Sabina Nyambura Githina & Evalyn Wanjiru Githina v Land Registrar, Thika Land Registry, Inspector General of Police, Director of Public Prosecution & Attorney General; Real Capital Ltd (Interested Party) [2021] KEELC 2928 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND  COURT AT THIKA

PETITION NO. 8 OF 2017

(FORMERLY  PETITION NO. 153 OF 2017)

SABINA NYAMBURA  GITHINA........................................1ST PETITIONER

EVALYN WANJIRU GITHINA.............................................2ND PETITIONER

VERSUS

THE LAND REGISTRAR, THIKA LAND  REGISTRY...1ST RESPONDENT

INSPECTOR GENERAL OF POLICE...............................2ND RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION........................3RD RESPONDENT

ATTORNEY GENERAL........................................................4TH RESPONDENT

REAL CAPITAL LTD.......................................................INTERESTED PARTY

JUDGMENT

By an Amended Petition dated 29th July 2019, the Petitioners sought for the following reliefs against the Respondents;

a) A Declaration that the Petitioners right to property  has been violated  by the Respondents  contrary to  Article 40(1) of the Constitution.

b) A Declaration  that the Respondents  actions resulting  in the cancellation  of entries numbers 7, 8, 9, 10, 11, 12, 13, 14 and 15  on the register in respect  of Title Number  Ruiru/Ruiru East Block 7/84, without notice  to the Petitioners  and without following  the due, process  set out by  law have contravened the Petitioners’  right to fair administrative  action as enshrined under Article 47  of the Constitution of Kenya.

c) A Declaration  that the 2nd Respondent did not conduct  any investigation prior  to the arrest of the 2nd Petitioner

d) A Declaration that the 3rd Respondent’s action of prosecuting  the 2nd Petitioner  goes against the  rules of natural justice  and promotion of public confidence  in the integrity  of the office of the 3rd Respondent.

e) An order of mandatory  injunction directed  at the 1st Respondent  to reverse the  entry effected cancelling  the entries  numbers  7,8,9,10,11,12,13,14 and 15  on the register and an order to reinstate the deceased registered owner.

f) An order of permanent Injunction  restraining the Respondents  and any other party  from interfering with the Petitioners  rights of ownership and  possession over Title NumberRuiru/Ruiru East Block 7/84.

g) An order to bring  to the High Court  quashing  the trial  of Criminal Case  No. 1674  of 2015; Republic  Vs Evalyn Wanjiru Githina.

h) General damages  for breach of the Petitioners rights  of ownership  under Article 40 of the  Constitution.

i) General Damages  for contravention  of the Petitioners’ right  to a fair  administrative  action as envisaged  under Article 47  of the Constitution.

j) Exemplary damages  for the 1st Respondent’s arbitrary  action of  cancelling the Petitioners  registration  and the charge over  Title Number  Ruiru/Ruiru East  Block 7/84.

The Petitioners averred that by a sale agreement  dated 8th August 2005, the deceased Charles Githina Mwangi,purchased  the suit property from  James Kinyua Theuri  for Kshs. 500,000/=  after conducting the requisite  search for title to the property and the attendant due diligence.  That  the deceased paid all the requisite charges  and upon completion of the sale, the vendor  handed  vacant possession  of the suit property to the deceased(Charles Githina Mwangi), and prior to his death, the deceased was issued with a title deed on 21st March 2006.

That in  the year 2008,the 5th Respondent filed a suit ELC 355  of 2008 against  Charles  Githina Mwangi,  claiming to be the owner of the suit property. That in 2014,the parties filed a consent  to have the suit withdrawn  and the claim against the deceased stood abandoned and the Petitioners have been enjoying  peaceful and quiet possession of the suit property.  That  on 25th February 2015, the 1st  Petitioner’s husband passed away  and Petitioners remained in peaceful possession until May 2015,  when the 2nd  Petitioner  was arrested by the 2nd Respondent  and charged with the offence of forcible detainer.  That the 3rd Respondent  provided the 2nd Petitioner  with witness statement  and document  it would rely on the case and amongst the witnesses is the 1st Respondent  who supports the claim that the  suit property  is registered in the name of the  5th Respondent. That the Petitioners made several visits to Thika Land Registry and the official search revealed that the 5th Respondent was the registered owner of the suit property.

