12.The petitioner filed submissions dated June 2, 2021where they identified three issues for determination 1) Whether the 1st respondent had jurisdiction to hear and determine the purported complaint filed by the interested party in respect of the subject land parcel 2) Whether the petitioners constitutional rights and right to fair administrative actions were violated and 3) Whether the prayers sought by the petitioners in the petition should be granted.
13.It was submitted that the functions of the 1st respondent are stipulated under article 67[e] of the Constitution and which include to initiate investigations on its own initiative or complaint into present or historical land injustices and recommend appropriate redress. Counsel referred this court to articles 68[c][v] and 61 of the Constitution on the definition of public land. Further article 64 of the Constitution and section 14 of the National Land Commission Act on the jurisdiction to review grants and disposition on public land or land that was previously public land but later converted to private land as being a preserve of the National Land Commission. Counsel urged that from the evidence placed before court and which included green cards of the land parcels herein, the land parcels were all freehold titles and consequently private land. That the land in dispute has never been converted to public land. That for those reasons the 1st respondent commission had no jurisdiction to hear and determine the purported complaint by the interested party in respect of land parcel Nos Kwale/Galu Kinondo/683 and Kwale/Galu Kinondo/1515 and 1516 and relied on the holding of Emukule J in R v National Land Commission & 4 others Exparte Fulson Company Limited & another  eKLR.
14.It was contended that even if the Commission had jurisdiction to investigate and determine claims over private land, then it nevertheless still had no jurisdiction to re-open and hear afresh a claim for ownership of private land which had already been heard and determined by the High Court which is a superior court clothed with the jurisdiction to hear and determine such disputes. The court was referred to the holding in Republic v national Land Commission Exparte Holborn Properties Limited  eKLR.
15.On whether the petitioners constitutional rights and right to fair administrative actions were violated, it was submitted that despite knowing the petitioners were the proprietors of Land Parcel Nos Kwale/Galu Kinondo/1515 and 1516, the interested party presented a claim over the said parcels without joining the petitioners as respondents therein. Further that the Petitioners were not served with copies of the complaint by the interested party and hence did not have an opportunity to participate in the said proceedings. That the complaint proceeded on October 30, 2017before the 1st respondent and by a determination made on the same day the title deeds held by Luke Mutio and Titus Kilonzo Kitana were revoked and the land reverted to the interested party. according to counsel, the said determination was made despite the fact that the two parties mentioned above were at that time not the legal proprietors of the suit parcels as the same had already been subdivided and transferred to the petitioners herein.
16.Submissions were also made that the 1st respondent purported to determine that the suit land be reverted to the interested party despite the land record for the said parcels being clear on the fact that the interested party had never at any particular time been the registered proprietor of the said land parcels. Moreover, the manner in which the proceedings were undertaken by the 1st respondent, the petitioners were condemned unheard and that their constitutional rights and rights to fair administrative action were violated. The violations were listed as;i.Failure to be given prior adequate notice to prepare and defend themselves against the complaints lodged against them by the interested party contrary to section 4[a] of the Fair Administrative Actions Act.ii.Failure to be given notice of their right to legal representationiii.Failure to be given notice to cross examine any witnesses availed by the opposing sideiv.Failure to be given copies of information materials and evidence adduced against themv.Failure to be given an opportunity to attend the proceedings and making a finding against them hence depriving them their interests over the suit land and thus a violation to their right to fair trial as envisaged under article 40,47 and 50 of the Constitution of Kenya 2010.The court was referred to the case of Onyango Oloo v Attorney General  eKLR.
17.Thepetitioners counsel also submitted that by purporting to enter into a consent order before the Environment andLand Court, the parties therein failed to take into consideration the fact that the petitioners had still not been afforded the opportunity to be heard by the court in respect of the interests that they had in the suit parcels and which interest was adversely affected by the contents of the said consent order. Reference was made to the case of Mwangi Stephen Muriithi v National Land Commission & 3 others  eKLR.
18.On whether the prayers by the petitioners should be granted, it was submitted that the petitioners had incurred costs in purchase of the land, further costs in development of the same and had sustained severe damage from loss of the said properties. That given the circumstances under which therespondents herein cancelled the petitioners’ titles to the suit property and had them reverted to the interested party, it would only be proper for the court to allow the petition in its entirety as presented before it against the respondents.
