THE  REPUBLIC

IN THE ENVIRONMENT  AND LAND COURT

AT  MAKUENI

ELC .CASE NO. 11 OF 2017

MICHAEL MWANZIA KITAVI.....................................PLAINTIFF

VERSUS

LUKENYA UNIVERSIT TRUST                                                       

REGISTERED TRUSTEES................................1^ST DEFENDANT

THE HON. ATTORNEY GENERAL.................2^ND DEFENDANT

THE CABINET SECRETARY MINISTRY OF LAND,                   

HOUSING  AND URBAN DEVELOPMENT....3^RD DEFENDANT

NATIONAL  LAND COMMISSION................4^TH DEFENDANT

RULING

1. On the 21^st March, 2017 the 1^st defendant filed a notice of preliminary  objection dated the same date and it seeks to strike out the entire suit as the same is fatally defective as it offends :- 

a. Article 60(1) (b) of the   Constitution of Kenya

b. The mandatory  provisions of Sections  13A  and 16 of the Government Proceedings Act (Cap. 40 Laws of Kenya );

c. Sections 38 and 41 of the Limitation of actions Act (Cap. 2 Laws of Kenya) ;and

d. Order  37 Rule 7 of the Civil Procedure Rules, 2010

2. And on 18^th September, 2017 the court directed that the  application be disposed off by way of written submissions.   All the parties herein save for the 4^th defendant have filed their submission to address  the 4 grounds  in the notice of preliminary objection.  On the first ground that the plaintiff’s suit offends the mandatory provisions of Sections 38 and 41 of the Limitation of Actions Act, the 1^st defendant’s  counsel submitted that a claim for adverse  possession, as in this case, is anchored  under Section 38(1) of the   Limitation of Actions   Act where it states:-

“where a person claims  to have become   entitled by adverse possession to land registered under any of the Acts cited  in section 37, or  land comprised in a lease  registered  under  any  of those  Act, he  may  apply  the  High Court for an order that he be registered   as the proprietor  of the land or lease in place of the person then registered  as the proprietor of the land or lease in place of the person then registered as proprietor of the  land”

3. The counsel  went on to submit  that what is to be deducted from the  section 38(1)  as read with section 37 of the Limitation of Actions Act is that for one to claim adverse possession, the land has to be registered in the quoted land statutes  in favour of the person against whom the order is sought and pointed  out this provision has not been  satisfied  in this case.  The counsel added that no title has been pleaded or exhibited under any of the Acts quoted under Section 37  of the Limitation of Actions Act, either in  favour of 1^st or  any other of the defendants and he urged the court to make such  a finding.  The counsel  referred  to the case of Samuel Kipngeno Koech Vs Agnes Wambui Gitonga in Kerich ELC No.05 of 2015 (OS) where  Munyao, J held that :-

“Section 38 above refers to certain  Acts  Parliament, cited  in Section 37.  The said statutes   are the Government   Land Act (Cap . 280), the Registration of  Titles Act (Cap. 281), the  land Titles Act (Cap 282) or the  Registered Land Act (Cap. 300) (all now  repealed  by the Land  Registration Act, 2012 but titles still subsist as issued under those statutes).  It follows that for a claim of adverse possession to be entertained in this country, the applicant must specifically identify the exact title  of  land  that is the subject to the claim. 

The extract of the title also has another significant importance.  It  does  show  the history of the  proprietorship of the land in issue. This history is  important in computing time, for there are some entities against whom one cannot claim the adverse  possession. So long as these  entities remain  the registered owners of the title being  claimed , time  cannot start running  in favour of the occupant of the land in question. These entities are set out in Section 41 of the Limitation of Actions Act…”

4. Secondly, the counsel  submitted that  section  41 (a) (i)  of  the   Limitation  of Actions Act states inter alia that:-

“This Act does not:-

(a) Enable a person to acquire any title   to, any easement over -

(i) Government   Land  or Land  otherwise  enjoyed  by the Government” 

5. The counsel  submitted that the undisputed  facts are clear that the subject parcel of land is within a settlement scheme. He pointed   out that   settlement schemes   have been under the Settlement Fund  Trustees  then established  under section 167 of the Agriculture Act (Cap 138 – Now repealed as at 17/1/2014 by the Agriculture and Food Authority Act No. 13 of 2013). He added  that the Settlement  Fund  Trustees  are now provided  for under the Land Act No. 6 of 2012 as amended  by the  Land Law (Amendment) Act No. 28 of 2016 at Section 134 and 135 in part IX thereof   and are now called the Land Settlement  Fund Board  of Trustees.  He said that the Board , which has not been sued herein , is a body corporate, just as before with perpetual succession and a common seal capable of suing  and   being sued in its corporate name.  The counsel went on to submit that the aforesaid sections 134 and 135 of the Land Act as amended squarely place  implementation settlement  programmers on the   National Government.  The settlement land , just as before, can be either  unalienated Government  land or land purchased using public  funds and referred the court to Samuel Kipngeno Koech’s (Supra) on this  issue as well  as the case of Ann Itumbi Kiseli Vs James Muiki Murithi  in Malindi  ELC no. 163 of 2012(O.S)

6. The counsel  went  on to submit that law has expressly excluded  government/public  land, as in this case, from a claim of adverse possession.  The counsel added that the 1^st  defendant  is  merely an allotee and the land remains public land until a title deed is issued  to an allotee and submitted that the land in question is an  unalianated   government land hence public land as provided for under Article 62(1) of the Constitution of Kenya hence it is not amenable to adverse possession and therefore the plaintiff’s claim once against must fail as   a matter of law.

