Maathai & 2 others v City Council of Nairobi & 2 others

High Court, at Nairobi March 17, 1994

Ole Keiwua J

Civil Case No 72 of 1994

Civil Procedure and Practice - preliminary objection – locus standi –

capacity of the plaintiffs to sue for the purpose of preventing public wrongs

Land – title - indefeasibility of title –Registration of Titles Act (cap 281)

section 23

The plaintiffs moved to court as rate payers to the Nairobi City Council

seeking inter alia an injunction to restrain the 3rd defendant from selling

or carrying out construction upon a particular piece of land, due to its

alleged illegal acquisition. The 3rd defendant raised a preliminary objection

citing that the plaintiff had no locus standi to bring the suit.

Held:

1. The plaintiffs had no locus standi to seek injunctive relief as they did

not have sufficient interest to bring the action.

2. Only the Attorney General could sue on behalf of the public for the

purpose of preventing public wrongs.

3. A private individual is able to sue on behalf of the public where he has

sustained particular injury as a result of a public wrong.

4. The plaintiffs in this case failed to show that there had been any failure

of any public duty in which they alone had a unique interest as opposed

to that of the general public.

5. The title issued to the 3rd defendant could not be challenged in the

absence of the matters set out in Section 23 of the Registration of Titles

Act.

Suit dismissed

Cases

1. Gouriet v Union of Posts Office Workers [1977] 3 All ER 70; [1978]

AC 435; [1977] 3 WLR 300

2. IRC v National Federation of Self–Employed and Small Businesses

Ltd [1982] AC 617; [1981] 2 All ER 93; [1981] 2 WLR 722

Texts

1. Wade, HRW (1982) Administrative Law London: Stevens & Sons 5th

Edn

2. Jowell, JL; McAuslan, JP (1984) The Judge and the Law London: Sweet

and Maxwell

Statutes

1. Registration of Titles Act (cap 281) sections 24, 23

2. Local Government Act 1972 section 222

Advocates

Mr Khaminwa for the Plaintiffs

March 17, 1994, Ole Keiwua J delivered the following Ruling.

The plaintiffs sued the defendants and sought these declarations:-

(a) That the subdivision, sale and transfer of LR 209/

1855/2 - LR 57271 is irregular and breached special

condition in the grant dated 1.8.1928. It is ultra vires

the powers of the first defendant which is Nairobi City

Council.

(b) That the issuance of certificates of title by the

Commissioner of Lands is irregular and contrary to law.

(c) The revocation of subdivision of Land Ref 209/1855

- IR 2562 together with revocation of sale thereof.

(d) An injunction to restrain the 3rd defendant from

selling or carrying out any construction work on LR

209/1855/2. A chamber summons dated 7.1.1994 has

been filed in court and seeks an injunction against the

third defendant to restrain it from constructing anything

on the plot in question. It is supported by the affidavit

of the first plaintiff which swears that the plot is in

danger of being alienated. The plaintiffs will be

obstructed in execution of any decree that they may

obtain against the defendants if construction work is

permitted to continue unabated.

In its grounds of opposition dated 17.1.1994 the third defendant denies

that it is disposing off the plot and says, an injunction will cause hardship

to the third defendant because the approval of the building plans by the

Nairobi City Council is valid only for a year. The third defendant’s title is

guaranteed by the provisions of the Registration of Titles Act cap 281

under which the title has been issued. An injunction if granted will render

the provisions of the Registration of Titles Act nugatory.

The third defendant also filed the application dated 17.1.1994 for an

injunction against the plaintiffs. The second defendant filed an affidavit

in which it is deponed that the Nairobi City Council applied for the

subdivision of the plot in question and the approval was given in the

normal way. In their grounds of opposition the plaintiffs said they do not

intend to damage the plot in question save by way of lawful litigation in

courts of law.

