I. Preliminaries
1. The Judgment of this Honourable Court pertains to the filed Constitution Petition dated 30th November, 2023. It was instituted by Ali Salim Toza and Juma Salim Toza; the 1st and 2nd Petitioners herein and against the Simkan Investments Limited, BTB Insurance Brokers Limited, WWW. Bid Investment Company Limited, National Land Commission, Registrar of Titles, Mombasa and Attorney General the 1st, 2nd, 3rd, 4th & 5th Respondents herein.
2. Upon service of the Petition, all the Respondents vigorously opposed the Petition through filing of separate replies on diverse dates as follows. The 1st Respondent filed a Replying Affidavit sworn on 19th March, 2024 and a Notice of Preliminary Objection dated 20th March, 2024; 2nd and 3rd Respondents filed a Replying Affidavit sworn on 13th June, 2024; the 4th Respondent filed their replying affidavit sworn on 19th December, 2024 while the 5th Respondent opposed the Petition through a replying affidavit sworn on 11th July, 2024. Further, the 5th and 6th Respondents filed a reply to Petition dated 3rd April, 2024 thereof.
3. Towards all this, with the leave of Court, the Petitioners filed a Supplementary Affidavit sworn on 25th July, 2024 and a Ground of Opposition to the Notice of Preliminary objection dated 25th July, 2024 accordingly.
II. Description of parties
4. The 1st & 2nd Petitioners were described as adult males of sound mind and understanding working for gain and residing in Tiwi, within the County of Kwale. The 1st to 3rd Respondents were described as limited liability companies by limited guarantee incorporated in Kenya under the Companies Act, Cap. 486 and carrying on business within the Republic of Kenya.
5. The 4th Respondent is the National Land Commission (Hereinafter referred to as “The NLC”), was described as a and constitution created public commission established under the provision of Article 67 of the Constitution of Kenya, 2010. One of its functions is to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress.
6. The 5th Respondent, the Registrar of Titles, Mombasa, was described as a public officer appointed pursuant to the provision of Sections 12 and 13 of the Land Registration Act, No. 3 of 2012 (Hereinafter referred to as “The LRA”).
7. The 6th Respondent was described as the Attorney General of the Republic of Kenya. Sued pursuant to provisions of Article 156 of the Constitution of the Republic of Kenya, 2010 in his capacity as the legal advisor of the Government of the Republic of Kenya, the person authorized by law to represent the Government in court pursuant to section 12 of the Government Proceedings Act, and the officer of Government under a duty to promote, protect and uphold the rule of law and the defender of public interest
III. The Court’s direction the dispensation of the Petition
8. Nonetheless, on 29th July, 2024, all parties having fully complied, the Honourable Court by consensus provided the direction on how the Petition was to be disposed off by way of written submissions.
IV. The Petitioner’s Case
A. Facts of the case:-
9. The 1st and 2nd Petitioners were the legal and registered owners of all that parcel of land known as L.R No 14897 CR 19582 situated within Tiwi Beach area within the County of Kwale (Hereinafter referred to as “The Suit land”). The suit land was their ancestral land. The Petitioners and their families had lived and farmed on the suit land for generations. Sometimes in the year 1989, the 1st Respondent illegally grabbed the suit land contending that the then President of the Republic of Kenya, the late President Moi, had allotted the land to them.
10. On 25th March, 1992, the 1st Petitioner wrote to the Commissioner of Lands requesting that ownership of the suit land be restituted to them. The Petition was forwarded to the late President Moi who considered and approved it on 6th May, 1992. However, the President’s approval was not acted upon. Hence in the year 2005, the Petitioners lodged a claim with the Kwale Land Dispute Tribunal (Hereinafter referred to as “The Tribunal”) for determination on the issue who was the rightful owner of the suit land. The complaint was Kwale Land Dispute Tribunal Claim No 6 of 2005; In the matter of Dispute between Juma S. Toza and Ali S. Toza - Versus – Hon. Kuria Kanyingi and Simkan Investment Limited”.
11. The Kwale Land Dispute Tribunal heard the complaint on 13th September, 2005 and upheld the Petitioners’ claim to the suit land. On 31st January, 2006, the Kwale Senior Resident Magistrate Court adopted the decision of the Tribunal as a Judgment of the court in “Land Case No 23 of 2005”. The Petitioners were eventually issued with a Certificate of Title No CR 19582 on 2nd April, 2009.
12. On 8th October, 2009, the 1st Respondent filed a suit at the Mombasa High Court being ”Civil Case No 348 of 2009; Simkan Investments Limited - Versus - Ali Salim Toza and 3 others” alleging that it had a valid title to the suit land and that the Petitioners had obtained title to the same land through fraudulent means. Upon filing the suit, the 1st Respondent obtained an ‘ex – parte” mandatory injunction on 21st October, 2009 in the absence of the Petitioners which directed the Registrar of Titles Mombasa to cancel the Petitioners’ title to the suit land. Nonetheless, from the record, that suit was never heard as the 1st Respondent never prosecuted it. Eventually, on 9th November, 2015, the case was dismissed for nonattendance. In the year 2014, the Petitioners referred the dispute over the suit land to the National Land Commission for its determination.
13. The National Land Commission reviewed the Grant issued to the 1st Respondent. On 22nd August, 2017 the NLC returned a verdict that the title held by the 1st Respondent be revoked and the suit land be reverted to the Petitioners. The Petitioners communicated the decision of the NLC to the 5th Respondent but who neither acted nor gave any feedback. On 6th September 2019, the Petitioners escalated their grievance to the Cabinet Secretary, Ministry of Lands and Physical Planning and asked for his intervention to have the matter resolved. On 11th September 2019, the Cabinet Secretary wrote a letter to the Land Registrar, Kwale advising him to take appropriate action and resolve the matter as further delay and/or silence on it amounted to denial and travesty of justice to the Petitioners.
14. Thus, vide a letter dated 16th September, 2019, the 5th Respondent responded by giving a history of the suit land. He indicated that the suit land was transferred to the 2nd Respondent on 3rd October 2017 and subsequently to the 3rd Respondent on 14th December 2017.
B. Constitutional Provisions
15. The provision of Article 2 of the Constitution of Kenya, 2010 states that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
16. Under Article 10 of the Constitution provides the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law, or makes or implements public policy decisions. These national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.
17. Under Article 19 (3) of the Constitution states that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the state. They did not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with the chapter on Bill of Rights; and they are subject only to the limitations contemplated in the Constitution.
18. Under Article 20 (1) of the Constitution states that the Bill of Rights applies to all law and binds all State organs and all persons. It is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
19. Under Article 21(1) of the Constitution provides that it is the fundamental duty of the State and every state organ to observe, respect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
20. Under Article 22 (1) of the Constitution states that every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
21. Under Article 23 of the Constitution of Kenya grants this court jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The court has jurisdiction to grant appropriate relief including those set out at sub-article (3) thereof.
22. Under Article 40 of the Constitution of Kenya, 2010 enshrines the protection of right to property. Every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. Article 40 (3) of the Constitution provides that the State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter five of the Constitution or is for a public purpose or in the public interest and is carried out in accordance with the Constitution and any Act of Parliament that requires prompt payment in full, of just compensation to the person and allows any person who has an interest in, or right over, that property a right of access to a court of law.
23. Under Article 258 (1) of the Constitution grants every person the right to institute court proceedings, claiming that the Constitution has been violated, or is threatened with contravention.
24. It follows that the Petitioners were entitled to the enjoyment and protection of the rights as set out in the Bill of Rights and where any state organ, such as the 4th to 6th Respondents or any person such as the 1st to 3rd Respondents violated, infringed or threatened these rights this Honourable Court should intervene and grant the appropriate reliefs. It also followed that this Court had jurisdiction to hear and determine the Petition presented by the Petitioners.
C. Breach of Article 40 of the Constitution:-
25. The suit land is the 1st and 2nd Petitioners ancestral land. They had lived and farmed on it for generations. They were still on the land. They were issued with a Certificate of Title to the suit land on 2nd April 2009.
26. The 1st Respondent was incorporated on 10th May 1989 and alleged to have been issued with a Letter of Allotment over the suit land on 27th April 1989 which was before it was incorporated as a company.
27. It was not legally possible that the 1st Respondent was allotted the suit land before it was incorporated. Consequently, the title issued to the 1st Respondent on 1st May 1989 followed an irregular allotment and could not stand. In any event the suit land was not available for allocation to the 1st Respondent because the Petitioners were already in possession.
28. Further, various government agencies including the late President Moi, the NLC, the then Commissioner of Lands, and Kwale District Disputes Land Tribunal-Matuga Division had looked into the matter and upheld the Petitioners’ title over the 1st Respondent’s title.
29. Therefore, the 1st Respondent illegally and unprocedurally acquired title to the suit land. The provision of Article 40 (6) of the Constitution does not recognize any right to property that has been unlawfully acquired. This was affirmed by the Supreme Court in “Petition No. 8 (E010) of 2021; Dina Management Limited – Versus - County Government of Mombasa & 5 Others”.
30. The acts of the 1st Respondent grabbing the Petitioners’ land constitute a violation of the Petitioners’ right to property as guaranteed under the provision of Article 40 of the Constitution. The 4th to 6th Respondents being State agencies have a constitutional duty to protect the Petitioners’ right to their property. They had failed in this duty.
D. Jurisdiction
31. This Honourable Court has jurisdiction to hear and determine the Petition presented by the Petitioners.
E. The Prayers Sought:-
32. The Petitioners sought for the following orders:-
a) A declaration that the Petitioners' right to property in respect of L.R No 14897 CR 19582 has been denied, violated, breached and/or infringed upon by the Respondents.
b) A declaration that the Petitioners are the rightful owners of L.R No 14897 CR 19582.
c) An order cancelling the title to L.R No 14897 issued to the 1st Respondent and subsequently to the 2nd and 3rd Respondents.
d) A permanent injunction restraining the 1st, 2nd and 3rd Respondents as well as their agents from any further denial, violation, breach and/or infringement of the petitioners’ rights to L.R No 14897 CR 19582 in particular, the right to access, quiet possession, to develop and in any way to enjoy its user.
e) General damages.
f) Costs of the petition.
33. The Petition was based on the following grounds on the face of it and those of the 24 Paragraphed supporting affidavit sworn by ALI SALIM TOZA, the 1st Petitioner sworn on the same day with the Petition. The deponent averred that: -
a) He made the affidavit on behalf of the 2nd Petitioner who was his brother.
b) The Petitioners were the owners of the land parcel known as L.R No 14897 CR 19582situated within Tiwi Beach area within Kwale County. The suit land was their ancestral land. They had lived and farmed on it with their families for generations.
c) Sometimes in the year 1989, the 1st Respondent illegally grabbed the suit land contending that the then President of the Republic of Kenya, the late President Moi, had allotted the land to them. Copies of the Letter of Allotment dated 27th April 1989 in the name of the 1st Respondent and Grant issued to the 1st Respondent was at pages 1 to 6 of the exhibit in the affidavit marked “A – 1” (hereinafter referred to as “The Exhibit”).
d) On 25th March 1992, the Affiant wrote to the Commissioner of Lands requesting that ownership of the suit land be restituted to his family.
e) The Petition was forwarded to the late President Moi who considered it and approved it on 6th May 1992. A copy of the letter dated 25th March 1992 and endorsed by the late President on 6th May 1992 was at page 7 of the exhibit.
f) On 30th December 1994, the then Coast Provincial Commissioner wrote to the Commissioner of Lands referring to the letter approved by the late President Moi and requesting his office to finalize the matter. A copy of the letter dated 30th December 1994 was at pages 8 to 10 of the exhibit.
g) The President's approval was not acted upon and so in the year 2005, they lodged a claim with the Tribunal being “Kwale Land Dispute Tribunal Claim No 6 of 2005; In the matter of Dispute between Juma S. Toza and Ali S. Toza versus Hon Kuria Kanyingi and Simkan Investment Limited” for its determination on who was the rightful owner of the suit land.
h) On 13th September 2005, the Tribunal heard the complaint and upheld their claim to the suit land. Copies of the proceedings before the Tribunal were at pages 11 to 15 of the exhibit.
i) On 31st January 2006, the Kwale Senior Resident Magistrate Court adopted the decision of the Tribunal as a Judgment of the court in Land Case No 23 of 2005. A copy of the court order was at page 16 of the exhibit.
j) Eventually, they were issued with a certificate of title No. CR 19582 on 2nd April, 2009. A copy of the title deed in their name was at pages 17 and 18 of the exhibits.
k) On 8th October, 2009, the 1st Respondent filed a suit at the Mombasa High Court being “Civil Case No. 348 of 2009; Simkan Investments Limited - versus - Ali Salim Toza and 3 others” alleging that it had a valid title to the suit land and that the Petitioners had obtained title to the suit land through fraudulent means. Upon filing the suit, the 1st Respondent obtained an “ex - parte“ mandatory injunction on 21st October 2009 in their absence which directed the Registrar of Titles Mombasa to cancel their title to the suit land. That suit was never heard as the 1st Respondent never prosecuted its case. Eventually, on 9th November, 2015, the case was dismissed for nonattendance.
l) In the year 2014, they referred the dispute over the suit land to the NLC for its determination.
m) The NLC reviewed the Grant issued to the 1st Respondent and on 22nd August 2017 returned a verdict that the title held by the 1st Respondent be revoked and the suit land be reverted to the Petitioners. Copies of the letters dated 9th July 2014 and 22nd August 2017 from the NLC were at pages 19 to 25 of the exhibit.
n) They communicated the decision of the NLC to the 5th Respondent but the 5th Respondent neither acted nor gave any feedback.
o) On 6th September, 2019, they escalated their grievance to the Cabinet Secretary, Ministry of Lands and Physical Planning and asked for his intervention to have the resolved. A copy of his letter dated 6th September 2019 was at page 26 of the exhibit.
p) On 11th September, 2019, the Cabinet Secretary wrote a letter to the Land Registrar, Kwale advising him to take appropriate action and resolve the matter as further delay and/or silence on the matter amounted to denial of justice to them.
q) The 5th Respondent responded to that responded to that letter on 16th September 2019 and gave a history of the suit land. He indicated in that letter that the suit land was transferred to the 2nd Respondent on 3rd October 2017 and subsequently to the 3rd Respondent on 14th December 2017. A copy of the letter dated 16th September 2019 was at pages 27 and 28 of the exhibit.
r) They sought to enforce their claim to the suit land because:-
i. It was the Petitioners’ ancestral land. They had resided and farmed on it for generations. They were still on the land. They were issued with a Certificate of Title to the suit land on 2nd April, 2009.
ii. The 1st Respondent was incorporated on 10th May 1989 and alleged to have been issued with a Letter of Allotment over the suit land on 27th April 1989 which was before it was incorporated. It was not legally possible that the 1st Respondent was allotted the suit land before it was incorporated. Consequently, the title issued to the 1st Respondent on 1st May 1989 followed an irregular allotment and could not stand.
iii. In any event the suit land was not available for allocation to the 1st Respondent because they were already in possession.
iv. Further, various government agencies including the late President Moi, Coast Provincial Commissioner, the NLC, the Commissioner of Lands, and Kwale District Disputes Land Tribunal - Matuga Division had looked into the matter and upheld their title over the 1st Respondent's title.
s) The acts of the 1st Respondent grabbing their land constitute a violation of their right to property as guaranteed under the provision of Article 40 of the Constitution of 2010.
t) Therefore, they were seeking the court to uphold their constitutional right over the suit land as enshrined under Article 40 of the Constitution.
u) The 4th to 6th Respondents were state agencies who had a constitutional duty to protect the Petitioners rights to their property. They had failed in this duty. Hence, it was the Petitioners decision to approach the court.
v) They produced the exhibit marked “A – 1”.
V. The 1st Respondent’s case
34. The 1st Respondent through ADINA DEVANI, a director of the 1st Respondent opposed the Petition through a 26th Paragraphed Replying Affidavit with Exhibits “AD – 1” to and 6” sworn on 19th March, 2024. She averred that: -
a) The 1st Respondent was at all material times the registered owner of all that parcel of land known as LR No. 14897 (CR 19582) Tiwi Beach, Kwale County - “the Suit Property”. Exhibit AD - 1 was a copy of the Certificate of title deed.
b) The suit property was allocated to the 1st Respondent in the year 1989 by the Government of the Republic of Kenya and the 1st Respondent took possession and exercised all ownership rights including using the property as security for a loan obtained from ABC Bank. Exhibit AD - 2 was a copy of the Letter of Allotment.
c) In the year 2005, she became aware that the Land Registrar apparently canceled the 1st Respondent’s title deed pursuant to a court order that the 1st Respondent was not aware of and the cancellation was entered on the title on 2nd April, 2009 as entry No. 5.
d) The 1st Respondent sought legal advice and the 1st Respondent established that the Petitioners challenged the 1st Respondent’s title in the year 2005 and filed a complaint at the Tribunal - Kwale Land Disputes Tribunal Claim No. 6 of 2005.
e) The 1st Respondent further established that the Petitioners filed the decision of the Land Disputes Tribunal for adoption by the Court.
f) The Petitioners herein never served the 1st Respondent with neither the Kwale Land Disputes Case No. 6 of 2005 nor the proceedings seeking to adopt the decision of the Tribunal as an order of the court.
g) The 1st Respondent filed a civil suit at Mombasa High Court being “HCCC No.348 of 2009, Simkan Investments Ltd – Versus - Ali Salim Toza and others”. The suit sought to ‘inter alia” to challenge the legality of the court orders that were relied on to cancel the 1st Respondent's title and to set aside the orders on account of fraud, illegality and want of service of court process. Exhibit “AD - 3” were copies of the Plaint filed by the 1st Respondent and the Defence and Counter - Claim filed by the Petitioners.
h) Subsequently, the High Court found that the cancellation of the 1st Respondent’s title was illegal and reinstated the 1st Respondent as the registered owner of the suit property through the Court order dated 21st October, 2009. Vide the said order, the court issued a mandatory injunction which directed at the Registrar of Titles Mombasa to cancel the registration of the Petitioners herein as the registered owners of the suit property. Exhibit “AD - 4” was a copy of the Court Order issued by the High Court.
i) The Petitioners filed an application dated 2nd February 2010 in which they sought to set aside the court order of 21st October 2009. However, on 12th November, 2010, the court dismissed the Application. Exhibit “AD – 5” were copies of the application dated 2nd February 2010 and the Order given on 12th November 2010.
j) The 1st Respondent paid off the loan it had taken from ABC Bank and sold the property to the 2nd Respondent in November 2016 as there was no caveat or court order that would have prevented such a sale. Exhibit “AD - 6” was a copy of the sale agreement dated 4th November 2016.
k) The Affiant had come to know that the 2nd Respondent sold the property to the 3rd Respondent but the 1st Respondent was not privy to the details of the sale.
l) The Affiant had read paragraph 12 of the Petitioners Supporting Affidavit in which the 1st Petitioner had deponded that Mombasa HCCC No. 348 of 2009 was dismissed for non-attendance on 9th November 2015. The Petitioners filed a Counter - Claim in the said suit in which they raised issues that were similar to the issues raised in this Petition.
m) The Petitioners’ remedy laid in reinstating Mombasa HCCC No. 348 of 2009 in order to prosecute their Counter - Claim but not to circumvent the court process by filing this Petition that was for all intents and purposes a duplication of the Counter - Claim filed by the Petitioners in HCCC No. 348 of 2009.
n) The Petitioners had already availed themselves of legal recourse and remedies and this constitutional Petition was not the proper forum for litigating highly contested land disputes such as the present one.
o) She had read paragraphs 13 and 15 of the Supporting Affidavit of the 1st Petitioner in which he deponed that the Petitioners referred the dispute to the NLC in the year 2014.
p) The NLC exercised administrative powers and could not purport to review ownership of a title whose ownership was pending judicial determination in the High Court.
q) The 1st Petitioner in which he deponed that the Petitioners referred the dispute to the Cabinet Secretary in charge of lands on 6th September 2019.
r) Save for assisting the court with evidence, the Cabinet Secretary for lands had no powers to intervene and purport to review ownership of a title whose ownership was pending judicial determination in the High Court.
s) The Affiant had read paragraphs 19 and 20 of the Supporting Affidavit sworn by the 1st Petitioner in which he deponed that the 1st Respondent illegally acquired the suit property and violated the Petitioner’s rights.
t) The dispute between the Petitioners and the 1st Respondent was highly contested and required a proper hearing including calling and examining of witnesses. The 1st Respondent’s advocates had advised him that they would raise an objection to the Petition.
u) The Affiant had read the contents of Paragraphs 21 and 22 in which the Petitioners had requested the court to protect their constitutional right.
v) The court should protect the constitutional rights of both parties by allowing the Petitioners and the 1st Respondent to present their case before the High Court in a full hearing rather than summary determination by affidavits as is the case in this Constitutional Petition.
w) The Affiant produced Exhibit “AD 1 to 6”.
VI. The Notice of Preliminary Objection by the 1st Respondent
35. The 1st Respondent also raised an objection dated 20th March, 2024 on the following grounds: -
a. The Petitioners have already availed themselves of other legal remedies through the following suits:-
i. Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S. Toza – Versus - Hon. Kuria Kanyingi and Simkam Investments Limited.
ii. Kwale Land Case No. 23 of 2005.
iii. Counterclaim in Mombasa ELC No. 348 of 2009, Simkam Investments Limited – Versus - Ali Salim Toza and Others.
b. This subject matter of this suit was “res judicata”.
c. It was proposed to request the court to strike out the above suit with costs.
VII. The responses by the 2nd and 3rd Respondents.
36. The 2nd and 3rd Respondents responded to the Petitioners Petition through a 63 Paragraphed Replying affidavit sworn on 13th June, 2024 by KUNAL BID, a Director of the 2nd and 3rd Respondents’ companies and sixty three (63) annextures marked as “KB -1 to KB -15” . The Deponent averred that: -
a) The Petition herein was not only defective and incompetent but never lied in law as the suit property was allotted to the 1st Respondent in the year 1989. Therefore the cause of action predated the Constitution of Kenya, 2010 which did not have retroactive application.
b) The 2nd and 3rd Respondents, admitted the contents of paragraph 1 of the supporting affidavit of Ali Salim Toza in as far as the same was descriptive of the 1st Petitioner in the instant Petition.
c) The 2nd and 3rd Respondents took notice of paragraph 2 of the supporting affidavit of Ali Salim Toza. However, for the 2nd and 3rd Respondents that the authority to swear the affidavit on behalf of the 2nd Petitioner had not been adduced before this Honourable Court.
d) The 2nd and 3rd Respondents denied the contents of paragraph of the supporting affidavit of Ali Salim Toza.
e) In further response to paragraph 3 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents stated that contrary to the Petitioners assertions, the 3rd Respondent herein was the duly registered owner of all that property known as LR No.14897CR.19582 situated within Tiwi Beach area within Kwale County - the suit property measuring five decimal seven three two hectares (5.732 ha.) registered at the Survey Records at Nairobi under Land Survey Plan Number 139699. A copy of the title over the suit property was produced and marked as annexure “KB -1.”
f) The 3rd Respondent acquired the suit property from BTB Insurance Brokers Limited, the 2nd Respondent herein, for valuable consideration. The suit property was consequently transferred to the 3rd Respondent pursuant to a Transfer dated 4th September 2018 which was registered on 14th December 2018. A copy of the Sale Agreement dated 18th August 2018 and Transfer dated 4th September 2018 and registered on 14th December 2018 were produced and marked as annexure “KB-2” and “KB-3.”
g) The 2nd Respondent herein acquired the suit property from Simkan Investments Limited, the Original Allotee of the property - the 1st Respondent herein, at a consideration of a sum of Kenya Shillings One Thirteen Million Three Twelve Thousand Four Sixty Eight Hundred (Kshs. 113,312,468.80/=). The suit property was transferred to the 2nd Respondent herein pursuant to a Transfer dated 30th August 2017, registered on 3rd October, 2017. A copy of the Agreement for Sale dated 4th November 2016, the Transfer dated 30th August, 2017 and lodged on 31st August 2017 as well as the Stamp Duty payment receipt were produced and marked as annexures “KB - 4”, “KB - 5” and “KB - 6”.
h) In further response to paragraph 3 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents stated that Simkan Investments Limited, the 1st Respondent herein, was issued with a Letter of Allotment to the suit property on 27th April 1989 for a term of 99 years effective from 1st May 1989. A copy of the Letter of Allotment dated 27th April 1989 was produced and marked as annexure “KB - 7.”
i) The 1st Respondent complied with the conditions set out in the Letter of Allotment and paid the stipulated premium and rates. The 1st Respondent herein was consequently issued with the title for suit property on 27th June, 1989 pursuant to Grant No. CR 19582 for a term of 99 years from 1st May, 1989 subject to payment of the stipulated annual premium of a sum of Kenya Shillings Seventy Two Thousand Six Hundred (Kshs. 72,600.00/=).
j) The chain of transfer of the suit property from the 1st Respondent, the original allottee, to the 3rd Respondent, the current owner, was unbroken and well explained. The allotment and subsequent transfer complied with the statutory requirement at the time and were therefore legal proper.
k) The 2nd and 3rd Respondents denied the contents of Paragraphs 4, 5, 6 and 7 of the supporting affidavit of Ali Salim Toza in as far as it contends that the 1st Respondent illegally grabbed the suit property.
l) In further response to Paragraphs 4, 5, 6 and 7 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents reiterated the contents of Paragraphs 7, 8, 9, 10, 11, 12 and 13 of this affidavit. The 1st Respondent was allotted the suit property as stated, save that the allotment was done by the then Commissioner of Lands, who was duly authorized to carry out the said allotment in its favour and issue a Title in its favour.