1St Respondents Submissions
19.On December 17, 2021the 1st respondent was granted 30 days to file its submissions. They however failed to comply, on January 21, 2022 this court granted them a further 7 days to comply failure to which it would be concluded that they were not interested in filing the same and the court would proceed to make its judgement without the same. There was no compliance.
2nd Respondents Submissions
20.The 2nd respondent submissions were dated September 6, 2021 and presented two issues for determination one touching on abatement of the suit against the interested party and which had already been conclusively dealt with by this court vide its ruling dated December 17, 2021. Counsel supported the petitioners claim while emphasising on articles 40 of the Constitution on protection of a citizen’s right to property, 25 on the right to a fair trial, 23 on jurisdiction of the court to handle applications for violations of rights and 24 on limitation of fundamental rights.
Analysis And Determination
21.I have considered all the material placed before this court in support and against the application. I have also looked at the pleadings, documents exhibited, submissions and authorities filed herein. I will proceed to analyse the orders sought and if they warrant issuance by this court.
22.However before I consider the above, it is imperative that I determine whether this court has jurisdiction to grant the orders sought since it has been contented that the 1st respondents determination of October 30, 2017 and which the petitioners seeks to quash had already been adopted as an order of this court on April 10, 2018 in HCC 466 of 2018. In my view this court has jurisdiction to deal with the Petition before it by dint of jurisdiction conferred to it under articles 162 of the Constitution as read together with section 13 of the Environment & Land Court Act. The only issue is the limitation raised by virtue of the fact that the orders adopted by the court have since been implemented. What this court has been asked to do is to impugne the determination of the 1st respondent for failure to accord the petitioners a fair hearing among others and this is what this court will proceed to analyse and consider.
23.In coming up with the above finding I also considered the fact that the orders dated April 10, 2018were duly adopted as the orders of the court (see hand written proceedings FM 4 page 123-125). The orders still stand which the petitioners have not denied. Indeed, the question that arose in my mind is why the petitioners did not seek to be enjoined as parties upon discovery of the existence of this order with a view to moving the court to set aside the consent order and or review the matter. Instead, thepetitioners through their counsel herein wrote to the Attorney General vide a letter datedOctober 31, 2018demanding that the consent order be set aside. My concerns were partly addressed in the petitioners arguments in response to this objection, that the 1st respondents determination forms the basis of the consent order and once quashed under this petition, it would be open to the petitioners to subsequently also move the court which was allegedly misled into recording the consent to set it aside.
24.I will however approach the above objection and corresponding response from the need to attain substantive justice vis a vis technicality in the spirit of article 159 (2) (d) of the Constitution. This is a unique case where as I have already alluded to earlier that the suit against the interested party herein has abated and it would still be the same position under HCC 466 of 2018 where the interested party is named as the plaintiff. I’m therefore inclined to proceed with the Petition before me based on the facts and evidence placed before this court to ensure that justice is dispensed with once and for all, the consent order having been adopted by the court notwithstanding. There is need to administer justice without undue regard to technicalities and this courts concern is to do justice to the parties. I’m also guided by the holding in Principal Mariakani Secondary School & another v Maglena Amina Kamau  eKLR. In any event it is clear that there has been previous proceedings filed since the year 1997 on the suit property, this I will address latter in this judgement and which will support the position I have taken since litigation must come to an end.Were the Petitioners rights infringed upon?
25.It is the petitioners case that the 1st respondent by making the determination without according them an opportunity to be heard and defend their rights in or over land parcels known as land reference numbers Kwale/Galu Kinondo/1515 and 1516, violated and continues to violate the petitioners rights to property and fair hearing as guaranteed under article 40,47 and 50 of the Constitution of Kenya 2010. The reliefs/orders sought in a, b and c of the Petition all revolve around these (see paragraph 5 of this judgement). The petitioners must therefore prove that these rights were infringed upon and I will start with the 1st respondent whose determination is the substratum or catalyst of the actions by the rest of the respondents.
