Malua v Yatta & 2 others (Environment and Land Constitutional Petition 1 of 2021)  KEELC 15261 (KLR) (8 December 2022) (Judgment)
Neutral citation:  KEELC 15261 (KLR)
Republic of Kenya
Environment and Land Constitutional Petition 1 of 2021
LG Kimani, J
December 8, 2022
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 21 (1) ,25 (C ), 27 (1) AND 47 (1) AND (2), 50 (1) AND S.77(1) AND 77(A) OF THE REPEALED CONSTITUTION AS READ WITH S.6 AND 7 OF THE SIXTH SCHEDULE TO THE CONSTITUTION OF KENYA, 2010. AND IN THE MATTER OF THE PREAMBLE TO AND ARTICLES 1, 2, 3. 4. 10, 19, 20, 23, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ARTICLE 8 AND 10 OF THE UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS AND IN THE MATTER OF THE LAND ADJUDICATION ACT CAP 284, AND IN THE MATTER OF THE SPECIAL MINISTER FOR LANDS AND PHYSICAL PLANNING APPOINTED FOR PURPOSES OF APPEALS UNDER SECTION 29 OF THE LAND ADJUDICATION ACT CAP 284 AND IN THE MATTER OF THE DECISION /RULING IN APPEALS NO. 245 OF 1988 RELATING TO PARCEL NO.188 NZALAE LAND ADJUDICATION SECTION AND APPEAL NO.241 OF 1988 FOR LAND PARCEL NO.186 NZALAE LAND ADJUDICATION SECTION DATED 30.4.2019 RESPECTIVELY.
Mutinda Musila Malua
Deputy County Commissioner, Kitui West Sub-County
1.Before the court is a Petition dated June 14, 2019 brought under the provisions of the Constitution of Kenya 2010 cited above; The Petitioner claims to be a resident of Kitui West Sub-County, Kitui County and has enforceable rights under the Constitution of Kenya 2010. The 2nd and 3rd Respondents are sued in their capacity as office holders and institution respectively conferred under the Land Adjudication Act, Cap 284 Laws of Kenya while the 4th Respondent is the chief legal advisor of Government of Kenya.
2.The Petitioner avers that the initial dispute was between his father, one Musila Ngua (deceased) who was sued by the 1st Respondents father Ngunga Yatta (deceased) in Ministers Appeal No 241 of 1988 in relation to Parcel No 186 and Appeal No 245 of 1988 in relation to parcel no 188 Nzalae Land Adjudication Section lodged on December 22, 1986. The said appeals were never heard until April 30, 2019 having delayed for a period of 33 years which delay the petitioner contends was in violation of the Constitution. The Petitioner claims that after hearing the appeals the 2nd Respondent awarded the two parcels of land to the 1st Respondent.
3.The Petitioner states that he had legitimate expectation that the 3rd Respondent, after receiving the appeals and in exercise of the administrative powers conferred upon him would expeditiously, efficiently, without delay and within a reasonable time prepare the appeals for hearing by the 2nd Respondent in accordance with Section 29 (1) and (2) of the Land Adjudication Act and Article 25 (c), 47 and 50 (1) of the Constitution of Kenya 2010.
4.The Petitioner claims that delay of 33 years was unfair and in breach of Sections 77(1) and 77(9) of the Repealed Constitution of Kenya and Articles 2(4), 25(c), 50(1) and Article 47 of the Constitution of Kenya. The Petitioner’s father passed away before hearing of the appeals.
5.The Petitioner claims breach of fair administrative action and violation of his right to a fair hearing in the substance and the procedure adopted by the 2nd and 3rd Respondents.
6.The Petitioner further contended that his right to an independent and impartial trial under Articles 25(c) and Article 50(1) of the Constitution were violated for the reason that the 2nd Respondent demanded payments from the Petitioner coined as costs, expenses, charges for conducting hearings, sitting allowances and for visiting or viewing the disputed parcels of land. He pointed out that the Petitioner paid a total of over Kshs 150, 000/= while the 1st Respondent paid over Kshs 300,000/= hence he is under the impression that whoever paid the most allowances had the power to influence the independence and impartiality of the 2nd Respondent.
7.The Petitioner further claims that the acts of the 2nd Respondent were in violation of Article 10 of the United Nations Declaration of Human Rights guarantees to a fair hearing by an independent and impartial tribunal in the determination of rights.
8.The Petitioner has also raised issue with Section 29 of the Land Adjudication Act CAP 284 stating that it does not make in built provision to ensure that Land Adjudication officers after receiving appeals will ensure hearing by the Minister within a reasonable time nor does it set out procedures to guarantee fair administrative action, nor to ensure the integrity, independence, impartiality and fairness of the process in accordance with the constitution and other statute.
9.It is his contention that Section 29 of the Land Adjudication Act, having not been amended, revised and/or repealed after the promulgation of the Constitution of Kenya 2010 is in conflict with its tenets, values and principles of governance under Articles 10 (a) 19, 20, 21, 22, 25, 47 (1) and 50 (1) and Sections 77 (1) and 77 (9) of the repealed constitution.
10.Further, the Petitioner claims that Section 29 of the Land Adjudication Act confers quasi-judicial functions to the 2nd Respondent but does not make any proper provisions to ensure integrity, independence, impartiality and fairness and to that extent it is flawed and exposed to corruption and likely to abuse, manipulation and exploitation for selfish gain.