m) Under the statutory framework in place at the time, the late former President Daniel Moi as well as the Provincial Commissioner had no role in the allocation of land or in adjudication of disputes relating to land. The late former President therefore lacked the jurisdiction to order cancellation of any title duly issued and registered under the provisions of the Registration of Titles Act (now repealed). The alleged Order/letter of 6th May 1992 sought to be relied on by the Petitioners herein was therefore invalid and illegal.
n) The former President Daniel Moi could not consider any disputes concerning ownership of any parcel of land as this jurisdiction was vested in the High Court.
o) If the Petitioners were aggrieved by the registration and issuance of the title to the 1st Respondent they should have moved the High Court as provided for under the provision of Section 24 of the Registration of Titles Act, Cap. 281 (now repealed) seeking to have the title in favour of the 1st Respondent revoked. The Petitioners did not exercise this remedy and as such, the 1st Respondent’s title could not be arbitrarily revoked by the late former President in the manner suggested by the Petitioners herein or at all.
p) In response to the contents of Paragraphs 8, 9 and 10 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents stated that the Petitioners herein filed a claim/dispute with the Tribunal in Kwale being Kwale Land Dispute Tribunal Claim No. 6 of 2005: In the matter of Dispute between “Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi” seeking to establish ownership of the suit property. By a Decision rendered on 13th September 2005, the Tribunal in Kwale purported to determine ownership of the suit property.
q) The proceedings and decision of the Tribunal issued in “Kwale Land Dispute Tribunal Claim No. 6 of 2005: In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi”, were ultra vires, a nullity and illegal as the Land Dispute Tribunal lacked the jurisdiction to hear and determine a claim/dispute over ownership of the land including the suit property herein.
r) The jurisdiction of the Tribunal was clearly spelt out under the provision of Section 3 of the Land Disputes Tribunals Act (now repealed) and was limited to considering the following cases:-
“(1) Subject to this Act, all cases of a civil nature involving a dispute as to-
(a) the division of or the determination of boundaries to land, including land held in common;
(b) a claim to occupy or work land; or
(c) trespass to land.
shall be heard and determined by a Tribunal established under section 4.”
s) The Tribunal could neither consider nor determine claims of a civil nature involving a dispute over a title to land or even one touching on ownership of the suit property. Its determination purporting to award ownership of the suit property to the Petitioners could therefore neither issue nor be adopted by the Magistrates Court as an Order of the Court for want of the Land Dispute Tribunal's jurisdiction to consider the Petitioners Claim.
t) However, the illegal and contra statute Determination of the Tribunal was thereafter irregularly adopted into an Order by the Magistrate’s Court in “Kwale in Land Case No. 23 of 2005 (Kwale): Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi”. The Order of the Tribunal having been in excess of jurisdiction and contrary to the law, it could not be adopted as an Order of the Court and did not confer the Petitioners with a valid Order enforceable in law.
u) The order issued and dated 31st January, 2006 in “Land Case No. 23 of 2005 (Kwale): Juma S. Toza and Ali S. Toza – Versus - Kuria Kanvingi” was illegal and contra statute. The decisions by both the Tribunal as well as the Magistrate’s Court were a nullity and were void of any force in law.
v) The provision of Section 2 of the Land Disputes Tribunals Act (now repealed) limited the Land Dispute Tribunal’s jurisdiction to considering claims relating to agricultural land whether under the Registered Land Act, Cap. 300 (Now repealed) or not but excluded land under subject of determination by the Land Registration Court. The suit property herein was not agricultural land and therefore did not fall within the scope of the Tribunal's jurisdiction-
w) Without Prejudice to the above and in further response Paragraphs 8, 9 and 10 of the supporting affidavit of Ali Salim, from a review of the proceedings filed before the Tribunal, the 1st Respondent herein was not a party and had no notice of the proceedings. The said proceedings and notices were issued against Mr. Kuria Kanyingi, not the 1st Respondent. Any eventual determination was irregular and against the rules or natural justice as the 1st Respondent was not given an opportunity to defend its title having been the registered and actual owner of the suit property at the time. The said Order of cancellation could therefore not issue against the 1st Respondent and was of no legal effect or validity in law. This was clearly an attempt to steal a match against the 1st Respondents as the Tribunal could not proceed to hear the dispute without the registered owner of the suit property being present.
x) In response to Paragraph 11 of the Supporting affidavit of Ali Salim Toza, the Certificate of Title No. CR 19852 issued to the Petitioners on 2nd April 2009 was based on an ultra vires and unlawful Order and could not be issued to the Petitioners’ herein.
y) In further response to Paragraphs 11 and 12 of the supporting affidavit of Ali Salim Toza, the High Court in Mombasa in Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”, issued a Mandatory Injunction on 21st October 2009, cancelling the intended registration of the Petitioners as the owners of the Suit Property and stopping the enforcement of the Order of the Magistrate’s Court in Land Case No. 23 of 2005. A copy of the Order dated 21st October 2009 was produced and marked as annexure “KB - 8.”
z) On 3rd February, 2010, the said mandatory injunctive order was temporary stayed to allow for ‘inter - partes’ hearing on 10th March 2010 of the Petitioners Chamber Summons application seeking to stay the cancelation of their title by the civil case of “High Court in Mombasa in Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another. A copy of the Order dated 3rd February 2010 was produced and marked as annexure “KB - 9.”
aa) On 11th March 2010, upon hearing the Advocates on record for both parties in the suit, the High Court dismissed the Petitioners application dated 2nd February 2010 with costs and consequently allowed the 5th Respondent herein to cancel the title issued in its favour of the Petitioners. The Mandatory Order which was final in its effect, was formally registered against the title on 17th November 2010. A copy of the Order issued on 11th March 2010 was produced and marked as annexure “KB-10.”
bb) As it stood, no title/Grant existed in favour of the Petitioners herein as claimed having been revoked and cancelled by the Order of the High Court issued on 11th March 2010 in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”. No appeal or review was sought from the said Order. As such, the Petitioners could not claim to have any proprietary interest in the suit property as the irregular and invalid Order of the Land Dispute Tribunal was superseded by the Order of the High Court.
cc) The 2nd and 3rd Respondents were strangers to the alleged dismissal of “Civil Case No.348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another” and put the Petitioners to strict proof thereof.
dd) The matter proceeded for “inter - partes” hearing on 11th March 2010 before the Judge and the court after hearing the advocates on record for both parties, the Court directed the 4th Respondent herein to cancel their Petitioners title after hearing both parties on the merits. The Petitioners herein were attempting to mislead and have deliberately failed to disclose all material facts touching on the said case to this Honourable Court.
ee) In further response to the contest made out under Paragraphs 11 and 12 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents reiterated the contents of Paragraphs 26 to 32 of this affidavit. The Petitioners herein having unsuccessfully attempted to set aside the mandatory injunction in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another” and having failed to file an appeal from the dismissal of their application, the Order stood and they could not run away from it or claim they were condemned unheard.
ff) In response to Paragraphs 13, 14 and 15 of the supporting affidavit of Ali Salim Toza, Section 14 of the NLC Act limited the mandate of the 4th Respondent herein to considering and reviewing all Grants or dispositions of public land to establish their propriety or legality. The suit property herein was not public land having been allotted to the 1st Respondent in the year 1989 and a title issued. Therefore, the 4th Respondent did not have the jurisdiction to hear or purport to determine any claim touching on the suit property.
gg) The mandate by the 4th Respondent was limited to 5 years from the date of commencement of the Act. At the time of issuance of the 4th Respondent's determination on 22nd August 2017, the 4th Respondent's mandate had lapsed and had not been extended by Parliament. It could therefore not consider or determine the claim by the Petitioners herein.
hh) In further response to Paragraphs 13, 14 and 15 of the supporting affidavit of Ali Salim Toza, the 4th Respondent herein lacked the jurisdiction to hear and determine claims over ownership of land. The proceedings and Determination of the 22nd August 2017 were therefore illegal and contra statute for want of jurisdiction.
ii) In further response to Paragraphs 13, 14 and 15 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents reiterated the contents of Paragraphs 10 - 36 of this affidavit and further stated that a review of the Decision of the NLC dated 22nd August 2017, revealed that the 4th Respondent herein was based on the impugned decisions by the Late former President Daniel Moi, the decision of the Land Dispute Board and the Magistrate’s Court which lacked the jurisdiction to cancel the 1st Respondent's title. The decisions were ultra vires and could therefore not form the basis of the 4th Respondent’s determination.
jj) Without Prejudice and in further response to Paragraphs 15, 16 and 17, from a review of the said Determination, it was evident that the notices regarding the dispute were issued to one Kuria Kanyingi who had at the time passed on in the year 2014. He could therefore not enter appearance or defend the suit on behalf of the 1st Respondent. In any event, the 1st Respondent is a separate and distinct legal entity from its alleged Director and should therefore have been served at its offices as required in law not through the said Director. A copy of a printout from the Business Daily published on 4th November, 2014 was produced and marked as annexure “KB - 11.”
kk) Without Prejudice to the above, the 2nd and 3rd Respondents had at the time registered a caveat over the suit property protecting their interests as purchasers for value following conclusion of the agreement to purchase the suit property as they awaited the formal Transfer. The 2nd Respondent herein should have been offered a right to participate in the proceedings as required under Section 14(7) and (8) of the NLC Act. This was not done and was clearly an attempt to steal a match against the 1st, 2nd and 3rd Respondents. The 4th Respondent could not proceed to hear the dispute without the registered owners of the land being present.
ll) The 2nd and 3rd Respondents were strangers to the averments at Paragraphs 16, 17 and 18 of the supporting affidavit of Ali Salim Toza.
mm) In any event, the Cabinet Secretary, Ministry of Lands and Physical Planning has no jurisdiction to cancel any title or resolve any dispute relating to land.
nn) The 2nd and 3rd Respondents had demonstrated to this Honourable Court how the 3rd Respondent acquired the suit property. The initial allotment to the 1st Respondent and subsequent transfer to the 2nd and 3rd Respondents complied with the Constitution as well as the statutory requirements at the time and should not be revoked.
oo) The 2nd Respondent carried out the requisite due diligence prior to purchasing the suit property, which confirmed that the 1st Respondent was the duly registered owner of the suit property and had the capacity to enter into the agreement.
pp) Following an application by the 2nd Respondent’s advocates in the transaction, the 5th Respondent herein, vide a Certificate of Postal search as at 7th April 2017 confirmed that the 1st Respondent was the duly registered owner and that there was no encumbrance over the suit property save for the caveat registered on 31st March 2017 by the 2nd and 3rd Respondents director to protect the 2nd Respondent’s interest as a purchaser of the suit property pursuant to a Certificate of Postal Search dated 7th April 2017. On the strength of the confirmation that the suit property was duly owned by the 1st Respondent and was not encumbered, the 2nd and 3rd Respondents proceeded to acquire the suit property. Copies of the search, the caveat and certificate of postal search as at 7th April 2017 are produced and marked as annexures “KB - 12”,“KB - 13”and “KB - 14.”
qq) In further response to Paragraphs 20 (b) of the supporting affidavit of Ali Salim Toza, the High Court in Mombasa in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”, considered and dismissed the Petitioners Preliminary Objection dated 19th April 2009 with costs touching on the alleged non - existence of the 1st Defendant at the date of allotment. A copy of the ruling of 30th July 2010 was produced and marked as annexure “KB - 15.”
rr) No appeal was lodged against the said order, this issue having been considered by a court of competent jurisdiction, it was therefore res judicata pursuant to Section 7 of the Civil Procedure Act, Cap. 21.
ss) In further response to Paragraphs 19 (b) of the supporting affidavit of Ali Salim Toza, no appeal was filed from the said ruling or a review sought, the Petitioners could not therefore attempt to sneak the issue into this current Petition.
tt) In further response to Paragraphs 19(c) of the supporting affidavit of Ali Salim Toza, the suit land as demonstrated herein was available for allotment and was properly allotted in compliance with all statutory requirements in force at the time.
uu) In further response to paragraphs 19(d) of the supporting affidavit of Ali Salim Toza, none of the said officials who allegedly upheld the Petitioners title had the jurisdiction to consider and determine a claim for ownership of land. The alleged determinations are therefore contra-statute and illegal and could not be upheld by this Honourable Court.
vv) The contents of Paragraph 20 of the supporting affidavit of Ali Salim Toza were denied.
ww) The 2nd and 3rd Respondents shall at the hearing of this suit, raise a Preliminary Objection in limine that the Petition herein was res judicata and an abuse of the court process and should be dismissed with costs as the right of the parties to all that property known as LR No.14897 CR. 19582 situate within Tiwi Beach area within Kwale County was heard and determined and a mandatory injunction issued to the 4th Respondent cancelling the title issued to the Petitioners herein in “Civil Case No.348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”. No appeal or review was filed against the said Order and therefore it subsists till todate.
xx) The 2nd and 3rd Respondents should at the hearing of this suit, raise a further Preliminary Objection to be heard in limine on the ground that the instant Petition never met the test set down by the Court of Appeal in “Anarita Karimi Njeru – Versus - Republic”. Therefore, the Petition was incompetent and for striking out.
yy) The Petition failed to demonstrate any breach of constitutional rights and had only been framed as a Constitutional Petition to circumvent the statutory time bar under the provision of Section 7 of the Limitation of Actions Act, Cap. 22. This was because it was filed more than 12 years after the 1st Respondent had obtained title to the land, which allegedly dispossessed the Petitioners.
zz) According to the 2nd and 3rd Respondents, the 1st Respondent was granted title to the disputed property on 27th June 1989, though the lease term was backdated to commence from 1st May 1989.
aaa) In response to paragraphs 21 and 22 of Ali Salim Toza’s supporting affidavit, the 2nd and 3rd Respondents asserted that the Petitioners had no valid legal interest in the suit property and are merely engaging in an effort to harass them and unlawfully deprive them of their rightful ownership.
bbb) Further responding to Paragraphs 21 and 22 of Ali Salim Toza’s supporting affidavit, the 4th, 5th, and 6th Respondents — as state agencies — could not legally endorse or perpetuate an illegality. Consequently, they could not be accused of violating the Petitioners’ rights by refusing to dispossess the lawful and registered owners of the suit property.
ccc) The High Court in Mombasa issued a mandatory injunction ordering the cancellation of the Petitioners’ title. Since no appeal was filed against this Order, it remained legally binding and cannot be revisited or overturned by this Honourable Court, which was of coordinate jurisdiction. Therefore, the present Petition constituted an abuse of the court process and ought to be dismissed.
ddd) The allotment to the 1st Respondent was lawful and adhered to all applicable statutory provisions in force at the time of allotment and registration, consistent with the legal principles established by the Supreme Court “ in Petition No. 8 (E010) of 2021: Dina Management Limited – Versus - The County Government of Mombasa & 5 Others”.
eee) The Petitioners had failed to establish a sufficient legal or factual basis to justify granting the reliefs sought in prayers (a) to (f) of the Petition. The 2nd and 3rd Respondents respectfully urged this Honourable Court to affirm the validity of: (i) the original allotment to the 1st Respondent; and (ii) the subsequent lawful transfer to themselves. These transactions were executed in full compliance with constitutional provisions and governing statutory requirements applicable at the material time, and as such, remain legally indefeasible and not subject to revocation.
fff) As demonstrated above the Petition herein was without merit. The 2nd and 3rd Respondents prayed that it be dismissed with costs to the 2nd and 3rd Respondents.
VIII. The 4th Respondent’s response
37. The 4th Respondent through BRIAN IKOL, an Advocate of the High Court of Kenya and the Director Legal Affairs and Dispute Resolution, NLC responded to the Petition through a 23 Paragraphed Response. He averred that: -
a) The 4th Respondent was an Independent Commission established under Article 67 (1) of the Constitution of Kenya, 2010 and is operationalized by the National Land Commission Act No. 5 of 2012, and had as its fundamental functions, the management of public land on behalf of the National and County Governments.
b) The 4th Respondent was a stranger to facts and contents of the Petition save for where it was expressly admitted and puts the Petitioners to strict proof thereof.
c) Article 68 (c)(v) of the Constitution of Kenya, 2010 mandates the 4th Respondent to review all grants or dispositions of public land to establish their propriety or legality, on its own motion or on a complaint, and recommend appropriate redress.
d) In addition to the functions spelled out in the Constitution of Kenya, 2010, the 4th Respondent was also mandated under the provision of Section 14 (1) of the National Land Commission Act, 2012 and pursuant to Article 68 (c)(v) to, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or disposition of public land to establish their propriety or legality.
e) The provision of Section 14 (3) spells out manner in which the Commission should conduct the review as listed below:-
Give every person who appears to the Commission to have an interest in the grant or disposition concerned,
·A notice of such review and
·An opportunity to appear before it and to inspect any relevant documents
f) It was under this mandate as above-mentioned that the 4th Respondent received a complaint sometime in the year 2014 in respect to the suit land from the Petitioners herein.
g) The 4th Respondent thereafter invited parties for hearing of the review of grants.
h) The hearing dates were advertised on the dailies and notices of the same were further sent out to all parties who the 4th Respondent deemed had an interest on the same.
i) On 17th November 2015, as advertised, the 4th Respondent heard the matter to conclusion as prescribed by law and gave a determination on the same. Annexed in the affidavit and marked as “BI – 1” was a copy of the public notice.
j) The 4th Respondent proceeded to submit recommendations to the 1st and 5th Respondents as arrived at in the determination dated 22nd August, 2017. Annexed in affidavit and marked as “BI – 2” was a copy of the determination.
k) The provision of Section 14 (5) of the National Land Act, 2012 states that:-
(5) Where the Commission finds that the title was acquired in an unlawful manner, the Commission shall, direct the Registrar to revoke the title.
l) After adherence with the above – mentioned provisions, the 4th Respondent recommended the 5th Respondent to revoke the titles held by the 1st, 2nd and 3rd Respondents.
m) In the Matter of the National Land Commission [2015] eKLR the Supreme Court held that:-
“The words ‘recommend, advise, research, investigate, encourage, assess, monitor and oversight' - are all actions than provide a facilitative role rather than a primary one. The context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. There is therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted. In my opinion, this means that unless specified within the enabling constitutional provision, a body with oversight function, and a body that implements the recommendations of the former, are different, and their roles do not overlap.”
n) Further to Paragraph 15 above, it was for this reason that the 4th Respondent submitted its recommendations to the 5th Respondent who was mandated to implement the same.
o) In arriving at the determination, the 4th Respondent followed and acted in accordance with all the laid down procedures as spelt out by the provisions of the law.
p) The 4th Respondent was not the custodian of land documents and records and did not register interests in land as with regards to the suit property.
q) Therefore there was no cause of action against the 4th Respondent to warrant the orders sought by Petitioners.
r) The Orders as sought in the Petition were incapable of being enforced as or against the 4th Respondent.
s) He prayed that the suit against the 4th Respondent be dismissed with costs.
IX. The Responses by the 5th and 6th Respondents
38. On 3rd April, 2024 the 5th Respondent opposed the Petition through a 12th Paragraphed response where in it was contended that: -
(a) The 5th and 6th Respondents admitted the contents of Paragraphs 1, 2, 3, 4, and 5 in as far as they were vague descriptions of the parties herein save the address and service for the 5th and 6th Respondents.
(b) The 5th and 6th Respondents denied averments in Paragraphs 6, 7, 8, 9 and 10 of the Petition and the Petitioners were invited to prove legitimate ownership of CR 19582 issued on 2nd April, 2009.
(c) The 5th and 6th Respondents denied the averments of Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 and the Petitioners were invited to prove the facts thereon.
i. That it was the 5th and 6th Respondents’ further reply that, the Petitioners had failed to proof authenticity of the decisions from the tribunal and the Magistrate's courts annexed to the Petition.
ii. That without any admission thereof, the 5th and 6th Respondents averred that they were not privy to the proceedings nor were they party to the suits.
(d) In further response to the averments in Paragraphs 18, 19 and 20 of the Petition, the 5th and 6th Respondents plead that: -
i) The Petitioners request for information from the 5th Respondent and escalation of their grievance to the Cabinet Secretary, Ministry of Lands was proof of fact that the Petitioners voluntarily submitted to the alternative dispute process under the Ministry of Lands and Physical Planning.
ii) The Petitioners failed to exhaust the dispute resolution process upon receiving the letter dated 16th September 2019 from the 5th Respondent.
iii) The 5th and 6th Respondents pleaded that the right to review the information received from the 5th Defendant ought to have been enforced by the Commission on Administrative Justice.
iv) The 5th and 6th Respondents pleaded that the Petitioners had been indolent by failing to exercise the alleged rights of ownership of the suit properties.
v) Without any admission thereof, the 5th and 6th Respondents pleaded that upon receipt of the letter dated 16th September, 2019, the Petitioners ought to have invoked their rights for rectification of information from the Land Registrar requesting rectification of the alleged land ownership records as provided under Access to Information No. 31 of 2016 Section 13(2): -
A request under this section shall be made in writing to the public entity responsible for the maintenance of the record system containing the out of date, inaccurate or incomplete information and shall
(a) state that it is a request to amend certain personal information relating to the applicant;
(b) specify the personal information that is to be amended indicating how such information is out of date, inaccurate or incomplete; and
(c) specify the remedy sought by the applicant
vi) The orders sought herein, inter alia, that Petitioners be declared the rightful owners of LR 14897 CR 19582 were remedies which the Petitioner ought to have invoked seven (7)years ago.
vii) The Petition was an abuse of courts’ process since, the Petitioners ought to have invoked the jurisdiction of the Commission on Administrative Justice vide the provision of Section 14 of the Access to Information Act, which provides the commission with powers to review decisions by public entities: -
“...an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity..(h) a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13.”
viii) It was trite law that, the commission has been bestowed with the powers to investigate and conduct adversarial disputes and issue the appropriate remedies under Section 23 (2) of the Access to Information Act No 31 of 2016 and Sections 41, 42, 43 and 44 of the Commission on Administrative Justice Act No 23 of 2011.
ix) If the Petitioners were aggrieved with the decision by the Commission, they would have invoked the jurisdiction of the High Court on appeal.
(e) The Petition was an abuse of this courts process, a mockery to the justice system of the Republic of Kenya and a gross abuse of the intents and purposes of Article s 258, 23, 22, 21(1), 19 (3), 10 and Article 2 of the Constitution of Kenya particularly since:-
a. the Petitioners willingly and knowingly failed to exercise the alleged proprietary rights availed to them vide Section 91(1) of the Land Registration (General)Regulations, 2017 which provides:
“An application for rectification of an error made on the register under Section 79 (X [a]) of the Act shall be in Form LRA 87 set out in the Sixth Schedule.
92.(1) The Registrar shall issue a notice to rectification the register under Section 79 (1Xc) of the Act, in Form LRA 90 set out in the Sixth Schedule to all persons interested in the rectification of the register
(3) An order by a Registrar issued under Section 79 of the Act shall be in Form LRA 92 set out in the Sixth Schedule.”
(f) Therefore, the 5th and 6th Respondents pleaded that the Petition was incurably defective, incompetent and improperly before the Court by reason that the Applicant had neither demonstrated that the Petition involved matters of the Constitutional interpretation, application and/or violations.
(g) The 5th and 6th Respondents contested the jurisdiction of this Honourable Court to determine this matter and further plead with this Court to abide by the Supreme Court’s decision which rightly held that “even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute,” “Albert Chaurembo Mumbo &7 others – Versus - Maurice Munyao & 148 others; SC Petition No. 3 of 2016, [2019] eKLR”.
(h) The 5th and 6th Respondents pleaded that the Petitioners were undeserving of the Orders sought particularly because and without any admissions thereof that:-
i. The Petitioners sat on their rights from the year 2017 upon receipt of the 4th Respondents verdict that revoked the 1st Respondent's title.
ii. Despite the Petitioners' knowledge that the suit property had continued to be registered in the Respondents names, the Petition herein had been lodged seven (7) years after the 4th Respondent's rendered its determination ordering cancellation of 1st Respondent's title.
iii. The Petitioners had willingly and knowingly failed to explain the inordinate delay in filing the suit herein
iv. The Petitioners willingly and knowingly violated the constitutional provisions inter alia, Article 162 (2)(b) which bestowed this court with the appellate jurisdiction over the tribunals.
v. The inordinate delay was accurate proof of the underserving nature of the Petition herein, it was a nullity ab initio.
(i) The 5th and 6th Respondents pleaded that the Petition herein lacked proof of violation of rights under the provision of Article 40 of the Constitution of Kenya, 2010 and therefore not entitled to the declaratory or injunctive orders granted by the High Court. On the contrary:
i. The Petition was a violation of the Constitutional intent and purposes of the rights to be heard and access fair hearings.
ii. The Petition was a violation of the Constitutional Article 162(2)(b) which bestowed this court with the appellate jurisdiction over the tribunals
iii. The Petitioners had perpetually failed to exhaust the alternative dispute processes available to review the Land Registrar's informatory letter issued in 2019 and or the decision by NLC, the 4th Respondent herein.
(j) The 5th and 6th Respondents pleaded that this Honourable Court downed its tools since mechanisms for appeal or review and all remedies available under other written laws had not been exhausted.
(k) The 5th and 6th Respondents issued their desire to raise a preliminary objection on points of law at their earliest opportunity
39. For those reasons, the 5th and 6th Respondents pleaded that the Petitioners were undeserving of prayers sought, the Petition was an abuse of the judicial system of the Republic of Kenya which ought to be dismissed with costs.