The third defendant alone had filed a defence. It denies breach of the

1928 special condition upon which the suit is based. It denies a sale to it

of the plot but claims a lawful allocation thereof which conferred good

title. In paragraph 16 of this defence it is pleaded:-

“This third defendant contends that the plaintiffs herein

have no locus standi to bring the proceedings now

before the court and shall at the appropriate time move

the Honourable Court to strike out this suit”.

There is also paragraph 19 which pleads:-

“The third defendant shall rely on the provisions of

section 23 of the Registration of Titles Act Cap 201

which provides inter alia, that the certificate of Title

issued by the Registrar to a purchaser of land upon a

transfer shall be taken by all courts as conclusive

evidence that the person named therein as proprietor of

the land is the indefeasible owner thereof .... and the

title to that proprietor shall not be subject to challenge.”

There is of course section 24 of the Registration of Titles Act which says

that the remedy of a person aggrieved by such registration as that of the

3rd defendant is in damages only.

As pleaded in paragraph 16 of the defence of the third defendant the time

to raise the issue of locus standi, came on 27.1.1994 when the point was

taken by the third defendant that the plaintiffs had no right to appear and

be heard in this case and their suit be struck out. For this proposition of

lack of standing Mr Muigua relied on the House of Lords decision in

Gouriet and others v HM Attorney General and Union of Posts Office

Engineering Union [sic] [1971] AC 435 at pages 437 Letter C:

Held: Allowing the appeals by the defendants and

dismissing the plaintiff’s appeal.

(1) That save and in so far as the local Government Act

1972, section 222 gave local authorities a limited power

to do so, only the Attorney General could sue on behalf

of the public for the purpose of preventing public

wrongs and that a private individual could not do so on

behalf of the public, though he might be able to do so if

he would sustain injury as a result of a public wrong,

for the courts had no jurisdiction to entertain such claims

by private individuals who had not suffered and would

not suffer damage (Post pp 481A 494 FG) page 481.

But in the present case, the transgression of those limits inflicts no private

wrong upon these plaintiffs and although the plaintiffs, in common with

the rest of the public might be interested in the larger view of the question

yet the constitution of the country has wisely entrusted the privilege with

a public officer, and has not allowed it to be usurped by private individuals.

“That it is the exclusive right of the Attorney General

to represent the public interest even where individuals

might be interested in the larger view of the matter it is

not technical, not procedural, not fictional. It is

constitutional. I agree with Lord Westbury L.C. that it

is also wise”.

It was submitted on behalf of the third defendant that the present case

should have been brought by way of a relator action if the Attorney General

saw it fit to do so. The plaintiffs have not shown that they suffer any

private injury if the proposed multi storey car park building is built. The

basis of the plaintiff’s action is they allege that they are rate payers in the

City of Nairobi. The third defendant had submitted that these elements of

rate paying are unsupported because no amount of rate is indicated, when

paid, in respect of what property the plaintiffs are concerned with. Even

rate paying alone, does not entitle the plaintiffs to sue unless they show

that they stand to suffer injury or damage over and above other rate payers

if the building is constructed. As pleaded in paragraph 19 of the third

defedant’s defence section 23 of the Registration of Titles Act Cap 281

require that a certificate of title issued by the Registrar to the purchaser

upon transfer shall be taken by all courts as conclusive evidence that the

person named therein as proprietor of the land is the indefeasible owner

thereof/and the title to that proprietor shall not be subject to challenge.

This is however subject to encumbrances, easements, restrictions and

conditions, contained or endorsed on such certificate. There is the First of

August 1928 special condition to which the third defendant says it has

not been breached because the present plot L.R. 209/1855 - I.R. 2562 has

been continually used as a municipal market, but the portion now known

as L.R. 209/1855/2 I.R. 57271 has always been used as a parking area.

In paragraphs 8 and 10 of the 3rd defendant’s defence it is stated that the

suit premises were not purchased by the third defendant but allocated to it

and made payment of KShs 2 million by way of stand premium as opposed

to any purchase price. In paragraph 9 of this defence fraud on the part of

the defendants is denied in that the first defendant, Nairobi City Council

acted legally and within its powers when it applied for the subdivision. It

is said the third defendant is a stranger to the plaintiff’s allegations that

the plaintiffs are aggrieved by the said allocation, subdivision and transfer

to the third defendant of LR No 209/1855/2. In that connection the third

defendant contends that the plaintiffs have no locus standi to bring these

proceedings.