11.In view of the above, the Petitioner has averred that the verdicts reached by the 3rd Respondent on April 30, 2019 lack legality and/or validity as it is a constitutional principle of just and fair determination of judicial and quasi-judicial disputes and that the Petitioner has the right to defend the constitution under Article 3 as well as that the 2nd and 3rd Respondents had a duty as administrative/adjudicative bodies to observe, protect and promote the petitioners fundamental rights. The Petitioner therefore prays for the following orders:a)A declaration that the process of administrative action and the proceedings of the adjudication adopted by the 2nd and 3rd Respondents were and/or was inconsistent with and in contravention of section 77(1) and 77(9) of the repealed Constitution and in violation of Article 25(c), 47(1) and 50(1) of the Constitution of Kenya,2010, hence invalid, null and void.b)A declaration that the proceedings and the verdict of the 2nd Respondent were in violation of fundamental rights enshrined in Article 25(c), 47(1) and 50(1) of The Constitution of Kenya and Article 10 of the United Nations Universal Declaration of Human Rights and hencefore null and void.c)A declaration that in so much as S.29 of The Land Adjudication Act does not provide a clear legal or institutional and financial policy framework to support the adjudicative functions of the Deputy Commissioners or the District Commissioners as they were then, so as to ensure independence, impartiality and the integrity and leadership of the adjudication, then, it was in conflict with aspiration of s.77(1) and 77(9) of the repealed Constitution and as per articles 10(1) and (2), 19,20,21,22,47(1) and 50(1) of the Constitution of Kenya.d)A declaration that in so much as S.29 of the Land Adjudication Act does not provide for or is silent on the aspirations and the expectations of the Kenyan citizens of a hearing of their disputes within a reasonable time as was assured or enshrined in S.77 and 77(1) and 77(9) of the repealed Constitution, and as guaranteed in Article 50(1) of the Constitution of Kenya(2010), then to that extent, it was in conflict with S.77(9) of the repealed Constitution and Article 50(1) of the Constitution of Kenya 2010.e)A declaration that in so much as S.29 of the Land Adjudication Act has not been revised, amended, repealed and/or reformed or any legal framework thereto promulgated to accord or reflect the aspirations of or expectation of or demands of the citizens of a fair trial and hearing within a reasonable time and/or fair administrative actions and the values , principles and objectives of good governance as expected of all adjudicative functions then and to that extend, it is in conflict with Article 10(1) and (2),19,20,21,22,25(c),47(1) and 50(1) pf the Constitution of Kenya 2010 and S.77(1) and 77(9) of the repealed Constitution.
The Petitioners Case
12.The court directed that the Petition proceed by way of viva voce evidence. The Petitioner testified and adopted his supporting affidavit as evidence in chief. He also adopted and produced as exhibits the documents attached to the supporting affidavit and on the list of documents dated April 27, 2022. The Petitioner stated that the area where the suit parcels of land are situated was declared an adjudication section on October 22, 1976. That at the time the Petitioners father was alive and the land parcel No 188 was demarcated and adjudicated in his name. That the 1st Respondent lodged a claim to the land in committee case no 154 of 1977. That the case was heard and determined and the claim was dismissed. The 1st Respondent then filed a case before the Arbitration Board in case NO AB 18 of 1977. The case was heard and it was decided that Land Parcel 188 be subdivided into two and the 1st Respondent was given a portion of it being parcel No 186 while the Petitioners father retained parcel No 188 and that remained the position until the hearing before the Minister.
13.Thereafter the Petitioners father and the 1st Respondent lodged objections vide objection No 114 of 1984 against parcel 186 by the Petitioners father and Objection 238 of 1984 against parcel No 188 by the 1st Respondent. That the objections were heard and the two were dismissed with both parties being left with the same land parcels No 188 for the Petitioners father and 186 for the 1st Respondents father.
14.However, the 1st Respondents father lodged the two appeals to the Minister referred to previously and the 2nd Respondent in his judgment awarded the 1st Respondent a portion of parcel No.188 and awarded parcel no.186 to the 1st Respondent and further directed that the two parcels be rejoined as one land. Further it was directed that the boundaries be fixed.
15.The 3rd Respondent is joined in this suit as having the administrative duty to follow up on the files with appeals and take them to the 2nd Respondent for hearing. His father unfortunately passed away on October 14, 1982, before the appeals were determined and in the course of time, they had done developments on Land Parcel No 188, hence it was absurd to award an extra portion of land to the 1st Respondent.
16.The Petitioner reiterated the contents of the Petition highlighting that they were made to incur expenses in the hearing process of the appeals as the 2nd Respondent demanded payments from the Petitioner coined as costs, expenses, charges for conducting hearings, sitting allowances and for visiting or viewing the disputed parcels of land. They were made to understand that this was a requirement from all litigants. He pointed out that the Petitioner paid a total of over Kshs 150, 000/= while the 1st Respondent paid over Kshs 300,000/= and he attached M-Pesa statements evidencing this but later learnt that they had incurred less costs than the Petitioner.
17.On the issue of delay in hearing the appeals, the Petitioner testified that he used to check with the office of the Minister to confirm the hearing of the appeals but was always told to wait. He later on found out the appeals had been transferred to the Assistant County Commissioner’s office at Kabati. They were then summoned for hearing but were told that for the elders to visit the land he had to give them money for fuel and further that all other people involved in the appeal were giving the money for the same purpose. The Petitioner complained that when the 2nd Respondent went to view the land there was an unknown person who was identifying the land. He further stated that the allegations that the 1st Respondent gave money to the 2nd Respondent were true.
18.Upon cross-examination, the Petitioner denied stating that the 2nd Respondent was bribed; but stated that his evidence was that he was asked money for fuel and allowances. He also clarified that he did not see the 1st Respondent give any money to the 2nd Respondent but that it was given by someone else.
19.The Petitioner confirmed that the 2nd Respondent visited the suit land and found that there was a home built on the land by a son of the 1st Respondent.