40. The 5th Respondent through MERCY CHEPKEMOI, a Senior Registrar of Titles, responded to the Petition dated 30th November, 2023 through an 8 Paragraphed Replying Affidavit sworn on 11th July, 2024. She averred that:-
a. According to official records maintained by this office, the subject property designated as LR. No. 14897, CR.19582 was located in the southern sector of Mombasa Municipality within Kwale District, with a surveyed area of approximately 5.732 hectares (14.164 acres).
b. The suit property was initially allocated to SIMKAN INVESTMENTS LIMITED through a new Grant issued on 27th June 1989, which was subsequently registered on 3rd July 1989 at 11:04 a.m. under Certificate of Title CR. 19582/1.
c. The property register reflected multiple subsequent entries, including caveats, charges, court orders, as well as discharges and withdrawals thereof, recorded as entries Nos. 2 through 12. A certified copy of these registry records was annexed in the affidavit and marked as “MC 1” for the Court’s reference.
d. Their official records further indicated that title to the suit property was duly transferred to BTB Insurance Brokers Limited on 30th August 2017, recorded as Entry No. 13 in the property register.
e. As per their records, the suit property was further transferred to WWW.BID Investment Company Limited on 14th December, 2018 as entry No.14. Annexed in the affidavit and marked as “MC - 2” was a certified copy of the current search on the suit property.
X. Supplementary Affidavit by the Petitioner
41. With the leave of Court, the Petitioner, through ALI SALIM TOZA filed a 21 Paragraphed Supplementary Affidavit on 25th July, 2024 responding to all the new issues raised from the replies the Respondents. He averred that:-
a) The 1st Petitioner made the affidavit on behalf of the 2nd Petitioner who was his brother.
b) The 1st Respondent maintained that they were lawfully allocated the suit property in the year 1989 by the Government of Kenya, following which they took physical possession and had since exercised all attendant proprietary rights. This included utilizing the property as collateral for securing financial facilities from a banking institution.
c) The 1st Respondent obtained legal allocation of the subject property through a Letter of Allotment issued on 27th April 1989. The subsequent Grant conferred leasehold interest for a term of 99 years, effective from 1st May 1989.
d) The 1st Respondent was duly incorporated on 10th May 1989. A certified copy of the Certificate of Incorporation was annexed in the affidavit as page 1 of Exhibit A-2.
e) The 1st Respondent could not had validly received allocation of the suit property prior to its legal incorporation, nor could it have lawfully held title to the property before its existence as a corporate entity.
f) He also noted that the Letter of Allotment to the 1st Respondent stated that the suit property would be used for construction of a hotel. Similarly, condition five (5) of the grant provided that the suit property would be used for hotel purposes.
g) They lived and farmed on the suit property, as their family had done for generations. Their family had always maintained possession of the suit property, and the 1st Respondent had never evicted them from it. Additionally, no hotel had ever been constructed on the suit property.
h) The Letter of Allotment issued by the Commissioner of Lands to the 1st Respondent on 27th April 1989 constituted, for all legal purposes, a binding contractual offer. Pursuant to established property law principles, the 1st Respondent could only obtain lawful title to the subject property upon: (i) unequivocal acceptance of said offer; and (ii) full compliance with all stipulated conditions contained therein.
i) In this regard, the 1st Respondent could not accept the Letter of Allotment since it was issued before it was incorporated and further that since the 1st Respondent did not comply with the conditions set out in the Letter of Allotment and their Grant, they could not legally own title to the suit property.
j) The 1st Respondent had proposed reinstatement of the Mombasa High Court Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Ali Salim Toza & 3 Others”. A certified copy of the dismissal order was annexed in the affidavit as page 2 of the exhibit.
k) The position taken by the 1st Respondent was highly pretentious because even though they initiated the suit they did not progress it after getting the ex - parte mandatory injunction and having their title cancelled without a hearing.
l) Reinstating the dismissed suit was not tenable because the subject matter in this Petition was different from the subject matter in the dismissed suit. This was a Constitutional Petition for enforcement of a constitutional right which was not the subject of the dismissed suit. Secondly, this longstanding dispute would not be effectively solved because the 2nd to 4th Respondents were not parties to the dismissed suit. All the parties that were required for an effective determination of this dispute were now before the court.
m) Where an ownership dispute over a suit property was before the court it was in favour of all the parties in the dispute and in the public interest to have the matter heard substantively and attain closure.
n) The position taken by the 2nd and 3rd Respondents was that the mandatory order issued by the court subsisted and could not be reconsidered or overturned by this court being a court of equal jurisdiction.
o) The order was not binding on this court. The order was demonstrably wrong as it was mandatory order that was issued ex - parte without hearing their. Therefore, the court never heard the suit on merit to substantively determine the rights of the parties to the suit property based on evidence.
p) The 2nd and 3rd Respondents could not benefit from the doctrine of bona fide purchaser because the title they acquired from the 1st Respondent was irregular and the subsequent ownership of the suit property could not be protected under the provision of Article 40 of the Constitution.
q) In approaching this Honorable Court, they placed their faith in its constitutional mandate to adjudicate disputes fairly after affording all parties full opportunity to present their evidence. Their judicial system's fundamental commitment to upholding the right to be heard - a sacrosanct constitutional guarantee and bedrock principle of the rule of law - gives them confidence that this Court would ensure justice was served. Courts, as guardians of justice, must remain vigilant against permitting any injustice to stand unresolved.
r) He prayed for the court to listen to their grievance and protect their constitutional rights.
XI. The grounds of opposition by the Petitioners
42. The Petitioners opposed the Notice of Preliminary Objection dated 25th July, 2024, on the following grounds: -
a) The elements of Res Judicata as stated by the Supreme Court in the case of: “Dina Management Limited – Versus -County Government of Mombasa & 5 others [2023] KESC 30 (KLR)” and “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)” had not been met in that:
i. There was no former Judgment or order which was final on the merits of the case before the court.
ii. The parties in the listed suits were different from the parties in this Petition.
iii. The issues for determination in this Petition were different from the issues in the listed suits.
b) The subject matter of this Petition was on violation, breach and/or infringement of a Constitutional right which was not addressed in any of the listed suits.
XII. Submissions
43. On diverse dates of the 11th November, 2024 and 20th January, 2025 while in the presence of all parties, it was consented that the Petition dated 30th November, 2023 and the Notice of Preliminary Objections dated 20th March, 2024 and 11th July, 2024 be canvassed by way of written submissions. Indeed, thereafter, with stringent timelines, all parties fully obliged.
44. Subsequently, on 4th February, 2025, Mr. Mugambi for the Petitioners, Mr. Ochuo for the 1st Respondent, M/s. Wanja Wanjuku for the 2nd and 3rd Respondents, M/s. Mwanaszumba for the 4th Respondent and M/s. Mutheu for the 5th Respondents were accorded an opportunity to highlight their written submissions. The Honourable Court was profusely grateful to them for the professional manner in which they dutifully executed their task with great dedication, devotion and diligence.
45. Pursuant to which the Honourable Court reserved the delivery of the Judgment date on 20th March, 2025. However, due to unavoidable circumstances, it eventually delivered on 31st July, 2025.
A. The Written Submissions by the 1st & 2nd Petitioners
46. The 1st & 2nd Petitioners, Ali Salim Toza and Juma Salim Toza, through the Law firm of Messrs. Kitoo & Associates Advocate filed their written submissions dated 19th July, 2024. Mr. Mugambi Advocate commenced his submissions by stating that Kenya was replete with notorious cases where unsuspecting Kenyans fell victims to the phenomenon of land grabbing when it was in fashion for some well-connected greedy individuals to illegally acquire land for themselves. At the peak of land grabbing, courts stamped their authority in order to protect the public interest. Maraga, J (as he then was) was a trail blazer when he stated: -
‘courts should nullify titles by land grabbers who stare at your face and wave to you a title of the land grabbed and loudly plead the principle of the indefeasibility of title deed.’
See the dictum of the Court of Appeal in Kenya National Highway Authority – Versus - Shalien Masood Mughal & 5 others [2017] eKLR.
47. The Learned Counsel averred that the genesis of this Petition was land grabbing where a company was allocated land before it was incorporated. According to him, this happened despite of the fact that the Petitioners and their families had lived and farmed on the land for ages. That company went ahead to sell the land to another company. The land was now onto its third owner. As would become relevant in these submissions, the Petitioners had never given up on ascertaining their rights over their land.
48. The Learned Counsel submitted that the Supreme Court of Kenya in the case of: “Dina Management Limited – Versus - County Government of Mombasa & 5 others [2023] KESC 30 (KLR)” delivered a Judgment on 21st April 2023 which largely resonates with the Petition before the court. At paragraph 93 of its judgment, the Supreme Court quoted with approval the holding of the Court of Appeal in “Munyu Maina – Versus - Hiram Gathiha Maina [2013] eKLR” that: -
“... when a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”
49. At paragraph 110 of that judgment, the Supreme Court held: “that the title or lease was an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title could not be held as indefeasible.’ This decision from Kenya's most apex court provides the bedrock of the Petition before the court. The root of the title that was issued to the 1st Respondent and eventually passed to the 2nd and 3rd Respondents was being challenged by the Petitioners.
50. On the Petitioners’ case, the Learned Counsel recounted that it was set out in the filed Petition dated 30th November, 2023 and the supporting affidavit of Ali Salim Toza of same date. The Petitioners were brothers. The Toza brothers had been fighting for the ownership of the suit property known as land parcel L.R No 14897 CR 19582 which was situated at Tiwi Beach area within Kwale County for many years. They contended that they are the owners of the suit property which they allege was their ancestral land on which their families had lived and farmed for generations. The 1st Petitioner exhibited a copy of their title deed at pages 17 and 18 of the exhibit to his affidavit in support of the petition.
51. The Learned Counsel posited that the Petitioners alleged that sometimes in the year 1989, the 1st Respondent, Simkan Investments Limited (Simkan), illegally grabbed the suit property contending that it had been allotted to them. The 1st Petitioner exhibited copies of the Letter of Allotment dated 27th April 1989 in the name of the 1st Respondent and a Grant issued to the 1st Respondent at pages 1 to 6 of the Petitioners’ exhibit. After this discovery, the 1st Petitioner wrote to the Commissioner of Lands on 25th March 1992 requesting that ownership of the suit property be restituted to them. He exhibited a copy of the letter dated 25th March 1992 at page 7 of his exhibit.
52. According to the Learned Counsel, the Petitioners contended that letter dated 25th March 1992 was forwarded to the late President Moi who considered and approved it on 6th May 1992. On 30th December 1994, the then Coast Provincial Commissioner wrote to the Commissioner of Lands referring to the letter approved by the late President Moi and requesting his office to finalize the matter. A copy of the letter dated 30th December 1994 was exhibited at pages 8 to 10 of the Petitioners' exhibit. This letter was delivered to the Commissioner of Lands on 17th January 1995. See page 10 of the Petitioners’ exhibit.
53. The Petitioners further contend that the President’s approval was not acted upon and so in the year 2005, they lodged a claim with the Tribunal for determination of who was the rightful owner of the suit property. Their complaint was Kwale Land Dispute Tribunal Claim No 6 of 2005; “In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Hon Kuria Kanyingi and Simkan Investment Limited”. The Tribunal heard the complaint on 13th September 2005 and upheld the Petitioners’ claim to the suit property. Copies of the proceedings before the Tribunal are exhibited at pages 11 to 15 of the Petitioners’ exhibit.
54. On 31st January 2006,the Kwale Senior Resident Magistrate Court adopted the decision of the Tribunal as a Judgment of the court in Land Case No 23 of 2005. A copy of the court order in Kwale Senior Resident Magistrate Court Land Case No 23 of 2005 was at page 16 of the Petitioners' exhibit.13. The Petitioners were eventually issued with a Certificate of Title No CR 19582 on 2nd April 2009. The Counsel stated that High Court being “Civil Case No 348 of 2009;Simkan Investments Limited - Versus - Ali” the Petitioners had obtained title to the same land through fraudulent means. Upon filing the suit, in the absence of the petitioners which directed the Registrar of Titles Mombasa to cancel the Petitioners’ title to the suit land. The Petitioners contended that the High Court suit was never heard as the 1st Respondent never prosecuted its case and the case was eventually dismissed for nonattendance on 9th November 2015.
55. According to the Learned Counsel, the Petitioners never gave up. In the year 2014 they referred the dispute over the suit property to the NLC for determination. The NLC reviewed the Grant issued to the 1st Respondent. On 22nd August 2017 returned a verdict that the title held by the 1st Respondent be revoked and the suit property be reverted to the Petitioners. Copies of the letters dated 9th July 2014 and 22nd August 2017 from the NLC were at pages 19 to 25 of the Petitioners’ exhibit. The Petitioners communicated the decision of the NLC to the 5th Respondent but the 5th Respondent neither acted nor gave any feedback.
56. The Learned Counsel submitted that still the Petitioners never gave up. They escalated their grievance to the Cabinet Secretary, Ministry of Lands and Physical Planning through a letter dated 6th September 2019 and asked for his intervention to have the matter resolved. The 1st Petitioner’s letter dated 6th September 2019 was at page 26 of the Petitioners’ exhibit. On 11th September 2019, the Cabinet Secretary wrote a letter to the Land Registrar, Kwale advising him to take appropriate action and resolve the matter as further delay and/or silence on the matter amounted to denial of justice to the Petitioners.
57. The 5th Respondent responded to that letter on 16th September, 2019 and gave a history of the suit property. He indicated that the suit property was transferred to the 2nd Respondent (BTB Insurance) on 3rd October, 2017 and subsequently to the 3rd Respondent (BID Investment) on 14th December, 2017. A copy of the letter dated 16th September 2019 from the 5th Respondent was at pages 27 and 28 of the Petitioners’ exhibit. In light of the foregoing facts, the Petitioners contend that the Respondents had infringed on their constitutional right to property as enshrined under Article 40 of the Constitution of Kenya, 2010 and sought the court to uphold that right. The Petitioners demonstrated the infringement of their constitutional right under the provision of Article 40 of the Constitution as follows: -
a. The suit land is their ancestral land. They have lived there and farmed on it for generations. They are still on the land. They were issued with a certificate of title to the suit land on 2nd April 2009.
b. Simkan was incorporated on 10th May 1989 but was somewhat issued with a letter of allotment over the suit land on 27th April 1989 which was before it was incorporated. It is not legally possible that Simkan was allotted the suit land before it was incorporated. Consequently, the title issued to Simkan on 1st May 1989 followed an irregular allotment and cannot stand.
c. In any event the suit land was not available for allocation to the 1st Respondent because the petitioners were already in possession.
d. Various government agencies including the late President Moi, the Coast Provincial Commissioner, the National Land Commission, the Commissioner of Lands, and Kwale District Disputes Land Tribunal-Matuga Division have looked into the matter and upheld the petitioners' title over Simkan's title.
e. The acts of Simkan of grabbing the petitioners' land constitute a violation of their right to property as guaranteed under Article 40 of the Constitution.
f. The 4th to 6th Respondents are State agencies who have a constitutional duty to protect the petitioners' right to their property. They have failed in this duty hence their decision to approach the court.
58. Save for the 4th Respondent, all the other Respondents filed their respective responses to the Petition as follows: -
a. Simkan filed a preliminary objection dated 30th March 2024 and a Replying Affidavit of Adina Devani dated 19th March 2024.
b. BTB Insurance and BID Investment filed a Replying Affidavit of Kunal Bid dated 13th June, 2024.
c. The 5th and 6th Respondents filed a Replying to the Petition dated 3rd April, 2024. The 5th Respondent also filed a Replying Affidavit dated 11th July, 2024.
59. The 1st Respondent’s case according to the Learned Counsel was that in its preliminary objection, Simkan contended that the Petitioners have already availed themselves of other legal remedies through the following suits: -
a) Kwale Land Dispute Tribunal Claim No 6 of 2005; In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Hon Kuria Kanyingi and Simkan Investment Limited.
b) Kwale Senior Resident Magistrate Court Land Case No 23 of 2005.
c) Mombasa High Court Civil Case No 348 of 2009; Simkan Investments Limited – Versus - Ali Salim Toza and 3 others.
60. According to the Learned Counsel, Simkan's position was therefore that the subject matter of this suit was res judicata and the Petition should be struck out. The gist of Simkan's Replying Affidavit was that they were allocated the suit property in the year 1989 by the Government of Kenya and they took possession and exercised all ownership rights including using the property as security for a loan with a bank.
61. When they became aware of the proceedings before the Kwale Tribunal and the order from Kwale Senior Resident Magistrate Court, they filed Mombasa High Court Civil Case No 348 of 2009 in which they sought to challenge the legality of the orders that were relied on to cancel their title and to set aside those orders. They obtained a mandatory order directed at the Registrar of Titles, Mombasa to cancel the registration of the Petitioners as the registered owners of the suit property. The petitioners unsuccessfully sought to set aside that order.
62. Simkan also argued that the Petitioners filed a Counter - Claim in that suit raising similar issues as raised in this Petition. Therefore, their position was that the Petitioners should reinstate the dismissed suit to prosecute their Counter - Claim. They also contended that the NLC could not review ownership of title whose ownership was pending judicial determination in the High Court. They also argued that this matter ought to heard in a full hearing rather than through affidavits.
63. On the 2nd and 3rd Respondent’s case, the Learned Counsel submitted that the gist of the reply by BTB Insurance and BID Investment was that BID Investment was currently registered as the owner of the suit property having acquired it from BTB Insurance who had acquired it from Simkan. Simkan was issued with a Letter of Allotment on 27th April 1989 for a term of 99 years with effect from 1st May 1989. The decision of Tribunal was ultra vires, a utility and illegal and could not be adopted by the Kwale Senior Resident Magistrate Court. The High Court in Mombasa High Court Civil Case No. 348 of 2009 ordered the 4th Respondent to cancel the Petitioner’s title after hearing both parties on merit.
64. According to the Learned Counsel, BTB Insurance carried out requisite due diligence prior to purchasing the suit property. They also alleged that the Petition never met the test of “Anarita Karimi Njeru – Versus - Republic (1979) eKLR” neither did it disclose any constitutional violations. They contended that the matter had been clothed as a Constitutional Petition to avoid the statutory time limitation under the provision of Section 7 of the Limitation of Actions Act, Cap. 22 having been lodged over 12 years from the date the 1st Respondent was issued with a title. They also stated that the High Court at Mombasa issued a mandatory injunction which subsisted and could not be reconsidered or overturned by this court being a court of equal jurisdiction. They urged the court to uphold the allotment of the suit property to Simkan and the subsequent transfer to BTB Insurance and BID Investment.
65. The Learned Counsel submitted that the 5th and 6th Respondent’s case was largely on matters of law. Their position was that the Petitioners had failed to proof the authenticity of the decisions from the Tribunal and Kwale Senior Resident Magistrate Court. The Petitioners voluntarily submitted themselves to the alternative dispute resolution process under the Ministry of Lands and Physical Planning. The Petitioners failed to exhaust the dispute resolution process upon receiving the letter dated 16th September 2019 from the 5th Respondent. Upon receipt of that letter, the Petitioners ought to have invoked their right for rectification of information from the Land Registrar by requesting rectification of the land ownership records.
66. The Learned Counsel submitted that the Petitioners ought to have enforced the right to review the information received from the information received from the 5th Respondent through the Commission on Administrative Justice. The Petitioners ought to have invoked the jurisdiction of the Commission on Administrative Justice vide the provision Section 14 of Access to Information Act which provided the Commission with powers to review decisions by public entities and thereafter approach the High Court on appeal.
67. The Petitioners failed to exercise rights availed to them vide Regulations 91 (1) of the Land Registration (General) Regulations, 2017. The Petitioners had been indolent by failing to exercise their rights of ownership of the suit properties. That the Petitioners ought to have invoked the remedies sought seven (7) years ago. The Petition did not involve matters of constitutional interpretation, application and/or violations and that the Court did not have jurisdiction to determine the matter. In the Replying Affidavit of Mercy Chepkemoi, the 5th Respondent indicated that the virtue of a grant issued on 27th June, 1989. The suit property was transferred on 30th August, 2017 to BTB Insurance and later to BID Investment.
68. On issue for determination, the Learned Counsel relied on the following issues for determination and analysis by the Honourable Court: -
a. Whether this court has jurisdiction to entertain this matter?
b. Whether the Petition raises constitutional matters?
c. Whether the Petition meets the threshold of a Constitutional Petition?
d. Whether the Petition is Res judicata?
e. Are the Petitioners guilty of delay in filing this Petition?
f. Whether there are alternative dispute resolutions mechanisms that the Petitioners should have used?
g. Was the allotment of the suit property to the 1st Respondent valid?
h. Are the 2nd and 3rd Respondents bona fide purchasers of the suit property?
i. Are the Petitioners entitled to the orders sought in the Petition?
69. On analysis of the issues, facts and the law, and whether this Court has jurisdiction to entertain this matter. The Learned Counsel submitted that the Environment and Land Court (ELC) is a creature of Article 162 (2) (b) of the Constitution and the Environment and Land Court Act, No. 19 of 2011. It is a court with the status of the High Court. The jurisdiction of the ELC is set out under the provision of Section 13 of the Environment and Land Court Act. The court has original and Appellate jurisdiction to hear and determine all disputes relating to environment and land. In exercising its powers, the ELC has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. See Hon. Lady Justice Mumbi Ngugi (as she then was) in “Royal Media Services Limited – Versus - Attorney General & 6 others [2015] eKLR”.
70. Protection of right to property was a right within the Bill of Rights. In this matter, the court was being called upon to determine whether the Petitioners’ right to property has been violated by the Respondents. Therefore, the court had jurisdiction to hear the dispute and issue appropriate relief.
71. On whether the Petition raised constitutional matters. The Learned Counsel submitted Chapter Four (4) of the Constitution was on the Bill of Rights. Article 40 of the Constitution was on Protection of the right to property. Every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. Every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. See the provision of Article 22 (1) of the Constitution.
72. It followed that the Petitioners were entitled to the enjoyment and protection of their rights as set out in the Bill of Rights and where any person violates, infringes or threatens these rights this Court had powers to intervene and granted the appropriate relief(s). The Petitioners’ case was that Simkan illegally grabbed their land and the 4th to 6th Respondents being state agencies failed to protect the Petitioners’ right to their property. This constituted a question of violation of the Petitioners’ right to property as guaranteed under Article 40 of the Constitution. Therefore, the Petition raised a constitutional issue namely whether the Petitioners’ right to the suit property has been denied, violated, breached and/or infringed upon by the Respondents.
73. On whether the Petition meets the threshold of a constitutional Petition. The Learned Counsel submitted that BTB Insurance and BID Investment contend that the Petition never met the test established in “Anarita Karimi Njeru – Versus - Republic (supra)”. In “Anarita Karimi Njeru (Supra)”, the court held that:
“If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.”
74. The practice and procedure in Constitutional Petition is provided under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules). Rule 4 (1) of the Mutunga Rules provides that where any right or fundamental freedom provided for in the constitution was allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to those rules.
75. Rule 10 of the Mutunga Rules provides the form that a Constitutional Petition should take. The details to be disclosed in a Petition are provided under sub rule (2) as follows:(a) the Petitioner's name and address, (b) the facts relied upon, (c) the constitutional provision violated, (d) the nature of injury caused or likely to be caused to the Petitioner or the person in whose name the Petitioner has instituted the suit; or in a public interest case to the public, class of persons or community, (e) details regarding any civil or criminal case, involving the Petitioner or any of the Petitioners, which is related to the matters in issue in the Petition, (f) the Petition shall be signed by the Petitioner or the advocate of the Petitioner, (g) the relief sought by the Petitioner.
76. This Petition was divided into the following parts: the parties, the factual background, the constitutional provisions on which the Petition is based, protection of right to property under Article 40 of the Constitution, breach of Article 40 of the Constitution and the relief sought. It was in their view that the Petition met the threshold of what would constitute a Constitutional Petition in that there was a precise complaint and the specific provision of the constitution alleged to have been infringed has been stated. The manner in which the constitutional provision had been infringed has also been set out.
77. On whether the Petition was res judicata. The Learned Counsel submitted that the issue of res judicata was raised by Simkan. This issue was also raised before the Supreme Court in the Dina Management case. In resolving the issue, the Supreme Court acknowledged that res judicata is embodied in Section 7 of the Civil Procedure Act, Cap. 21. The Supreme Court then restated the elements that must be proven before a court can arrive at the conclusion that a matter is res judicata as were laid out by the same court in the case of:- “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)” as follows:
a. There is a former Judgment or order which was final;
b. The Judgment or order was on merit;
c. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d. There must be between the first and the second action identical parties, subject matter and cause of action.
78. The Supreme Court further held that the elements set out above are to be conjunctive rather than disjunctive before a suit or an issue is to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former Judgment which was final, it was on merit and by a court having jurisdiction and have identical parties, subject and cause of action.
79. The main issue raised in this Petition was violation, breach and/or infringement of constitutional right to property. According to the Counsel, whereas the three suits listed by Simkan concerned the suit property, the issues for determination were different. None of those suits addressed a constitutional issue. Further the 2nd to 6th Respondents were not parties in Kwale Land Dispute Tribunal Claim No 6 of 2005 and Kwale Senior Resident Magistrate Court Land Case No 23 of 2005. The 2nd to 5th Respondents were not parties in Mombasa High Court Civil Case No 348 of 2009. In this Petition, all the parties that were necessary for the conclusive determination of this longstanding dispute were present to enable the court make a final determination.
