Republic v National Land Commission, County Land Management Board, Attorney General & Asha Bilal Msellem Nasib Kibwezi Ex-Parte Muslim Associations [2018] KEELC 3405 (KLR)

REPUBLIC OF KENYA

IN THE  ELC  COURT  AT MAKUENI

ELC  JR  8 OF 2017

REPUBLIC...........................................................................................APPLICANT

VERSUS

THE NATIONAL LAND COMMISSION..............................1ST RESPONDENT

COUNTY  LAND MANAGEMENT  BOARD.....................2ND  RESPONDENT

ATTORNEY  GENERAL........................................................3RD RESPONDENT

AND

ASHA BILAL MSELLEM NASIB................................... INTERESTED PARTY

KIBWEZI MUSLIM ASSOCIATIONS ...................... EX-PARTE APPLICANT

JUDGMENT

1)  By its  Notice of Motion  application  dated 8th April, 2016 and filed  in court on even date pursuant   to leave granted  on the  4th April, 2016  the Ex-parte Applicant prays for orders;

1. That certiorari  do issue to remove  to this  honourable Court  and quash  the decision by the National  Land  Commission contained  in its Chairman letters  dated 27th January  and 9th March,2016 unilaterally conferring  ownership of the  Applicant’s parcel of land to the Interested  Party.

2. That prohibition do issue  prohibiting  the 2nd  Respondent or any other office from implementing   the said decision  of the 1st Respondent.

3. That Mandamus do issue to compel the Respondent to implement the Part Development Plan referred  as No. MKN/193/97/03 and thereby  confer the ownership documents to the Applicant  Kibwezi Musim Association.

4. That  the costs of this application be provided for.

2) The application is accompanied by the Ex-Parte  chamber summons, statements  and verifying affidavits.  The  Respondents and  the interested party were  served  with this  application   as can be  seen  from the affidavits of service  sworn  on the 27th September, 2017 and 20th May, 2016 respectively.

3)  By the   time the  3rd Respondent  was filing   his  grounds   of opposition on the 3rd  November, 2017 the same being dated 2nd November, 2017 the court had  on the 28th September, 2017 directed that the  Ex Parte Applicant do proceed  with the matter as undefended.  The 1st, 2nd Respondents and the interested  party  did not file any papers  to defend/and or oppose the claim. The  3rd Respondent did not file his submissions.

4)  The submissions  by the counsel for the Ex-Parte  Applicant were that  from the Ex-Parte applicant’s  statement and verifying affidavit both dated  17th October, 2016 which have stated inter alia that the Ex-parte Applicant is an Association registered  under section 10 of the Societies Act as confirmed by a certificate of Registration No. 23531 dated 4th May, 2004 annexed and marked as SA-1.  Said Aboud who in the verifying affidavit sworn on the 30th March, 2016 describes himself  as a trustee of the  Applicant  deposed that the Applicant is  the rightful owner of a surveyed but unregistered piece of land in Kibwezi town  measuring 0. 83 hectares or  thereabouts reserved for Kibwezi Muslim Centre as can be  seen from a copy of map of the location annexed and marked as SA-2.

5)  Further from their affidavit evidence, the Ex-Parte Applicant states that it has the relevant documents  to prove  ownership of the aforementioned piece of land which include:-

A letter dated 26th June, 2003 from the  Ministry of Lands and Settlement  through its Department of Physical Planning, Makueni confirming  that the  said  piece of land had been reserved  for  Kibwezi Muslim Association (the Ex-Parte Applicant). The Ex-Parte Applicant stated that  the letter  which is marked  as SA-3 confirms that the Department had initiated  the process for issuance  of letter of allotment  and a lease  to it certificate  by the Commissioner of Lands.

A letter dated 8th August, 2013 and marked as SA- 4 confirming that an allotment letter reference no. 11306/4 was issued to the trustees of Kibwezi Muslim  Association as per the  records of the Registrar  of Societies.

The Makueni County Assembly report/resolution recommending  inter alia that the Ex-Parte Applicant be issued with title deed to the  land subject of this application as  can  be seen  from the report marked as S-SA  in the supplementary affidavit  sworn on the 12th  October, 2017 by Said  Aboud.