20.PW 2 James Malua Musila is the Petitioners brother and he confirmed that the money that he paid to the 2nd Respondent was sitting allowances, transport and viewing fee and that he sent money about five times. He further stated that during the viewing of the land, there was a stranger who was leading in showing of the land and that he has never seen him again. He further stated that he learnt that the 1st Respondent paid Kshs 300, 000 to the 2nd Respondent but did not actually see him giving the money and did not have evidence showing the same.
21.The 1st Respondent herein testified that he hails from Nzalae in Kitui West and that his father Ngunga Yatta (deceased) was the one who dealt with this dispute until the time of his death and that he took over as administrator of his estate. The deceased had filed a reply to the petition stating that he participated in all the Adjudication processes in relation to Parcel Number 186 and 188-Nzalae Mutonguni Adjudication Section and avers that all the processes and decisions with regard to the land were conducted in accordance with the relevant law. He stated that the Petitioner’s rights were not violated as alleged or at all and that the Petitioner has not placed any credible, cogent and concrete material before the Court to prove the alleged violation of fundamental rights and freedoms.
22.With regard to the Petitioner’s claim that the 1st Respondent gave out Kshs 300, 000 to influence the outcome of the Appeals, the 1st Respondent denied this or any other form of inducement as alleged. He stated that the claims are meant to scandalize, annoy, vex and stain his character and that of the 2nd Respondent. That if the Petitioner is aggrieved by the delay in hearing the appeal the said delay if any cannot be the basis for invalidating an otherwise lawful decision.
23.The 1st Respondent denied influencing the outcome of appeals 241 /88 and 145/88 as he had no control over the handling of the Appeals. He pointed out that the Minister has no time lines within which to conclude appeals and as such he is not to blame for the perceived delay in the delivery of the decisions. He further stated that that during the hearing, of appeals to the there were members from the Petitioner’s family, from his family and from the office of the 2nd Respondent present.
24.The 1st Respondent stated that he was satisfied with the 2nd Respondents judgment and did not notice anything wrong with the way the appeal was conducted. The 1st Respondent confirmed that his father was the one who prosecuted the two appeals before the 2nd Respondent. Regarding the delay, he stated that it was the responsibility of the government to have the case heard. He completely denied ever sending any money during the hearing of the case.
2nd, 3rdand 4thRespondent’s Case
25.The 2nd to 4th Respondent’s filed Grounds of Opposition dated September 30, 2019 on the following grounds:1.That the Land Adjudication Act does not impose a time limit within which Appeals for the Minister should be heard.2.That the Petitioners fully participated in the Minister’s Appeal hence cannot claim that he was accorded fair hearing.3.That the allegations of corruption against the 2nd Respondent are best raised and determined in a criminal court.4.That the Petition as drawn and taken out is bad in law, incompetent and otherwise an abuse of the process of this Honourable Court and prayed that the Petition be dismissed with costs.
The Petitioner’s submissions
26.The Petitioner submitted on the government and its official’s duty to uphold the rule of law. He emphasized that there was an unexplained prolonged delay from lodging of the appeals to the time the appeal was determined stretching over a period of 33 years which offended his fundamental freedoms and rights guaranteed under the Bill of Rights and particularly S.77 (a) of the repealed constitution to have a fair hearing within a reasonable time as well as Article 50(1) of the Constitution of Kenya on fair trial and Article 47(1) on the right to fair administrative action. The Petitioner added that if for some reason the two appeals could not be determined within a reasonable time or without unreasonable delay, then the 2nd and 3rd Respondents is obliged to give reasons. According to the Petitioner, the 1st Respondent’s Claim that the Land Adjudication Act CAP 284 does not give a Minister any time limit cannot justify the delay.
27.The Petitioner relied on the Zimbabwean case of Re Mlambo (1993) 2 LRC and Shameem v State (2007) FJCA on the concept of reasonableness where the Court states that 'The concept of reasonableness is one which defies definition' It went on to state that 'whether a period of delay complained of was unreasonable or not was a question of degree: that it might have been the practice in the past to tolerate such delays did not protect them from scrutiny under section 18 (2) of the constitution. The onus was on the accused to show that the delay complained of was prima facie unreasonable or presumptively prejudicial.' Shameem v State  FJCA the court made the following findings: -
28.With regard to Section 29 of the and Adjudication Act, the Petitioner submitted that even though it does not provide for time limit within which to act, the section is not a stand-alone law but must be read alongside the Constitution, Section 7(2) of the Fair Administrative Action Act and well-known principles of common law and doctrines of equity, the rule of law and the due process and tenets of fairness and justice. According to the Petitioner, the uncertainty and delay prevented them from taking actions on the land as they were uncertain of their legal rights. The law did not empower the Minister to delay the dispute for over thirty-three years, therefore he submits that the decision was made ultra vires while relying on the holding in the case of Craig v South Australia 184 CLR 163.
29.Counsel relied on several authorities in the matter including the Australian case of MZAPC v Minister For Immigration and Border Protection HCA 17 and Stead V State Government Insurance Commission  161 CLR and WZAPH (2015 256 CLR 326.
30.Further, regarding conflict with the Constitution, the Petitioner submitted that as per Articles 25(c) of the Constitution, Article 50(1)(e) and Articles 47(1) and (2) the delay of the trial for over 33 years was not a trial that was expeditious, efficient, lawful, reasonable and procedurally fair as per the law. The Petitioner highlighted sub-article 2 of Article 47 and put a duty on the administrator to give reasons for any eventuality that is likely to adversely affect the person entitled to the administrative action in question.
31.The Petitioner avers that he exercised his rights under Section 29 of the Land Adjudication Act by lodging an appeal No 175 of 1978 but he claims his Constitutional right to fair trial under Article 25 (c) and 47 (1) of the Constitution was violated since the 2nd Respondent failed to take any proceedings or accord the Petitioner’s witnesses the opportunity to testify. He averred that he had a legitimate expectation that the appeal would be heard and determined within a reasonable period of time but was delivered after a period of about thirty nine (33) years, that the 2nd Respondent would be fair, just and neutral to all parties.
