|Constitutional Application 585 of 2012
|Christopher Mwangi Gakuu v Kenya National Highway Authority,Serah Wangari Nyoro, Chief Land Registrar, Hon.Attorney General, County Council Of Kiambu & National Environment Management Authority
|25 Jul 2014
|High Court at Nairobi (Milimani Law Courts)
|Christopher Mwangi Gakuu v Kenya National Highway Authority & 5 0thers  eKLR
|Mr. Kinyua for Respondent Mr. Dullo for 2nd Respondent Mr. Ndiema holding brief for Mr. Njiri for 1st Respondent
|Constitutional and Human Rights
|Mr. Kinyua for Respondent Mr. Dullo for 2nd Respondent Mr. Ndiema holding brief for Mr. Njiri for 1st Respondent
|Both Parties Represented
|Dismissed and as to costs
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL APPLICATION NO.585 OF 2012
PROF. CHRISTOPHER MWANGI GAKUU................................PETITIONER
KENYA NATIONAL HIGHWAY AUTHORITY..........................1ST RESPONDENT
SERAH WANGARI NYORO....................................................2ND RESPONDENT
CHIEF LAND REGISTRAR.....................................................3RD RESPONDENT
HON.ATTORNEY GENERAL..................................................4TH RESPONDENT
COUNTY COUNCIL OF KIAMBU............................................5TH RESPONDENT
MANAGEMENT AUTHORITY.................................................6TH RESPONDENT
“(a) That a declaration be issued to the effect that the suit parcels herein to wit L.R. Limuru/Roroni/1073 and Limuru/Rironi/1074 are private properties registered in the names of the Petitioner.
(b) That the demolition notice issued by the the 1st Respondent as against the Petitioner is unconstitutional and ultra vires the powers of the 1st Respondent and was done out of bad faith and a violation of the Petitioner's Fundamental Rights and Freedoms and is therefore a nullity.
(c) That an order of certiorari by way of Judicial Review be issued to bring into this Court and quash the decision of the 1st Respondent and restore the Petitioner's right to ownership of the suit parcels.
(d) That an order of prohibition by way of Judicial Review be issued directing and commanding the 1st Respondent to desist from interfering with the Petitioner's proprietary interests in parcel numbers L.R. No. Limuru/Rironi/1073 and Limuru/Rironi/1074.
(e) That an order of prohibition by way of Judicial Review be issued directing and commanding the 3rd Respondent to desist from transferring with the ownership of the suit parcels L.R. Nos.Limuru/Rironi/1073 and Limuru/Rironi/1074 and/or otherwise interfering with the Petitioner's proprietary interests in the said parcels of land.
(f) That the 1st, 2nd, 3rd, 4th, 5th and 6th indemnify and/or compensate the Petitioner jointly and severally for any losses that may be incurred by the Petitioner on any adverse decision as to his ownership of the suit parcels.
(g) That the cost of this Petition be borne by the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents herein.
(h) Any other relief or order that this Court may deem fit in the special circumstances of this matter.”
The Petitioner's Case
The 1st Respondents' Case
The 2nd Respondent's Case
The 3rd and 4th Respondents Case
5th Respondent's Case
6th Respondent's Case
“A declaration be issued to the effect that the suit parcels herein to wit L.R Limuru/Roroni/1073 and Limuru/Rirono/1074 are private properties registered in the names of the Petitioner”.
Interestingly, in ELC No. 34 of 2012, the Petitioner has sought the following orders;
“(a) A declaration that the parcels of land known as L.R. No.Limuru/Rironi/1073 and Limuru/Rironi/1074 are private properties registered in the names of the Plaintiff.
(b) An order of Permanent Injunction restraining the Defendant, its servants, employees and/or agents from demolishing and/or interfering with the building erected on L.R. No.Limuru/Rironi/1073.
(c) An order of Permanent Injunction restraining the Defendant, its servants, employees and or/agents from interfering with the Plaintiff's proprietary interests in L.R. Nos.Limuru/Rironi/1073 and Limuru/Rironi/1074.
(d) A declaration that the intended demolition as threatened in the notice issued on 10th January, 2012 is illegal, null and void.
(e) Costs of the suit.
(f) Any other relief that the Court may deem fit.”
22. It is obvious that the causes of action in both the suit and Petition are the same and the question therefore at this stage is whether this Court can determine the issue of title to the suit properties given that the same issue is pending in ELC No. 34 of 2012. It is quite clear to me in that regard that the Petitioner is litigating the ownership of land title to the suit properties in this Petition as well as in ELC No. 34 of 2012. That being so, Article 165 (5) of the Constitution limits the jurisdiction of this Court in two aspects. Firstly, where the dispute relates to a question reserved exclusively for the jurisdiction of the Supreme Court. And secondly, in respect of disputes falling within the exclusive jurisdiction of the Courts contemplated in Article 162 (2) of the Constitution one of which is the Environment and Land Court. This position has been aptly captured by this Court in various decisions. (See - Robert Mwangi v Shepherd Catering Ltd & Another (2012) eKLR where it was held that the High Court cannot delve into matters relating to title to land as it has no jurisdiction do so.)