6)  The counsel went on to  submit that the  Ex-Parte Applicant has averred that there was a looming   land dispute over the said  parcel of land between the Ex-Parte Applicant and  the family of Aisha Bilal Msellem Nasib ( the interested party). He submitted that   the office of the County Land Management Board Makueni County, through the chief officer, Ministry of  Mining  and Planning made a recommendation signed on 12th September, 2015 revoking the  setting a part of the land in question for Kibwezi Muslim Association ( the Ex-Parte  Applicant)  and purported to award the same to the interested  party herein   and subsequently, the National Land Commission issued  a letter dated 27th  January, 2016 and 9th March, 2016 acknowledging  the above  decision signed on 12th September, 2015 as can be seen from annextures SA-5, SA-6(a) and (b) respectively.

7) The counsel went on to submit that the Ex-Parte Applicant verily believes  that the National Land Commission and the office of the County  Land Management Board  - Makueni , through the chief  officer, Ministry of Mining and Physical  Planning acted  unilaterally, against  the rules of natural justice and ultra vires their jurisdiction in making their decision to  award the land in dispute to the interested  party without involving  the Ex-Parte applicant.

8) On whether or not this court  has jurisdiction to issue judicial  review remedies sought the  Ex-Parte applicant’s counsel submitted that judicial  Review Proceedings are governed by Article  165(6) and (7) of the Constitution  which provides as follows:-

(6) the   High Court has supervisory jurisdiction over the Subordinate Court and   over any person, body or authority exercising a judicial or quasi judicial  function, but not over  a Superior  Court.

(7) for  the purposes  of clause (6) the High Court may call for any record of any proceedings before any  subordinate court or person, body  or authority referred  to in clause (6) and may  make any order or give any order or give any direction  it considers appropriate  to ensure  the fair administration  of  justice.

9)  The counsel went  on to submit that Article  47(1) and (2)  of the Constitution states that  every person has  the right to administrative action  that is expeditious, efficient, lawful,  reasonable and procedurally fair.  The counsel pointed out that in compliance with Article 68(as read with Article 67) of the Constitution Parliament enacted the National  Land Commission Act, 2012 and at section 5(1) of the Act, the functions of the Commission as set out in the Constitution are reiterated and include monitoring the registration of all rights and interests in land.

10) The counsel  further submitted that Article 260 of the Constitution  defines a person as including “a company, association or other body of persons whether  incorporated or unincorporated”. The counsel went on to submit that  the High Court has been  mandated by the Constitution to protect and prohibit  any tribunal or authority from acting  contrary to the rules of natural justice and in this matter, the expulsion of the Ex-Parte Applicant  from it’s  land against the rules of natural  justice.

11)The  counsel  correctly submitted that  judicial  review is concerned  not with  private rights  or the  merits of the decision  being  challenged  but  with  the decision  making process.  The counsel went to submit that the purpose of judicial   review is to ensure that the person concerned is given fair treatment by the  authority to which he has been subjected . The counsel relies on the cases of Bahajj Holdings Ltd Vs Abdo Mohammed Bahajj &Company Ltd and  Another  in Nairobi Civil Application no 97 of 1998where  the court   of appeal held  that

“ the limits of judicial review continue  expanding so as to meet the changing  condition and demands  affecting administrative decisions”

and Republic  Vs the Commissioner of Lands Ex parte Lake Flowers Limited  in Nairobi HC Misc Application No 1235 of 1998 where it was held that:-

“ Judicial review is  a tool of Justice , which can be  made to serve the needs of a growing society on a case-to-case basis. The court envisions a future growth of judicial review in the human rights arena where it is becoming  crystal clear  that  human rights will evolve and grow with the society”

12) The counsel  further  relies on the Fair Administrative Action Act, 2015 which was enacted  to  give effect to the provisions of Article  47 of the Constitution, and for connected purposes.

13) Arising   from the foregoing, the Ex-Parte applicant’s  counsel submitted that  the Respondents  herein are  liable  to be subjected to judicial review reliefs.