80. To buttress his position, the Counsel referred Court to the case of “Dina Management case”, where the Supreme Court held that where res judicata was pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounted to an allegation that all the legal rights and obligations of the parties were concluded by the earlier Judgment, which may have involved the determination of questions of law as well as findings of fact. The Learned Counsel relied on the case of “Mombasa High Court Civil Case No. 348 of 2009”, there was no Judgment or order which was final and based on merit. It could not therefore be said that this dispute was at any point conclusively determined.
81. The Learned Counsel asked the Court to return a verdict that the Petition was not res judicata as the elements to make such a finding had not been met. The 2nd and 3rd Respondents also contended that the High Court at Mombasa issued a mandatory injunction which cancelled the Petitioners’ title and that order subsists and cannot be reconsidered or overturned by this court being a court of equal jurisdiction. The Supreme Court in the “Dina Management Limited case” held that decisions made by courts of concurrent jurisdiction made in rem were not binding on courts of equal jurisdiction. In this regard he respectfully asked this court not to follow that order for the following reasons: -
a) The mandatory order was issued ex - parte without hearing the Petitioners. The Petitioners unsuccessfully applied to have it set aside.
b) There was no merit consideration of whether the application had met the test for grant of the mandatory order.
c) The court never thereafter hear the suit on merit.
d) The court did not substantively determine the rights of the parties to the suit property based on evidence
e) The order was issued before the promulgation of the 2010 Constitution when courts leaned more towards technicalities. With the advent of the 2010 Constitution courts look more towards substantive justice.
f) The order was per incuriam and was demonstrably wrong. See “Michael Waweru Ndegwa – Versus - Republic [2016] eKLR”.
82. Simkan also suggested that the Petitioners' remedy was to reinstate Mombasa High Court Civil Case No 348 of 2009. This was not tenable because the Petitioners were seeking to enforce their constitutional right which was not the subject of the dismissed suit and the 2nd to 6th Respondents were not parties to that suit. This court appreciated in the case of:- “Brookshil Limited & another – Versus - County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) [2023] KEELC 17188 (KLR)” that where an ownership dispute over a suit property was before the court it was in favour of all the parties in the dispute and in the public interest to have the mater heard substantively and attain closure.
83. On whether the Petitioners were guilty of delay in filing this Petition. The Learned Counsel averred that the 2nd, 3rd, 5th and 6th Respondents had accused the Petitioners of being indolent by failing to exercise their rights of ownership of the suit property. They say there was inordinate delay in bringing this Petition. In the case of: “Chief Land Registrar & 4 others – Versus - Nathan Tirop Koech & 4 others [2018]eKLR”, the Court of Appeal considered delay and doctrine of laches in Constitutional Petitions and held as follows: -
“Laches means the failure or neglect, for an unreasonable length of time, to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or decline to assert it. This equitable defense is based upon grounds of public policy, which requires the discouragement of stale claims for the peace of society.”
84. The Court of Appeal then reviewed decided cases on the issue and concluded that there was no time limit within which a party could file a claim for violation of constitutional rights. The Constitution does not set a time limit within which applications for enforcement of fundamental rights should be brought. Unless expressly stated in the Constitution, the period of limitation in the Limitation of Actions Act did not apply to violation of rights and freedoms guaranteed in the Constitution. The law concerning limitation of actions cannot be used to shield the state or any person from claims of enforcement of fundamental rights and freedoms protected under the Bill of Rights. Subject to the limitations in Article 24 of the 2010 Constitution, fundamental rights and freedoms cannot be tied to the shackles of Limitation of Actions Act, Cap. 22.
85. In any event, the Petitioners had demonstrated that all along they had actively been pursuing their right to the suit property through all available legal avenues. They had knocked on the doors of the late President Daniel Arap Moi, the then Coast Provincial Commissioner, the NLC, the Commissioner of Lands, and the Kwale District Disputes Land Tribunal - Matuga Division agitating for their property. They had never slept on their rights.
86. On whether there were alternative dispute resolutions mechanisms that the Petitioners should have used. The Learned Counsel asserted that the Hon. Attorney General's position was that the Petitioners should have exhausted the alternative dispute resolution process under the Ministry of Lands and Physical Planning before filing this Petition. The Hon. Attorney General further contended that the Petitioners should have engaged the Commission on Administrative Justice to enforce the information received from the 5th Respondent.
87. The succinct answer to this was that the grievance before this court was one of a constitutional nature. The Attorney General's position was based on the misguided notion that this was a matter for rectification of information and review of decisions made by public entities. Only the High Court and courts of equal status to the High Court such as this court had jurisdiction to hear and determine applications for redress of violation or threatened violation of fundamental rights. This court's jurisdiction to hear and determine Petitions under the Bill of Rights could not be ousted or exercised through alternative mechanisms.
88. On whether the allotment of the suit property to the 1st Respondent was valid. The Learned Counsel argued that Simkan traced its ownership of the suit land to the Letter of Allotment dated 27th April 1989. What had baffled the Petitioners over the years was that Simkan was incorporated as a company by limited guarantee on 10th May 1989 but was somewhat issued with a Letter of Allotment over the suit property on 27th April 1989 before it was incorporated. The Petitioners therefore argued that it was not legally possible that Simkan was allotted the suit property before it was incorporated. Consequently, the title issued to Simkan with effect from 1st May 1989 followed an irregular allotment and could not stand.
89. To support their position, the Learned Counsel referred Court to the case of:- “Cross Current Indigenous Network – Versus – Commissioner of Lands & Another [2018] eKLR”,. In that matter, there was a dispute as to who between Cross Current Indigenous Network Ltd (as a company) and Cross Current Indigenous Network (as an NGO) was allocated the property that was subject of the suit. In resolving the dispute, the court held that the evidence that was not in dispute was that the NGO was registered on 25th September 1997. The court then asked itself, how could it have been allocated the suit property on 15th May, 1992 as pleaded? The court answered that the NGO had not been registered and had not come into existence and it could not therefore have been allocated the property as claimed.
90. Indeed, the law was that a company could not transact before it was incorporated. Simkan was non-existent at the time it was issued with a Letter of Allotment over the suit property. The right to be allocated a property was a contractual right and must be determined in accordance with the ordinary rules of contract. See the case of:- “Martha Wambui – Versus - Joseph Kangogo & another [2021] eKLR”. Therefore, the Letter of Allotment dated 27th April 1989 from the Commissioner of Lands to Simkan was for all intents and purposes a contract. Under special condition number two (2) of the Letter of Allotment, the Commissioner of Lands required the allotee (Simkan) to accept the conditions attached to the allotment letter and to make payment of a sum of Kenya Shillings (Kshs. Four Twenty Seven Thousand and Seventy Hundred (Kshs. 427,072/=).
91. The Learned Counsel relied on the Court of Appeal decision in the case of:- “Clement Muturi Kigano – Versus - Kibera Development Company Limited [2019] eKLR” where it was held that:-
“Until a company has been incorporated, it cannot contract or do any act. Nor once incorporated, can a company become liable for or entitled under contracts purporting to be made on its behalf prior to incorporation - for ratification is not possible when the ostensible principal did not exist.”
92. In this regard, Simkan could not accept the Letter of Allotment since it was issued before it was incorporated neither could Simkan make payment the payment required by the letter of allotment prior to its incorporation. Title to property can only come into existence after the allotee accepts and meets all the conditions stated in the letter of allotment. The letter of allotment stated that the suit property would be used for construction of a hotel. Similarly, condition number five (5) of the Grant provided that the suit property would be used for hotel purposes. The Petitioners lived and farmed on the suit property as their family has done for generations. No hotel had been constructed on the suit property. Simkan never complied with the conditions set out in the letter of allotment and therefore they could not legally own title to the suit property without meeting the conditions on the said Letter of Offer.
93. On whether the 2nd and 3rd Respondents were bona fide purchasers of the suit property. The Learned Counsel submitted that the Supreme Court in the case of:- “Dina Management Limited case” considered the doctrine of a bona fide purchaser as set out in the paragraphs below. The Supreme Court quoted the Black’s Law Dictionary 9th Edition definition of “a bona fide purchaser” as: -
“One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”
94. Additionally, the Learned Counsel cited the Court of Appeal in Uganda in the case of:- “Katende – Versus - Haridar & Company Ltd [2008] 2 EA 173”, defined a bona fide purchaser for value as follows: -
“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine he must prove that:
1. he holds a Certificate of title;
2. he purchased the property in good faith;
3. he had no knowledge of the fraud;
4. he purchased for valuable consideration;
5. the vendors had apparent valid title;
6. he purchased without notice of any fraud; and
7. he was not party to the fraud.”
95. On the same issue, the Court of Appeal in “Samuel Kamere – Versus Lands Registrar [2015] eKLR” stated as follows: -
“..........in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...”
96. The Supreme Court also held that in order to establish whether a party is a bona fide purchaser for value, the court must first go to the root of the title, right from the first allotment. The court also held that the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The Court also held that where the first registered owner did not acquire the title regularly, the subsequent ownership of the suit property could not be protected under Article 40 of the Constitution and the subsequent purchaser could not benefit from the doctrine of bona fide purchaser.
97. The Learned Counsel submitted that they had clearly demonstrated that the allocation of the suit property to Simkan was irregular. Simkan therefore had no valid legal interest which they could pass to BTB Insurance who in turn could pass it to BID Investment.
98. On whether the Petitioners were entitled to the orders sought in the Petition. The Learned Counsel submitted that the court directed the Petition to be heard by way of affidavit evidence and documents annexed thereto even though the Petitioners would have loved to give viva voce evidence. The substratum and core of this Petition was therefore documentary evidence. The history of the suit property could be traced through the investigations carried out by the Kwale Land Dispute Tribunal and the NLC.
99. The Tribunal was made up of a panel of elders. The Claimants before the Tribunal were the Toza brothers - the Petitioners herein. The Respondents were Kuria Kanyingi and Simkan. The Tribunal had been constituted after the Toza brothers objected to issuance of a title deed to the suit property to Simkan. The panel of elders heard from the Commissioner of Lands who indicated that he visited the suit property on 10th August 1993 and found the Toza family living and farming crops on the land. There was no fence on the land. The Commissioner for Lands admitted before the Tribunal that the suit property was given to Kuria Kanyingi wrongly but he feared to cancel the certificate of title. He paused at this juncture and reflected that maybe this was because the newspaper article exhibited by the 2nd and 3rd Respondents described Kuria Kanyingi as a politician who served as the director of the motor vehicle inspection unit during the Moi era, he served as Limuru Member of Parliament between the years 2002 and 2007 and he was nicknamed Mr. Moneybags. Clearly, he was an influential man.
100. The panel of elders visited the suit property on 23rd August 2005. They found that there were coconut trees about forty-five (45) years old. They also found houses belonging to the Petitioners. Beacons were put on the suit property from 19th to 21st August 2005 while Administration Police were on guard to harass the Petitioners. The panel of elders also established that the land belonged to the Toza family even before Kenya got independence. The elders therefore resolved that Kuria Kanyingi had grabbed the suit property and had it registered in the name of Simkan wherein he was a director alongside one Devan. The elders directed that the title deed in the name of Simkan be revoked and cancelled and a new title deed be issued in the name of the Petitioner free from any encumbrances.
101. Further, the NLC reviewed the history of the suit property and determined that the title held by Simkan should be revoked as earlier directed by other organs and decisions made previously and the land be reverted to the Petitioners. Even the then Coast Provincial Commissioner recommended to the Commissioner of Lands that the ownership of the suit property be restituted to the Petitioners. Therefore, according to the Counsel, the Petitioners had legitimate expectation that decisions made by the late President Moi, Coast Provincial Commissioner, the NLC, the Commissioner of Lands and the Tribunal - Matuga Division concerning their ownership of the suit property would be implemented and they would be granted title to their land. This had not been done over the years. The Counsel held that it was very unfortunate that the Government – the Honourable Attorney General on the one hand and the NLC on the other seem to be speaking from different sides of the mouth.
102. Thus, the Learned Counsel submitted that the Petitioners had a legitimate claim to the suit property. It should be protected by this Court under Article 40 of the Constitution. The Petitioners had proved their case and were entitled to the following reliefs: -
a) A declaration that their right to property in respect of L.R No 14897 CR 19582 has been denied, violated, breached and/or infringed upon by the Respondents.
b) A declaration that they are the rightful owners of L.R No 14897 CR 19582.
c) An order cancelling the title to L.R No 14897 issued to the 1st Respondent and subsequently to the 2nd and 3rd Respondents.
d) A permanent injunction restraining the 1st, 2nd and 3rd Respondents as well as their agents from any further denial, violation, breach and/or infringement of the petitioners' rights to L.R No 14897 CR 19582 in particular, the right to access, quiet possession, to develop and in any way to enjoy its use.
103. Further the Learned Counsel submitted that this was also a proper case for the court to award damages to the Petitioners. In the case of: “Coastal Properties Limited – Versus - County Government of Kwale; Director of Survey Kwale County & 3 others (Interested Parties) [2022] KEELC 15337 (KLR)” this court acknowledged that it was mandated to among other reliefs to issue conservatory orders, orders of injunction, and orders for compensation. The court was persuaded by the decision in “David Gitau Thairu – Versus - County Government of Machakos & 2 others [2020] eKLR” where the court enumerated the circumstances under which exemplary damages could be awarded namely: -
a) Oppressive arbitrary or unconstitutional action by servants of government.
b) Conduct calculated by the defendant to make him a profit which may well exceed the compensation payable to the plaintiff, or
c) Cases in which the payment of exemplary damages is authorized by statute.
104. The Petitioners had been on a lifelong quest to reclaim their ancestral land from land grabbers. They had been denied the quiet enjoyment of their land for ages. The suit property was a prime piece of land. Simkan sold it to BTB on 4th November 2016 at a sum of Kenya Shillings Seventy Nine Million Three Eighteen Thousand Seven Twenty Eight Hundred and Sixteen (Kshs. 79,318,728.16/=). BTB sold it to BID on 18th August 2018 at a sum of Kenya Shillings One Twenty Million (Kshs. 120,000,000/=). The land grabbers had been swimming in loads of money whereas the Petitioners had been deprived on their ancestral land. All this had been happening under the watchful eye of government agencies.
105. The Learned Counsel asked the Court to send a warning to land grabbers that they could not just profit at the detriment of rightful land owners. Paraphrasing the words of P.O Kiage, JA in the case of:- “Kenya National Highway Authority – Versus - Shalien Masood Mughal & 5 others [supra]” rightful land owners could not be deprived of their land by private individuals who had access to the shakers and movers for purposes of selling them off to line their pockets.
106. In conclusion, the Learned Counsel submitted that bearing in mind the number of years the Petitioners had suffered and the value of the suit property, a sum of Kenya Shillings Thirty Million (Kshs. 30,000,000.00/=) would be adequate compensation in this case. They also asked the court to award the costs of the Petition to the Petitioners to be borne jointly and severally by the Respondents.
B. The Written Submissions by the 1st Respondent
107. The 1st Respondent through the Law firm of Messrs. Ochwo & Co Advocates filed their written submissions dated 9th October, 2024. Mr. Ochwo Advocate commenced the submission by stating that the Petition before Court was dated 30th November, 2023. It sought the afore - stated prayers on the face of the Petition. The Petition was opposed by all the Respondents who had filed their responses as follows: -
i. Notice of Preliminary Objection dated 20th March and Replying Affidavit sworn by Aldina Divani on 19th March, 2024 on behalf of the 1st Respondent.
ii. Replying Affidavit sworn on 13th June, 2024 by Kunal Bid on behalf of the 2nd and 3rd Respondents.
iii. Preliminary Objection and Replying Affidavit sworn on 11th July 2024 on behalf of the 5th and 6th Respondents.
iv. The 4th Respondent had not entered appearance
108. The matter came up for mention on 6th May 2024 when the court directed that the two Preliminary Objections filed by the 1st , the 5th and the 6th Respondents to be heard together with the Petition.
109. The facts by the Learned Counsel averred that they had perused the Petitioner’s submissions dated 17th July, 2024 and noted that the Petitioners had provided a summary of the Petitioner and Respondent’s cases at Paragraphs 6 to 41 of the said submissions. They agreed with the summary but would point out additional facts from the parties’ affidavits in the course of their submissions.
110. On the issues for determination, the Learned Counsel relied on the following: -
a) Whether this court has jurisdiction to entertain this matter?
b) Whether the Petition raised constitutional matters?
c) Whether the Petition met the threshold of a Constitutional Petition?
d) Whether the Petition was res judicata?
e) Are the Petitioners guilty of delay in filing this Petition?
f) Whether there are alternative dispute resolutions mechanisms that the Petitioners should have used?
g) Was the allotment of the suit property to the 1st Respondent valid?
h) Are the 2nd and 3rd Respondents bona fide purchasers of the suit property?
i) Are the Petitioners entitled to the orders sought in the Petition?
111. They wished to frame the following additional issues as they were of the view that they were necessary for the proper determination of the Petition: -
a. Whether the Court Order dated 21st October 2009 issued in Mombasa HCCC No. 348 of 2009 was binding on the parties;
b. What is the legal status of the suit property in view of the proceedings in Mombasa HCCC No. 348 of 2009;
c. Whether Petition has offended the Doctrine of Constitutional Avoidance;
d. Whether the Land Disputes Tribunal had jurisdiction to hear ownership disputes for land registered under the Registration of Titles Act (now repealed
e. Whether President Daniel Moi (as he then was) had power to determine land disputes
f. Whether the National Land Commission’s power to review titles to land had expired by the time it purported to issue a determination on ownership of the suit property?
g. Whether such determination was valid?
h. What was the proper forum for this dispute?
i. Whether the 1st Respondent properly transferred the suit property to the 2nd Respondent.
112. The Preliminary Objection raised by the 1st Respondent is dated 20th March, 2024. It raised the following grounds of objection:-
1) The Petitioners have already availed themselves of other legal remedies through the following suits:-
a) Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S. Toza – Versus - Hon. Kuria Kanyingi and Simkam Investments Limited.
b) Kwale Land Case No. 23 of 2005.
c) Counterclaim in Mombasa ELC No. 348 of 2009, Simkam Investments Limited – Versus - Ali Salim Toza and Others..
2) This subject matter of this suit is res judicata.
3) It is proposed to request the court to strike out the above suit with costs.
113. The Preliminary Objection by the 5th and 6th Respondents is dated 11th July 2024. It raises the following grounds of objection:-
1) That the Petition offends the Doctrine of Constitutional Avoidance.
2) That the Petition was a simple claim founded on ownership of land but disguised as a Constitutional Petition and hence should not have been filed as a Constitutional Petition but as an ordinary suit.
3) That the matter could be properly decided on another basis other than by a constitutional petition.
114. The Learned Counsel submitted that the Petitioners failed to exhaust the available remedies as provided under the provision of Section 13 (2) of the Access to Information Act No, 31 of 2016 and Section 91 of the Land registration (General) Regulations 2017.
115. On whether the Court Order dated 21st October 2009 issued in Mombasa HCCC No. 348 of 2009 was binding on the parties. The Learned Counsel deposed that the Petitioners had admitted that the suit property had been the subject of previous litigation. (See the admissions at paragraphs 8,10 and 12 of the Petitioners Supporting Affidavit sworn on 30th November 2023). The first suit was “Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S.Toza – Versus - Hon Kuria Kanyingi & Simkan Investments Limited”. The Tribunal issued an order that the 1st Respondent's title be cancelled and the same be suit property be transferred to the Petitioners. The Tribunal’s decision was adopted as an order of the court in Kwale Land Case No. 23 of 2005.
116. The 1st Respondent had sworn at Paragraphs 6, 7 and 8 of its Replying Affidavit that they were not served with the suit papers and filed “Mombasa HCCC No. 348 of 2009 Simkan Investments Ltd – Versus - Ali Salim Toza and Others” seeking orders to set aside the orders issued by the Tribunal. As deponed at Paragraphs 10 of the 1st Respondent’s Replying Affidavit, the High Court in Mombasa HCCC No. 348 of 2009 issued a mandatory injunction on 21st October 2009 and directed the Registrar of Lands Mombasa to cancel the registration of the Petitioners as registered owners of the suit property and the ownership be reverted back to the 1st Respondent (see page 36 of the Replying Affidavit where the order was annexed as “Exhibit AD – 4”).
117. The 1st Respondent had sworn at Paragraph 11 of its Replying Affidavit that the Petitioners filed an application dated 2nd February 2010 seeking to set aside the court order dated 21st October 2009. The High Court dismissed the application on 12th November 2010 and the Petitioners never preferred an appeal against the dismissal order. (See pages 37 to 42 of the Replying Affidavit where the application and order was annexed as “Exhibit AD – 5”). It was trite law that a court order was valid and binding on the parties unless otherwise reviewed or set aside on appeal.
118. Therefore, the Learned Counsel argued that the court order dated 21st October 2009 was valid and binding more so between the 1st Respondent and the Petitioners who were the parties to Mombasa HCCC No.348 of 2009. The Petitioners never filed an appeal therefrom. This Petition had been filed 14 years later and it attacked the court order dated 21st October 2009 issued in the civil case - Mombasa HCCC No. 348 of 2009. The Petition was in their view largely a disguised appeal seeking to set aside the said court order.
119. On what was the legal status of the suit property in view of the proceedings in Mombasa HCCC No. 348 of 2009. The Learned Counsel submitted that as sworn at paragraph 14 of the 1st Respondent's Replying Affidavit the Petitioners filed a Counter - Claim in Mombasa HCCC 348 of 2009. The 1st Respondent had annexed the Defence and Counter - Claim at pages 22 to 28 of its Replying Affidavit. The Petitioners pleaded their claim to the suit property in the Counter - Claim and invited the court to consider the same and find in their favour. It was trite law that a Counter - Claim was an independent suit and could stand on its own.
120. The Petitioners had sworn at Paragraph 12 of their supporting affidavit that Mombasa HCCC 348 of 2009 was dismissed for non-attendance on 9th November, 2015. This dismissal included the Counter - Claim in which the Petitioners had requested the court to find that they were the owners of the suit property. They submitted that the position obtained as at 9th November, 2015 when the order of dismissal was made was as follows: -
i) Ownership of the suit property had reverted to the 1st Respondent way back on 21st October 2009 pursuant to the court order of even date which was a mandatory injunction directed at the Registrar of Titles Mombasa to cancel the registration of the Petitioners as owners and to revert the ownership to the 1st Respondent.
ii) The Petitioners' Counter - Claim in which they sought Judgement remained unproven and was dismissed for non-attendance.
iii) The Petitioners failed to take steps to set aside the order for dismissal for non-attendance and the position in relation to ownership of the suit property remains as per (i) and (ii) above.
iv) The upshot of the above is that the 1st Respondent is the registered owner of the suit property while the Counter - Claim that would have upset the said ownership had it been allowed was dismissed for non-attendance
121. On whether the Petition offended the Doctrine of Res – Judicata. The Learned Counsel reiterated their submissions in Paragraphs 19 to 22 above and urged the Court to find that the ownership dispute between the Petitioners and the 1st Respondent was now res judicata notwithstanding that the Petitioners had joined other parties to this Petition.
122. He referred Court to the provision of Section 7 of the Civil Procedure Act, Cap. 21 provides as follows:-
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
123. They submitted that res - judicata applies to a suit that has been dismissed for want of prosecution or non-attendance. The only remedy available to a party whose suit had been dismissed was to revive the suit by filing an application to set aside the order of dismissal and not to file a fresh suit disguised as a Constitutional Petition. On this point, the Counsel relied on the Court of Appeal decision in “Co - operative Bank of Kenya Limited – Versus - Cosmas Mrombo Moka & Legacy Auctioneering Services [2019] eKLR” where the Learned Judges cited the court of appeal decision in the “Njue Ngai case” as follows: -
“Now, we have seen that a dismissal for want of prosecution was as good as a final Judgment in the appeal unless a successful application for setting aside was filed. There can be no doubt therefore that Njue's appeal to the High Court was decided by a competent court. The dismissal also meant that the decision of the Appeals Committee stood unchallenged and final, wart (sic) and all. The fresh suit filed by Njue was christened ‘Declaratory Suit’ which he contended was an alternative to 'Judicial Review’. By whatever name called, it was a new suit and, as earlier stated, he was time barred in filing a Judicial review application to quash the decision of the Appeals Committee made 12 years earlier. The semantic change was merely a clever turn (but that legal ingenuity was within a cul-de-sac).' (Emphasis added)”.
124. According to the Learned Counsel, in coming to its decision, the Court of Appeal cited Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 Page 798 and said:-
“Consequently, a Judgment is a judicial determination or decision of a court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit. A dismissal of a suit under Order 12 Rule 6 of the Civil Procedure Rules is a Judgement...”
125. The Petitioners could not therefore be heard to say that Mombasa HCCC 348of 2009 was not heard and determined since the legal position was that a Judgment included a dismissal order and subject to res judicata under the provision of Section 7 of the Civil Procedure Act, Cap. 21.
126. On whether this suit offended the Doctrine of Constitutional Avoidance. According to the Learned Counsel, contrary to the Petitioner's submissions, the Constitutional Court was not the forum for litigating disputed issues of ownership of property. This was a matter for the ordinary civil courts where all the parties would have the chance to call their witnesses to properly ventilate their cases. They had shown that the Petitioners filed Tribunal case No.6 of 2005 and later on filed Kwale case No. 23 of 2005. The Petitioners also filed a Counter - Claim in Mombasa HCCC No.438 of 2009 where they raised all issues including the issue of alleged wrongful allocation of the suit property to the 1st Respondent and whether the 1st Respondent had capacity to be allocated land. The Petitioners should pursue the civil cases to their logical conclusion.