That their Advocates requested for the Green Card from the 1st Respondent  and on 16th November 2016, they were issued with a Green Card which confirmed that a title deed had been issued to the 5th  Respondent on 21st January 2013, and the  Deceased’s title had been cancelled. That there had been no evidence adduced by the 1st to 3rd Respondents on how it was determined that there was a forgery  of title necessitating cancellation. That the subject suit property has been at all material times registered in the Deceased’s name who is the husband to the 1st Petitioner. Further that the 1st Respondent’s action is illegal and unconstitutional and the same should be reversed.

It was contended that the Legal basis  are  Articles 2(1), (4), 3(1), 20(1), 21, 22, 40(1), 47 of the Constitution,  Sections 79 and 80 of the Land registration  Act. That the 3rd Respondent’s acts of prosecuting the  2nd Petitioner  is against the laid down  principles as provided under Section 4 of the Office of the  Director of Public Prosecutions Act of 2013.

The Petition was opposed and the interested party filed a Replying Affidavit dated 12th August  2020,  sworn by  Stephen Gitau Kiarie  its Director who averred that Real Capital Limited,  is an Interested Party  and not  the 5th Respondent. That not a single document attests that the deceased conducted due diligence. That there is no cause of action  as against the  interested Party and the interest of justice dictates that the Petition be dismissed.

The Petition was canvassed by way of written submissions and the Petitioners through the Law Firm of  Muriu Mungai  Company Advocatesfiled theirs on 24th February 2020,  and submitted that the 1st Respondent arbitrarily cancelled the  Deceased’s title  and issued a title to the 5th Respondent  without any justifiable cause.  That  it is trite law that a Land Registrar cannot cancel a title without a Court Order. They relied on the case of R...vs… Registrar of Titles, Mombasa & others Ex parte  A.K Abdulgani  Limited (2018) eKLR.   It was further submitted that the  1st Respondent does not have  powers to cancel title. That the 1st Respondent has powers to rectify a register. That the 1st Respondent’s actions denied the Petitioners a fair chance to defend the title.

It was further submitted that the 2nd and 3rd Respondents are usurping the role of the Environment and Land Court by using criminal proceedings to determine disputes of ownership. It was thus submitted that the 1st Respondent acted beyond his powers, and it is  just that the said action be quashed  and the issue of ownership be determined in a  civil matter.  Further that the Petitioners are entitled to the orders sought.

The Interested Party filed an Answer to the Amended Petition dated 12th  August 2020, through the Law Firm of  Mwihia & Mutai and  Company Advocates.That the Petitioners would only refer to it as a Respondent  if there was any Amendment, which was not there. That no Orders can be sought and granted against the Interested Party and the Orders sought against it cannot be granted. That it only withdrew case  ELC No. 355 of 2008,  after the 1st Respondent  made rectification of the land registrar  recognizing it as a registered owner.  That the Petitioners have never been in occupation or possession and that it is only  between 27th March 2015 and 4th May 2015, that the 2nd Respondent began fencing the suit property giving rise to the criminal case. That the Deceased was aware that it was the registered owner of the suit property hence the withdrawal. Further, that there is no cause of action against the Interested Party. That the Petition is fatally defective as it seeks to enforce Constitutional reliefs against an Interested Party    and therefore ought to be dismissed.

Further, that during his lifetime, the Deceased (Charles Githina Mwangi) was contended that the Interested Party was the registered proprietor and the Petitioners were not privy to the happenings that led to the consent and  the Deceased was bound by the said Consent. That the Petitioners have not proved their relationship with the deceased. That the Interested Party has never been invited to take directions in this Petition . That the Court would only arrive at a proper decision if parties are allowed to take viva voce evidence  and the  Court cannot determine the dispute  without hearing the parties. That it is only upon making a determination on ownership, that the Court can make such determination. That the Constitutional provisions invoked by the Petitioners do not link to the Interested Party. That their lamentations at paragraph 42 of the Petition is silent on who has illegally and unprocedurally  deprived them of the subject matter.

