Ramadhan Ali Mwatsahu, Mohamed Menza Yama, Buru Mgandi Nyota, Hamisi Hassan Mwatsahu, Kesi Ali Mwadzaya,Tawir Mwatsahu Mwadzaya v Tsangwa Ngala Chome (Sued in his capacity and as Administrator of Mumba Chome Ngala, Mwabeja, Mwaka & Mwamundu Clans, Katembe Nzembe Lewa & 13 others, County Government of Kilifi, National Land Commission & Attorney General (Sued on behalf of Land Registrar, Kilfi [2021] KEELC 4594 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

CONSTITUTIONAL PETITION NO. 30 OF 2019

IN THE MATTER OF:  ENVIRONMENT & LAND COURT AT MALINDI

AND

IN THE MATTER OF: ELC NO. 243 OF 2014 (FORMERLY HCCC NO. 95 OF 2011) AND JUDGMENT AND ORDERS OF HONOURABLE JUSTICE O.A ANGOTE DATED 12TH JULY 2018 AND DELIVERED ON 19TH JULY 2018 AT MALINDI

AND

IN THE MATTER OF: TITLE NUMBER LR MADZIMBANI/MTANGONI/B/1 ISSUED ON 17TH SEPTEMBER 2018

BETWEEN

1. RAMADHAN ALI MWATSAHU

2. MOHAMED MENZA YAMA

3. BURU MGANDI NYOTA

4. HAMISI HASSAN MWATSAHU

5. KESI ALI MWADZAYA

6. TAWIR MWATSAHU MWADZAYA........PETITIONERS

VERSUS

1. TSANGWA NGALA CHOME (Sued in his capacity and as

Administrator ofMUMBA CHOME NGALA

2. MWABEJA, MWAKA & MWAMUNDU CLANS

3. KATEMBE NZEMBE LEWA & 13 OTHERS

4. COUNTY GOVERNMENT OF KILIFI

5. NATIONAL LAND COMMISSION

6. ATTORNEY GENERAL (Sued on behalf ofTHE LAND

REGISTRAR, KILIFI...............................RESPONDENTS

RULING

1. By their Petition dated and filed herein on 31st October 2019, the six Petitioners pray for: -

1. A declaration that the 1st Respondent’s Clan land boundary does not extend into Kenya Defence Forces (KDF) Mariakani Barracks and is marked by parallel line 46o; 44o along the road passing through the Mariakani Barracks and further that the Petitioner’s land is the one occupied by the KDF Mariakani Barracks;

2. An order of certiorari do issue removing into Court the Certificate of Title re-issued on 17th September 2018 in the name of Tsangwa Ngala Chome being LR No. Madzimbani/Mitangoni/B/1 measuring approximately 2780 Ha and do revoke/cancel/ and/or otherwise nullify the same for the Kilifi Land Registrar to rectify his records accordingly in compliance with the Community Land Act, 2016 and the Constitution of Kenya, 2010;

3. An Order of injunction be given restraining the 1st Respondent, his servants, agents, proxies and/or otherwise all persons from encroaching, trespassing, laying claim into the land occupied by the Kenya Defence Forces(KDF) in any manner solely with the purpose of claiming compensation and to observe the boundary marked by the parallel line 46o, 44o along the road into the Mariakani Army Barracks;

4. An order be made for compensation to the Petitioners for land compulsorily acquired for the construction of public facilities such as schools, churches, roads, power transmission lines, Mariakani Weighing Bridge and KDF Mariakani Barracks; and

5. The costs of the Petition be paid by the 1st Respondent.

2. Upon being served with the Petition, Tsangwa Ngala Chome sued herein in his capacity as the Administrator of the Estate of Mumba Chome Ngala (the 1st Respondent) raised a Preliminary Objection dated and filed herein on 14th January 2020 objecting to the jurisdiction of this Court to hear and determine the matter on the grounds that: -

1. By the Petitioner’s own admission, they filedMalindi High Court Petition No. 26 of 2016 seeking compensation arising from the alleged acquisition of their land for public purposes; which Petition to-date has not been heard and determined and wherefore this Petition raising the same issues cannot be heard and determined by this Honourable Court by virtue of the doctrine of res sub-judice;

2. Arising from the above, this Honourable Court lacks the necessary jurisdiction to hear and determine the matter;

3. This Honourable Court lacks necessary jurisdiction to entertain this Petition at all as this Petition seeks to revise, amend, review and/or overturn a Judgment already delivered by a Court with co-ordinate jurisdiction;

4. This Honourable Court lacks jurisdiction to entertain this matter at all as all matters pertaining to the propriety or otherwise of the Judgment of Justice Angote are currently pending in theCourt of Appeal (being Appeal No. 127 of 2018 Malindi) and therefore being a lower Court this Honourable Court cannot and does not have any appellate jurisdiction in this regard at all.

5. That arising from the above proceedings before the Honourable Court are an abuse of the Court process and should not be entertained at all.

3. As the Preliminary Objection goes into the issue of the jurisdiction of this Court, the parties agreed to dispose off the same first by way of submissions. I have considered the Petition, the Preliminary Objection and the rival submissions filed herein by the Learned Advocates for the parties.