127. The Petitioners had also pursued administrative action at the NLC and the former President of the Republic of Kenya. Hon. Daniel Arap Moi as he then was. The Petitioners should pursue this to their logical conclusion as submitted by the Attorney General who filed submissions dated 11th July 2024 and raised issues on the Doctrine of Constitutional Avoidance. They associated themselves fully with the Attorney’s General’s preliminary objection dated 11th July, 2024 and submissions of even dated filed on behalf of the 5th and 6th Respondents. As far as it concerned the Learned Counsel, this Petition offended the Doctrine of Constitutional Avoidance as the Petitioners had other available forums (including the ordinary ELC Courts) and which had not been exhausted.
128. The Court said in the case of “CNM – Versus – WGM (2018) eKLR”, that a constitutional matter is one that compels a court to consider Constitutional rights or values and not a matter in which a court was essentially called to examine the contractual terms and conditions between the parties. They wished to point out the following: -
i) They had not exhausted the civil cases that they filed in respect of the suit property and had not executed whatever orders that they thought were issued in their favour.
ii) The Civil Procedure Act, Cap. 21 and Rules provides for the complete code and procedure for filing, prosecution and execution of court orders.
iii) They had not exhausted administrative remedies as submitted by the Attorney General.
iv) The Petitioners had not provided particulars in the Petition to demonstrate how their right to property had been breached. In the case of:- “High Court Petition No.455 of 2018, Consumer Federation of Kenya – Versus - Toyota Motors & 4 others”, the court clarified the “Anarita Karimi case (Supra)” and said that a party must provide evidence that demonstrates how their rights had been violated as merely citing provisions of the constitution that was alleged to have been violated was not enough
129. The Learned Counsel submitted that the Petitioners rights to property had not been breached. They had shown that the Petitioners filed suits to recover the suit property in the year 2005 and a Counter - Claim in the year 2009. The Petitioners had already availed themselves of legal remedies and should pursue the existing suits to their logical conclusion. The Petition was otherwise in their view an abuse of court process meant to disadvantage the 1st Respondent who was entitled to have its day in court and had an opportunity to call witnesses and properly defend itself in an ordinary civil suit.
C. The rejoinder Submissions by the 1st Respondent in respect of the 4th Respondent’s submissions dated 19th December, 2024
130. The 1st Respondent through the Law firm of Messrs. Ochwo & Co Advocates filed their written submissions dated 31st January, 2025. Mr. Ochwo Advocate reiterated the issues in his earlier submission. He statedg that the parties appeared before Court on 20th January, 2025 for purposes of highlighting of submissions on the Petition dated 30th November 2023.
131. The court granted the 1st, 2nd and 3rd Respondents leave to file rejoinder submissions in respect of the 4th Respondents submissions dated 19th December 2024. The National Land Commission Act (NLC Act) that operationalized the National Land Commission was assented to on 27th April 2012 and commenced on 2nd May 2012. The provision of Section 14 (1) of the NLC Act provides as follows:-
“(1) Subject to Article 68 (c) (v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality.”
132. The 4th Respondent’s mandate to review grants was therefore limited to five (5) years from the date of commencement of the NLC Act. They had submitted in paragraph 3 above that the NLC Act commenced on 2nd May, 2012 meaning that the five years lapsed on 2nd May, 2017. The 4th Respondent submitted that they reviewed the Grant and issued a final determination recommending revocation of the title issued to the 1st Respondent and that the land be reverted to the Petitioners. The letter containing the determination is dated 22nd August 2017 and was annexed to the 4th Respondents submissions as “Exhibit B1 – 2”.
133. The Learned Counsel further reiterated that the determination was a nullity and of no legal consequence, as it was issued after the 4th Respondent’s mandate under the provision of Section 14 (1) of the NLC Act had lapsed on 2nd May 2017. This was evident in the case of “Oseko & Another – Versus - The Chairman-National Land Commission & 4 others [2023](KLR)” where the court found that the NLC’s review of grants beyond the five-year period prescribed by Section 14(1) of the NLC Act (which expired in 2nd May 2017) rendered the determination made in July 2017 ultra vires and void. The court emphasized that the NLC's authority to review Grants had expired, making the decision a nullity. This case firmly supported the position that any determination outside the statutory timeline was legally invalid.
134. The Learned Counsel submitted that the determination was a nullity and of no consequence, as it was issued after the 4th Respondent’s mandate under Section 14(1) of the NLC Act had lapsed on 2nd May 2017. This position was supported by the above cited case of:- “Oseko & Another – Versus - The Chairman-National Land Commission & 4 others (Supra)”, where the court held in that:-
“All the foregoing aside, if the Commission is relying on a determination made on 10th July 2017, such determination is Ultra vires because pursuant to Section 14(1) of the NLC Act, review of grants was to be done within 5 years of the commencement of the Act. The NLC Act commenced on 2nd May 2012. It means the power to review grants expired on 2nd May 2017. The Commission could therefore not purport to make a review of grants on 10th July 2017, which is beyond the 5-year period. It has not been shown to me that the 5-year period was ever extended…”
135. This case according to the Learned Counsel clearly illustrated that a determination issued beyond the statutory period was invalid. In any case, the 4th Respondent made an erroneous conclusion that the 1st Respondent could only acquire the land through purchase and ignored the fact that the 1st Respondent was an allottee of the land having been issued with a Letter of Allotment by the Commissioner of Lands. Further, the 4th Respondent erroneously reviewed the Grant yet the same was the subject of litigation in court including “Mombasa HCCC No. 348 of 2009,Simkam Investments Limited – Versus - Ali Salim Toza & Another”.
136. In that suit, the Court issued a mandatory injunction on 21st October, 2009 directing the Registrar of Lands Mombasa to cancel the registration of the Petitioners as registered owners of the suit property and the ownership be reverted back to the 1st Respondent ( see page 36 of the 1st Respondent's Replying Affidavit and the court order annexed as “Exhibit AD – 4”). The Court order had not been set aside and was binding. They submitted that the determination by the 4th Respondent would for the above reason alone be nullity for attempting to usurp the court's powers as the final arbiter of the parties' rights.
137. In conclusion, they consequently urged the Court to find that the determination by the 4th Respondent was a nullity in law and disregarded the same for two reasons: -
i) That the same was issued after the 5 years mandate under the provision of Section 14(1 )of the NLC Act had lapsed;
ii) The same was issued in contravention of court orders issued on 21st October 2019 in Mombasa HCCC No. 348 of 2009.
D. The Written Submissions by the 2nd and 3rd Respondents
138. The 2nd and 3rd Respondents through the Law firm of Messrs. Issa & Company Advocate filed their written submissions dated 10th October, 2024. M/s Wanja Wanjuku Advocate submitted that the Petition dated 30th November 2023 was supported by the affidavit of Ali Salim Toza sworn on even date. The Petitioners sought the above cited Orders.
139. The Learned Counsel clearly set out the background of the case by recapping to the Court on all the pleadings filed. She stated that the Petition was opposed by the 1st Respondent through the Replying Affidavit of Aldina Devani sworn on 19th March, 2024. The 5th and 6th Respondents on their part filed a Reply to Petition dated 3rd April 2024 together with the Replying Affidavit of Mercy Chepkemoi sworn and dated on 11th July 2024 in opposition to the Petition. The 2nd and 3rd Respondents opposed the Petition through the Replying Affidavit of Kunal Bid sworn on 13th June 2024. The 1st Respondent further filed a Preliminary Objection dated 11th July 2024. The 5th and 6th Respondents also filed a preliminary objection dated 11th July, 2024. The Petitioners filed a supplementary affidavit sworn on 25th July, 2024 in support of the Petition.
140. On the brief background, the Learned Counsel submitted that the Commissioner of Lands by a letter dated 27th April 19891 allotted the 1st Respondent the property known as LR No. 14897 CR 19582 situated within Tiwi Beach Area Kwale County for a term of 99 years from 1st May 1989 subject to the payment of the standard premium and the annual rent set out in the Letter of Allotment. The said Letter of Allotment confirmed that the Commissioner of Lands had the requisite approval to allot the suit property. It was copied to the Director of Surveys, the District Commissioner Kwale and the Senior Plan Record Officer among other officials in the Ministry of Lands and at the Survey of Kenya.
141. Subsequently, the 1st Respondent complied with the requirements set out in the Letter of Allotment. It was issued with a Grant over the suit property on 27th June 1989 by Mr. Wilson Gachanja, the then Commissioner of Lands. The Grant issued to the 1st Respondent confirmed that the Deed Plan as well as the Survey Plan Number 139699 for the suit property had been prepared, approved and was deposited at the Survey Office in Nairobi. The 1st Respondent took over occupation and use of the suit property immediately upon receiving the Grant and even used the suit property to secure a financial facility from African Banking Corporation Limited on 13th December 1996. The Charge was only discharged on 26th February 2016.
142. The Learned Counsel submitted that in the year 2009 upon learning of the irregular entries on their title, the 1st Respondent filed a suit at the High Court in “Mombasa in Civil Case No.348 of 2009:Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another” seeking inter alia to have the illegal and irregular entries and orders obtained by the Petitioners revoked. On 8th October 2009, the High Court in Mombasa issued a temporary injunction restraining the Petitioners from taking possession or otherwise dealing with the suit property pending hearing and determination of the application and scheduled a date for ‘inter – partes’ hearing. On 21st October 2009, during the inter partes hearing, the High Court issued an injunction restraining the Petitioners herein from interfering with the suit property pending hearing and determination of the suit and granted a mandatory injunction directing the Registrar of Titles in Mombasa to cancel the registration of the Petitioners herein as registered owners of the suit property.
143. The Learned Counsel averred that the Petitioners herein filed an application dated 2nd February, 2010, presented in court on 3rd February, 2010, seeking to review the Court’s earlier order issued on 21st October, 2009. The High Court temporarily stayed the mandatory injunction but maintained the injunction restraining the Petitioners herein from interfering with the suit property.
144. On 12th November, 2010, after hearing counsel for both the Petitioners herein and the 1st Respondent herein, the High Court dismissed the Petitioners Chamber Summons application dated 2nd February 2010 with costs to the Plaintiff, the 1st Respondent herein. No appeal was filed against the dismissal of the Petitioners application of the Order granting the mandatory injunction directing the Registrar of Titles to cancel the title illegally obtained by the Petitioners herein. The 2nd Respondent, being interested in purchasing the suit property, carried out due diligence to confirm ownership of the suit property or encumbrances registered against the title. On 4th April 2017, the 2nd Respondent made an application for a postal search at the Lands Registry in Mombasa through its transaction Advocates Aboo & Company Advocates. The 2nd Respondent also applied for registration of a caveat against the title claiming purchaser's interest.
145. The Registrar of Titles confirmed that as 7th April 2017, the suit property was registered in favour of Simkan Investments Limited and that there were no encumbrances against the title save for the caveat registered by one of its directors, Mr. Rahul Bid, on 31st March 2017. The 2nd Respondent having received confirmation that the suit property was free of encumbrance and was registered in favour of the 1st Respondent herein according to the records maintained at the Lands Registry in Mombasa, it proceeded to enter into an agreement to purchase the suit property from the 1st Respondent at a consideration of a sum of Kenya Shillings One Thirteen Million Three Twelve Thousand Four Sixty Eight Hundred and Eighty cents (Kshs. 113,312,468.80/-). The 2nd Respondent paid the stamp duty and eventually had the suit property transferred into its name on 3rd October 2017.
146. In the course of time, the 2nd Respondent transferred the suit property to the 3rd Respondent herein. The 3rd Respondent were the current registered owner of the suit property, pursuant to a Transfer dated 4th September 2018 registered on 14th December 2018. The transaction was exempted from payment of stamp duty being a transfer between sister companies as duly marked on the Transfer.
147. The Learned Counsel relied on the following issues for determination for the Honourable Court: -
a. Whether the Petition raises any constitutional issues
b. Whether the 1st Respondent rightfully acquired the suit property
c. Whether the suit property was legally transferred to the 2nd and eventually the 3rd Respondents herein
d. Whether the Land Dispute Tribunal, the Magistrates Court, the President or the National Land Commission had the jurisdiction to consider the Petitioners claims;
e. Whether the Petitioners had demonstrated that their right to property had been denied, violated, breached and/infringed;
f. What reliefs should issue
148. The Learned Counsel submitted that on the said issues and the merits of the Petition as herein below. On whether the Petition raised any constitutional issues, the crux of the Petition before this Honourable Court was a dispute over ownership of L.R. No. 14897 CR 19582 situated in Kwale, the suit property. The Petitioners claim that they were the rightful owners of the suit property which was currently registered in favour of the 3rd Respondent and sought to have this Honourable Court declare them as the rightful owners of the suit property. Their clam was opposed by the Respondents.
149. The Learned Counsel submitted that the Petition herein had not met the threshold of specificity established in the case of “Anarita Karimi – Versus - Republic (Supra)” where the Court of Appeal held as follows: -
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
150. According to the Learned Counsel, it was not enough for the Petitioners to simply invoke the provision of Article 40 of the Constitution of Kenya, 2010 to claim that their rights had been violated or to frame their Petition as required under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, - “The Mutunga Rules.” The Petitioners were under an obligation to provide evidence to demonstrate how the said provision had been infringed or violated, which they had failed to do. As such, the 2nd and 3rd Respondents Preliminary Objection ought to be allowed.
151. Without prejudice to the above, the Learned Counsel contended that this Petition did not disclose a constitutional issue requiring to be canvassed by way of a constitutional Petition as there were other statutory mechanism in place for the resolution of such disputes. The Learned Counsel relied on the holding by the Court of Appeal in “Gabriel Mutava & 2 Others – Versus - Managing Director, Kenya Ports Authority (2016) eKLR” where the court held as follows: -
“Constitutional litigation is a serious matter that should not be sacrificed on the altar of all manner of frivolous litigation christened constitutional when they are not and would otherwise be adequately handled in other legally constituted forums. Constitutional litigation is not a panacea for all manner of litigation; we reiterate that the first port of call should always be suitable statutory underpinned forums for the resolution of such disputes.”
152. Similarly, the High Court in allowing a Preliminary Objection challenging the filing of the claim challenging ownership of land as a Constitutional Petition held as follows in:- “Mwangi – Versus - Kawendo Investments Limited & 4 Others (Environment & Land Petition E002 of 2023)[2023]KEELC 21993 (KLR) (5 December 2023) (Ruling)”;
“20.A reading of the application and the Petition shows that the Petitioner/Applicant is challenging the manner in which the 2nd Respondent acquired ownership of the land which questions can best be determined in an ordinary claim which would also afford parties the chance to present their evidence and give their testimonies. My analysis and conclusion is that the matter before this court is one of an ordinary claim that can be heard through filing of a plaint and it does not raise any constitutional issue.”
153. The Learned Counsel argued that the instant Petition concerned an ordinary civil dispute over ownership of land and ought to had been filed as a civil suit with each party being granted an opportunity to call witnesses in favour of its case. The Petitioners had not laid any basis for filing the Petition where the facts are contested and where they were simply asserting a right of ownership. The claim having arisen in the year 1989 and having been known to the Petitioner for over the last 35 years, the suit was time barred and had only been framed as a Constitutional Petition as a means of evading and escaping the twelve (12) statutory time limit for claiming any interest over land.
154. Further, since the facts in this Petition were highly contested, it did not meet the threshold of a Constitutional Petition and therefore it should be struck out. In support of this submission, the Learned Counsel relied on the holding by the Environment and Land Court in the case of:- “Edward Karanja Chogo & 2 Others – Versus - County Government of Kakamega (2018) eKLR” where the court held as follows:-
“A Constitution Petition is meant to deal with clear constitutional matters. It is to be applied in clear cases where facts can be ascertained, it is my view that, where there is need for further facts then the Petitioner ought to revert to a civil claim....”
155. The Learned Counsel therefore submitted that the Petition should be struck out and dismissed in limine as the claim was statute barred and the Petition was an abuse of the court process.
156. On whether the 1st Respondent rightfully acquired the suit property. The Learned Counsel submitted that the Commissioner of Lands by a letter dated 27th April 1989 allotted the 1st Respondent the property known as LR No. 14897 CR 19582 situated within Tiwi Beach Area Kwale County for a term of 99 years from 1st May 1989 subject to the payment of the standard premium and the annual rent set out in the Letter of Allotment.
157. The Petitioners contended that this allotment was illegal as the 1st Respondent was yet to receive its Certificate of Incorporation as a company by limited guarantee under the provision of Cap. 486 and was therefore non-existent. The Learned Counsel submitted this allegation and submit that this issue is res judicata and could not be relitigated before this Honourable Court. The Petitioners herein raised a Preliminary Objection dated 19th April 2009 in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”, on the same ground claiming that the 1st Respondent herein did not exist at the time of allotment and could therefore not be allotted the suit property.
158. The Learned Counsel submitted that the High Court in Mombasa after considering the rival submissions, dismissed the Petitioners Preliminary Objection with costs in its ruling of 30th July 2010. No appeal was filed against the said ruling. This Honourable Court being court of concurrent jurisdiction to the High Court in Mombasa, it cannot sit on appeal of the High Court's ruling in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another” as it is being asked to do. The 2nd and 3rd Respondents Preliminary Objection on this issue is therefore for allowing.
159. Without prejudice to the above submissions, the 2nd and 3rd Respondents submitted that the Petitioners assertions and submissions, the allotment of the suit property and subsequent issuance of the title to the 1st Respondent was proper and complied with the statutory requirements at the time. The Letter of Allotment confirmed that the Commissioner of Lands had the requisite approval to allot the suit property and was copied to the Director of Surveys, the District Commissioner Kwale and the Senior Plan Record Officer among other officials in the Ministry of Lands and at the Survey of Kenya.
160. The 1st Respondent fully complied with the requirements set out in the Letter of Allotment and was issued with a Grant over the suit property on 27th June 1989 by Mr. Wilson Gacanja, the then Commissioner of Lands. At the time the title was processed, the 1st Respondent was already incorporated as a limited liability company. The Grant issued to the 1st Respondent confirmed that the 1st Respondent had complied with the requirements set out in the Letter of Allotment and further stated that the Deed Plan as well as the Survey Plan number 139699 for the suit property had been prepared, approved and were deposited at the Survey Office in Nairobi.
161. The Learned Counsel submitted that contrary to the Petitioners assertions, the title to the suit property in favour of the 1st Respondent was valid in law. The title to the suit property was issued in favour of the 1st Respondent on 27th June 1989, when the company was incorporated contrary to the allegations by the Petitioner. It could not therefore be said to be illegal or irregular.
162. On whether the suit property was legally transferred to the 2nd and 3rd Respondents. The Learned Counsel submitted that Black's law Dictionary Eighth Edition, Bryan Garner, Thompson West Publishing defined a “bona fide purchaser” as: -
“One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”
163. The Court of Appeal in the case of:- “Moses Lutomia Washiali – Versus - Zephaniah Ngaira Angweve & Another (2013) eKLR”, held that a bona fide purchaser would not be bound by any interests of which he or she does not have actual, constructive or imputed notice, as long as he or she did reasonable due diligence before purchasing the land.
164. The Learned Counsel asserted that they legally acquired the suit property without being aware of any alleged default in the title to the suit property. The 2nd Respondent carried out due diligence to confirm the registered owner of the suit property and whether there were any encumbrances registered against the title prior to entering into the Agreement for Sale. The 2nd Respondent thereafter, proceeded to apply for registration of a caveat against the title claiming purchaser's interest at the Lands Registry on 31st March 2024. It confirmed that it had secured its interest through its application for postal search dated 4th April 2017, through its transaction advocates Aboo & Company Advocates, which was received at the Lands Registry in Mombasa on even date.
165. The Registrar of Titles, the 6th Respondent herein, confirmed that as 7th April 2017, the suit property was registered in favour of Simkan Interments Limited and that there were no encumbrances against the title save for the caveat registered by one of its directors, Mr. Rahul Bid, on 31st March 2017. The 6th Respondent confirms that this is still the position through the Replying Affidavit of Mercy Chepkemoi, the Senior Registrar of Titles in Mombasa.
166. The 2nd Respondent having received confirmation that the suit property was free of encumbrances and was registered in favour of the 1st Respondent herein according to the records maintained at the Lands Registry in Mombasa, purchased the suit property from the 1st Respondent at a consideration of a sum of Kenya Shillings One Thirteen Million Three Twelve Thousand Four Sixty Eight Hundred and Eighty cents (Kshs. 113,312,468.80/-). The 2nd Respondent paid the stamp duty and eventually had the suit property transferred into its name on 3rd October 2017.
167. The Learned Counsel submitted that they had produced documentary evidence to demonstrate that they conducted due diligence in respect of the suit property prior to the purchase. The 2nd and 3rd Respondents having purchased the suit property without notice of any defect of the title held by the 1st Respondent, if any at all, their title is indefensible and cannot be challenged in law.
168. On whether the Land Dispute Tribunal, the magistrates court, the President or the National Land Commission had been jurisdiction to consider the Petitioners claims. The Learned Counsel submitted that the land disputes tribunal, that the proceedings and eventual decision of the Land Disputes Tribunal sitting in Kwale in “Kwale Land Dispute Tribunal Claim No. 6 of 2005: In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi” rendered on 13th September 2005 were ultra vires, a nullity and illegal. The said decision could not be considered, enforced or adopted by this Honourable Court as the Tribunal lacked the jurisdiction to hear and determine any claims seeking to establish/determine ownership of land, including the suit property herein.
169. The Learned Counsel posited that the jurisdiction of the tribunal was clearly spelt out under the provision of Section 3 of the Land Disputes Tribunals Act (now repealed) and was limited to considering the following case:-
“(1) Subject to this Act, all cases of a civil nature involving a dispute as to-
(a) the division of, or the determination of boundaries to land, including land held in common;
(b) a claim to occupy or work land; or
(c) trespass to land,
shall be heard and determined by a Tribunal established under section 4.”
170. Section 2 of the Land Disputes Tribunals Act (now repealed) limited the Land Dispute Tribunal's jurisdiction to considering claims relating only to agricultural land whether under the Registered Land Act or not but excluded land under subject of determination by the Land Registration Court. The suit property herein, however, fell outside the scope of the Tribunal’s jurisdiction as the land was not agricultural having been reserved for the construction of a hotel. Any dispute concerning the suit property herein could therefore not be considered by the Tribunal.
171. The Learned Counsel submitted that the Tribunal could neither consider nor determine claims of a civil nature involving a dispute over a title to land or even one touching on ownership of the suit property. In support of this submission, the Learned Counsel relied on the decision of the “Court of Appeal in M'Marete – Versus – Republic Civil Appeal 259/2000 (2004) eKLR”, where the court held as follows: -
“In our view, the dispute before the Tribunal did not relate to boundaries, a claim to occupy or work on the land, but a claim of ownership, taking into account the provisions of Section 3 of the Act, and what was before the tribunal, and we are of the view that the Tribunal went beyond its jurisdiction when it purported to award parcels of Land registered under the Registered Land Act to the Appellant. In our view, the Tribunal acted in excess of its jurisdiction.”
172. Similarly, the High Court in “Masagu Ole Naumo – Versus - Principal Magistrate Kajiado Law Courts and Another (2014)eKLR”, the court held as follows: -
“In my view, the view that the tribunal had no powers to deal with registered land is incorrect. What the tribunal was prohibited from undertaking is a determination with respect to title to land.”
173. The provision of Section 3(4) of the Land Disputes Tribunals Act (now repealed) provided for service of claims as follows:-
“(4) Every claim shall be served on the other party, or, where there are more than one, on each of the other parties to the dispute and the provisions of the Civil Procedure Act as regards service of summonses shall thereafter apply.”
174. The Learned Counsel submitted that the proceedings in September 2005 before the Tribunal were defective and failed to follow due process. A review of the proceedings confirmed that the 1st Respondent herein, the then registered owner of the suit property, was not a party and had no notice of the proceedings. The Petitioners stated that the notices were issued against one Mr. Kuria Kanyingi and not the 1st Respondent. Any eventual Determination by the Land Dispute Tribunal was invalid and violated the 1st Respondent’s right to fair hearing.
175. Other than exceeding its jurisdiction, the Decision of 13th September 2005 was irregular and against the rules or natural justice as the 1st Respondent was not given an opportunity to defend its title as the registered and actual owner of the suit property at the time. The Order of cancellation that was made without jurisdiction was of no legal effect or validity in law. This was clearly an attempt to steal a match against the 1st Respondents as the Tribunal could not proceed to hear the dispute without the registered owner of the suit property being present. In support of this submission, the Learned Counsel relied on the holding of the Environment and Land Court in the case of “Muthoni Van Someren – Versus - Kieni West Land Disputes Tribunal & 4 Others (2014) eKLR” where the court held as follows: -
The ex - parte applicant alleged that she was not served with the claim by the interested parties and that in pursuance of the claim the tribunal proceeded to hear the interested parties absence. In response to this allegation the interested parties have stated in the affidavit of Sammy Kihonge Someren that she was served and have annexed the claim that was before the tribunal. However there is no evidence of service by way of affidavit of service or otherwise. The court finds that the interested parties and the Respondents have failed to prove that there was service of the claim and hearing notice. It is trite law that no person can be condemned unheard therefore doing so is in breach of this fundamental principle of natural justice and any decision made in breach of the same is available for review. Indeed in Pashito Holdings & another – Versus - Ndungu & 2 others KLR (E&L)1 295 the Court of appeal held that the rule of audi alteram partem is a rule of natural justice and an indispensable requirement of justice that the party who made the decision shall hear both sides, giving each an opportunity of hearing what is urged against him. The applicant was not given such opportunity by the tribunal contrary to section 3 (4) of the Act and therefore the decision was made in breach of the principles of natural justice.”
