Musya & 3 others v Muviku & 4 others (Environment & Land Petition E003 of 2022)  KEELC 16087 (KLR) (28 February 2023) (Ruling)
Neutral citation:  KEELC 16087 (KLR)
Republic of Kenya
Environment & Land Petition E003 of 2022
LG Kimani, J
February 28, 2023
IN THE MATTER OF ARTICLES 10, 19, 20, 21, 22, 23, 24, 25, 27, 40, 47, 48, 50, 159, 165, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 10,19,20,21,22,23, 24, 25, 27,40,47, 48, 50(1) AND 165 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTION 29(1)(B) OF THE LAND ADJUDICATION ACT AND IN THE MATTER OF SECTION 4 & 7 OF THE FAIR ADMINISTRATIVE ACTIONS ACT AND IN THE MATTER OF THE DOCTRINE OF LEGITIMATE EXPECTATION AND IN THE MATTER OF THE DOCTRINE OF REASONABLENESS
Robert Mutie Musya
Harrisson Mwenga Musyoka
Daniel Musyoka Muviku
Deputy County Commissioner, Kyuso
Land Adjudication Officer, Kyuso
Chief Land Registrar
1.Before the court is a request by the Petitioners for empanelment of a bench of an uneven number of judges dated 1st November 2022 seeking the following orders:a.This Honourable Court be pleased to certify that the Petition herein raises substantial questions of law and forthwith refer the case to his Lordship/Ladyship the Chief Justice for appointment of a bench of an uneven number of judges being not less than three(3) pursuant to Article 165(4) of the Constitution.b.That the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders if granted.c.Any other order and/or modification of prayers which this Honourable Court may deem fit regarding empanelment.d.That the costs of the application be in the cause.
Application For Empannellment
2.The grounds relied on in support of the petition are that the 2nd Respondent is a Government official who exercises delegated authority by the Cabinet Secretary for lands under Section 29 (4) of the Land Adjudication Act and is tasked with hearing of appeals to the Minister as contemplated under Section 29 (1). The Petitioners claim that the hallmark of this Petition is the actions and discretion of the 2nd Respondent herein, the Deputy County Commissioner Kyuso County whose decision is stated to be final and cannot be challenged in a court of law.
3.The Petitioners set out the dispute resolution process under the Land Adjudication Act commencing with section 20 and 21 which provide for the Land Adjudication Committee and the Arbitration Board respectively. The next state is the objection to the Land Adjudication Officer under section 26 of the Act. A party dissatisfied by the decision of the Land Adjudication Officer appeals to the Minister under Section 29.
4.The Petitioners claim that a party dissatisfied by the decision of the Ministers delegate can only move the court for declaratory orders and judicial review. According to the Petitioners, judicial review is ill-equipped to deal with disputed matters of fact where it would involve fact finding on an issue which requires proof.
5.That the provision of Section 29(1) (b) ousts the jurisdiction of the court to examine the merit of the decision of the Minister yet the court has supervisory jurisdiction over judicial and quasi-judicial authorities and tribunals and power to call or recall the impugned decision and satisfy itself whether the decision is founded on sound reasoning and examine about its legality, correctness, propriety and soundness.
6.It is the Petitioners’ submission that the protection of their fundamental human rights and the right to initiate judicial proceedings for enforcement of the right to property is an important entitlement of the Petitioners and it should not be clawed back even for the sake of achieving finality in dispute settlements.
7.The Petitioners submit that there has been a strict approach in the interpretation of the finality and ouster clause in Section 29(1) (b). They give examples of the cases of Timotheo Makenge vs Manunga Ngochi (1979) eKLR where the court held that while the Minister’s decision might have been a harsh one or a wrong one, but the court found that no want or excess of jurisdiction had been established. He also cited this courts holding in the case of Robert Kulinga Nyamu vs Musembi Mutunga & another (2022) eKLR where the holding was that the provision of Section 29 of the Land Adjudication Act is couched in mandatory terms and parties cannot re-litigate the dispute. The cases of Lepore ole Maito-vs- Letwat Kortom & 2 others (2016) eKLR and Republic vs Attorney General ex parte Dominic Muthi; Juliuss Wambua Kanyenze (Interested Party) (2022) eKLR.