32.the Petitioner submitted on the conduct of the 2nd Respondent in soliciting for money from the Petitioner and receiving money from the 1st Respondent in order to give a favourable decision amounted to a violation of the constitution since he was a public officer. He relied on Article 10 (2) of the Constitution on the national values and principles of governance and Chapter six of the Constitution as well as the Public Officer Ethics Act No 4 of 2003 and The Leadership and Integrity Act No 19 of 2012. Counsel further cited several authorities in support of his submissions.
The 1stRespondent’s submissions
33.The 1st Respondent submitted that this Petition falls short of the legal threshold required of Petitions of this nature and that it is misconceived, grossly incompetent, misleading, an afterthought, speculative and an abuse of the process of the court. The 1st Respondent pointed out that in the hearing, upon being cross-examined on the allegations of bribery, the Petitioner categorically denied ever raising those allegations in his Petition and could not sustain the allegation.
34.Submitting that it is trite in law that he who alleges must prove, and the fact that a Respondent who does not adduce evidence in rebuttal thereof is not any better the 1st Respondent submitted that the allegations were rebutted by the 1st Respondent who testified that the 2nd Respondent’s conduct was irreproachable. The 2nd Respondent had the requisite jurisdiction to hear and determine appeals, and none of the parties were denied a chance to present their respective cases according to the 1st Respondent.
35.The 1st Respondent quoted Section 29(1) of the Land Adjudication Act and stated that there is nothing in the said section to suggest that the 2nd Respondent had statutory timelines within which to determine the subject appeals. He added that he cannot be faulted for this legislative deficiency.
36.Submitting that the Petitioner failed to discharge his burden of proof, the 1st Respondent submitted that the Petition is devoid of merit and ought to be dismissed with costs.
Analysis and Determination
37.I have considered the petition herein, supporting affidavits and attached documents and the documents filed in opposition to the petition. I have also considered the evidence adduced at the hearing and the submissions by Counsel for the parties and the many authorities cited. I am of the view that the following issues arise for determination;1)Was there a breach of the Petitioner’s right to fair hearing within a reasonable time and the right to fair administrative action?2)Was there a violation or breach of independence and impartiality on the part of the 2nd Respondent?3)Is there a conflict of Section 29 of the Land Adjudication Act with the Constitution?
1. Was there a breach of the Petitioner’s right to fair hearing within a reasonable time and right to fair administrative action?
38.The Petitioner pleaded violation of his right to a fair hearing under Articles 77(1) and 77(9) of the repealed Constitution and Article 2(4), 25(c) and 50(1) of the Constitution of Kenya 2010 and his right to fair administrative action under Article 47 due to the prolonged delay of the hearing of the appeals from the time they were filed, amounting to a total of about 33 years. Section 77(9) of the Repealed Constitution of which provided that;
39.The fundamental right to fair trial breach of which the Petitioner claims is guaranteed by Article 25(c) and Article 50 (1) and (2) (e) of the Constitution of Kenya 2010 which provides that: -
40.It is an admitted fact that the period between the filing of the appeal and the time when judgment was rendered was 33 years and the Petitioner claims the period was an unreasonable delay that amounts to a violation of the his constitutional rights. The court agrees that a period of 33 years from the time of filing the appeals to the time of hearing and determination was a prolonged length of time and delay. Unfortunately and as complained by the Petitioner, the 2nd Respondent did not deem it fit to offer any explanation for the said prolonged delay. Further, the Petitioner claims that he was entitled to reasons for the prolonged delay under Article 47 (2) which provides for the right to be given written reasons for a decision that is likely to adversely affect him and no reasons were given as required by law. On the failure to give reasons the court agrees that there is failure to give reason for the prolonged period. However, it is noted that there is no request prior to filing this suit for said reasons.
41.The issue that arises for determination is whether the Delay was so Inordinate as to Result in violation of the Petitioners’ right to fair trial within a reasonable time contrary to Article 50(2)(e) and Section 77 of the repealed Constitution. According to Black’s Law Dictionary the term unreasonable is defined as 'Not guided by reason, irrational or capricious' while reasonable is defined as 'Fair, proper or moderate under the circumstances, sensible.'
42.In considering whether the delay was unreasonable it is important to look at the circumstances surrounding the delay. The appeal to the Minister was filed by the 1st Respondents father. In my view he had the responsibility of following up on the said appeal to ensure that the same was heard expeditiously and without undue delay. The 1st Respondent did not show to the court what efforts the deceased made to have the appeal heard. However, the evidence of the Petitioner shows that he used to go to the offices of the 2nd Respondent to follow up on the appeal but he was asked to wait. It appears from the conduct of the parties that the 2nd Respondent being the officer in charge with the mandate of hearing and determining appeals had control of the time and place when the appeal would be heard. Indeed it was confirmed that it is that office which summoned the parties for hearing of the appeal.
43.Section 29 of the Land Adjudication Act does not provide for the process of fixing of hearing dates for appeals filed. It appears that the hearing of the appeals is at the discretion of the Minister and it behooves that office to set the appeals down for hearing and hear them in accordance with relevant provisions of the law relating to hearing cases expeditiously and without unreasonable delay.