176. The Land Dispute Tribunal's Determination purporting to award ownership of the suit property to the Petitioners was therefore invalid, illegal and a nullity for want of the Tribunal's jurisdiction.
177. On the magistrate Court, the Learned Counsel submitted that the Petitioners herein filed a claim before the Magistrates Court in “Land Case No. 23 of 2005 (Kwale): Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi” seeking to have the Magistrates Court adopt and issue an Order to enforce the Decision of the Kwale Land Dispute Tribunal in “Kwale Land Dispute Tribunal Claim No. 6 of 2005: In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi”.
178. The Learned Counsel submitted that as the Land Disputes Tribunal acted in excess of its jurisdiction and contrary to the law, the said Decision was illegal and contra statute. Therefore, the Magistrates Court illegally and unlawfully adopted the said Decision and issued an Order in “Land Case No. 23 of 2005 (Kwale): Juma S. Toza and Ali S. Toza – Versus - Kuria Kanvingi” purporting to cancel the 1st Respondent's title to the suit property. The Order issued and dated 31st January 2006 in Land Case No. 23 of 2005 (Kwale):Juma S. Toza and Ali S. Toza vs. Kuria Kanyingi was therefore illegal and contra statute and a nullity law. In support of this submission, the Learned Counsel relied on the decision of the “High Court in Mary Kerubo Ogoti – Versus - Chief Magistrate's Court, Kisii Law Courts & 5 Others (2017) eKLR”, where the Court held that: -
“17. As I have come to the conclusion and holding that the Kiogoro Land Dispute Tribunal lacked the jurisdiction to deal with the matter of title relating to the registration of the Petitioner as owner of land parcel No. Nyaribari Chache/B/B/Boburia/6939 its decision recommending the revocation and/or cancellation of the title was null and void and equally the adoption of the decision by the 1st Respondent as judgment of the court and issue of the decree was a nullity and of no effect. In the case of Macfoy – Versus - United Africa Co. Ltd [1961] 3ALL ER 1169 at page 1172, Lord Denning succinctly stated thus:-
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
That statement holds true to the circumstances and facts of this case. The tribunal proceeded to deal with the matter without jurisdiction and its proceedings were hence null and void. The magistrate’s court purported to adopt the null and void proceedings/decision. The magistrate’s adoption of the tribunal’s decision was incurably bad and hence also null and void. In the words of Lord Denning “You cannot put something on nothing and expect it to stay there. It will collapse.”
179. According to the Learned Counsel, although the Magistrates Court, adopted the determination of the Kwale Land Disputes Tribunal, the Honourable Court failed to consider whether the Tribunal had the jurisdiction to issue the Orders sought to be adopted. The Decision of the Land Disputes Tribunal having been issued without jurisdiction, it could not be adopted by the Honourable Court and therefore its adoption does not give any validity to the decision of Tribunal. Further, the Petitioners herein, having failed to include the 1st Respondent as a party to the proceedings, the proceedings were fundamentally flawed and a nullity in law as they contravened the rules of justice and the 1st Respondent's right to fair hearing.
180. The Order of the Tribunal having been in excess of jurisdiction and contrary to the law, it could not be adopted as an Order of the Court by the Magistrates Court as it purported to do and further, it did not confer the Petitioners with a valid Order enforceable in law.
181. On the issue of the President. The Learned Counsel submitted that the Petitioners contended that the former President, Mr. Daniel Moi, approved their request to have the suit property transferred into their name on 6th May 1992. The Learned Counsel argued that the approval had not statutory or constitutional foundation. The provision of Section 24 of the Registration of Titles Act (now repealed) provided that: -
24.Any person deprived of land or of any interest in land in consequence of fraud or through the bringing of that land under the operation of this Act, or by the registration of any other person as proprietor of the land or interest, or in consequence of any error or misdescription in any grant or certificate of title or any entry or memorial in the register, or any certificate of search, may bring and prosecute an action at law for the recovery of damages against the person upon whose application the land was brought under the operation of this Act, or the erroneous registration was made, or who acquired title to the interest through the fraud, error or misdescription…”
182. The Learned Counsel further submitted that the statutory framework under the Registration of Titles Act, Cap. 281 (now repealed), under which the suit property was registered, did not authorize or grant the late former President Daniel Moi or even the Provincial Commissioner any role in the allocation of land or in adjudication of disputes relating to land. The late former President therefore lacked the jurisdiction to order cancellation of any title duly issued and registered under the provisions of the Registration of Titles Act (now repealed). The alleged Order/letter of 6th May 1992 sought to be relied on by the Petitioners herein is therefore invalid and illegal.
183. The jurisdiction to consider disputes relating to ownership of land was vested exclusively with the High Court. If the Petitioners were aggrieved by the registration and issuance of the title to the 1st Respondent they should have moved the High Court as provided for under Section 24 of the Registration of Titles Act (now repealed) seeking to have the title in favour of the 1st Respondent revoked. The Petitioners did not exercise this remedy and are therefore guilty of latches for failing to file a claim on time and are now time barred.
184. The suit property having been allotted and registered in favour of the 1st Respondent, its title could not be arbitrarily revoked by the late former President in the manner suggested by the Petitioners herein or at all and vested in their favour. In any event, the alleged approval had not been produced before this Honourable Court. Therefore its existence was doubtful. Similarly, the Cabinet Secretary, Ministry of Lands and Physical Planning does not have any role in the allotment of titles or in hearing any disputes concerning ownership of land under the Land Act and the provision of Section 101 of the Land Registration Act, he could not purport to ask the Land Registrar to cancel the 3rd Respondent’s title as allegedly done through the letters dated 6th and 11th September 2019.
185. In support of this submission, the Learned Counsel relied on the decision of the “High Court in Kuria Greens Limited – Versus - Registrar of Titles, & Another [2015] eKLR” where the High Court held: -
“I have carefully searched the Land Title Act, the Government Lands Act and the Land Control Act, and I have not come across any provision that grants power to a Registrar of Titles or the Commissioner of Lands, to arbitrarily revoke a valid land title. In my view therefore, the Registrar of Title exceeded his power and thus (acted) ultra vire in purporting to revoke the Petitioner’s title. There can be no doubt that an ultra vires act by a public authority is unlawful…”
186. Similarly, the alleged approval by the late former President authorizing cancellation of the 1st Respondent's title and the Order by the Cabinet Secretary were therefore illegal, unprocedural and irregular and could not bind the office he held then or any officer to whom it was directed are a nullity. The National Land Commission, Learned Counsel submitted that the 4th Respondent’s mandate under Section 14 of the National Land Commission Act was limited to considering and reviewing all grants or dispositions of public land to establish their property or legality. The suit property herein was not public land having been allotted to the 1st Respondent in the year 1989 and a title issued. The 4th Respondent therefore did not have the jurisdiction to hear or purport to determine any claim touching on the suit property.
187. The 4th Respondent herein lacked the jurisdiction to hear and determine claims over ownership of land. The proceedings and Determination of the 22nd August 2017 were therefore illegal and contra statute for want of jurisdiction. In support of this submission, the Learned Counsel relied on the decision of the “High Court in Republic – Versus - National Land Commission Ex-Parte Cecilia Chepkoech Leting & 3 Others [2016] eKLR”, where the court held as follows: -
“52. It is however my view and I so find that though land which was unlawfully acquired does not confer a good title and is not protected under Article 40 of the Constitution, where the land in question has acquired the status of private land pursuant to Article 62 as read with Article 64 of the Constitution, it is only the Environment and Land Court that has the jurisdiction to investigate and determine the legality of such title.
53. To permit the Commission to investigate all types of lands no matter their status would amount to clothing the Commission with jurisdiction it does not have, vet it is trite that a judicial or quasi-judicial tribunal, such as the Commission herein has no inherent powers.”
188. In any event, the said mandate was limited to 5 years from the date of commencement of the Act. At the time of issuance of the 4th Respondent’s determination on 22nd August 2017,the 4th Respondent’s mandate had lapsed and had not been extended by Parliament. It could therefore neither consider nor determine the claim by the Petitioners herein. The 4th Respondent herein further determined to revoke the title issued in favour of the 1st Respondent herein, the Learned Counsel that the 4th Respondent lacked the jurisdiction to revoke its title and its entire decision was ultra vires. In support of this submission, the Learned Counsel on the decision of the Environment and Land Court in “Mwangi Stephen Muriithi – Versus - the National Land Commission and 3 Others [2018] eKLR” where the court held as follows: -
“I find that there is no is provision empowering the Commission to revoke titles even where it is established that the same were unlawfully or irregularly acquired. The power to revoke title is vested in the Registrar and not the Commission which can only recommend. In this regard I fully associate myself with the sentiments of Odunga, J in the case of Robert Mutiso Lelli and Cabin Crew Investments Limited – Versus - National Land Commission & 3 others [2017] eKLR
In any case, the provisions of Article 67 (2) of the Constitution cited above is clear and overrides the provisions of section 14 (4) of the act which provides that “after hearing the parties in accordance with sub - section (3), the Commission shall make a determination.” The Constitution is the Supreme Law of the Land as is indeed espoused under Article 2 (4).
To the extent that the 1st Respondent rendered a determination as opposed to a recommendation, I find that the decision is tainted with illegality.
189. Similarly in the case of:- “Republic – Versus – National Land Commission & 4 Others ex - parte Fulson Company Limited and another”, the High Court held as follows: -
“In this case, Kilifi Beach properties Limited, the ex - parte Applicant is a private limited liability company, Shah Sesa and Edward Mzee Karezi are all private individuals. There is no material from the National Land Commission to rebut the claim that the subject land is private land. How the ex - parte Applicant acquired it from the Interested Parties is a matter of claims under private law between those parties. The National Land Commission has neither the legal authority to review and much less to revoke titles relating to private land. On this ground alone, the ex - parte applicant succeeds in its application for issue of an order of certiorari to quash the Commission's purported review and revocation of the ex-part Applicant title.”
190. In any event, the Learned Counsel submitted that a review of the decision of the National Land Commission dated 22nd August 2017, revealed that the 4th Respondent herein based its determination on the impugned decisions by the Late former President Daniel Moi, the decision of the Land Disputes Tribunal and the Magistrate's Court which lacked the jurisdiction to cancel the 1st Respondent’s title. The decisions were ultra vires and could therefore not form the basis of the 4th Respondent's determination.
191. Notice of the proceedings having been served upon one Kuria Kanyingi and not the 1st Respondent who at the time had passed away in the year 2014. He could therefore not enter appearance or defend the suit on behalf of the 1st Respondent as it was a separate and distinct legal entity from its alleged Director. Therefore, it should have been served at its offices as required in law not through the said Director. The 2nd Respondent having legally acquired an interest in the suit property at the date of the said proceedings, the 2nd Respondent should have been a party to the proceedings as required under Section 14(7) and (8) of the National Land Commission Act as well as Article 50 of the Constitution. The 4th Respondent having proceeded to hear and determine the dispute in the absence of the registered owners of the land, the proceedings were a nullity and illegal.
192. On alleged non – compliance with special conditions on the Letter of Allotment and the Grant. The learned Counsel submitted that the Petitioners contended that the title granted to the 1st Respondent was invalid for alleged non compliance with the special conditions set out in the grant. The Learned Counsel further submitted that the Petitioners contention was unfounded in law and could not form a basis for cancelation/ revocation of the 1st Respondent's title save as provided for under the provision of Section 77 of the repealed Government Lands Act, Cap. 280. Section 77 of the Government Lands Act provides that: -
(1) If the rent or royalties or any part thereof reserved in a lease under this Act is at any time unpaid for the space of thirty days after the same has become due, or if there is any breach of the lessee's covenants, whether express or implied by virtue of this Act, the Commissioner may serve a notice upon the lessee specifying the rent or royalties in arrear or the covenant of which a breach has been committed, and at any time after one month from the service of the notice may commence an action in the High Court for the recovery of the premises, and, on proof of the facts, the High Court shall, subject to relief upon such terms as may appear just, declare the lease forfeited, and the Commissioner may re-enter upon the land.
(2) In exercising the power of granting relief against forfeiture under this section, the Court shall be guided by the principles of English law and the doctrines of equity.
193. The Learned Counsel submitted that in the event the Commissioner of Lands intended to cancel the 1st Respondent’s title for alleged non - compliance with the special conditions, which in any event was denied, the Commissioner of Lands was by law required to issue the 1st Respondent with a 30 days’ notice of default stating the special conditions breached and a notice of intention to re – enter the suit property. In the event the breach persisted, the Commissioner of Lands, was at liberty to move the High Court seeking an order declaring the lease/title forfeited before any cancelation or revocation could be done. In support of this submission, the relied on the decision of the Environment and Land Court in the case of:- “Kisekem Ltd – Versus - Michael Kipkering Cherwon & 3 Others (2019) eKLR” where the court held as follows:-
“The argument by the defendants is that the Commissioner of Lands exercised his powers under special condition No. 2 of the lease. This court finds that the special condition was subject to the rule of law that requires a party to be heard before a decision is made. The action of the commissioner of lands was an affront to the rule of law and the principle of legitimate expectation. Section 77(1) of Government Lands Act Cap. 280, Laws of Kenya (repealed), which states that:
...Which section is in pari materia with section 31(1) of Land Act that provides:
... This provision did not allow the re-planning and re-survey of parcel number 231 that was already registered in the plaintiff's name. This court finds that the re-planning, re-survey extinguished parcel number 231 unprocedurally, illegally and deprived the Plaintiff of his parcel of land. The said re-planning is a nullity in law”
194. In this case, no notice of re – entry and/ or proceedings of the High court to repossess the suit property were ever commenced with respect to the suit property, the title in favour of the 1st Respondent therefore remains valid and could be transferred.
195. On whether the Petitioners had demonstrated that their right had been denied, violated, breached and/ infringed. The Learned Counsel opined that the Petitioners contended that the suit property was their ancestral land and that they had been residing on the suit property for many years. The Respondents opposed this contention as the 2nd and 3rd Respondents took over possession, use and occupation of the suit property from the date of purchase of the suit property from the 1st Respondent who had been in possession of the property priorly.
196. The Learned Counsel submitted that no evidence had been placed before this Honourable Court to demonstrate that the Petitioners had a legitimate claim to the suit property or that it is their ancestral land as claimed. Therefore, the Petitioners had failed to discharge their burden of proof to demonstrate that their right property had been infringed upon or that they had any legitimate claim to the suit property. The decisions relied upon by the Petitioners in support of their claim having been issued ultra vires, were a nullity in law and never lend any validity to the Petitioners claims.
197. On what reliefs should be issued. The Learned Counsel submitted that they had demonstrated to this Honourable Court, how the 1st Respondent acquired the property. That it was incorporated at the time it received the Grant to the suit property and that the subsequent transfer to the 2nd and 3rd Respondents, complied with the statutory requirements in place at the time. The allotment and registration in favour of the 1st Respondent should therefore be upheld together with the subsequent transfers to the 2nd and 3rd Respondents.
198. The Learned Counsel further submitted that they had also demonstrated that the Petitioners had no legitimate claim to the suit property, the decisions by the Tribunal, the Magistrate Court, the National Land Commission as well as the approval from the former President, having been a nullity in law, they could not be enforced and were illegal. Therefore, the Petition herein should be dismissed with costs to the 2nd and 3rd Respondents.
199. In conclusion, the Learned Counsel submitted that the Petition herein being an ordinary dispute over ownership of land, never met the threshold of a constitutional Petition, there were substantive laws that had been enacted under the Constitution through which the Petitioners claim should have been filed and determined, this claim was therefore for dismissal.
200. The Petitioners claim having been filed over thirty-five (35) years from the date of allotment and registration of the suit property in favour of the 1st Respondent, the claim was time barred under the Limitation of Actions Act, Cap. 22. The Petition was therefore filed as an attempt to circumvent the law. Thus, it was an abuse of the court process. The 2nd and 3rd Respondents had demonstrated that the decisions relied upon by the Petitioners in support of their claim was a nullity in law and was for dismissal. The 2nd and 3rd Respondents through legal representative therefore prayed that the Petition be dismissed with costs and the court to make a determination that the 3rd Respondent holds the title to the suit property
E. The written rejoinder submissions by the 2nd and 3rd Respondents
201. The 2nd and 3rd Respondent through the Law firm of Messrs. Issa & Company Advocate filed their rejoinder written submissions dated 3rd February, 2025. M/s. Wanjuku Advocate submitted that the 2nd and 3rd Respondents filed these submissions pursuant to leave granted by this Honourable Court on 20th January, 2025 in response to the issues raised in the 4th Respondent’s submissions dated 19th December, 2024. The 2nd and 3rd Respondents reiterated and fully relied on their earlier submissions dated 10th October 2024 together with the 2nd and 3rd Respondents’ Replying Affidavit sworn by Kunal Bid on 13th June 2024 in opposition to the Petition dated 30th November 2023. The broad issue for submission herein was, “Whether the 4th Respondent's Determination dated 22nd August, 2017 was issued in accordance with the law and whether it is enforceable or can be relied upon by this Honourable Court in the determination of the Petition before this Honourable Court.”
202. The Determination of the 4th Respondent herein published/ issued vide letter dated 22nd August, 2017 was bad in law and was per incuriam as by its own admission, it relied on the decision and recommendations of the Kwale Land Dispute Tribunal. in Claim No. 6 of 2005 as well as the Order of the Kwale Senior Magistrates Court in Land Case No. 23 of 2005. The Tribunal did not have the jurisdiction to consider a dispute touching on ownership of land. Therefore, its determination could not have been properly adopted into an order of the Court by the Kwale Senior Magistrates Court and further could not form the basis of the 4th Respondent’s determination and recommendation to the Chief Land Registrar, Mombasa, the 5th Respondent herein.
203. The Learned Counsel submitted that at the time the Petitioners’ allegedly lodged the complaint, though no complaint had been produced as evidence before this Honourable Court, the suit property did not fall within the ambit of public land as defined under the provision of Article 62 of the Constitution, 2010 having been lawfully allotted to the 1st Respondent in the year 1989. Further the alleged dispute having been with respect to the proper ownership of the suit property, the 4th Respondent herein lacked the jurisdiction to hear, consider or determine such a dispute as it fell squarely with the ambit of the Environment and Land Court pursuant to Article 162(2) as read together with Section 13 of the Environment and Land Court Act.
204. The Learned Counsel submitted that the 4th Respondent herein could therefore not purport to review the grant issued with respect to the suit property pursuant to Section 14 of the National Land Commission Act as it did not have either the constitutional or statutory mandate to do so. In support of this submission, the Learned Counsel relied on the decision of the “High Court in Republic – Versus - National Land Commission Ex-Parte Cecilia Chepkoech Leting & 3 Others (2016) eKLR” where Justice G. V. Odunga held as follows: -
“47.It is therefore clear that any land classified as private land cannot, unless an Act of Parliament defines it so, be public land. The only land which though falls under the general definition of private land but may be deemed as public land would be Government land according to an Act of Parliament which was unalienated at the effective date. In other words Government land which was at the effective date alienated and which is private land as defined under Article 64 of the Constitution cannot for the purposes of Article 62(1) be public land. According to Article 64, it is the holding or tenure as opposed to the process of alienation that defines what constitutes private land save for what would otherwise be private land but was Government land before the effective date.
48.In this case, according to the Grant the subject of these proceedings, the suit parcel was alienated on 1st November,1988. The effective date for the purposes of the 2010 Constitution was 27th August, 2010. It therefore follows that the subject parcel of land was alienated before the effective date which fall squarely under the definition of private land and the only basis for claiming jurisdiction is that the Commission intends to investigate the circumstances under which the suit parcel of land was acquired and transformed into a private land.
49 .As I have said above, the jurisdiction of the Commission is, as far as relevant to these proceedings, not defined by the process of acquisition of the land but the status of the land at the time of the investigation and at the effective date. Apart from the Constitution it has not been pointed out to me that there is another definition of public land that would bring private land as. defined under the Constitution within the ambit of public land in order for the Commission to have jurisdiction to review its disposition in order to establish the propriety or legality thereof...
...where the land in question has acquired the status of private land pursuant to Article 62 as read with Article 64 of the Constitution, it is only the Environment and Land Court that has the jurisdiction to investigate and determine the legality of such title.
53. To permit the Commission to investigate all types of lands no matter their status would amount to clothing the Commission with jurisdiction it does not have, yet it is trite that a judicial or quasi-judicial tribunal, such as the Commission herein has no inherent powers. In Choitram – Versus - Mystery Model Hair Salon [1972]EA 525, Madan, J (as he then was) was of the view that powers must be expressly conferred; they cannot be a matter of implication. Similarly in Gullamhussein Sunderji Virji – Versus - Punja Lila and Another HCMCA No. 9 of 1959 [1959] EA 734, it was held that Rent Restriction Board is the creation of statute and neither the Board nor its chairman has any inherent powers but only those expressly conferred on them.”
205. The provision of Section 14 (1) of the National Land Commission Act limited the 4th Respondent’s mandate to review grants and dispositions with respect to public land as follows: -
“14. Review of grants and dispositions
(1) Subject to Article 68 (c) (v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality.”
206. The Learned Counsel further submitted that the National Land Commission Act was assented to on 27th April 2012 and commenced on 2nd May 2012. The five (5) year mandate granted to the National Land Commission under Section 14 of the National Land Commission Act therefore lapsed on 2nd May 2017. No extension of its mandate was passed by Parliament by the said date. The Decision of the 4th Respondent was issued on 22nd August 2017 long after the 4th Respondent's mandate to review grants under Article 68(v) of the Constitution and Section 14 of the National Land Commission Act had lapsed and had not been extended by any Act of Parliament. The 4th Respondent could therefore not review any grants with respect to public land and especially could not review the grant with respect to the suit property as it was private land. In support of this submission, the Learned Counsel relied on the decision of the “Environment and Land Court as in Republic – Versus - National Land Commission & 2 Others Ex - Parte Biren Amrital Shah (2019) eKLR” where the court held as follows: -
“15. Article 64 of the Constitution defines private land as registered land held by any person under any freehold or leasehold tenure or any other land declared to be private land under an Act of Parliament. The Suit Property is private land. The Respondent's mandate under Article 67 is to deal with public land and not private land.
The court notes that the respondent's decision is dated October 9, 2017, by which time the period within which the respondent was empowered to review grants of public land had lapsed. The respondent therefore lacked the legal mandate to review grants of public land at the time it made its decision.”
207. From the documents produced by the Petitioners, the 4th Respondent's Chairperson, had already made a determination in favour of the Petitioners as early as 9th July 2014 the alleged hearing conducted on 13th December 2015 was therefore only intended to sanitize the conclusion reached by the 4th Respondent without due process. Further, no complaint had been produced before this Honourable Court, the jurisdiction of the 4th Respondent to consider any alleged dispute was therefore clearly not properly invoked.
208. The provision of Section 14 (3) of the National Land Commission Act provides that the 4th Respondent shall: -
“In the exercise of the powers under subsection (1), the Commission shall give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.”
209. Regulation 19 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations further obligates the 4th Respondent as follows:-
“19.Notice of hearing
(1)The Commission shall send a hearing notice to all parties to a complaint or review in Form NLC03 set out in the First Schedule.
(2 )The notice of hearing shall be sent by mail or electronically at least thirty days prior to the hearing date or within such other period as the Commission may consider reasonable in the circumstances.”
210. From the gazette notice produced as annexure “BI-1” in the affidavit of Brian Ikol sworn on 19th December 2024, the notices were issued to a “Simkan Investments Ltd”. not the 1st Respondent herein. Further, the alleged notices were not issued in accordance with the National Land Commission (Review of Grants and Dispositions of Public Land)Regulations and therefore were not proper. No notice was ever issued to the 1st Respondent herein as alleged and therefore the alleged hearing was illegal, unlawful and contra statute.
211. The Learned Counsel submitted that without prejudice to the foregoing, the notices issued with respect to the alleged hearing conducted by the 4th Respondent were defective as they were not delivered to the 1st Respondent’s as they were not delivered to the 1st Respondent's address despite its address being known and therefore do not satisfy the requirements under Section 14(3) of the National Land Commission Act as read together with Regulation 19 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations. In support of this submission, the Learned Counsel relied on on the decision in “Mwangi Stephen Muriithi – Versus - National Land Commission & 3 Others (2018) eKLR” where the court held as follows: -
“30. My finding is that the right to be heard transcends mere notice and extends to the person being given sufficient information to enable them prepare and/or present their case. Such a person is entitled to be furnished, in good time, with information, including reports and documents in the body's possession that may be prejudicial to his/her case and which would guide that body relied in arriving at its decision. Section 14 (3) of the Act is clear that such a person, apart from entitlement to notice, has the right to inspect any relevant document.
31.Having perused the documents placed before this Court, I am convinced that the Petitioner was neither furnished with the details of the complaint before the 1st Respondent nor granted access to the critical documents before the 1st Respondent. I find that in the circumstances of this case, it would be unfair then to expect or conclude that in the absence of such critical information, the Petitioner was granted a fair hearing as envisaged under Article 50 of the Constitution. In this respect I agree with the finding of Mativo, J in the case of Sceneries Limited – Versus - National Land Commission [2017] eKLR.