8.Counsel for the Petitioners therefore submits that it is apparent that the courts will not interfere with the decision of the Minister even when it is apparent that the Minister made a wrong decision. The Petitioners state that this Petition raises substantial and novel questions of law to warrant the empanelment of a bench of an uneven number of judges being not less than three under Article 165(4) of the Constitution and that it is desirable that the file be referred to the Honourable Chief Justice for the constitution of such a bench for the following reasons:a.The Petition raises weighty and complex questions of law concerning the interpretation and application of the provisions of Section 29(1) (b) of the Land Adjudication Act, particularly the Minister being the final arbiter.b.The Petition raises questions as to the Constitutionality of Section 29(1) (b) of the Land Adjudication Act.c.The Petition argues that any legislation which intends to limit a right ought to reasonable and justifiable in an open democratic society.d.In a provision ousting the jurisdiction of the court, the courts should lean towards the interpretation that preserves the ordinary jurisdiction of the court.e.The right of the Petitioner to move a court of law is preserved in the Constitution.f.Without access to courts, there can be no rule of law and therefore no democracy and anyone seeking a remedy should be able to knock on the doors of justice and be heard.g.Any exception to judicial inquiry should apply only to acts or deeds that are in accordance with the Constitution or relevant laws and any act or deed contrary to the Constitution or relevant law is subject to review or inquiry by the appropriate court of law.h.The issues raised in the Petition are novel and have not been decided upon before a court of law.
9.Counsel for the Petitioners relied on the case of Peter Nganga Muiruri vs Credit Bank Limited & another Civil Appeal No. 203 of 2006 where the court held that the decision of whether to certify a matter as raising a substantial question of law is an exercise of judicial discretion as opposed to a right. Counsel further relied on the case of Wycliffe Ambetsa Oparanya & 2 others vs Director of Public Prosecutions & another (2016) eKLR which addressed the meaning of substantial question of law.
10.According to the Petitioners, this matter has disclosed that there is a substantial question of law and that a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened and the issue of interpretation of the Constitution.
11.The Petitioners therefore pray that the request for empanelment of a bench of uneven numbers be allowed for the sake of justice.
12.The background to the Petition is that the Petitioners had cases arising out of the adjudication process over Land Parcel Nos.2152, 2148, 2149, 2150, 2151, 2142, 2143, 2144, 2145, 2146, and 2404 within Kimangao Adjudication Section and Mivukoni Adjudication Section, Kyuso sub-county. The dispute went through all the stages of the adjudication process, beginning with a clan elders determination, decision by the Committee, Arbitration Board Objection proceedings and Minister’s Appeal No.28 of 2020 and Appeal 270 of 2020.
13.The Petitioners’ contention is that the decision of the 2nd Respondent is largely dependent on hearsay evidence and that it is a miscarriage of justice and prejudicial to the Petitioners’ rights over the subject property who have been the owners of the suit properties and in occupation of even before the demarcation commenced. They also contend that the 2nd Respondent did not evaluate the responses and grounds of appeal and did not give reasons why he either agreed or disagreed with the Land Adjudication Officer’s decision.
14.The Petitioners have sought for the following reliefs in the Petition:a.An order of certiorari do issue to remove and quash the decision made by the Deputy County Commissioner, Kyuso Sub-County, Kitui County in Minister’s Appeal Case Nos. 27, 28 and 270 of 2020 in regard to Land Parcels 2152, 2148, 2149, 2150, 2151, 2142, 2143, 2144, 2145, 2146, and 2404 within Kimangao Adjudication Section and Mivukoni Adjudication Section, Kyuso sub-county.b.A declaration that the Petitioners are entitled to be registered as the legitimate and beneficial owners of their ancestral land herein as originally demarcated to them as Land Parcels 2152, 2148, 2149, 2150, 2151, 2142, 2143, 2144, 2145, 2146, and 2404 respectively.c.A permanent injunction be issued restraining the 4th Respondent by themselves, agents, servants, employees or otherwise howsoever from effecting registration and/or issuing Title Deeds in respect to the Parcels of Lands herein to the 1st Respondent and/or any other person other than the petitioners.d.An order of injunction be issued compelling the 4th Respondent to register the Petitioners as the beneficial and legitimate owners of the subject ancestral land originally demarcated to them as Land Reference No. 2152, 2148, 2149, 2150, 2151, 2142, 2143, 2144, 2145, 2146, and 2404 respectively.e.A declaration that Section 29(1)(b) of the Land Adjudication Act is inconsistent with Articles 10(2), 19, 20, 21, 22, 23, 24, 25, 27, 28, 40, 47, 48, 50, 159, 162, and 162 and 165(6) of the Constitution thus unconstitutional, null and void to the extent of the inconsistency.
1st Respondent’s submissions
15.The 1st Respondent submitted that the Petition is not ripe for presentation to the Chief Justice for reference purposes because the matter herein is a simple one examining whether the Minister’s decision was in contravention of the provisions of the Constitution. He the contends that the subject matter herein was the subject of litigation in Civil Case 28 of 2014 Kyuso Law courts and High Court at Kitui Miscellaneous 29 of 2015 which was not challenged in the court of appeal and thus the issues were fully addressed and determined by the court and by the appeal to the Minister.