On the basis of lack of standing and the provision of section 23 of the

Registration of Titles Act I was urged to hold that the plaintiffs had no

right to sue, no right to appear, no right to be heard in these proceedings.

On the other hand Mr. Khaminwa for the plaintiffs, submitted in relation

to the attack and lack of evidence of details of rate paying, that they had

intended to call oral evidence of this at the hearing of the application for

injunction and the present preliminary point has come prematurely and at

the wrong time because the 3rd defendant must wait to give the plaintiffs

the opportunity to show by oral evidence that the plaintiffs have a standing.

Mr Khaminwa thinks the provision of section 23 cannot be looked at this

stage when dealing with whether the plaintiffs have a right to speak against

an owner of a title registered under the Registration of Titles Act.

A number of authorities were cited by Mr Khaminwa. One of this is the

Inland Revenue Commissioners v National Federation of Self Employed

[1985] AC 617 page 653.

“Suffice it to refer to the judgement of Lord Parker CJ

in Reg v Thames Magistrate’s Court ....” a cause of

certiorari; and to the words of Lord Wilberforce in

Gouriet Vs Union of Post Office Workers [1978] AC

435, 482 where he stated the modern position in relation

to the prerogative orders: “These are often applied for

by individuals and the courts have allowed them liberal

access under a generous conception of Locus Standi.

The one legal principle which is implicit in the case

law and accurately reflected in the rule of court, is that

in determining the sufficiency of an applicant’s interest

it is necessary to consider the matter to which the

application relates. It is wrong in law, as I understand

the cases, for the court to attempt an assessment of the

sufficiency of an applicant’s interest without regard to

the matter of his complaint. If he fails to show, when

he applies for leave, a prima facie case, or reasonable

grounds for believing that there has been a failure of

public duty, the court would be in error if it granted

leave. The limb represented by the need for an applicant

to show, when he seeks leave to apply, that he has such

a case is an essential protection against abuse of legal

process. It enables the court to prevent abuse by busy

bodies, cranks, and other mischief makers. I do not see

any further purpose served by the requirement for

leave”.

According to the plaintiffs the matter of their complaint here is the

subdivision, allocation and transfer and registration of the suit premises

in the name of the third defendant. The sufficiency of the plaintiffs’ interest

must be looked at with regard to the kind of premises the suit land is. As

already stated that the title issued to the 3rd defendant herein cannot be

challenged in the absence of the matters set out in section 23 of the Act.

This is the subject matter of the plaintiff’s complaint in respect whereof

the third defendant has rightly raised a preliminary point that the applicants

have no right to be heard to challenge, whether as rate payers, the third

defendant’s title. In my considered view there is no further investigation

required to ascertain what the subject of the plaintiffs’ complaint is. It is

there in their plaint, in their chamber summons. At this stage the plaintiffs

must show, and they have failed to show, that there has been any failure

of any public duty in which they alone have a unique interest as opposed

to that of the public generally.

I have been referred to a passage in Wade, Administrative Law which in

itself cries for answer. In the Lord Denning book: The Judge and the Law

I was referred to a passage like that of the Inland Revenue Commissioner’s

case which deals with: “Exceptions had been made, particularly in

applications for certiorari or prohibition, but by and large standing was

narrowly construed”. The plaintiffs are not before the court on any matter

of certiorari or prohibition but by way of an ordinary suit by plaint restricted

by the nature of the statute law in Kenya and restricted by their own

interest in the subject matter of complaint namely as rate payers which

they have not been able to make out a case.

I am therefore satisfied that the plaintiffs have no locus standi in this case

and they should not be heard. Accordingly the plaintiff’s suit is struck out

as urged in the preliminary objection. The plaintiffs will pay all the

defendants the costs of this suit.