44.The Petitioner claims that the 2nd and 3rd Respondents bore the burden of explaining the reasons for the delay and in this case they failed to do so. Counsel for the Petitioner submitted that even though the burden of proof will normally be on the applicant (Petitioner in this case) courts generally expect public authority defendants to explain themselves. On this Counsel for the Petitioner relies on the Australian case of MZAPC v Minister For Immigration And Border Protection (2021) HCA 17. The Petitioner further submits that all he had to show was that the denial of natural justice deprived him of the possibility of a successful outcome and it was for the Respondents to demonstrate that a properly conducted trial could not possibly have produced a different result. On this Counsel relied on the Australian cases of Stead v State Government Insurance Commission  161 CLR and WZAPH (2015 256 CLR 326. Generally the Petitioners submission is that once there is an error, irregularity or delay or a wrong in a decision or process leading to a miscarriage of justice the burden automatically shifts to the state to satisfy the court that there has been no substantial miscarriage of justice.
45.Kenyan courts have had occasion to analyze and consider commonwealth and international jurisprudence and domestic case law on provisions of law similar to the Kenyan provisions on fair hearing within a reasonable time. This was in the case of Julius Kamau Mbugua v Republic  eKLR where the court of Appeal made the following summary of the legal position;
46.Arising from the foregoing summary it emerges that as the court considers the consequences of the determination that there was a delay in hearing and determination of the appeals to the 2nd respondent, the court has to consider that the right is not an absolute right and the Petitioners rights must be balanced with equally fundamental societal interests. In my view the broader societal interests at play in this case arise from the fundamental rights under Article 27 of the Constitution which provides that 'Every person is equal before the law and has the right to equal protection and equal benefit of the law' The Petitioner and the 1st Respondent have been subjected to the delay in hearing and determination of their appeal. Nullification of the proceedings before the 2nd Respondent herein will affect both parties more than it does affect the 2nd Respondent. In my view it is in the best interests of justice that the matter be determined on merit notwithstanding the prolonged delay.
47.Further, I have also considered that the rights arising under Section 29 of the Land Adjudication Act provide for the final stage in hearing and determination of disputes arising out of the adjudication process. The said section provides that the Minister determines the appeal and the orders he makes are final. As a final right of appeal in the adjudication process, the proceedings before the 2nd Respondent have serious implications and impacts on proprietary rights of not just the 1st Respondent but other persons that may claim under him. It is to be understood that the Land Adjudication process is meant to provide for the ascertainment and recording of rights and interests in community land and the rights are determined in accordance with customary rights.
48.The Court of Appeal in the case of Julius Kamau Mbugua v Republic (supra) further held as follows;
48.From a look at the proceedings before the 2nd Respondent, it is my conclusion that the delay did not affect the fairness of the trial through for example unavailability of witnesses or the dimming of memories of witnesses. The proceedings show that the trial went on without a hitch and indeed both parties were heard and they called witnesses. Further the 2nd Respondent visited the suit land. It is further observed that this was an appeal and indeed courts have held that adducing fresh evidence in appeals under section 29 of the Land Adjudication Act is not always necessary. This was held in Matwanga Kilonzo v District Commissioner, Kitui & another  eKLR where it was stated that:
49.In the case of Martin vs Tauranga it was held that
50.In the present case the court is not dealing with an issue of abandonment of the trial due to delay since the appeals have already been heard but an application for an order to nullify the proceedings and judgment of the 2nd Respondent on account of delay in the hearing of the appeal. This is all the more that such an order cannot be made when the interests of all the parties involved is balanced.
51.Further as was found in the Julius Kamau Mbugua v Republic case (Supra) that the fact of the violation ought to have been raised at the earliest opportunity. The court stated;
52.In the present case the Petitioner waited until the appeals were heard and a decision rendered and it was only because the determination in the appeals did not favour him that he brought this petition. The Petitioner participated in the appeals and called witnesses and further cross-examined the 1st Respondent and went on site visit. I therefore find as was found in the Julius Kamau case that claim by the Petitioner was an afterthought only brought because the Petitioner lost in the appeals. The court finds that the purpose of the rights claimed by the Petitioner is to expedite trials and minimize prejudice and not to avoid trials on the merits.
2. Was there a violation or breach of impartiality on the part of the 2nd Respondent?
53.Serious claims have been made against the 2nd Respondent that he solicited money from the parties to the appeals which money was coined as costs, expenses, charges for conducting hearings, sitting allowances and for visiting or viewing the disputed parcels of land. The Petitioner claimed that he paid a total of over Kshs 150, 000/= while the 1st Respondent paid over Kshs 300,000/= thus leading to his belief that whoever paid the most allowances had the power to influence the independence and impartiality of the 2nd Respondent and thus to influence the outcome of the Appeals. The Petitioner provided m-pesa statements from his own telephone number showing that indeed on various dates he sent various amounts of money to one the 2nd Respondent herein.
54.Article 73 (1) (IV) of the Constitution of Kenya 2010 provides that the authority assigned to a State officer is a public trust to be exercised in a manner that among other things promotes public confidence in the integrity of the office. Article 75 (1) provides that a State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids—(c)c) Demeaning the office the officer holdsThe Public Officer Ethics Act No 4 of 2003 Section 9 on Professionalism states that a public officer shall—
Section 11 No improper enrichment
|(a)||Carry out his duties in a way that maintains public confidence in the integrity of his office;|
|(1)||A public officer shall not use his office to improperly enrich himself or others.|
Without limiting the generality of subsection (1), A public officer shall not—
Except as allowed under subsection (3) or (4), accept or request gifts or favours from a person who—
|(i)||Has an interest that may be affected by the carrying out, or not carrying out, of the public officer’s duties;|
55.There is enough evidence from the Petitioner that various amounts of money were sent from the petitioner’s telephone number to telephone number xxxx registered in the name of Patrick Kimolo, who according to the proceedings and judgement in Ministers Appeal 241 of 1988 and 245 of 1988 was the Deputy County Commissioner, Kitui West Sub-county the 2nd Respondent herein. The appeal was heard on March 11, 2019 while judgment was rendered on April 30, 2019. The M-pesa statement exhibited by the Petitioner shows some payments made to the 2nd Respondent between January 14, 2019 and February 20, 2019 and that the total amount confirmed by the Petitioner sent to the 1st Respondent was Kshs 150,000.00
56.The above payments were made when the appeals were pending before the 2nd Respondent and are on the face of it irregular and in my view were made for an illegal and/or irregular purpose. The contention by the Petitioner that the payments were made for the purpose of costs, expenses, charges for conducting hearings, sitting allowances and for visiting or viewing the disputed parcels of land are not convincing to this court. It would have been expected that any payments made for the mentioned purposes would be made through the official channels and an official receipt issued. The Land Adjudication Regulations make provision for certain payments for services rendered during the adjudication process and a schedule of the payments is attached to the regulations. Rule 4(2) provides that:
57.The Petitioner testified that the 2nd Respondent was the one who asked for the money and he sent the money directly to him. In my view what comes out of the testimony of the Petitioner is that there was irregular interaction between himself and the 2nd Respondent during the pendency of the appeals before the 2nd Respondent and the same were aimed at influencing the 2nd Respondent in the decision that he made.
