declarations:-
(a) That the subdivision, sale and transfer of LR 209/
1855/2 - LR 57271 is irregular and breached special
condition in the grant dated 1. 8.1928. It is ultra vires
the powers of the first defendant which is Nairobi City
Council.
(b) That the issuance of certificates of title by the
Commissioner of Lands is irregular and contrary to law.
(c) The revocation of subdivision of Land Ref 209/1855
- IR 2562 together with revocation of sale thereof.
(d) An injunction to restrain the 3rd defendant from
selling or carrying out any construction work on LR
209/1855/2. A chamber summons dated 7. 1.1994 has
been filed in court and seeks an injunction against the
third defendant to restrain it from constructing anything
on the plot in question. It is supported by the affidavit
of the first plaintiff which swears that the plot is in
danger of being alienated. The plaintiffs will be
obstructed in execution of any decree that they may
obtain against the defendants if construction work is
permitted to continue unabated.
In its grounds of opposition dated 17. 1.1994 the third defendant denies
that it is disposing off the plot and says, an injunction will cause hardship
to the third defendant because the approval of the building plans by the
Nairobi City Council is valid only for a year. The third defendant’s title is
guaranteed by the provisions of the Registration of Titles Act cap 281
under which the title has been issued. An injunction if granted will render
the provisions of the Registration of Titles Act nugatory.
The third defendant also filed the application dated 17. 1.1994 for an
injunction against the plaintiffs. The second defendant filed an affidavit
in which it is deponed that the Nairobi City Council applied for the
subdivision of the plot in question and the approval was given in the
normal way. In their grounds of opposition the plaintiffs said they do not
intend to damage the plot in question save by way of lawful litigation in
courts of law.
The third defendant alone had filed a defence. It denies breach of the
1928 special condition upon which the suit is based. It denies a sale to it
of the plot but claims a lawful allocation thereof which conferred good
title. In paragraph 16 of this defence it is pleaded:-
“This third defendant contends that the plaintiffs herein
have no locus standito bring the proceedings now
before the court and shall at the appropriate time move
the Honourable Court to strike out this suit”.
There is also paragraph 19 which pleads:-
“The third defendant shall rely on the provisions of
section 23 of the Registration of Titles Act Cap 201
which provides inter alia, that the certificate of Title
issued by the Registrar to a purchaser of land upon a
transfer shall be taken by all courts as conclusive
evidence that the person named therein as proprietor of
the land is the indefeasible owner thereof .... and the
title to that proprietor shall not be subject to challenge.”
There is of course section 24 of the Registration of Titles Act which says
that the remedy of a person aggrieved by such registration as that of the
3rd defendant is in damages only.
As pleaded in paragraph 16 of the defence of the third defendant the time
to raise the issue of locus standi, came on 27. 1.1994 when the point was
taken by the third defendant that the plaintiffs had no right to appear and
be heard in this case and their suit be struck out. For this proposition of
lack of standing Mr Muigua relied on the House of Lords decision in
Gouriet and others v HM Attorney General and Union of Posts Office
Engineering Union[sic] [1971] AC 435 at pages 437 Letter C:
Held: Allowing the appeals by the defendants and
dismissing the plaintiff’s appeal.
(1) That save and in so far as the local Government Act
1972, section 222 gave local authorities a limited power
to do so, only the Attorney General could sue on behalf
of the public for the purpose of preventing public
wrongs and that a private individual could not do so on
behalf of the public, though he might be able to do so if
he would sustain injury as a result of a public wrong,
for the courts had no jurisdiction to entertain such claims
by private individuals who had not suffered and would
not suffer damage (Post pp 481A 494 FG) page 481.
But in the present case, the transgression of those limits inflicts no private
wrong upon these plaintiffs and although the plaintiffs, in common with
the rest of the public might be interested in the larger view of the question
yet the constitution of the country has wisely entrusted the privilege with
a public officer, and has not allowed it to be usurped by private individuals.
“That it is the exclusive right of the Attorney General
to represent the public interest even where individuals
might be interested in the larger view of the matter it is
not technical, not procedural, not fictional. It is
constitutional. I agree with Lord Westbury L.C. that it
is also wise”.
It was submitted on behalf of the third defendant that the present case
should have been brought by way of a relator action if the Attorney General
saw it fit to do so. The plaintiffs have not shown that they suffer any
private injury if the proposed multi storey car park building is built. The
basis of the plaintiff’s action is they allege that they are rate payers in the
City of Nairobi. The third defendant had submitted that these elements of
rate paying are unsupported because no amount of rate is indicated, when
paid, in respect of what property the plaintiffs are concerned with. Even
rate paying alone, does not entitle the plaintiffs to sue unless they show
that they stand to suffer injury or damage over and above other rate payers
if the building is constructed. As pleaded in paragraph 19 of the third
defedant’s defence section 23 of the Registration of Titles Act Cap 281
require that a certificate of title issued by the Registrar to the purchaser
upon transfer shall be taken by all courts as conclusive evidence that the
person named therein as proprietor of the land is the indefeasible owner
thereof/and the title to that proprietor shall not be subject to challenge.