14) The Ex-Parte  Applicant’s  counsel  further  submitted that the Ex-Parte Applicant through its trustees, as mandated under their  Constitution have been making  endless efforts to ensure that the title documents are issued to the land in question.  The counsel pointed out that  without just cause and acting in bad faith, the Respondents ignored all these requests and went ahead to revoke allocation  of land in question to the  Applicant and  purported  to award the same to the interested  party  herein. The counsel  added that the Respondents did not involve the Applicant  in its purported  process  which led to the revocation  of the allocation of the land in question to the Applicant. The counsel further submitted that by revoking the allocation of the land in question  to the  Applicant, the Respondents did this without affording the Applicant a fair hearing.  The counsel added that this is a failure  of their  duties to ensure that their actions complied with the  rules of natural justice. The counsel correctly submitted that Article 40 of the Constitution and section 26 of the Land Registration Act only protects  lawfully acquired  property. He also correctly submitted that judicial review involves an assessment of the manner in which  the decision is made and the jurisdiction is exercised in a supervisory manner to ensure that public  powers are exercised in accordance  with the basic  principles  of  legality, fairness and rationality.

15) On the issue of unreasonable , irrational  and  unfair decision, the Ex-Parte applicant’s counsel submitted that :-

i.The  Applicant  who are  a religious  organization were allocated the aforementioned piece  of land on 10/7/1997  which is close to 20 years ago.

ii.The allocation  was reserved  for construction  of Kibwezi  Muslim Centre which  would   benefit  the Muslim community in the  area as opposed to individuals.

iii. The Ministry of Lands and Makueni  County Assembly confirmed allocation of the said land to the Applicant.

iv. On the strength of the said allocation, the applicant’s trustees have been making endless efforts  to ensure title deed  is issued to the applicant.

16)    Regarding  fair hearing and bias, the counsel pointed out that :-

i.The Respondents  did  not  give the applicants a fair hearing and the decision reached was contrary to the Rules of Natural Justice.

ii. The Respondents action as aforesaid was also biased against the ex parte  applicants.

iii. Whether  or not  a person was given a fair  hearing of his case will depend on the circumstances and the type of the decision to be made.  The minimum requirement is that the person gets the chance to present his case.  If the Applicant has certain legitimate expectations, the rules of natural justice also require that they are given an oral hearing and that their request many not be rejected without giving reasons.

iv. The essential components of fairness in any administrative hearing are reasonable advance  notice , reasonable opportunity to be  heard and an impartial, competent and independent   decision maker.

v.  In granting   the Judicial review  orders sought, the court in Republic of Kenya  Vs Registrar of Trade Unions[1988]eKLR(misc. Civil Application  No.298 of 1986) quoted in approval  the celebrated case of Ridge Vs, Baldwin [1964] AC 40 where it was held that the  body with the power cannot lawfully proceed  to make a decision until  it has afforded to the person  affected a proper    opportunity to state his case.  By not affording this  to the ex parte applicant, this  was an apparent sign bias.

vi. The 1st  and 2nd  Respondents had a duty to seek out the Applicant  through its  trustees and  give them satisfactory reasons as to why the title would not be issued in the form that they (Applicants) had applied.  This went against the doctrine  of natural  justice.

vii. In the case  of  Inner  City  properties  Limited vs County government of Nairobi [2016] eKLR  Nairobi Judicial Review  Application No. 359 of 2015, court  noted that:-

Therefore  the  Respondent was obliged to afford the Applicant a hearing before it made its decision  which  decision, undoubtedly, affected the interest of the  Applicant by depriving  it of its  rights to the enjoyment  of a property to which it lay claim by developing the same…

It  is settled  law that  a benefit  cannot be  withdrawn  until the reason for withdrawal has been given and the person concerned has been given an  opportunity to comment on the reason. Therefore, apart from the ex parte Applicant  herein, there was  a requirement that those who had acquired interests in the subject developments be similarly notified before an action adversely affecting their  interests could be  undertaken.

viii. The court, in republic vs  Commissioner of Lands  & 2 others ex parte Antiocha Limited & 2 others [2016] eKLR, addressed   the issue of natural justice as follows:-

The failure by the Respondents to invite the Applicant to defend its title, after giving is sufficient reasons and documents as to why they think they should cancel the title, falls a foul against the provisions of Article 47 of the Constitution and the rules of natural justice.

It  is  now settled law that a benefit cannot be withdrawn until the reason for withdrawal has been given and the person concerned  has   been given an opportunity to comment on the reason  (see R vs Nairobi City County Ex parte ELMC LTD (2014) eKLR).