7. The submissions by the counsel for the 2^nd and 3^rd defendants are similar  to those of the 1^st defendant save that the counsel in addition cited Black’s law dictionary which defines “ public  land”   as crown  land or land that belongs to the government who own the title  to the  land.  The dictionary goes to indicates that such land  is often   vacant unless  the  government has a good reason to  sell it.”

8. On his  part, the counsel  for the plaintiff   submitted that the plaintiff  has used land parcel number 18,   Ngai  Ndethya  settlement scheme in a manner   that is in compliance  with the requirement, of Article  60(1) of the Constitution and cited the case of Kahindi Ngala Mwagandi , Vs Mtana Lewa (2014) eKLR.

9. Whereas   the plaintiff claims to have used  the land   which is the subject matter of this suit in accordance  with the principles  of land policy as is provided  for under Article 60(1)   of the  constitution of Kenya,  he has not   addressed his mind as to whether or not the land in question is public   land as provided for under Article 62(1) (a) of  the Constitution. I am in agreement with the counsel for the 1^st  and the  counsel for the 2^nd and the 3^rd defendants  that the undisputed facts are that the suit land is within a settlement  scheme which  the counsel have correctly  submitted  that it falls under  public  land.  I also do agree with the counsel for the 1^st defendant that the plaintiff ought  to have pleaded  the title or exhibited  one  as is required under section  38(1) as read with section 32 of the Limitation of Actions Act. I am in agreement with the  holding  in Samuel  Kipngeno Koech Vs Agnes Wambui  Gitonga  in Kericho ELC 5/2015(O.S) on the requirement  of compliance  with  section 38 of  the Limitation of Actions Act by the plaintiff   in order to justify a claim for adverse possession.   The case of Kahindi, Ngala Mwagandi Vs Mtana Lewa (2014) eKLR does not  come to his  aid because  me as I understand it, the same  concerned private land which  is not the case.

10. On the second ground  that the plaintiff’s suit offends the mandatory provisions of order  37 Rule 7  of  the Civil Procedure Rules, the counsel for the   1^st defendant submitted that it is trite law that an application for adverse possession as is provided for under section 38 of  the Limitation  of Actions Act can only be commenced  by way of Originating  Summons  by dint  of Order  37 Rule 7 of the civil Procedure Rules.  Rule 7 of Order 37 also  requires that the summons  be supported by an affidavit to which a certified  extract of the title to the land in question has been annexed  where  upon the court is required to direct on whom and in  what manner the summons shall be served. The counsel added that the court has been unlawfully approached.  The counsel for the 2^nd  and the 3^rd defendants did not submit on this ground.

11. The counsel for the plaintiff  submissions were that Article 159 (2)(d) of the Constitution 2010   provides that in exercising judicial authority, the courts and tribunals  shall be  guided by the principles that  justice shall be administered  without  undue regard to procedural technicalities.

12. In addition, the counsel cited section 1A  of the Civil Procedure Act that provides for the  overriding   objective whose   aim is to facilitates the just, expeditious, proportionate and affordable  resolution of the civil disputes governed by the Act.  He also cited  section 3A  of the Civil Procedure  Act which provides for the power  of the court  to make such  orders as may be  necessary  for the ends  of justice  or to prevent abuse of the process  of the court.
 

13. The counsel referred the  court  to the case of Coast Development  Authority Vs Adam Kazungu Mzamba & 49 others [2016] eKLR  where  it was held   that;

“ while  it is   accepted  that both Article  159 and the overriding objective are  not a panacea in all and sundry situations  of breaches of orders of the court or rules of procedures, they are nevertheless fundamental provision that a court must pay due regard before  taking drastic  action of dismissing a suit without affording a party an opportunity  to be heard,  on account  of technical breaches committed  by the party”

14. The counsel also referred   the court to Lamanken Aramat Vs Harun Maitamei  Lempaka in Supreme  Court petition number  5 of 2014 where the Supreme Court held;

“The  court’s authority  under Article 159 of the constitution remains unfettered especially where procedural  technicalities  pose an impediment to the administration of justice”

15. The counsel went on to submit that failure  to comply with the  procedural requirement of order  37 Rule  7 does not   prejudice  the defendants   herein and this court should be guided  by the overriding  objective and Article 159 of the constitution  and allow  that matter  to be canvassed on its merits by the parties to the suit.