23. In addition to the above, Article 162(2) of the Constitution specifically provides that Parliament shall establish Courts with the status of the High Court to hear and determine disputes relating to the environment, use and occupation of, and title to land. Article 162(3) then provides that Parliament shall determine the jurisdiction and functions of the Courts contemplated in Article 162(2). It is on the basis of those provisions that Parliament enacted the Environment and Land Court Act, No. 19 of 2011 which came into effect on 30th August 2011. The object of the Act is stated to be as follows;
“An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes”.
24. Applying the law as above and in my view, the issue of determination of title to the Petitioner's suit property falls within the mandate of the Environmental and Land Court as established pursuant to the provisions of Article 162(2) of the Constitution and it is that Court which has exclusive jurisdiction to hear and determine matters related to the environment, the use and occupation of, and title to land.
25. For those reasons, it follows that this Court has no jurisdiction to determine the first issue as framed for determination to wit; whether the Petitioner is the registered owner of the suit properties.
26. Having said so, I must return where I began. The Petitioner's position as I understand it seems to be that he is the registered owner of the suit properties having bought the same from the 2nd Respondent and that the action of the Government in issuing him with an eviction notice and subsequently demolishing his building erected on L.R No.Limuru/Rironi/1074 amounts to compulsory acquisition of the land and a violation of his right under Article 40 of the Constitution. The 2nd Respondent while not disputing that there was compulsory acquisition of part of L.R Limuru/Rironi/506, claimed that the suit properties were hived off the remaining part of L.R Limuru/Rironi/506 after the acquisition, and therefore the suit properties were not compulsorily acquired. On the other hand, the 1st, 3rd and 4th Respondents claimed that the suit properties were compulsorily acquired by the Government from the2nd Respondent who was duly compensated, for the purposes of the construction of the Kabete-Limuru Road. In addressing that issue, it would be necessary to determine whether the suit properties were part of the land acquired by the Government in 1987. In essence and in so doing, the Court would be making findings on the ownership and title to L.R No. Limuru/Rironi/1073 and L.R No. Limuru/Rironi/1074 a matter outside its jurisdiction.
27. Be that as it may be, I am also aware that the Petitioner has filed the instant Petition claiming that his fundamental rights and freedoms have been violated. However, the issue of ownership of L.R No.
Limuru/Rironi1053 and L.R No. Limuru/Rironi1074 is central to the determination of whether the rights of the Petitioner under Article 40 of the Constitution have been violated. Article 40 for avoidance of doubts states as follows;
“(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-
(a) of any description; and
(b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person—
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—
(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—
(i) requires prompt payment in full, of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.
(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.
(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.
(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.”
28. To my mind, Article 40 of the Constitution upholds and protects the sanctity of title and the primary consideration for the court in a case as one before me is that the title to the property was lawfully obtained. The only instance where title to property cannot be protected is where it is shown that the title was unlawfully acquired and under Article 40(6) of the Constitution such title cannot be protected. On this point I agree with Majanja J. in the case of Isaac Gathungu Wanjohi v Attorney General & 6 Others (2012) e KLR where he observed as follows;
“Article 40 must read as a whole so that protection afforded by Article 40 which protect the right to property must be read to exclude property found to be unlawfully acquired under Article 40(60. This requirement is an extension of the fact that the Constitution protects higher values which are to be found in preamble to the Constitution and Article 10. Value such as human rights and social justice cannot countenance a situation where the Constitution is used to rubber stamp what is in effect unlawful.”
From the evidence which tendered in this matter and which will also be tendered in ELC.34 of 2012, it is not the place of this Court to determine whether the 2nd Respondent may have acted fraudulently and that the titles she purported to have transferred to the Petition were not clean. That is for the Court established under Article 162(2) of the Constitution. In a prior Ruling in this matter delivered on 28th June 2013, i pointed out the fact that Ougo, J. in a Ruling for an interlocutory injunction within ELC No.34 of 2012 had made certain observation regarding the same issues as were later placed before this Court for determination. One of the issues she alluded to was precisely the issue of the manner that the Petitioner acquired titles to the suit properties. It is an abuse of Court process to bring the same issues to this Court which in any event has no jurisdiction to determine the main issue of title before it can properly determine whether any rights under Article 40 of the Constitution has been violated.
29. Having addressed my mind as above, it is clear that the Petition must fail and I have deliberately refused to address the issue as to whether the Petitioner's fundamental rights under Article 40 have been violated and for reasons given. If any advise is needed, let him first canvass the issue of ownership of the suit properties in ELC No. 34 of 2012. Thereafter, he may come to this Court to determine the latter issue or invoke Section 13 of the ELC Act and seek that the ELC should determine the same issue within ELC No.34 of 2012.
30. The Petition must therefore be dismissed and as to costs, I am satisfied that since ELC No.34 of 2012 is still pending, let each party bear its own costs as regards this Petition.
31. Orders accordingly.
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 25TH DAY OF JULY, 2014
In the presence of:
Irene – Court clerk
Mr. Kinyua for Respondent
Mr. Dullo for 2nd Respondent
Mr. Ndiema holding brief for Mr. Njiri for 1st Respondent
Judgment duly read