32. In the absence of adequate notice, and access to the complaint as outlined herein, I am inclined to find that the Petitioner was not granted a fair hearing.”
212. In conclusion, the Learned Counsel submitted that they had demonstrated before this Honourable Court that the determination by the 4th Respondent was not only per incuriam but that it was made with respect to private property in respect to which it has no mandate and further, was issued outside the 4th Respondent's statutory mandated period to review grants for disposition of public land. As the determination was made without jurisdiction, the same was and is null and void in law.
213. Further, the 2nd and 3rd Respondents had demonstrated that the 1st Respondent herein was properly allotted the suit property and subsequently transferred it to them for value. The initial allotment and transfers were properly carried out in accordance with the law and should be upheld and the instant Petition dismissed with costs.
F. The Written Submissions by the 4th Respondent
214. The 4th Respondent through the National Land Commission c/o of Magdalene Mutheu Advocate on 19th December, 2024. M/s. Mutheu Advocate commenced by stating these were submission on behalf of the National Land Commission the 4th Respondent herein in response to the Petition dated 30th November 2023. The 4th Respondent would rely on the Replying Affidavit of Brian Ikol sworn on 19th December 2024, the evidence he presented as well as our submissions filed herein.
215. On background, the Learned Counsel submitted that the Petitioners, Ali Salim Toza and Juma Salim Toza, were brothers who claimed to own the suit property which was situated at Tiwi Beach area within the County of Kwale for many years. They contended that they were the owners of the suit property, which they alleged was their ancestral land on which their families had lived and farmed for generations.
216. The Petitioners alleged that sometimes in year 1989, the 1st Respondent, Simkan Investments Limited (Simkan), illegally grabbed the suit property contending that it had been allotted to them. The suit property had since then changed hands. It was noted from pleadings filed herein that the suit property was transferred to the 2nd Respondent (BTB Insurance) on 3rd October 2017 by the 1st Respondent and subsequently to the 3rd Respondent (BID Investment) on 14th December 2017. It was now registered in the name of the 3rd Respondent.
217. Sometime, in the year 2014, the 4th Respondent received a complaint from the Petitioners in respect of the suit property. The request was for the Commission to review the Grant in respect of the suit property on the basis that the same was illegally and or fraudulently appropriated. Pursuant to the complaint, the Commission issued a public notice inviting all interested parties to attend public hearings in respect of the subject property at the Kenya School of Government, Matuga on 13th December 2015. The Commission heard presentations from both the Petitioners. However, the 1st Respondent did not appear nor have any representation during the hearing despite the Commissions efforts through various notices being issued to them including in the daily newspapers. The Respondents' failure to honour the Commissions invitations only proved that they were not interested in the proceedings. Therefore, the subject matter of the case.
218. Over and above the submissions of the parties, the Commission undertook investigations, site visit and reviewed documents and records at the Ministry of Lands and Physical Planning to make its determination.
219. On the issued for determination the Learned Counsel relied on the issue of whether the Petitioners had any justiciable claim as against the 4th Respondent. The Learned Counsel submitted that the provision of Section 14 of the National Land Commission Act, stated that subject to Article 68 (c)(v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality. (2) Subject to Articles 40, 47 and 60 of the Constitution, the Commission shall make rules for the better carrying out of its functions under subsection (1) (3) In the exercise of the powers under subsection (1), the Commission shall give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.
220. The Learned Counsel submitted that in this instance, the Commission received a complaint from the Petitioners in respect to the suit property to review the grant issued to the 1st Respondent and make a determination, the Commission confirmed that it met the criteria and guidelines required under Section 14 and Article 68 (c)(v) of the Constitution of Kenya, 2010. Having established this, the Commission set out to commence the process of review of grants by publishing a public notice in the daily newspapers. In arriving at the determination, the 4th Respondent followed and acted in accordance with all the laid down procedures as spelt out by the provisions of the law.
221. On 13th December 2015, the Commission held public hearings pursuant to the public notice inviting parties for the same. The Petitioners appeared and their evidence was taken whereas the 1st Respondent did not appear despite numerous invitations and public notices on the subject having been served upon it. The Commission dispensed with the requirement of section 14(3) of the National Land Commission Act to “give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents”.
222. The provision of Section 14 of the National Land Act, 2012. Section 14(5) states that where the Commission finds that the title was acquired in an unlawful manner, the Commission shall, direct the Registrar to revoke the title. The legality or lawfulness of a title hinges on the compliance of the process of the allocation of that land with the constitutional and statutory requirements for the grant of the land: Any grant or allocation or public and that is in contravention of legal requirements is therefore null and void.
223. Under the provision of Section 14(6), where the Commission finds that the title was irregularly acquired, the Commission shall take appropriate steps to correct the irregularity and may also make consequential orders. Irregularly acquired titles are those titles that were procured in compliance with the constitutional and statutory requirements for the grant of those lands, but which, in the process, were marred by certain administrative anomalies that do not go to the root of the title.
224. During investigations, the Commission noted that the Respondents were not locals and had never resided on the land. Therefore, it was not possible that they enjoyed ancestral rights of ownership or adjudication rights. They could only acquire the properties as purchasers yet they had no proof of purchase or transfer of the properties. In arriving at its determination, the Commission was guided by among others, the decision of the Land Dispute Tribunal Kwale Vide Claim No. 6 of 2005 and the Judgment of the Kwale Senior Resident Magistrates Court in Land Case No. 23 of 2005 where the court ordered the Land Registrar to cancel the title deed held by the 1st Respondent and a new title issued in the name of the Petitioners as the owners of the property.
225. The Commission’s final determination was for revocation of the title issued to Simkan Investments Limited and the land be reverted to the Petitioners. The said determination was served upon the Land Registrar Kwale, Chief Officer, Lands-Kwale County, Simkan Investments Limited and the Petitioners herein. After adherence with the provisions of section 14(5) of the National Land Commission Act, the 4th Respondent recommended the 5th Respondent to revoke the titles held by the 1st, 2nd and 3rd Respondents. It was the mandate of the Land Registrar to register interests in land as he is the custodian of land documents and records.
226. The Learned Counsel referred Court to the case of:- “The Matter of the National Land Commission |2015] eKLR” the Supreme Court held that: -
“The words 'recommend, advise, research, investigate, encourage, assess, monitor and oversight' - are all actions than provide a facilitative role rather than a primary one. The context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. There is therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted. In my opinion, this means that unless specified within the enabling constitutional provision, a body with oversight function, and a body that implements the recommendations of the former, are different, and their roles do not overlap.”
227. It was therefore the Learned Counsel’s submission that there was no cause of action against it to warrant the orders sought by the Petitioners.
228. In conclusion, the Learned Counsel asserted that it carried out the review of grants process in accordance with the law and it had produced sufficient evidence to prove this. Additionally, its role in a review process never extended to the rectification of the Land Registrar as this was the responsibility and mandate of the 5th Respondent who was the custodian of land records. Thus, the 4th Respondent prayed through its legal representative that this Honourable Court finds that: -
i) The review of grants process was conducted in accordance with the governing laws
ii) The Commission only recommended for revocation of titles. It played no role in rectification of land records.
iii) The Petitioners had raised no reasonable cause of action against it.
iv) The Petition as against the 4th Respondent be dismissed with costs.
G. The Written Submissions by the 5th and 6th Respondents
229. The 5th and 6th Respondents through the offices of the State Law (The Honourable Attorney General) and the State Counsel filed their written submissions dated 11th July, 2024. M/s. Mwanaszumba, the State Legal Counsel submitted that what was before the Honourable Court was a Petition seeking the above stated reliefs.
230. The 5th Respondent filed a Replying Affidavit sworn by the Senior Land Registrar, Mombasa, M/s. Mercy Chepkemoi and filed a Preliminary Objection both dated 11th July, 2024. The Affidavit by Mercy Chepkemoi gave a history of the transactions in LR No. 14897 CR 19582 as per the records held by the Land Registry, Mombasa. The recent official search indicating that the suit property was registered in the name of WWW.BID Investment Company Limited on 14th December, 2018.
231. On the 5th and 6th Respondents’ preliminary objection. The Learned Counsel submitted that they filed a Preliminary Objection going to the jurisdiction of this Honourable Court to hear the Petition on the following grounds: -
a). That the Petition offends the doctrine of Constitutional Avoidance.
b). That the Petition was a simple claim founded on ownership of land but disguised as a Constitutional Petition and hence should not have been filed as a Constitutional Petition but as an ordinary suit.
c). That the matter could be properly decided on another basis other than by a Constitutional Petition.
d). That the Petitioners failed to exhaust the available remedies as provided under Section 13 (2) of the Access to Information Act No, 31 of 2016 and Regulation 91 of the Land Registration (General) Regulations 2017.
232. On whether the Court has jurisdiction to determine the suit herein. The Learned Counsel submitted that this Honourable Court has no jurisdiction to entertain this Petition as it offended the doctrine of Constitutional Avoidance. In the first instance, the Petition as filed did not disclose how the listed Articles of the Constitution had been violated. Thus, it failed the test of specificity established by the authority of “Anarita Karimi Njeru” (Supra). The test was stated thus: -
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
233. Secondly, the Learned Counsel submitted that the Petition offended the Doctrine of Constitutional Avoidance. They relied on the Court's decision in “Kenya Association of Stock Brokers and Investment Banks – Versus - Attorney General & another High Court, Nairobi, Pet. 22 of 2015 [2015] eKLR” where it considered the operation of Constitutional Avoidance doctrine and in so doing made reference to Supreme Court decision in “Communications Commission of Kenya & 5 Others – Versus - Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR” where the Court observed thus: -
[105]. We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”
[106]. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held:.
[256]..The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
234. The Petition before the Honourable Court according to the Learned Counsel claimed a violation of the provision of Articles 2, 10, 19, 22, 23, 40 & 60 of the Constitution. However, in addition to failing to pass the specificity test established in “Anarita Karimi Njeru”, the Claim was a simple one founded on ownership of land but disguised as a Constitutional Petition and hence should not have been filed as a Constitutional Petition but as an ordinary suit. The only specific violation stated by the Petitioners is on Article 40 at paragraphs 32-41 of the Petition. The provision of Section 13 of the Environment and Land Court Act provides for the Jurisdiction of the Court as follows: -
(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes-
(ai relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.
235. Further, the Act granted the Court powers to issue declaratory orders under section 13(5). Therefore, the Petitioners ought to have filed a normal suit in the Environment and Land Court and not a Constitutional Petition. They further submitted that the Petitioners had failed to comply with the doctrine of exhaustion by failing to exhaust the available remedies as provided for under Section 13(2) of the Access to Information Act No. 31 of 2016 and Section 91 of the Land Registration (General) Regulations 2017.
236. A 5-Judge Bench in the case of:- “Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR” elaborately dealt with the Doctrine of Exhaustion. The Court stated as follows: -
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017]eKLR, where the Court opined thus:
42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992]KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”
237. The Learned Counsel submitted that they noted that the actions by the Petitioners in escalating their grievances to various government authorities was proof of fact that they voluntarily submitted to the alternative dispute resolution process under the Ministry of Lands. The Petitioners failed to exhaust the dispute resolution process upon receiving the letter dated 16th September, 2019 from the Registrar of Titles, Mombasa sequencing the history of ownership of the suit property. Upon receipt of said letter, the Petitioners ought to have invoked their right to rectification of information from the Land Registrar, requesting rectification of the alleged land ownership records as provided for under section 13(2) of the Access to Information Act No, 31 of 2016 and Regulation 91 of the Land Registration (General) Regulations 2017. The provision of Section 13 (2) of the Access to Information Act No, 31 of 2016 provides for correction of information thus: -
(1) At the request of the applicant, a public entity or private body shall within reasonable time, al its own expense, correct, update or annotate any personal information held by it relating to the applicant, which is out of date, inaccurate or incomplete.
(2) A request under this section shall be made in writing to the public entity responsible for the maintenance of the record system containing the out of date, inaccurate or incomplete information and shall-
(a, state that it is a request to amend certain personal information relating to the applicant;(b) specify the personal information that is to be amended indicating how such information is out of date, inaccurate or incomplete; and
(c) specify the remedy sought by the applicant
238. Regulation 91 of the Land Registration (General) Regulations 2017 gives the registrar powers to rectify the register upon hearing all persons interested.
239. It was the Learned Counsel’s submission that the remedies sought by the Petitioners were available to them then and they failed to exhaust the available avenues for them. This Court should therefore not entertain the Petition for violating the doctrine of exhaustion.
240. In conclusion, it was their humble prayer that the Petition herein should not be entertained for violating the constitutional avoidance doctrine and the doctrine of exhaustion.
XIII. Analysis and Determination
241. I have carefully considered all the filed pleadings pertaining to the Petition dated 30th November, 2023, the Affidavits by the the Petitioners, the articulate & comprehensive detailed both written and oral (through highlighting of the submissions in Court) submissions by both the 1st & 2nd Petitioners and the 1st, 2nd, 3rd, 4th, 5th & 6th Respondents herein, the myriad of cited authorities, the appropriate provisions of the Constitution of Kenya, 2010 and the statures.
242. For the Honorable Court to reach an informed, just, fair and reasonable decision, it has condensed the Subject matter into the following five (5) salient issues for its determination. These are:-
a) Whether the Petition herein meets the threshold and thus raises constitutional questions violations.
b) Whether the Preliminary Objection raised by the 1st Respondent herein meets the threshold for an objection based on Law and Precedents.
c) Whether the Notice of Preliminary objection dated 20th March, 2024; If the answer in (b) is in the affirmative whether the 1st Respondent has made out a case for the dismissal of the Petition dated 30th November, 2023;
d) Whether the parties herein are entitled to the reliefs sought.
e) Who will bear the Cost of the Petitioner?
ISSUE No. a). Whether the Petition herein raises constitutional questions violations.
243. Under this Sub – heading, notwithstanding the fact that there has been raised two (2) Preliminary objection by the 1st and the 5th & 6th Respondents dated 20th march, 2024 and 11th July, 2024 respectively, the Honourable Court feels strongly obligated in the interest of Justice, Equity and Conscience to imperatively, first and fore most commence by deliberating on the legal efficacy, viability and the jurisprudence of the Petition before embarking on the Objections. The Court will then deal with the two objections at a later stage of this Judgement.
244. Certainly, from the filed pleadings, this is a protracted and highly contested matter. On the one hand, the Petitioners have raised quite a number of weighty issues pertaining to the legal and absolute ownership, the subsequent land dispute and the various mechanisms of resolving them at different fora and the decisions made thereof and the status quo of the suit land between them and the 1st Respondent. According to the Petitioners, in all these processes and proceedings they perceive the to be of constitutional nature them being utter breach, violation, threat, infringement and denial of their Constitutional fundament Rights. Indeed, they have held that they have been subjected to long and historical land dispute to what they term as their ancestral land from time immemorial. Clearly, this has been travesty of justice, fairness and Equity. To them, it was through filing of the Constitution Petition that was the most suitable legal mechanism to resolve and attain the appropriate legal remedy to the long standing land dispute.
245. Juxtapose, on the other hand, the 1st, 2nd, 3rd, 5th and 6th Respondents have a contrary view to the filed Constitution Petition. To them they hold that this Court is not clothed with he Jurisdiction to entertain the matter altogether based on several broad grounds. Firstly, to them the Petition offends the Doctrines of Res Judicata having been deliberated and finally decided in several other legal avenues and Constitutional Avoidance; Secondly, this is a case that ought to have been adjudicated through filing of an ordinary suit than disguising it as Constitution Petition as it never met the threshold of a Constitution Petition. Thirdly, the Petition was brought way after the lapse of several tears and hence it was statutorily barred by limitation as founded under the provisions of the Limitation of Action Act, Cap. 22 of the Laws of Kenya.
246. Be that as it may, therefore, the Honourable Court will inevitably and critically assess certain aspects of the concept of Constitutional provision. To begin with, under the provision of Article 2 (1) & (4) of Constitution of Kenya defines the Constitution as being the Supreme law of the Republic and it bids all persons and all States at all levels. Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency and any act or omission in in contravention of this Constitution is invalid.
247. Additionally, I dare say that a Constitution is a living tissue. Just like all other tissues, it has to be fed and watered. It breathes without oxygen and freshness it will die. I have learnt that these things are not just metaphorical. They are real. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:-
a. Promotes its purposes, values and principles;
b. Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c. Permits the development of the law; and
d. Contributes to good governance……”
248. This Court must give a liberal interpretation and consideration to any provision of the Constitution and have regard to the language and wording of the Constitution and where there is no ambiguity attempt to depart from the straight texts of the Constitution must be avoided. It must always be interpreted and considered as a whole with all the provisions sustaining and coordinating each other and not destroying the other.
249. Based on the principles set out in the edit of the Court of appeal case of the “Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another (2013) eKLR” provided the standards of proof in the Constitutional Petitions as founded in the case of “Anarita Karimi Njeru – Versus - Republic [1980] eKLR 154” where the court is satisfied that the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:-
“Constitutional violations must be pleaded with a reasonable degree of precision…………”
Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR said in the year 1876 and which hold true today:
“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule……was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing……………
………………..We would however again stress that if a person is seeking redress from the High Court on a matter that involves a reference to the Constitution it is important (if only to ensure that justice is done to his/her case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
250. The provision of Article 23(3) of the Constitution empowers a court to grant appropriate reliefs in any proceedings brought under Article 22 where there has been violation or threat of a violation of a fundamental right or freedom. The relief may include a conservatory order.
251. In this Petition, the Petitioners seek for the above stated order. The Petitioners based their Petition on Article 2 of the Constitution of Kenya, 2010 states that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
252. Article 10 of the Constitution provides the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law, or makes or implements public policy decisions. These national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.
253. Article 19 (3) of the Constitution states that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the state. They did not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with the chapter on Bill of Rights; and they are subject only to the limitations contemplated in the Constitution.
254. Article 20 (1) of the Constitution states that the Bill of Rights applies to all law and binds all State organs and all persons. It is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
255. Article 21(1) of the Constitution provides that it is the fundamental duty of the State and every state organ to observe, respect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
256. Article 22 (1) of the Constitution states that every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
257. Article 23 of the Constitution of Kenya grants this court jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The court has jurisdiction to grant appropriate relief including those set out at sub-article (3) thereof.
258. Article 40 of the Constitution of Kenya, 2010 enshrines the protection of right to property. Every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. Article 40 (3) of the Constitution provides that the State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter five of the Constitution or is for a public purpose or in the public interest and is carried out in accordance with the Constitution and any Act of Parliament that requires prompt payment in full, of just compensation to the person and allows any person who has an interest in, or right over, that property a right of access to a court of law.
259. Article 258 (1) of the Constitution grants every person the right to institute court proceedings, claiming that the Constitution has been violated, or is threatened with contravention.
260. The question would therefore be whether the Petition herein raises constitutional questions violations, the Court in “Anarita Karimi Njeru (Supra)” and restated by the Court of Appeal in “Mumo Matemu – Versus - Trusted Society of Human Rights Alliance & others [2013] eKLR” set the law as to what constitutes a Constitutional Petition. A party seeking redress by way of constitutional petition must set out with reasonable degree of precision the provisions which the proponent alleges to have been infringed and the manner of the alleged infringement.
261. In the instant case, the Petitioners have particularized their case on several aspects whereby they claim a breach, violation, threat and denial of their fundamental right in particular that of private property being the suit land. In that retrospect, the Petitioners alleged that they were the legal owners of all that parcel of land known as known as L.R No 14897 CR 19582 situated within Tiwi Beach area within the County of Kwale. The suit land was their ancestral land. The Petitioners and their families had lived and farmed on the suit land for generations. Sometimes, in the year 1989, the 1st Respondent illegally grabbed the suit land contending that the then President of the Republic of Kenya, the late President Daniel Arap Moi, had allotted the land to them.
262. On 25th March, 1992, the 1st Petitioner wrote to the Commissioner of Lands requesting that ownership of the suit land be restituted to them. The petition was forwarded to the late President Moi who considered it and approved it on 6th May, 1992. The President’s approval was not acted upon and so in 2005, the Petitioners lodged a claim with the Kwale Land Dispute Tribunal for determination of who was the rightful owner of the suit land. The complaint was Kwale Land Dispute Tribunal Claim No 6 of 2005; In the matter of Dispute between Juma S. Toza and Ali S. Toza versus Hon Kuria Kanyingi and Simkan Investment Limited.
263. The Tribunal heard the complaint on 13th September, 2005 and upheld the Petitioners’ claim to the suit land. On 31st January, 2006, the Kwale Senior Resident Magistrate Court adopted the decision of the Kwale Land Dispute Tribunal as a judgment of the court in Land Case No 23 of 2005. The Petitioners were eventually issued with a Certificate of Title No CR 19582 on 2nd April, 2009. On 8th October, 2009, the 1st Respondent filed a suit at the Mombasa High Court being Civil Case No 348 of 2009; Simkan Investments Limited versus Ali Salim Toza and 3 others alleging that it had a valid title to the suit land and that the Petitioners had obtained title to the same land through fraudulent means. Upon filing the suit, the 1st Respondent obtained an ex parte mandatory injunction on 21st October, 2009 in the absence of the Petitioners which directed the Registrar of Titles Mombasa to cancel the Petitioners’ title to the suit land. That suit was never heard as the 1st Respondent did not prosecute its case and the case was eventually dismissed for nonattendance on 9th November, 2015. In 2014, the Petitioners referred the dispute over the suit land to the National Land Commission for determination.
264. It is apparent that in light of the above, the Petitioners had fulfilled the requirements calling for a Petition such as the instant one to be brought in a Constitutional Petition framework. They cited the provisions of the Constitution that were violated and the manner the said constitution was violated. While any party is welcomed to file Constitutional Petitions, legally speaking, this Honourable Court appreciates that not all Constitutional Petitions are necessitated going by the circumstances of the dispute. In other words, not all grievances should justify the filing of a Constitutional Petition.
265. In this instance, the Petitioners seek to have this Court issue a declaration for the cancellation of the title to L.R No 14897 issued to the 1st Respondent and subsequently to the 2nd and 3rd Respondents. I strongly hold and based on the Doctrine of Constitutional Avoidance, the Constitution is not a general substitute for the normal or conventional or ordinary Civil procedure and Courts have held that private law claims should not form the basis of Constitutional Petitions. Instead, such disputes should be resolved by using the usual process of civil litigation. To support this legal position, I wish to seek refuge from the case of “Dennis Wanyonyi Simiyu & 2 Others – Versus - Caroline Nafula Omondi & Another [2020] eKLR”.
266. Concerning private law claims in “Dennis Wanyonyi Simiyu & 2 others – Versus - Caroline Nafula Omondi & Another [2020] eKLR”, the court stated as follows: -
“Courts have held that private law claims should not form the basis of Constitutional Petitions and should be resolved by using the usual process of civil litigation. See Benjoh Amalgamated Limited & Another – Versus - Kenya Commercial Bank Limited (2007) eKLR. In Uhuru Muigai Kenyatta – Versus - Nairobi Star Publications Limited (2013) eKLR Lenaola J applied the holding in the Re application by Bahadur (1968) LR C (cost) 297 and held that:-
“Where there is remedy in civil law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries (Supra) where the converse may have been expressed as the position. My mind is clear however that not every ill in society should attract a constitutional sanction ….”.
In the Re-application by Bahadur Case (Supra), the court held as follows:-
“ The constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action. Where infringements of rights can found a claim under substantive law, the proper course is to bring the claim under that law and not under the constitution”.
I have analysed the petition before me and I do not find it to raise any constitutional issues for due consideration by this court. It is my considered view that the Petitioner’s claim is a civil claim which will be best determined as prescribed by the Civil Procedure Act and the Rules made thereunder.”
267. As already indicated above, I see the issues raised in this instant Petition are on the issuance of title to the 1st, 2nd and 3rd Respondents herein. Certainly, these are extremely serious and weighty issues. However, I discern they are being raised at a wrong fora. The Constitutional Court may not get the luxury of causing indepth interrogation and investigation of these facts as it would have been if it was in an ordinary suit. These include but not limited to:
a) What are the legal efficacy and effect of the acquisition of the suit land – “the root of the title” (eg. Was it ancestral or not) by the parties as per the provisions of the Law – Sections. 23 & 24 of the Registration of Title Act, Cap. 281 (Now repealed) Section 77 of the Government Act, cap. 280; ; Sections 24, 25 and 26 of Land registration Act, No. 3 of 2012;
b) What are the empirical evidence on the allegation of title having been acquired through fraudulent scheme; - through “the burden of proof” under Section 107, 108 and 109 of the Evidence Act, Cap. 80.
c) What are the appropriate mechanism to resolve the protracted legal and land dispute – the Constitution & Administration of Justice; the NLC etc.
d) What are the most available legal remedies to resolve this matter – eg. Rectification of the Registries; Cancelation of title deed.
268. In my view, these are issues that a Constitutional Petition may have difficulties in entertaining and resolving whatsoever. Furthermore, the Petitioners seem to be seeking eviction remedies and permanent injunctions here disguised as a Petition. In my view, the Court is being invited to sit as an appeal to the Land Case No. 23 of 2005 (Kwale Senior Resident Magistrate Court) which adopted the decision of the Kwale Land Dispute Tribunal. I reiterate that the issues advanced by the Petitioners in this Petition are those that do not have to necessary be advance through a Petition.