The Court has carefully read and considered the Petition, the   Affidavits, the written submissions and  provisions of law and   finds that the issues  for determination are;

1. Whether this Court has jurisdiction to hear and determine all the Prayers sought.

2. Whether the Petitioners were afforded a Fair  Administrative Action.

3. Whether the Petition is merited.

1. Whether the Court has jurisdiction to her and determine all prayers sought

The Court on its own motion has called into question its jurisdiction in determining various  orders sought by the Petitioners in their Petition. In particular the Petitioners have sought for the following orders

a) A Declaration  that the 2nd Respondent did not conduct  any investigation prior  to the arrest of the 2nd Petitioner

b) A Declaration that the 3rd Respondent’s actions of prosecuting  the 2nd Petitioner  goes against the  rules of natural justice  and promotion of public confidence  in the integrity  of the office of the 3rd Respondent.

c) An order to bring  to the High Court  quashing  the trial  of Criminal Case  No. 1674  of 2015 Republic  Vs Evalyn Wanjiru Guthina.

The  Jurisdiction of the Environment & Land Court has its root in Article 162(2) (b)  of the Constitution, which provides as follows;-

(2)  Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to: -

a. ………..........

b. The environment and the use and occupation of, and title to, land.

(3) Parliament shall determine the jurisdiction and functions of the courts contemplated  in clause (2).

To give effect to Article 162 (2) (b) of the Constitution, Parliament enacted the Environment and Land Court Act Section 13of the said Act which provides as follows:

(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162 (2) (b) of the Constitution and with the provisions of this Act or any other written law relating to environment and land.

(2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the court shall have power to hear and determine disputes relating to environment and land, including disputes-

a) Relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

b) relating to compulsory acquisition of land;

c) relating to land administration and management;

d) relating to public, private and community land and contracts, choses in action or other instrumentsgranting any enforceable interests in land; and

e) any other dispute relating to environment and land.

(3) –

(4) –

(5) –

(6) –

7) – In exercising of its jurisdiction under this Act, the court shall have power to make any order and grant any relief as the court deems fit and just, including –

a) Interim or permanent preservation orders including  injunctions;

b) Prerogative orders;

c) Award of damages;

d) Compensation;

e) Specific performance;

f)  Restitution;

g) Declaration; or

h) costs.

From the above, it is thus not in doubt that this Court is only vested with jurisdiction to hear and determine disputes relating to The environment and the use and occupation of, and title to, land.

From the prayers listed above, it is not in doubt that in determining whether the Petitioners rights were violated, the Court will not be called upon to  determine a dispute that relates to  Environment & Land use. Therefore the Court finds and holds as per the jurisdiction    bequeathed to it by Article 162(2)b, it does not have jurisdiction to hear and determine disputes relating to Criminal investigations and violations of rights in relation to the said criminal investigations.

Consequently, this Court finds and holds that it does not have jurisdiction to hear and determine the said prayers and it will therefore down its tools with regards to the said 3 prayers.  See the case of Owners of Motor Vessel ‘Lilian S’…Vs…Caltex Oil (Kenya) LTD (1989) 1 KLR, where the Court held that:-

“Jurisdiction is everything.  Without it, a court has no power to make one more step.  Where a court has no Jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.  A court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without Jurisdiction.”

However, with regards to the other prayers in the Petition, the same are well within the jurisdiction of this Court and the Court will proceed to

determine the same.

2. Whether the 1st Petitioner  was accorded Fair Administrative Action.

It is not in doubt that  the  1st Petitioner  is the Administrator of the Estate of  Charles Githina Mwangi,who was the registered owner of the suit property. Further from the  green card produced in evidence, the saidCharles  Githina Mwangiwas  registered as the owner of the suit property on  21st March 2006.   It is also not in doubt that there was a suit that was filed by the Interested Party challenging the  Deceased’s ownership of the suit property  and  vide a consent dated 25th September 2014, in case ELC No. 355 of 2008, the suit was marked as withdrawn.