26.In determining whether the rights of the petitioners herein were infringed upon by the respondents as indicated by the petitioners pleadings, it is imperative that this court considers the threshold required for proof of violation of rights. In Anarita Karimi Njeru v Attorney General, (1979) KLR 154 the court of appeal stated as follows:
27.It is the petitioners case that their rights to fair hearing and ownership of property have been abused by the respondents, a closer look at the pleadings herein confirms that the interested party [now deceased] presented a claim for ownership of land parcel No. Kwale/Galu Kinondo/683 to the 1st Respondent. This is also confirmed by the letter dated October 30, 2017 from the 1st respondent, the National Land Commission titled ‘Determination of dispute in Respect of LR. No. Kwale/Galu Kinondo/683- Kwale County’. According to the letter the 1st Respondent set down the claim for hearing on October 30, 2017 and proceeded to revoke the Petitioners titles and had the land reverted to the Interested Party. It is clear that the Petitioners were not aware of the proceedings before the 1st respondent and the complaint by the interested party, they were never served. It is clear from this letter which capture the proceedings that the respondents were only Luke M. Mutiso and Monica Ndunge Kitana (as the legal representative of Titus Kilonzo Kitana. The Petitioners were never made a party to the proceedings despite the 1st respondent being aware of the existence of the subdivisions registered in the names of the Petitioners (see the subtitle ‘Findings’). The 1st respondent proceeded to hear and determine the complaint in the absence of the Petitioners and who were the then registered proprietors of the suit parcels. Infact I will confidently state that Luke M. Mutiso and Monica Ndunge Kitana had no interest in attending the session having transferred the property. The effect of the determination was to deprive the Petitioners of their properties which I have noted a concise history and how they obtained the same has been made out. Article 40(3) provides that the state shall not deprive a person of his property of any description unless certain criteria are met, article 50(1) of the Constitution provides that every person has the right to have any dispute that can be resolved by the application of law resolved in a fair and public hearing before a court or other independent and impartial tribunal or body.
28.It is the 1st respondents case that it made the decision to revoke the Petitioners titles based on the powers vested on it by section 14 of the National Land Commission Act. My understanding is that the powers conferred upon the Commission were to be exercised in accordance with the rules of natural justice. This is buttressed by Section 8 of the National Land Commission Act which provides that in the exercise of its power, the Commission shall be guided by the principles set out under article 47 of the Constitution. Article 47 of the Constitution is to the effect that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. I place further emphasis on this issue with reference to an excerpt from the holding in Sceneries Limited v National Land Commission  eKLR where the court stated thus;-The above position is affirmed in Republic…vs…National Land Commission; Pacifica Mwango & another (Interested Parties); ex parte Anil Ratilal Tailor  eKLR where the court held that;
29.It has been contended by the Petitioners that the 1st Respondent had no jurisdiction to make inquiry on private land. Reliance was placed upon the case of Mwangi Stephen Murithi vs National Land Commission & 3 others (2018) eKLR where the court guided by articles 67, 68(c ) (v) of the Constitution and section 14 of the National Land Commission Act confirmed that the 1st Respondents jurisdiction was limited to public land. The suit property according to the evidence produced was private land as at the time of the determination by the 1st respondent and there is no evidence placed before this court by the 1st respondent to show that the suit property was once public land before this alienation. I have also read the decision cited and I’m persuaded that the 1st respondent clearly did not have jurisdiction to adjudicate on the complaint filed by the interested party before it.
30.I also find it necessary to make some observations on the proceedings by the 1st respondent including other court cases filed by the interested party touching on the suit property. A summary of the determination is contained in the 1st respondents letter dated October 30, 2017 which I have keenly looked at. It appears that there is information that was clearly not made available to the Commission in respect of the subsequent orders made in HCCC 97 of 1997 after the orders made by the late Justice Khaminwa on March 3, 2005 unless they were provided and the 1st respondent deliberately chose to ignore. Unfortunately, the 1st Respondent chose not to file any replying affidavit to account for its actions. The orders of March 3, 2005 favored the Complainant Interested Party since their effect was to revert the suit property to its pre-subdivision form. The 1st respondent stopped in its analysis at this order, yet there were subsequent orders by Justice Mwera made on September 22, 2005 that struck out the suit for failing to disclose a reasonable cause of action against the estate of Titus Kilonzo Kitana who was indeed the one who subdivided and sold the properties. The failure to disclose these orders in my view was in bad faith, meant to ensure that the 1st Respondent made a finding in the interested party’s favor. My misgivings are confirmed by the court of appeal in its ruling in Civil Application No. Nai. 341 of 2005 where the Interested Party herein sought to stay Justice Mwera’s decision of September 22, 2005 (see page 148 -155). The judges in refusing to grant an order of stay observed as follows; -‘ ……the disclosures made by the respondent which have not been denied are rather disturbing as they portray the applicant as lacking in candor. He would appear to have surreptitiously obtained money from unsuspecting purchasers of a property whose title he is aware is not in his name. He also persists in denial, submitting that the property still exists in the Land Registry when from all indications it is non existent after new titles were issued to persons who are not parties to this dispute. Courts do not act in vain and it seems to us that any orders for stay that we may issue would be unenforceable against the respondent………the matter has been overtaken by events and we decline to be sacked into patently nefarious schemes by the parties which both the law and equity would frown upon’
31.Had the 1st respondent seen the above ruling maybe it would never have made the determination. Infact the 1st respondent I must say was caught up in the Interested Party’s nefarious schemes by clearly sitting on a matter which the High court had clearly decided upon. They had no jurisdiction in my view. The above excerpt also goes a long way in supporting my earlier decision to stand for substantive justice in this matter.