4. In support of the Preliminary Objection, the 1st Respondent submits that the Petitioners herein have admitted the existence of Malindi Petition No. 26 of 2016 and that the prayers sought herein are similar in nature to those sought in Malindi Petition No. 26 of 2016.  It is their case that this matter is res sub-judice and that the same amounts to an abuse of the Court process in that the Petitioners herein are asking the Court to quash and nullify a title deed issued in the name of the 1st Respondent as a result of the orders issued in the said Malindi Petition No. 26 of 2016.

5. In response to those submissions, the Petitioner asserts that the 1st Respondent herein is not a party in the said Petition No. 26 of 2016.  The Petitioner further submits that the subject matter and the reliefs sought are completely different from those in the previously filed Petition.

6. The Petitioners told the Court that while it was true they were seeking compensation from the Government, they are not seeking anything from the 1st Respondent. They told the Court they had no issue with the Court’s Judgment in Petition No. 26 of 2016save for the way in which the decree was being executed.

7. The grounds giving rise to the Petition before me are captured at paragraph 1 of the Petition as follows: -

1. (That) the Judgment of the Environment and Land Court sitting at Malindi presided over by Honourable Justice O.A. Angote delivered on 19th July 2018 gave title to an individual before the boundaries with other clans which are not part of the disputed portion adjacent to it were established;

2. The 1st Respondent who was the Plaintiff in the High CourtELC No. 234 of 2011 at Malindi(M/s Tsangwa Ngala Chome) is the one who was given Title to hold on behalf of his clan but has been granted Title in his name as absolute proprietor;

3. The Title Deed which the 1st Respondent premised his case (on) was re-issued without taking into account the Law on representative rights of Community Land and before any survey;

4. The 1st Respondent without any contour of shame has encroached on land occupied and owned by the Petitioner herein;

5. It was not possible to determine the Petitioners rights as they were not part of the proceedings in the High Court as aforesaid since they honestly believed the 1st Respondent would encroach on their land;

6. The Petitioners were the ones who were displaced by the Government when the Army Barracks were constructed and have filed a Petition on their own claiming compensation beingHigh Court Petition No. 26 of 2016 (Malindi);and

7. The Petitioners are surprised that the 1st Respondent is claiming compensation from Ministry of Defence and as aforesaid they are not entitled.”

8. The above grounds are further amplified in the Supporting Affidavit to the Petition sworn by the 2nd Petitioner- Mohamed Menza Yama in which he asserts at paragraph 1. 6 thereof that they were the ones who were displaced by the Government when the Mariakani Army Barracks were constructed and that as a result thereof, they filed Malindi Petition No. 26 of 2016 seeking compensation for their land.

9. The said Petition is indeed annexed as Annexture MMY-4 to the Supporting Affidavit.  A perusal thereof reveals that the Petitioners therein as stated herein sought compensation from various Government institutions said to have put up facilities within the suitland.  The Defendants in the earlier Petition indeed included the Kenya Defence Forces.

10. While the Petitioners herein deny that the subject matter and the reliefs sought are the same, it is clear to me that the land described in the previous Petition in the Supporting Affidavit of the same Mohamed Menza Yama as measuring approximately 1656. 7 Ha located a short distance from Mariakani Township along Mombasa-Nairobi Road” is the very same parcel of land now described in the present Petition as “land ceded to the Government for the establishment of Mariakani Barracks.

11. By their own admission therefore, the Petitioners admit to the existence of a previous suit filed by themselves.  It is also clear from the Grounds upon which they base their Petition that they are aggrieved by the Judgment of the Honourable Justice Angote delivered in this Court on 19th July 2018 in Malindi ELC No. 243 of 2014 and hence their desire by this Petition to have an outcome favourable to themselves.

12. As it were, Section 6 of the Civil Procedure Act provides in mandatory terms as follows: -

“No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction to grant the relief claimed.”

13. Arising from the foregoing, I am persuaded that this present Petition is sub-judice as it offends the provisions of Section 6 of the Civil Procedure Act.  Petition No. 26 of 2016 remains pending for determination.  The Petitioners are aware of that fact and their act of filing another Petition to try and circumvent the Judgment in Malindi ELC No. 243 of 2014 is nothing but an abuse of the Court process.

14. As the Court of Appeal observed in Henry Njagi Muruana –vs- A.O. Okello & Another, Civil Appeal No. 167 of 2009;

“Hierarchy of Courts must   be observed and a Judge of Coordinate jurisdiction cannot set aside a decision of another Judge.  Further, a Judge of Coordinate jurisdiction cannot without hearing the parties suo moto set aside leave that has already been granted or exercise the powers of an appellate Court.”

15. In the premises, I find merit in the 1st Respondent’s Preliminary Objection. Having found that this Petition was instituted in abuse of the Court process, the law enjoins me to make appropriate orders to bring such abuse to an end.  Accordingly, the Petition is hereby struck out with costs to the 1st Respondent.

Dated, signed and delivered at Malindi this 29th day of January, 2021.

J.O. OLOLA

JUDGE