16. I am in agreement with 1^st defendant’s  counsel that  by moving the court through  a  plaint instead of an originating summons that is supported by an affidavit to which  a certified extract of the title to the land in question has been annexed, the plaintiff  has committed fundamental, substantial, and fatal departures and non- compliance in law which cannot be cured under Article 159 of the constitution and section 1A of the Civil Procedure Act. Indeed the claim cannot stand as the suit is fatally defective ab initio. Order 37 Rue 7 of the Civil Procedure Rules is clear that an application of adverse possession as provided for under section 38 of the Limitation of Actions Act can only be commenced by way of an Originating Summons.

17. Regarding  the  ground  that the  plaintiff’s suit offends  the mandatory provisions of  section  13A and 16 of the Government  Proceedings Act, the  counsel for the 1^st  defendant submitted that since it is clear that the government has been sued over a government  land settlement  scheme, it was mandatory for the plaintiff to issue 30 days notice of his  intention  to institute proceedings against the government and failure to do so, then no proceedings shall lie against it.  The counsel went on to submit that under section 16  of the  aforesaid  Act, injunction orders sought  under prayer (c) of the plaint  cannot  issue against the government .

18. The counsel for the 2^nd and the 3^rd  defendants supported the first defendant and proceeded   to refer the  court to the  case of Miriam  Njeru Njau Vs Attorney General [2016] eKLR where it was   held that;

“The  applellant  suit did not lie  and without evidence that the respondent had been served with the  mandatory statutory notice, it was misconceived  and fatally defective.   Rather than dismiss it as the learned magistrate  did I would  order that  it be struck out with costs to the  respondent.”

19. The counsel added that the above position was expounded by the  Court of Appeal  in Joseph Nyamamba & 4 other Vs Kenya Railway corporation [2015]eKLR where   in dismissing the appeal held  that ;

“ the  appellant  ought to have  complied  with the requirement  on giving  notice to the respondent  before suit could be filed. Failure to do so made the suit incompetent and the learned judge was right to strike it out. We observe, in  passing as we close, that the learned  judge  allowed the appellant’s to  give  proper  notice  and then approach the court for  relief but  that advise , if advise  it was, was  ignored.   That election by the appellants not to give notice and file suit a fresh would appear to have put them in a rather, dicey situation in view of the time that has elapsed but, again, choices  have consequences”.

20. On the other hand  the counsel for the  plaintiff  submitted  that sections 13A and  16A of the Government Proceedings  Act fail the constitutionality  test and pointed out under Article 48 of  the Constitution, the state is obligated  to ensure access to justice for  all persons and, if any fee is required, it shall be reasonable and shall  not  impede access to justice. The counsel  cited the case of Kenya  Bus Services Ltd  and Another Vs Minister for Transport & 2 others  (2012) eKLR where Majanja J observed  that;

“viewed against   the prism of the Constitution  it also  becomes evident  that section 13 A of the GPA provides an impediment to access to justice. Where the state is at the front, left and centre of the citizen’s life, the law should not  impose  hurdles on accountability of the Government  through the courts.  An analysis of the various  reports from the common wealth which  I have cited clearly demonstrate   that  the requirement  for notice particularly where it is strictly enforced as a mandatory requirement dimishes the  ability of the citizen to seek relief against the government.  It is my finding therefore   that section  13 A of   the Government Proceedings  Act as a mandatory requirement  violates the provisions of Articles 48.”

21. The counsel also referred to the case of Joseph Nyamamba  & 4 others Vs Kenya Railways Corporation.

22. I will  associate myself  with the position that  was held by the High Court in the case of Miriam  Njeru Njau Vs Attorney General [2016] eKLR and  the Court  of Appeal in the case of Joseph  Nyamamba & 4 others Vs Kenya  Railways Corporation.  As such, I  hold that the plaintiff   ought to have complied with the requirement of giving notice to the   2^nd and the 3^rd defendants before  filing  this suit correctly.  Secondly, as was pointed by the counsel for the 1^st defendant, injunction orders sought under prayer (c) of the  plaint cannot issue  against  the Government.

23. The upshot of the foregoing is that the notice of preliminary objection has merits and in the circumstance I hereby proceed to strike out the entire suit as it is fatally defective with costs to the 1^st , 2^nd and the 3^rd defendants.

Signed, dated and delivered on this 6^th  day of December,  2017

MBOGO C.G

JUDGE

Mr. Nabwere holding brief for Mr. Kituku  for the 1^st  defendant.

D.M Mutinda for the plaintiff absent

The Attorney General for the 2^nd and 3^rd defendant absent .

Plaintiff present

Mr. Kwemboi -  Court Assistant

MBOGO C.G

JUDGE

6/12/2017