Further from the Green Card produced in evidence, the court notes that  on 28th May 2007,  a restriction was placed  against the title and it was indicated that  the same was as a result of  suspicion of forgery . That on 8th January 2013, the Interested Party  was then registered as the owner of the suit property.

The 1st Petitioner contends that  the cancellation of the Deceased as the owner of the suit property and the subsequent registration of the  Interested Party as the registered proprietor is  violations of her rights as the registered owner of the suit property as she is the Administrator of the Deceased’s estate. Though the Interested Party has contended that it withdrewsuit No. 355 of 2008, upon the  recognition of it as the registered owner and the cancellation of the  said Charles Githina Mwangi as the proprietor of the suit property, the Court has seen the Consent Orderfiled in Court dated 25th September 2014.  In the said Consent, there is no   indication that the suit was withdrawn pursuant to an agreement that the Interested Party would be or was registered as the owner of the suit property. The Consent only stated that the suit be withdrawn and each  party to bear its own costs.

The  Deceased being the registered owner of the suit property was entitled to a Fair  administrative action and further  entitled to Rules ofnatural justicebefore the cancellation of the title in his favour. There is no evidence produced in Court that  before the   registration of the Deceased was cancelled, he was given a  chances to be heard. Further, there is no evidence that the  Deceased was subjected  to  due process before his registration was cancelled or that the cancellation was done by  a competent authority.  There is no doubt that a Land Registrar has no power to cancel registration of a person’s title and the same can only be done by a Court of law or  competent tribunal. Purporting to cancel any registration therefore is acting ultra vires. As  a party has the right under the Constitution to be afforded fair administrative action, that is fair, reasonable and  be given prior Notice, the Court finds and holds that  the 1st Petitioner was  not afforded a fair administrative action.

In the absence of any further evidence to show that the consent was entered into subject to the deregistration of the  deceased’s as the proprietor of the suit property, the Court finds and holds that the Petitioners were  condemned unheard which is against the cardinal rule of natural justice.  See Halbury Law of England, 5th Edition 2010 Vol.61 at para 639, which states:-

“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alterman partem rule) is a fundamental principle of justice.  This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”

Fair administrative action is described in Article 47 of the Constitutionas follows:

“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Article 47 of the Constitution requires just fair administrative action should be lawful reasonable and procedurally fair.  This Court finds that it is  clear  that the 1st Petitioner was never given an opportunity to ventilate her issues and therefore her right to fair administrative action, was breached  thereby making the actions by the  1st Respondent unconstitutional as the 1st Petitioner was not  issued with a Notice before the title was revoked.Further in the caseIn the case of Sceneries Limited v National Land Commission (2017) eKLR,the Court held that;

“the right to a fair hearing under Article 50(1) of the Constitution encompasses several aspects. these includes, the individual being informed of the case against her/him, the individual being given an opportunity to present/her/his side of the story or challenge the case against her/him and the individual having the benefit of a public hearing before a court or other independent and impartial body.’’

Without a proper process through which the revocation would have taken place, the Court finds and holds  that the said revocation  contravened the cardinal rules of Natural Justice,  as the proper  process ought to have been followed. See the case of Republic …Vs… Registrar of Titles Mombasa & 4 others Ex-Parte A.K. Abdulgani Limited [2018] eKLR,where the Court held that;

“what was the right procedure to follow in asserting the Respondent’s and interested parties’ interest in the suit land?  Surely, not by ultra vires action of revocation of grant of title, but by suitable judicial proceedings in that behalf.

Therefore, this Court finds and holds that the 1st  Petitioner was not accorded a fair administrative actionas she is the Administrator of the Deceased’s Estate. The  1st Respondent however, had no obligation to  notify the 2nd Petitioner of its actions and the Court finds and holds that  since no duty was owed to her, there were no violation of her rights.