16.According to the 1st respondent, the Petitioners are seeking to cause delay in delivery of justice. He also states that the 2nd Petitioner has not disclosed to the courts that the 1st Respondent is his brother and that they were to share the suit property but he instead caused the same to be demarcated to him.
17.The 1st respondent urged the court to find that the issues relating the suit parcels of land are simple and no complicated issues. He stated that the suit properties were one parcel of land and that the demarcation process was requested by the petitioners to sub-divide the property.
18.The 1st respondent concluded by submitting that the Petitioners have not proved any complication in the matter and have not proved that there are substantial issues to be determined by more than one judge to warrant the matter referred to the chief justice as they relied on the case of Mbuvi Gideon Mike Sonko vs Director of Public Prosecution & 4 others  eKLR as they urged the court to dismiss the applicant’ request and set the matter down for hearing and determination.
The 2nd -5th Respondents’ Submissions
19.State counsel for the 2nd -5th Respondents submitted that even though Article 165(4) does not define what ‘substantial question of law’ but it was held in the case Community Advocacy Awareness Trust & others vs the Attorney General and others High Court Petition No. 243 of 2011 where the court held that the question has been left to each judge’s interpretation. They also relied on the principles applicable set out in the case of Martin Nyaga and others vs Speaker County Assembly of Embu and 4 others and Amicus (2014) eKLR.
20.According to state counsel the main issue in the Petition is the quashing of the decision made by the Deputy County Commissioner which is not a complex or a weighty issue. The second issue is the constitutionality of Section 29 (1) (b) if the Constitution, which they also submit is not a complex issue that warrants certification under 165(4) of the Constitution and relied on the case of Harrison Kinyanjui vs Hon Attorney General in Nairobi Petition Number 74 of 2011 where the court held that the decision of a three judge bench is of equal force to that of a single judge exercising the same jurisdiction.
21.It is also their submission that the court must adopt a holistic approach to the matter at hand as was held in the case of Chepkorir Rehema (suing through father and next friend) & 130 others vs Kenya National Examinations Council (2017) eKLR. They submit that suits arising from the decisions of the Minister have been challenged before single judges on numerous occasions and that the constitutionality of sections is not novel and has been on many occasions been dealt with by a single judge and relied on the holding in the case of Council of County Governors vs Lake Basin Development Authority & 6 others (2019) eKLR where the court found that the issues on the impugned acts are no novel and the holding in Peter Nganga Muiruri vs Credit Bank Limited & Another Civil Appeal No.203 of 2006 where the court held that a single judge of the High Court can handle a constitutional question such as the one raised in the petition. State counsel for the 2nd -5th Respondents therefore prayed that the application be dismissed with costs to the Respondents.
Analysis and Determination
22.I have considered the application herein where the Petitioners pray for certification that the Petition raises substantial questions of law and forthwith refer the case to the Chief Justice for appointment of a bench of an uneven number of judges being not less than three (3) pursuant to Article 165(4) of the Constitution.
23.Article 165(4) of the Constitution provides that:Clause 3 (b) and (d) referred to above states
24.The petitioners claim that the petition raises weighty, complex and substantial questions of law under the constitution based on the interpretation and application of the provisions of section 29(1) (b) of the Land Adjudication Act, particularly the Minister being the final arbiter.
25.Finality and ouster clauses as found under section 29 of the Land Adjudication Act have been dealt with by the Supreme Court in the case of Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others  eKLR as follows;The court went on to summarize the findings of courts on clauses in law ousting the jurisdiction of courts and stated;
25.From the foregoing it is clear that the finality clause in Section 29 of the Land Adjudication Act does not oust the jurisdiction of the court since as stated above the ultimate power of interpretation of the Constitution, or statutes, rests with the Court and the Courts will always jealously guard their jurisdiction.
26.The petitioners raise the issue of whether or not section 29 of the Land Adjudication Act limits the rights of access to the courts and to judicial inquiry into the issues determined in their dispute. The said questions have been the subject of consideration and determination by various courts. Such determination has shown that a party whose dispute has been heard through the adjudication process has a right to seek the remedy of judicial review. The Constitution of Kenya 2010 and the Fair Administrative Actions Act No. 4 of 2015 have expanded the scope of judicial review to include a possible merit review of the impugned administrative decision. The Court of Appeal in the case of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others  eKLR.
27.It was thus determined that consideration of an administrative decision on the grounds of proportionality, irrationality and unreasonableness invites the court to evaluate the merits of the decision as it may require the reviewing court to assess the balance which the decision maker has struck. The court further addressed the ground whether relevant considerations were taken into account in making the impugned administrative decision and stated that the said ground also invites aspects of merit review.