32.In view of the foregoing it goes without say that all the subsequent actions and decisions anchored on the said determination by the National Land Commission cannot stand. They should also collapse since their substratum has collapsed. This would also be applicable to the consent that was adopted by the Court since the consent which was adopted was based on a determination which was illegal. In any event the Petitioners were not party to those proceedings yet the parties therein were very much aware of the fact that the Petitioners were the registered proprietors of the subdivisions. I will not belabor this point neither will I seat on appeal against the court that adopted the consent. I will be guided by the holding of the Late Nyarangi JA in David Onyango Oloo vs The Attorney General Civil appeal No. 152 of 1986 also cited by Counsel for the Petitioners where the late Nyarangi JA pointed that; -‘A decision taken in breach of the rules of natural justice ‘is not cured by holding that the decision would otherwise had been right. If the principal of natural justice is violated it matters not that the same decision would have been entered at all.’ (Emphasis is mine)
33.This court must also address itself to the issue of ownership of the suit property to enable a full determination of this matter. I’m also guided by the court of appeal decision in Munyua Maina vs Hiram Gathiha Maina (2013) eKLR where the court held that; -‘it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is being challenged and the registered proprietor must go beyond the instrument to prove legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.’Thepetitioners have set clearly in their pleadings and facts the chronology of events on how they acquired the suit property. This entire history is buttressed by the entries made at the lands registry which have also been presented and are also confirmed in the 1st respondents determination. They are also further supported in the proceedings in HCCC 97 of 1997 and the observations made by the Court of Appeal which I quoted verbatim earlier. I find that from the material placed before me the Petitioners have proved on a balance of probabilities that they are the bonafide proprietors of the suit land and that the registration of the Interested Party as owner was marred with misrepresentation.
34.The upshot is that the petitioners have been able to prove on a balance of probabilities they were the registered bonafide owners of the suit properties. That indeed their rights were violated through the 1st respondents actions of not according them a fair hearing before making its decision of October 30, 2017. That the 1st respondent had no jurisdiction to make a determination over private property and in any event the matter had already been determined in HCCC 97 of 1997.
35.The following orders be and hereby issue to dispose of this Petition; -1.The decision by the 1st respondent by the letter dated October 30, 2017 addressed to the Land Registrar, Kwale County through the Ag Chief Land Registrar be and is hereby set aside2.An order of Certiorari be and is hereby issued to quash the 1st respondent’s determination of October 30, 2017 and the proceedings thereof.3.An order of Certiorari be and hereby issue to quash with effect from April 26, 2018, the entries made by the 2nd respondent in the proprietorship section of the individual registers for the parcels of land known as land reference numbers Kwale/Galu Kinondo/683, Kwale/Galu Kinondo/1515 and Kwale/Galu Kinondo/1516 in execution of the 1st respondents determination contained in the 1st respondents letter to the 2nd Respondent dated October 30, 2017 through the Ag chief land registrar and comprising of entry numbers 12,13 and 14 made on 26/4/2018 in the register for LR No Kwale/Galu Kinondo 683,entry numbers 12,13 and 14 made 26/4/2018 in the register for Kwale/Galu Kinondo/1515 and entry no 10 made on 26/4/2018 in the register for LR Kwale/Galu Kinondo/1516.4.An order directing the 2nd respondent to forthwith cancel, entry numbers 12,13 and 14 made on 2April 6, 2018 in the register for land reference number Kwale/Galu Kinondo/683, entry no 9 made on 26/4/2018 in the register for land reference no Kwale/Galu Kinondo/1515 and Kwale/Galu Kinondo/1516 and entry number 10 made on 26/4/2018 in the register for land reference number Kwale/Galu Kinondo/15165.Each party to bear its own costs.