58.On the contrary the contention by the Petitioner that the 1st Respondent paid money to the 2nd Respondent was not proved since no evidence was adduced to show the arrangement between the 1st and 2nd Respondents for payment of the money claimed and the actual payment made as alleged. Indeed the Petitioner and his witness confirmed that they did not see the said payment being made but were informed by 3rd parties who were not called to testify. The 1st Respondent denied being required by the 2nd Respondent to make the payments the Petitioner claimed was required of all litigants. He further denied making any of the payment he is claimed to have made. I find that there is no evidence placed on record to disprove the 1st Respondents contention.
59.This court has not quite understood the Petitioners argument that his own payment of Kshs 150,000/- to the 2nd Respondent ought to be condoned and taken to be for a purely legitimate and lawful purpose of costs, expenses, charges for conducting hearings, sitting allowances and for visiting or viewing the disputed parcels of land and that only the 2nd Respondent should be taken to task for the same. Further, according to the petitioner the alleged payment of Kshs 300,000/- by the 1st Respondent for a similar purpose ought to be castigated and lead to nullification of the proceedings before the 2nd Respondent. In my considered view the Petitioners position is a perfect example of application of double standards by alleging that the 1st Respondent paid to the 2nd Respondent a lot more money than he did and thus obtained a favourable decision. In my view had the decision rendered by the 2nd Respondent been in favour of the Petitioner, this court would never have known or found out that any payments had changed hands between the Petitioner and the 2nd Respondent. My view is not in any way condoning the 2nd Respondent’s conduct as a public officer. Indeed, the said conduct should to say the least be a subject of criminal investigations. Indeed, I do note that when this matter first came before the court on 3rd July 2009 the court made an order directing that Machakos EACC to conduct investigations in respect of the various allegations of money received by the 2nd Respondent from the Petitioner. I would reiterate the same view that this is a matter ought to be investigated by the relevant body as ordered by this court for possible action to be taken.
60.This recommendation arises under Article 252 and Chapter Six of the Constitution, where the Ethics and Anti-Corruption Commission is empowered to;c)Receive complaints on the breach of the code of ethics by public officers;d)Investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed under this Act, the Anti-Corruption and Economic Crimes Act or any other law enacted pursuant to Chapter Six of the Constitution;
|Subject to Article 31 of the Constitution, monitor the practices and procedures of public bodies to detect corrupt practices and to secure the revision of methods of work or procedures that may be conducive to corrupt practices;'|
61.In the case of Edderman Property Ltd & 2 others v Ethics and Anti-Corruption Commission & 3 others  eKLR the court noted that;
62.The charge of bribery as alleged in this case is composed of certain elements as was broken down in the case of Pamela Zipporah Moriasi v Republic  eKLR
63.For the purposes of this petition it is my view that the Petitioner did not discharge his burden of proving that the 1st Respondent did give to the 2nd Respondent the sum of Kshs 300,000/- in order for him to render a decision favourable to him. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:-
64.Further I do find that the maxim ex turpi causa no oritur actio applies to the circumstances of this case. The Petitioner had the option not to engage the 2nd Respondent on his demand for money. He also had an option of reporting the impropriety to the relevant authorities. Instead, he participated in a process aimed at subverting justice.I am guided by the court of Appeal in Kenya Ports Authority v Fadhil Juma Kisuwa  eKLR where the court states;
C. Is there a conflict of Section 29 of the Land Adjudication Act with the Constitution?
65.In prayer C, D and E of the Petition, the Petitioner complains about the constitutionality of S.29 of the Land Adjudication Act on various grounds. In his submissions the Petitioner did not quite address the issues raised in the said prayers but based the challenge on the constitutionality of section 29 of the Land Adjudication Act on failure to provide for the time frame for hearing of appeals in a timely manner as provided for in the constitution. However, considering that the prayers sought were not abandoned I will proceed to deal with them.
66.The challenge is that S.29 of The Land Adjudication Act does not provide a clear legal or institutional and financial policy framework to support the adjudicative functions of the Deputy Commissioners or the District Commissioners as they were then, so as to ensure independence, impartiality and the integrity and leadership of the adjudication, and as such is in conflict with aspiration of s.77(1) and 77(9) of the repealed Constitution and articles 10(1) and (2), 19,20,21,22,47(1) and 50(1) of the Constitution of Kenya.
67.Further the Petitioner claims that in so much as S.29 of the Land Adjudication Act does not provide for or is silent on the aspirations and the expectations of the Kenyan citizens of a hearing of their disputes within a reasonable time as was assured or enshrined in S.77 and 77(1) and 77(9) of the repealed Constitution, and as guaranteed in Article 50(1) of the Constitution of Kenya(2010), then to that extent, it was in conflict with S.77(9) of the repealed Constitution and Article 50(1) of the Constitution of Kenya 2010.