28.The court of appeal gave further guidance in case the court finds that there is violation of a right to fair administrative action and held that there is no power for the reviewing court to substitute the decision of the administrator with its own decision.
29.In my view, the cases cited by the Petitioners Counsel are decisions made subject to the particular circumstances of each case. In the case of Robert Kulinga Nyamu v Musembi Mutunga & another  eKLR the appellant filed a suit by way of a plaint seeking to re-litigate the same issues that had been determined by the adjudication proceedings. In Lepore Ole Maito –vs- Letwat Kortom & 2 others  eKLR the Plaintiffs filed a claim for adverse possession in a claim that had been determined through the adjudication process. In the circumstances of the cases the court made findings that the parties were not entitled to file the cases filed.
30.Section 29 of the Act is part of the dispute resolution process provided under the Land Adjudication Act and is a form of alternative dispute resolution as provided under Article 159 (2) (c) of the Constitution. The court of appeal has dealt with cases where alternative dispute resolution processes have been made available by the constitution or a statute and stated that aggrieved parties must resort to the available mechanism before coming to court. This position was taken in Mutanga Tea & Coffee Company Ltd V Shikara Limited & Another  eKLR, where the following remarks were made:
31.The Petitioners claim that the issues raised in the Petition are novel and have not been decided upon before a court of law. Majanja, J in the case of J. Harrison Kinyanjui vs Attorney General & Another  eKLR addressed the meaning of a ‘substantial question of law’ under Article 165(4) of the Constitution and analysed thus:
32.Similarly, the Court of Appeal in the case of Peter Nganga Muiruri v Credit Bank Limited & 2 others  eKLR held that:
33.In my opinion, issues of impugned decisions of the Minister’s Appeal and the provisions of Section 29 of the Land Adjudication Act are not novel issues of law to warrant certification by the court as raising a substantial question of law requiring to be heard by an uneven number of judges, as assigned by the Chief Justice. These are issues that are dealt with by this and other courts on a regular basis. As I have demonstrated above the issues have been dealt with by the Supreme Court of Kenya, the Court of Appeal, and the Environment and Land Court.
34.In any event novelty alone does not qualify the matter as raising a substantial question of law though it is one of the many factors to be considered. Both the Petitioner and the 2nd -5th Respondents herein have relied on the Justice GV Odunga’s holding in the case of Wycliffe Ambetsa Oparanya & 2 others v Director of Public Prosecutions & another  eKLR where he was of the view that:
35.In the above case, novel or jurisprudentially challenging cases does not ipso facto elevate it to a substantial question of law for the purposes of Article 165(4) of the Constitution. The court stated that any judge worth his or her salt must be prepared to deal with and determine novel questions whether complex or otherwise since the Court cannot abdicate its duty of determining disputes to another organ. In the present case not only are the issues raised in this petition not novel or complex this court has at some point dealt with the said issues in the particular circumstances of the said cases.
36.Prayer no.(e) of the Petition seeks for a declaration that section 29(1) of the Land Adjudication Act is inconsistent with the Constitution, Section 29(1) of the Land Adjudication Act CAP 284 reads as follows:
37.According to the Petitioners the finality of the Minister’s decision is unconstitutional as they view it as an impediment to accessing courts thus curtailing their rights. As has been stated earlier, the provision that the Minister’s order is final does not oust the jurisdiction of the court.This court has jurisdiction to determine the question of whether any law is inconsistent with or in contravention of the Constitution; any constitutional issues by virtue of Article 165(3) of the Constitution which provides that:
38.In my view the question of whether the said section is inconsistent with or in contravention of this Constitution is not a novel issue. The said section has been in operation since enactment of the Land Adjudication Act in 1968 and has been the subject of numerous constitutional and judicial review cases. This court sitting as a single judge court can competently deal with the issue and grant reliefs provided for under the Constitution.
39.The final order of the court is that in the circumstances of this case, I decline to certify that this matter raises a substantial question of law to warrant reference of the same to the Chief Justice as required under Article 165(4) of the Constitution. The application dated 1st November, 2022 fails and is hereby dismissed. The costs shall be in the cause.
DELIVERED, DATED AND SIGNED AT KITUI THIS 28TH DAY OF FEBRUARY, 2023.HON. L. G. KIMANIENVIRONMENT AND LAND COURT JUDGEJudgment read in open court in the presence of-Musyoki Court AssistantMwalimu C. M. Advocate for the Petitioners/ApplicantsM/s Ndundu State Counsel for the 2nd – 5th Respondents