This is however subject to encumbrances, easements, restrictions and
conditions, contained or endorsed on such certificate. There is the First of
August 1928 special condition to which the third defendant says it has
not been breached because the present plot L.R. 209/1855 - I.R. 2562 has
been continually used as a municipal market, but the portion now known
as L.R. 209/1855/2 I.R. 57271 has always been used as a parking area.
In paragraphs 8 and 10 of the 3rd defendant’s defence it is stated that the
suit premises were not purchased by the third defendant but allocated to it
and made payment of KShs 2 million by way of stand premium as opposed
to any purchase price. In paragraph 9 of this defence fraud on the part of
the defendants is denied in that the first defendant, Nairobi City Council
acted legally and within its powers when it applied for the subdivision. It
is said the third defendant is a stranger to the plaintiff’s allegations that
the plaintiffs are aggrieved by the said allocation, subdivision and transfer
to the third defendant of LR No 209/1855/2. In that connection the third
defendant contends that the plaintiffs have no locus standito bring these
proceedings.
On the basis of lack of standing and the provision of section 23 of the
Registration of Titles Act I was urged to hold that the plaintiffs had no
right to sue, no right to appear, no right to be heard in these proceedings.
On the other hand Mr. Khaminwa for the plaintiffs, submitted in relation
to the attack and lack of evidence of details of rate paying, that they had
intended to call oral evidence of this at the hearing of the application for
injunction and the present preliminary point has come prematurely and at
the wrong time because the 3rd defendant must wait to give the plaintiffs
the opportunity to show by oral evidence that the plaintiffs have a standing.
Mr Khaminwa thinks the provision of section 23 cannot be looked at this
stage when dealing with whether the plaintiffs have a right to speak against
an owner of a title registered under the Registration of Titles Act.
A number of authorities were cited by Mr Khaminwa. One of this is the
Inland Revenue Commissioners v National Federation of Self Employed
[1985] AC 617 page 653.
“Suffice it to refer to the judgement of Lord Parker CJ
in Reg v Thames Magistrate’s Court....” a cause of
certiorari; and to the words of Lord Wilberforce in
Gouriet Vs Union of Post Office Workers[1978] AC
435, 482 where he stated the modern position in relation
to the prerogative orders: “These are often applied for
by individuals and the courts have allowed them liberal
access under a generous conception of Locus Standi.
The one legal principle which is implicit in the case
law and accurately reflected in the rule of court, is that
in determining the sufficiency of an applicant’s interest
it is necessary to consider the matter to which the
application relates. It is wrong in law, as I understand
the cases, for the court to attempt an assessment of the
sufficiency of an applicant’s interest without regard to
the matter of his complaint. If he fails to show, when
he applies for leave, a prima faciecase, or reasonable
grounds for believing that there has been a failure of
public duty, the court would be in error if it granted
leave. The limb represented by the need for an applicant
to show, when he seeks leave to apply, that he has such
a case is an essential protection against abuse of legal
process. It enables the court to prevent abuse by busy
bodies, cranks, and other mischief makers. I do not see
any further purpose served by the requirement for
leave”.
According to the plaintiffs the matter of their complaint here is the
subdivision, allocation and transfer and registration of the suit premises
in the name of the third defendant. The sufficiency of the plaintiffs’ interest
must be looked at with regard to the kind of premises the suit land is. As
already stated that the title issued to the 3rd defendant herein cannot be
challenged in the absence of the matters set out in section 23 of the Act.
This is the subject matter of the plaintiff’s complaint in respect whereof
the third defendant has rightly raised a preliminary point that the applicants
have no right to be heard to challenge, whether as rate payers, the third
defendant’s title. In my considered view there is no further investigation
required to ascertain what the subject of the plaintiffs’ complaint is. It is
there in their plaint, in their chamber summons. At this stage the plaintiffs
must show, and they have failed to show, that there has been any failure
of any public duty in which they alone have a unique interest as opposed
to that of the public generally.
I have been referred to a passage in Wade, Administrative Lawwhich in
itself cries for answer. In the Lord Denning book: The Judge and the Law
I was referred to a passage like that of the Inland Revenue Commissioner’s
case which deals with: “Exceptions had been made, particularly in
applications for certiorari or prohibition, but by and large standing was
narrowly construed”. The plaintiffs are not before the court on any matter
of certiorari or prohibition but by way of an ordinary suit by plaint restricted
by the nature of the statute law in Kenya and restricted by their own
interest in the subject matter of complaint namely as rate payers which
they have not been able to make out a case.
I am therefore satisfied that the plaintiffs have no locus standiin this case
and they should not be heard. Accordingly the plaintiff’s suit is struck out
as urged in the preliminary objection. The plaintiffs will pay all the
defendants the costs of this suit.