68.Further, the Petitioner seeks a declaration that in so much as S.29 of the Land Adjudication Act has not been revised, amended, repealed and/or reformed or any legal framework thereto promulgated to accord or reflect the aspirations of or expectation of or demands of the citizens of a fair trial and hearing within a reasonable time and/or fair administrative actions and the values , principles and objectives of good governance as expected of all adjudicative functions then and to that extend, it is in conflict with Article 10(1) and(2),19,20,21,22,25(c),47(1) and 50(1) of the Constitution of Kenya 2010 and S.77(1) and 77(9) of the repealed Constitution.
69.This court had occasion to deal with the challenge to the constitutionality of section 29 of the Land Adjudication Act in Kitui Elc Petition No 8of2021 Kalundi Mutua V Simon Mutiuli Kang’e & Others(Unreported) where the orders sought were in the exact same words as those sought in this petition. My views on the issues, raised in this petition remain the same as they were in the said petition and the Petitioner in this case has not made presentations that would change my opinion and findings.
70.In my view the challenge raised to the constitutionality of section 29 of the Land Adjudication Act cannot be considered in isolation from the legal, policy and institutional framework for the Land Adjudication Act as a whole. The Land Adjudication Act was first enacted in 1968. The said Act is said to be 'An Act of Parliament to provide for the ascertainment and recording of rights and interests in community land, and for purposes connected therewith and purposes incidental thereto'. From the outset, the process of registration of titles to land through the Land Adjudication Act had constitutional underpinnings by virtue of Chapter IX of the Repealed Constitution of Kenya which dealt with trust land. In particular Section 116 provided for registration of individual titles to trust land. Ultimately it was intended that when the title to any parcel of land within trust land area is registered under the Land Consolidation Act and/or Land Adjudication Act otherwise than in the name of the county council it would cease to be trust land.
71.While in the process of determining rights and interests in trust land, the Land Adjudication Act provides an elaborate and detailed process of dispute resolution. Section 29 is at the apex of the said process and for clarity the section is set out as follows: 'Any person who is aggrieved by the determination of an objection under Section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by— (a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and (b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.'
72.It is the Courts view that land adjudication is provided for under the existing land policy through Sessional Paper No 3 of 2009 on National Land Policy. The said policy confirms the need to ensure that adjudication and consolidation processes are speedy, transparent and accountable. Under the policy the Government undertook to enact a 'Land Registration Act' to recognize and protect all legitimate rights and interests in land and to harmonize the statutes dealing with the registration of land rights. The Government further undertook to repeal the Land Adjudication Act and Land Consolidation Act and repeal the land registration provisions of the Registration of Titles Act (RTA) (Cap 281), the Land Titles Act (LTA) (Cap 282) and the Registered Land Act (RLA) (Cap 300).
73.On the question of trust land, the policy provided for the repeal of the Trust Land Act and proposed to have a clear framework for recognition, protection and registration of community land and land-based resources incorporating mechanism for a land management and dispute resolution and for reviewing and harmonizing the Land (Group Representative) Act.
74.Subsequent to the promulgation of the Constitution of Kenya 2010 and in harmonizing of existing laws with the constitution, the Land Registration Act No 3 of 2012 repealed the Indian Transfer of Property Act 1882, the Government Lands Act, (Cap 280), the Registration of Titles Act, (Cap 281), the Land Titles Act, (Chapter 282), The Registered Land Act, (Cap 300).
75.The Community Land Act No 27 of 2016 was also enacted as 'An Act of Parliament to give effect to Article 63 (5) of the Constitution; to provide for the recognition, protection and registration of community land rights; management and administration of community land; to provide for the role of county governments in relation to unregistered community land and for connected purposes'. Under the Act, the Land (Group Representatives) Act Cap 287 d the Trust Lands Act Cap 288 were repealed.
76.However, when it came to the issue of ascertainment and recording of rights and interests in community land or trust land, the Land Adjudication Act was left intact with only a few amendments made through statute law (Miscellaneous Amendments) Act No 7 of 2016 which amendments consisted of substituting expressions 'Trust Land' wherever the same appeared with the expression 'Community Land' and substitution of the term 'Minister' for Cabinet Secretary and 'County Council' with 'County Government'.
77.In my view the legislature amended, reviewed, revised, repealed and/or enacted new laws in order to make them conform with the Constitution of Kenya 2010. From a look at the few amendments made to the Land Adjudication Act, it is clear that the said act was reviewed and revised but only a few amendments were found to be necessary. In my view the Petitioner has not placed before the court evidence and/or arguments showing that Section 29 of Land Adjudication Act does not conform with the provisions of the constitution or alternatively that the issues complained of are as a result of any failure of the law to conform with the cited constitutional provisions.
78.From the foregoing, I find that the at the time when the Land Adjudication Act was being considered for revision, amendment, and/or reform after the promulgation of the Constitution of Kenya 2010, Section 29 was considered and no substantial amendment was found to be necessary. It has not been shown to the court that the said section and the Act does not accord or reflect the aspirations of or expectations of or demands of the citizens of a fair trial and hearing within a reasonable time as claimed by the Petitioner. It has also not been shown that it does not conform with the requirement for fair administrative actions and the values, principles and objectives of good governance as expected of all adjudicative functions, and that in its present form it is in conflict with Article 10(1) and (2), 19, 20, 21,22,25(c), 47(1) and 50(1) of the Constitution of Kenya (2010).