17) Regarding   rules of natural  justice, the Ex-Parte  Applicant’s counsel referred  the court to Court  of Appeal decision in Onyago Oloo vs Attornery General (1986 -1989)  EA 456 where it was held that ,

“the principle of natural Justice applies where ordinary people would  reasonable expect those making decisions  which  will affect others to act fairly and they cannot  act fairly and be seen  to acted  fairly without giving  an opportunity to  be heard … a decision  in  breach of the rules of natural Justice  is not cured  by holding  that the decision would have otherwise been right since if the  principle of natural justice  is violated, it matters not that the same decision would have been arrived at…”

The counsel  further cited Halsbury’s  Laws  of England   ( Administrative  Law) Fourth  Edition  2001 Reissue, at page  218, paragraph  95 where  natural Justice is defined as follows:-

“ Natural Justice  comprises two basic  rules; first that no man is to be a judge in his own cause (nemo judex 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 decision is correct.  The rules of natural Justice Must be observed by courts, tribunals, arbitrators and all persons and bodies having duty to act judicially, save where the application is excluded expressly  or by necessary implication,  or by reason of other special circumstances”

18) The  counsel  submitted  that the Applicant  who was allocated the property in question in 1997 which is over 20 years ago and developed it, had a legitimate  expectation that the Respondents would issue them with title deed to the land the subject of this application. The counsel added that it is only the  issuance of title  deed that as hindred the development of the proposed Muslim center.

19) In conclusion, the  Applicant’s counsel submitted that the applicants  right to be heard was breached by the decision and/or action of the 1st Respondent and by  extension, the 2nd Respondent.  The counsel  termed the decisions by the Respondents  ultra vires, contrary to the rules of natural justice and improper and  is amenable to the judicial  review orders of  certiorari.

20) Having read the affidavit evidence filed by the Ex-Parte Applicant as well as the submissions filed by his counsel on record, I do note that there is uncontroverted evidence that the suit land  was allocated to the Ex-Parte  Applicant by the Ministry of Lands for construction of Kibwezi Muslim centre as confirmed by part development plan  prepared on  10th July, 1997.  Indeed subsequent letters from the same Ministry dated 26th June, 2003 and 8th August, 2013 confirm the  said  allocation of the suit land to the Ex-Parte applicant. There is also  evidence to show that the Makueni  County  Assembly on 2nd August, 2016 passed  a resolution  recommending among  other things  that the Ex-Parte Applicant be issued with a title deed to the land which is the subject matter of this application.

21) I have looked at the grounds of opposition dated 2nd November, 2017 and filed in court on even date  by the 3rd  Respondent.  They hold no water since there is evidence to show that the Ex-Parte Applicant is an association registered under section 10 of the Societies Act as confirmed by the certificate   of registration no. 23531 dated 4th May, 2004 (see annexture SA 1 to the verifying affidavit).  As such, I hold that the Ex-Parte Applicant has locus  standi, to file and prosecute this  suit as it is a legal entity. The Ex-Parte Applicant has also demonstrated its proprietary rights that it holds over the suit property capable of protection by this court.  Besides, the grounds of opposition were filed  by the 3rd Respondent without  memorandum of appearance. The interested party though served with the application  never filed  any response.

22) It is clear that the decision and action taken by the 1st and the 2nd Respondents without affording a hearing to the Ex-Parte Applicant was unreasonable, irrational and unfair.

23) The Respondents did not afford the Ex-Parte Applicant a fair hearing and their decision smirks of bias. I am in agreement with the Ex-Parte Applicant’s counsel that the Ex-Parte Applicant had a legitimate expectation that the Respondents would issue it with a title deed to the land which the subject of this application.  I am satisfied that the application has  merits  and in the circumstances,  I  hereby  proceed to allow the notice of  motion application in terms  of prayers  1,2,3 and 4. It is  so ordered.

Signed dated and delivered at Makueni on 6th day of  April , 2018

MBOGO C.G

JUDGE

In the presence of;

Mr. Hassan holding  brief  for Mr. F.M  Mulwa for the Ex Applicant

No appearance   for  the Respondents

No appearance   for  the interested  party

Mr. Kwemboi Court Assistant.

MBOGO C.G

JUDGE

6/4/2018