3. Whether the Petition is merited

The Petitioners have   sought for various declarations and orders in their Petition. The Court has already held above that the 1st Respondent acted illegally and against the rules of Natural Justice in failing to give the 1st Petitioner an opportunity to be heard and cancelling the 1st Petitioner’s title to the suit property. Therefore, it follows that its actions are unconstitutional and cannot be left to stand. See the case ofMsagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553 where 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 colonialization 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.

Given that the  1st Petitioner’s rights were violated, it therefore follows that the orders ought are merited. The Petitioners have also sought for damages for violation of their rights. The Court has already held that the 1st  Petitioner’s rights were violated, and is therefore entitled to damages .

In the case of Reuben Njuguna Gachukia & another …Vs…Inspector General of the National Police Service & 4 others [2019] eKLRthe Court held that;-

56. The Petitioners sought damages for the violation of constitutional rights. Article 23 (3) of the Constitution empowers this court to grant appropriate reliefs in any proceedings seeking to enforce fundamental rights and freedoms such as this one. What amounts to "appropriate relief" was discussed by the South African Constitutional Court in Minister of Health & Others vs. Treatment Action Campaign & Others(2002) 5 LRC 216 at page 249 as follows:-

"...appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief may be a declaration of rights, an interdict, a mandamus, or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the court may even have to fashion new remedies to secure the protection and enforcement of these all important rights...the courts have a particular responsibility in this regard and are obliged to "forge new tools" and shape innovative remedies, if need be to achieve this goal."

Further In the case of Mikidadi vs. Khaigan & Another [2004] eKLR, the court listed the circumstances under which exemplary damages can be awarded as follows:

“Exemplary damages are only to be awarded in limited instances namely. (a) Oppressive arbitrary or unconstitutional action by servants of government. (b) Conduct calculated by the defendant to make him a profit which may well exceed the compensation payable to the plaintiff, or (c) Cases in which the payment of exemplary damages is authorized by statute.”

The Court therefore finds and holds that the  1st Petitioner is entitled to  Damages of Kshs.100,000/=.Consequently the Court makes the following orders;

a) A Declaration be and is hereby made that the 1st Petitioner’s right to property  has been violated  by the 1st Respondent  contrary to  Article 40 (1) of the Constitution.

b) A Declaration be and is hereby made  that the 1st Respondent’s  actions resulting  in the cancellation  of entries numbers 7,8,9,10,11,12,13,14 and 15  on the register in respect  of Title Number  Ruiru/Ruiru East Block 7/84  without notice  to the 1st Petitioner and without following  the due process  set out by  law have contravened the 1st Petitioner’s  right to fair Administrative  Action as enshrined under Article 47  of the Constitution of Kenya.

c) That An order be and is hereby made of mandatory  injunction directed  at the 1st Respondent  to reverse the  entry effected cancelling  the entries  numbers  7,8,9,10,11,12,13,14 and 15  on the register and an order to reinstate the deceased registered owner.

d) An order  of Permanent Injunction  be and is hereby issued restraining the Respondents  and any other party  from interfering with the 1st Petitioner’s  rights of ownership and  possession over Title Number Ruiru/Ruiru East Block 7/84.

e) The 1st Petitioner is awarded  Damages of Kshs. 100,000/= payable by the 1st, and 4th Respondents respectively.

The Interested party is   at liberty to pursue the proper process for the challenging of the 1st Petitioner’s title over the suit property. The Petitioners did not seek for costs and since parties are bound by their pleadings, each party will bear its own costs of the Petition.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 17TH DAY OF JUNE 2021.

L. GACHERU

JUDGE

17/6/2021

Court Assistant - Lucy

ORDER

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

Mr. Kenneth Wilson for the 1st and 2nd Petitioners

M/s Fatma for the 1st, 2nd, 3rd, and 4th Respondents

M/s Mboha for the Interested Party

L. GACHERU

JUDGE

17/6/2021