79.In the Petitioners submissions he claims that although Section 29 provides for the right of appeal it does not make rules and regulations to ensure that parties shall be entitled to a fair trial and hearing before the Minister. However, I do find that the said Section 29 provides for a procedure of filing of the appeal by delivering to the Minister an appeal in writing specifying the grounds of appeal and the Minister is mandated to determine the appeal and make such order thereon as he thinks just and the orders made shall be final. Further, that by virtue of Section 35 of the Land Adjudication Act, Land Adjudication Regulations 1970 were enacted and the same provide for the procedure of conducting trials. It is thus the Courts finding that the rules and regulations do exist for the conduct of proceedings under the Land Adjudication Act, they may not be as comprehensive and detailed as may cover every possible procedure but the lack of detail is not such as would render the section unconstitutional.
80.Further, courts have also given directions on the manner in which proceedings should be conducted by the Minister and in Gathigia v Kenyatta University Nairobi HCMA No 1029 of 2007  KLR 587 the Court held:
81.As the above cases held, all quasi-judicial bodies must follow laid down procedure and in the absence of procedure they must still exercise the principles of fair hearing.
82.It is further the courts finding that constitutional safeguards exist and are available for a party appearing in an appeal before the Minister under Section 29 in that the provisions of the Constitution of Kenya 2010 are binding to all persons. In particular Article 2 of the constitution decrees that the constitution is the supreme law and binds all persons, state organs and public officers. Article 3 of the constitution obligates every person to respect, uphold and defend the constitution. Every person here includes the National Assembly as a state organ, all state and public officers are bound by the constitution and the principles therein especially when making decisions of a judicial or quasi-judicial nature. It matters not that the Land Adjudication Act does not have these provisions specifically stated but the 2nd Respondent was still bound to them under Article 10 which expressly sets out the National Values and Principles of Good governance.
83.Article 47 of the Constitution provides that, 'Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair,' which provision is reiterated at Section 4(1) of the Fair Administrative Action Act No 4 of 2015. In my opinion, Section 29 of the Land Adjudication Act is not in conflict with the Constitution because it still requires the Minister and all officers, committees and boards within the Land Adjudication process to be bound by the Constitution while making the decision on appeal and to follow a laid down procedure.
84.Further, courts have held that administrative actions must now meet the constitutional test of legality, reasonableness and procedural fairness. This new standard was well articulated by the court in Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another  eKLR:
85.It is further the courts view that protection of any person appearing before the Minister under Section 29 of the Land Adjudication Act is guaranteed by virtue of the provisions of the Fair Administrative Actions Act for the reason that any person can institute proceedings for review of proceedings if aggrieved. Under Section 7 (2) A court or tribunal under subsection (1) may review an administrative action or decision, if the person who made the decision inter alia –was not authorized to do so by the empowering provision, acted in excess of jurisdiction or power conferred under any written law; acted pursuant to delegated power in contravention of any law prohibiting such delegation and finally the court or tribunal may review an administrative action or decision if it was procedurally unfair.
86.On the question of whether or not the provisions of the Section 29 complained of are in conflict with the constitution the law is that there is a general but rebuttable presumption that a statute or statutory provision is constitutional and the burden is on the person alleging unconstitutionality to prove that the statute or its provision is constitutionally invalid. This is because it is assumed that the legislature as peoples’ representative understands the problems people they represent face and, therefore enact legislations intended to solve those problems. In Ndynabo v Attorney General of Tanzania  EA 495 it was held that an Act of Parliament is constitutional, and that the burden is on the person who contends otherwise to prove the country. In that case the court presided over by the Hon Chief Justice Samatta Stated as follows:
87.In trying to determine constitutional validity of a statute the law provides guiding principles and one of them is by examining the purpose or effect of the law under challenge. The purpose of enacting a legislation or the effect of implementing the legislation so enacted may lead to nullification of the statute or its provision if found to be inconsistent with the constitution. In Olum and another v Attorney General  EA, it stated that;
88.In the Queen v Big M Drug mart Ltd, 1986 LRC (Const) 332, the Supreme Court of Canada stated that;
89.From the foregoing it is necessary to apply the purpose and effect test by looking at the impugned section 29 of the Land Adjudication Act as against the constitutional test of Articles 10 (1) and (2), 19,20,21,22,47(1) and 50(1) and 159(1) and (2) of the Constitution of Kenya 2010. In my view the purpose for the said section is apparent from a literal reading of the section. The section is part of a dispute resolution process in the ascertainment of rights and interests in community land formerly trust land and it stands at the apex of that process. It provides a person aggrieved by the determination of an objection by the Land Adjudication and Settlement Officer under Section 26 an opportunity to appeal to the Minister. The Minister receives the appeal, hears it and decides the dispute and makes such order as he thinks just and the order shall be final. In my view the Petitioner has not shown that the said purpose violates the national values and principles of governance under Article 10 of the Constitution. It has also not been shown to the satisfaction of the court that the purpose violates the provisions of Article19, 20, 21, 22 on Rights and fundamental freedoms, Application of Bill of Rights, Implementation of rights and fundamental freedom and Enforcement of Bill of Rights. Indeed, as discussed earlier the Bill of Rights applies to all law and binds all State organs and all persons including the Minister under Section 29 of the Land Adjudication Act and his delegates. It is the courts view that the said section provides an avenue for determination of disputes in the process of ascertainment of rights and interests in formerly trust land and now community land and the said process does not derogate rights to a fair trial under Article 25 (c), 50 and the right to fair administrative action under Article 47 of the Constitution of Kenya 2010.
Final OrdersFor the reasons given above the court finds that Petition herein dated June 14, 2019 lacks merit and the same is hereby dismissed with costs to the 1st Respondent.
Delivered, dated and signed at Kitui this 8th day of December, 2022.HON. L. G. KIMANIENVIRONMENT AND LAND COURT JUDGE KITUIJudgement read in open and virtual court in the presence of-M/s Maritim Advocate holding brief for Kilonzi for PetitionerNgolya for 1st RespondentNo attendance for the 2nd to 4th Respondents