269. I will be discussing indepth the issue of the Doctrine of Res judicata at a later stage of this Judgement while addressing the two Notices of Preliminary Objection. There was also an issue raised by the Respondents on the limitations of filing the said Petition. The position with regard to Limitation of Time in Constitutional Petition was recently restated by the Court of Appeal in the case of “Chief Land Registrar and 4 Others – Versus - Nathan Tirop Koech and 4 others (2018) eKLR”, where the Court held as follows:-
“Guided and convinced of the sound jurisprudence that there is no time limit for filing a constitution petition, we find the ground that the trial judge, erred in failing to dismiss the petition on account of delay acquiescence and laches has no merit. Unless expressly stated in the constitution, the period of Limitation in the Limitation of Actions do not apply to violation of rights and freedom guaranteed in the Constitution…. In our view, subject to the Limitations of Article 24 of the 2010 Constitution, fundamental rights and freedoms cannot be tied to the shackles of Limitation of Actions, Act. However, each case is to be decided on its merits…”
270. The Court of Appeal took the same view in the vase of “James Kanyiita Nderitu – Versus - Attorney General and Another (2019) eKLR” where the Court held that: -
“in our view, subject to the Limitations in and freedoms cannot be tied to the shackles of Limitation of Actions Act. However, each case is to be decided on its own merits and a caveat need to be stated…….”
271. Additionally, in “High Court Petition No. 306 of 2012, Kenneth K’ogutu – Versus - Kenyatta University and 2 Others” as well as the decision in “Abraham Kaisha Kanzika and Another – Versus - Central Bank of Kenya”, both Petitions failed because they had filed more than 10 years after the alleged, infringement of rights had occurred. In the present Petition the said dispute emanated around the year 2019 when the 5th Respondent when it responded to the letter by the Ministry giving a history of the suit land. He indicated in that letter that the suit land was transferred to the 2nd Respondent on 3rd October 2017 and subsequently to the 3rd Respondent on 14th December 2017.
272. This leads this Court another limb of this discussion; where does an appeal from the decision of the 5th Respondent go to? This forum would be appropriate were it not that the Petitioners’ claim in structured in such a manner that the same seems to be “an appeal” to the previous decision. Thus, in a nutshell, from the surrounding facts and given circumstances of this subject matter, the Court fully concurs with the 1st, 2nd, 3rd , 5th and 6th Respondents that that the instant Constitution Petition was erroneously instituted instead of an ordinary suit. Its total contravention of the Doctrine of Constitutional Avoidance. For that stand alone aspect it must fail.
ISSUE No. b). Whether the Notice of Preliminary objection dated 20th March, 2024 meets the thresholds of an objection.
273. Under this Sub – heading, the Honourable Court will decipher on the substratum of the matter is whether the objection raised pure points of law. In determining this instant Notice of Preliminary Objection, the Court will first consider what amounts to a Preliminary Objection and then Juxtapose the said description herein and come up with a finding on whether what has been raised herein fits the said description.
274. According to the Black Law Dictionary a Preliminary Objection is defined as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
275. According to Black’s Law Dictionary 11th Edition, a Preliminary Objection is an objection that if upheld would render further proceedings before the tribunal impossible or unnecessary. Our Courts have various defined Preliminary objection as one that consists of a point which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point my dispose of the suit.
276. The above legal preposition has been made graphically clear in the now famous case of “Mukisa Biscuits – Versus - Westend Distributor Ltd [1969] EA 696”, the court observed that: -
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue.”
277. This statement of the law has been echoed time and again by the courts: see for example, “Oraro – Versus - Mbaja [2007] KLR 141”.
278. The same position was held in the case of “Nitin Properties Ltd – Versus - Jagjit S. Kalsi & another Court of Appeal No. 132 of 1989[1995-1998] 2EA 257” where the Court held that;
“A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.”
279. Similarly in the case of “United Insurance Company LTD – Versus - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that;
“A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .”
280. Therefore from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that;
“A Preliminary Objection cannot be raised if any facts has to be ascertained.”
281. I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR” as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia:-
(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
(ii) A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
282. Taking into account the above findings and holdings of various Courts on what amounts to a preliminary Objection, the Court now turns to the grounds raised by the 1st Respondent herein which are the Honourable Court lacked jurisdiction to hear and determine this suit on account of the Petition being res judicata. In this case, I am satisfied that the objection raises pure points of law in that the preliminary objection. Since an issue going to the jurisdiction of this Court has been raised that issue must be dealt with in limine
283. As indicated, in the instant case, an objection to the jurisdiction of the court has been cited as one of the preliminary objections that consists a point of law. The 1st Respondent raised a Preliminary Objection citing that the court lacks jurisdiction to entertain the suit herein and pray that the Petition be dismissed. What is clear from the foregoing is that the character and nature of a preliminary objection is one that should only raise a point of law which is argued on the assumption that the facts raised are undisputed. The objection raised should not be one that calls for proof or seeks to adduce evidence for its authentication. The objection once argued should be capable of disposing of the suit or the application.
284. The preliminary objection herein is premised on the alleged violation of “the Constitutional Avoidance” and “the Doctrine of Res Judicata”. The doctrine of Constitutional Avoidance has been adequately deliberated hereon. As for the Doctrine of Res judicata is premised on the provision of Section 7 of the Civil Procedure Act, Cap. 21. Objectively, and legally speaking, it prevents the Court from re-determining a matter/issue that has been finally determined by a competent Court. It is not in doubt that this issue goes to the jurisdiction of the Court and is capable of preliminarily disposing off the suit.
285. However, the question as to whether the issue of res judicata can be argued by way of preliminary objection has been the subject of debate. In the case of “Henry Wanyama Khaemba – Versus - Standard Chartered Bank Ltd & Another [2014] eKLR”, the Court held as follows: -
“That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on preliminary objection. Court of laws have always had a well-founded quarrel with parties who resort to raising preliminary objections in improperly.”
286. Similarly, the Court in the case of:- “Moses Mbatia – Versus - Joseph Wamburu Kihara [2021] eKLR”, also considered whether the question of res judicata was a proper preliminary objection as follows: -
“It is my view that all the relevant facts as summarized above are not in dispute and the matter did not call for the exercise of the trial Court’s discretion. Resultantly therefore the objection is a pure point of law.”
287. The 1st Respondent also raised an objection dated 20th March, 2024 on the following grounds: -
a. The Petitioners have already availed themselves of other legal remedies through the following suits:-
i. Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S. Toza vs Hon. Kuria Kanyingi and Simkam Investments Limited.
ii. Kwale Land Case No.23 of 2005.
iii. Counter - Claim in Mombasa ELC No. 348 of 2009, Simkam Investments Limited vs Ali Salim Toza and Others
b. This subject matter of this suit is res judicata.
288. The 1st Respondent prayer for the court to strike out the above Petition with costs. Luckily, the existence of the cases are not factually disputed. If anything, it’s a matter all the parties have adjudicated on from different perspectives. The court is privy to the aforesaid. In the circumstances, the Court does not consider that any extraneous evidence is required in this regard and finds that the objection is properly before it. The substantive law on res judicata is found in the provision of Section 7 of the Civil Procedure Act, Cap. 21 which provides that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
289. In the case of “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment)”, the Supreme Court delved into an in-depth discussion of the concept of res judicata thus;
“…The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].
Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads:
(i) the matter in issue is identical in both suits;
(ii) the parties in the suit are the same;
(iii) sameness of the title/claim;
(iv) concurrence of jurisdiction; and
(v) finality of the previous decision.”
290. From the foregoing, it is clear that for res judicata to suffice, a Court should look at all the four corners set out above namely; the matter directly and substantially in issue in the subsequent suit was the same matter which was directly and substantially in issue in the former suit. Further, the former suit must have been between the same parties or parties under whom they claim; the parties litigated under the same title; the Court which decided the former suit must have been competent and the former suit must have been heard and finally decided by the Court in the former suit.
291. It is crucial to note that the doctrine of res judicata does not apply only to suits but also to applications. This legal position was stated in the case of “Mburu Kinyua – Versus - Gachini Tuti [1978] KLR 69 at 81” and reiterated by the Court of Appeal in “Uhuru Highway Development Limited – Versus - Central Bank of Kenya & 2 Others [1996] eKLR” as follows: -
“That is to say, there must be an end to applications of similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation.”
292. Simkan's position was therefore that the subject matter of this suit is res judicata and the petition should be struck out. The gist of Simkan's replying affidavit is that they were allocated the suit property in 1989 by the Government of Kenya and they took possession and exercised all ownership rights including using the property as security for a loan with a bank. The Supreme Court further held that the elements set out above are to be conjunctive rather than disjunctive before a suit or an issue is to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former judgment which was final, it was on merit and by a court having jurisdiction and have identical parties, subject and cause of action.
293. In the Dina Management case, the Supreme Court held that where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that all the legal rights and obligations of the parties were concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact.
294. It is my view that all the relevant facts as summarized above are not in dispute and the matter did not call for the exercise of the trial Court’s discretion. Resultantly therefore the objection is a pure point of law. The gist of section 7 of the Civil Procedure Act defines the principle of res judicata to apply where the issues in the previous suit ought to have been “heard and finally decided.”
295. The Black’s Law Dictionary 10th Edition defines the terms “heard and determined” as follows:-
“of a case, having been presented to a Court that rendered Judgment.”
296. The term “hearing” is defined in the same dictionary as follows: -
“A judicial session usually open to the public held for the purpose of deciding issues of fact or of law sometimes with witnesses testifying.”
ISSUE No. c). Whether the Notice of Preliminary objection dated 20th March, 2024; If the answer in (b) is in the affirmative whether the 1st Respondent has made out a case for the dismissal of the Petition dated 30th November, 2023;
297. Under this Sub heading, the 1st Respondent argues that the Petitioners have already pursued similar claims in previous cases, making the current suit redundant. The cited cases are:
• Kwale Land Disputes Claim No. 6 of 2005 – Juma S. Toza – Versus - Hon. Kuria Kanyingi & Simkam Investments Ltd
• Kwale Land Case No. 23 of 2005
• Counterclaim in Mombasa ELC No. 348 of 2009 – Simkam Investments Ltd – Versus - Ali Salim Toza & Others
298. In the case of:- “Tee Gee Electrics and Plastics Company Ltd – Versus - Kenya Industrial Estates Limited [2005] KLR 97” the Court stated: -
“Both the policy rationale as well as our case law lean in the direction that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to suits that are dismissed on preliminary technical points. res judicata bars a future suit only when the case is resolved based on the facts and evidence of the case or when the final judgment concerned the actual facts giving rise to the claim.”
299. Resonating with the above decision, this Honourable Court observes that a judgment in Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S. Toza vs Hon. Kuria Kanyingi and Simkam Investments Limited and the same was adopted. Further the Respondents in their submissions reiterated that res judicata applies to a suit that has been dismissed for want of prosecution or non-attendance.
300. The only remedy available to a party whose suit has been dismissed is to revive the suit by filing an application to set aside the order of dismissal and not to file a fresh suit disguised as a Constitutional Petition. The Petitioners could not therefore be heard to say that Mombasa HCCC 348 of 2009 was not heard and determined since the legal position is that a judgment includes a dismissal order and subject to res judicata under Section 7 of the CPA, Cap. 21.
301. The successful raising of the plea of res judicata is a complete bar to the jurisdiction of a Court. The case of”- “Court of Appeal in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 4 others – Versus - Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (Consolidated)) [2022] KECA 15 (KLR) (8 February 2022) (Judgment)” spoke to the doctrine of jurisdiction in general as follows: -
36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.
302. The locus classicus on jurisdiction is the celebrated case of “Owners of the Motor Vessel “Lillian S’ – Versus - Caltex Oil (Kenya) Ltd [1989] KLR 1”. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows: -…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
303. A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae. As said, a Notice of Preliminary Objection was filed in furtherance of the urge to strike out the Petition. The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of Judgments by reducing the possibility of inconsistency in Judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice.
304. I will not diverge into a lot as it has already dawned on the Court that it does not have the requisite jurisdiction to proceed with the determination of the Petition herein. Be that as it may the Petition dated 30th November, 2023 be and is hereby dismissed for being res judicata and the Notice of Preliminary Objection dated 20th March, 2024 is found to have merit and is upheld.
ISSUE No. c). Who will bear the Costs of the Petition
305. It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides :-
“(1) The award of costs is at the discretion of the Court.
(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”
306. In the case of “Reids Heweet & Company – Versus - Joseph AIR 1918 cal. 717” and “Myres – Versus - Defries (1880) 5 Ex. D. 180”, the House of the Lords noted:-
“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it…..”
307. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held:-
“……….the basic rule on attribution of costs is that costs follow the event…..it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”.
308. Therefore, the events in the instant case is that the Petitioner herein have not succeeded in establishing its case on preponderance of probabilities. For that very fundamental reason, therefore, the costs of this Petition and the Notice of Preliminary Objection be and is hereby awarded to the Respondents to be paid by the Petitioners jointly and severally.
XIV. Conclusion and Disposition
309. Consequently, having intensively and thoroughly deliberated on all the framed issues herein, this Honorable Court arrives at the finding that the Petitioners herein have not succeeded in all the prayers sought from its filed Petition. For avoidance of doubt, I disallow the Petition dated 30th November, 2023 specifically under the following terms:-
a) THAT the Notice of Preliminary Objection dated 20th March, 2024 be and is hereby found to have merit and the same is upheld with costs to the Respondents.
b) THAT the Petition dated 30th November, 2023 be and is hereby found to be res judicata and the same is dismissed with costs to the Respondents.
c) THAT the costs of this Petition dated 30th November, 2023 and the Notice of Preliminary objection dated 20th March, 2024 will be made out to the Respondents to be paid by the Petitioners jointly and severally.
IT IS SO ORDERED ACCORDINGLY.
Judgement delivered in the presence of:-
a. Mr. Daniel Disi – the Court Assistant
b. Mr. Juma Advocate holding brief for Mr. Mugambi Advocate for the 1st & 2nd Petitioners.
c. M/s. Adongo Advocate holding brief for Mr. Ochwo Advocate for the 1st Respondents.
d. M/s. Wanja Wanjuku Advocate holding brief for Mr. Isa Mansur Advocate for the 2nd & 3rd Respondents.
e. No appearance for the 4th, 5th & 6th Respondents.
1. The Judgment of this Honourable Court pertains to the filed Constitution Petition dated 30th November, 2023. It was instituted by Ali Salim Toza and Juma Salim Toza; the 1st and 2nd Petitioners herein and against the Simkan Investments Limited, BTB Insurance Brokers Limited, WWW. Bid Investment Company Limited, National Land Commission, Registrar of Titles, Mombasa and Attorney General the 1st, 2nd, 3rd, 4th & 5th Respondents herein.
2. Upon service of the Petition, all the Respondents vigorously opposed the Petition through filing of separate replies on diverse dates as follows. The 1st Respondent filed a Replying Affidavit sworn on 19th March, 2024 and a Notice of Preliminary Objection dated 20th March, 2024; 2nd and 3rd Respondents filed a Replying Affidavit sworn on 13th June, 2024; the 4th Respondent filed their replying affidavit sworn on 19th December, 2024 while the 5th Respondent opposed the Petition through a replying affidavit sworn on 11th July, 2024. Further, the 5th and 6th Respondents filed a reply to Petition dated 3rd April, 2024 thereof.
3. Towards all this, with the leave of Court, the Petitioners filed a Supplementary Affidavit sworn on 25th July, 2024 and a Ground of Opposition to the Notice of Preliminary objection dated 25th July, 2024 accordingly.
II. Description of parties
4. The 1st & 2nd Petitioners were described as adult males of sound mind and understanding working for gain and residing in Tiwi, within the County of Kwale. The 1st to 3rd Respondents were described as limited liability companies by limited guarantee incorporated in Kenya under the Companies Act, Cap. 486 and carrying on business within the Republic of Kenya.
5. The 4th Respondent is the National Land Commission (Hereinafter referred to as “The NLC”), was described as a and constitution created public commission established under the provision of Article 67 of the Constitution of Kenya, 2010. One of its functions is to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress.
6. The 5th Respondent, the Registrar of Titles, Mombasa, was described as a public officer appointed pursuant to the provision of Sections 12 and 13 of the Land Registration Act, No. 3 of 2012 (Hereinafter referred to as “The LRA”).
7. The 6th Respondent was described as the Attorney General of the Republic of Kenya. Sued pursuant to provisions of Article 156 of the Constitution of the Republic of Kenya, 2010 in his capacity as the legal advisor of the Government of the Republic of Kenya, the person authorized by law to represent the Government in court pursuant to section 12 of the Government Proceedings Act, and the officer of Government under a duty to promote, protect and uphold the rule of law and the defender of public interest
III. The Court’s direction the dispensation of the Petition
8. Nonetheless, on 29th July, 2024, all parties having fully complied, the Honourable Court by consensus provided the direction on how the Petition was to be disposed off by way of written submissions.
IV. The Petitioner’s Case
A. Facts of the case:-
9. The 1st and 2nd Petitioners were the legal and registered owners of all that parcel of land known as L.R No 14897 CR 19582 situated within Tiwi Beach area within the County of Kwale (Hereinafter referred to as “The Suit land”). The suit land was their ancestral land. The Petitioners and their families had lived and farmed on the suit land for generations. Sometimes in the year 1989, the 1st Respondent illegally grabbed the suit land contending that the then President of the Republic of Kenya, the late President Moi, had allotted the land to them.
10. On 25th March, 1992, the 1st Petitioner wrote to the Commissioner of Lands requesting that ownership of the suit land be restituted to them. The Petition was forwarded to the late President Moi who considered and approved it on 6th May, 1992. However, the President’s approval was not acted upon. Hence in the year 2005, the Petitioners lodged a claim with the Kwale Land Dispute Tribunal (Hereinafter referred to as “The Tribunal”) for determination on the issue who was the rightful owner of the suit land. The complaint was Kwale Land Dispute Tribunal Claim No 6 of 2005; In the matter of Dispute between Juma S. Toza and Ali S. Toza - Versus – Hon. Kuria Kanyingi and Simkan Investment Limited”.
11. The Kwale Land Dispute Tribunal heard the complaint on 13th September, 2005 and upheld the Petitioners’ claim to the suit land. On 31st January, 2006, the Kwale Senior Resident Magistrate Court adopted the decision of the Tribunal as a Judgment of the court in “Land Case No 23 of 2005”. The Petitioners were eventually issued with a Certificate of Title No CR 19582 on 2nd April, 2009.
12. On 8th October, 2009, the 1st Respondent filed a suit at the Mombasa High Court being ”Civil Case No 348 of 2009; Simkan Investments Limited - Versus - Ali Salim Toza and 3 others” alleging that it had a valid title to the suit land and that the Petitioners had obtained title to the same land through fraudulent means. Upon filing the suit, the 1st Respondent obtained an ‘ex – parte” mandatory injunction on 21st October, 2009 in the absence of the Petitioners which directed the Registrar of Titles Mombasa to cancel the Petitioners’ title to the suit land. Nonetheless, from the record, that suit was never heard as the 1st Respondent never prosecuted it. Eventually, on 9th November, 2015, the case was dismissed for nonattendance. In the year 2014, the Petitioners referred the dispute over the suit land to the National Land Commission for its determination.
13. The National Land Commission reviewed the Grant issued to the 1st Respondent. On 22nd August, 2017 the NLC returned a verdict that the title held by the 1st Respondent be revoked and the suit land be reverted to the Petitioners. The Petitioners communicated the decision of the NLC to the 5th Respondent but who neither acted nor gave any feedback. On 6th September 2019, the Petitioners escalated their grievance to the Cabinet Secretary, Ministry of Lands and Physical Planning and asked for his intervention to have the matter resolved. On 11th September 2019, the Cabinet Secretary wrote a letter to the Land Registrar, Kwale advising him to take appropriate action and resolve the matter as further delay and/or silence on it amounted to denial and travesty of justice to the Petitioners.
14. Thus, vide a letter dated 16th September, 2019, the 5th Respondent responded by giving a history of the suit land. He indicated that the suit land was transferred to the 2nd Respondent on 3rd October 2017 and subsequently to the 3rd Respondent on 14th December 2017.
B. Constitutional Provisions
15. The provision of Article 2 of the Constitution of Kenya, 2010 states that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
16. Under Article 10 of the Constitution provides the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law, or makes or implements public policy decisions. These national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.
17. Under Article 19 (3) of the Constitution states that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the state. They did not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with the chapter on Bill of Rights; and they are subject only to the limitations contemplated in the Constitution.
18. Under Article 20 (1) of the Constitution states that the Bill of Rights applies to all law and binds all State organs and all persons. It is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
19. Under Article 21(1) of the Constitution provides that it is the fundamental duty of the State and every state organ to observe, respect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
20. Under Article 22 (1) of the Constitution states that every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
21. Under Article 23 of the Constitution of Kenya grants this court jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The court has jurisdiction to grant appropriate relief including those set out at sub-article (3) thereof.
22. Under Article 40 of the Constitution of Kenya, 2010 enshrines the protection of right to property. Every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. Article 40 (3) of the Constitution provides that the State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter five of the Constitution or is for a public purpose or in the public interest and is carried out in accordance with the Constitution and any Act of Parliament that requires prompt payment in full, of just compensation to the person and allows any person who has an interest in, or right over, that property a right of access to a court of law.
23. Under Article 258 (1) of the Constitution grants every person the right to institute court proceedings, claiming that the Constitution has been violated, or is threatened with contravention.
24. It follows that the Petitioners were entitled to the enjoyment and protection of the rights as set out in the Bill of Rights and where any state organ, such as the 4th to 6th Respondents or any person such as the 1st to 3rd Respondents violated, infringed or threatened these rights this Honourable Court should intervene and grant the appropriate reliefs. It also followed that this Court had jurisdiction to hear and determine the Petition presented by the Petitioners.
C. Breach of Article 40 of the Constitution:-
25. The suit land is the 1st and 2nd Petitioners ancestral land. They had lived and farmed on it for generations. They were still on the land. They were issued with a Certificate of Title to the suit land on 2nd April 2009.
26. The 1st Respondent was incorporated on 10th May 1989 and alleged to have been issued with a Letter of Allotment over the suit land on 27th April 1989 which was before it was incorporated as a company.
27. It was not legally possible that the 1st Respondent was allotted the suit land before it was incorporated. Consequently, the title issued to the 1st Respondent on 1st May 1989 followed an irregular allotment and could not stand. In any event the suit land was not available for allocation to the 1st Respondent because the Petitioners were already in possession.
28. Further, various government agencies including the late President Moi, the NLC, the then Commissioner of Lands, and Kwale District Disputes Land Tribunal-Matuga Division had looked into the matter and upheld the Petitioners’ title over the 1st Respondent’s title.
29. Therefore, the 1st Respondent illegally and unprocedurally acquired title to the suit land. The provision of Article 40 (6) of the Constitution does not recognize any right to property that has been unlawfully acquired. This was affirmed by the Supreme Court in “Petition No. 8 (E010) of 2021; Dina Management Limited – Versus - County Government of Mombasa & 5 Others”.
30. The acts of the 1st Respondent grabbing the Petitioners’ land constitute a violation of the Petitioners’ right to property as guaranteed under the provision of Article 40 of the Constitution. The 4th to 6th Respondents being State agencies have a constitutional duty to protect the Petitioners’ right to their property. They had failed in this duty.
D. Jurisdiction
31. This Honourable Court has jurisdiction to hear and determine the Petition presented by the Petitioners.
E. The Prayers Sought:-
32. The Petitioners sought for the following orders:-
a) A declaration that the Petitioners' right to property in respect of L.R No 14897 CR 19582 has been denied, violated, breached and/or infringed upon by the Respondents.
b) A declaration that the Petitioners are the rightful owners of L.R No 14897 CR 19582.
c) An order cancelling the title to L.R No 14897 issued to the 1st Respondent and subsequently to the 2nd and 3rd Respondents.
d) A permanent injunction restraining the 1st, 2nd and 3rd Respondents as well as their agents from any further denial, violation, breach and/or infringement of the petitioners’ rights to L.R No 14897 CR 19582 in particular, the right to access, quiet possession, to develop and in any way to enjoy its user.
e) General damages.
f) Costs of the petition.
33. The Petition was based on the following grounds on the face of it and those of the 24 Paragraphed supporting affidavit sworn by ALI SALIM TOZA, the 1st Petitioner sworn on the same day with the Petition. The deponent averred that: -
a) He made the affidavit on behalf of the 2nd Petitioner who was his brother.
b) The Petitioners were the owners of the land parcel known as L.R No 14897 CR 19582situated within Tiwi Beach area within Kwale County. The suit land was their ancestral land. They had lived and farmed on it with their families for generations.
c) Sometimes in the year 1989, the 1st Respondent illegally grabbed the suit land contending that the then President of the Republic of Kenya, the late President Moi, had allotted the land to them. Copies of the Letter of Allotment dated 27th April 1989 in the name of the 1st Respondent and Grant issued to the 1st Respondent was at pages 1 to 6 of the exhibit in the affidavit marked “A – 1” (hereinafter referred to as “The Exhibit”).
d) On 25th March 1992, the Affiant wrote to the Commissioner of Lands requesting that ownership of the suit land be restituted to his family.
e) The Petition was forwarded to the late President Moi who considered it and approved it on 6th May 1992. A copy of the letter dated 25th March 1992 and endorsed by the late President on 6th May 1992 was at page 7 of the exhibit.
f) On 30th December 1994, the then Coast Provincial Commissioner wrote to the Commissioner of Lands referring to the letter approved by the late President Moi and requesting his office to finalize the matter. A copy of the letter dated 30th December 1994 was at pages 8 to 10 of the exhibit.
g) The President's approval was not acted upon and so in the year 2005, they lodged a claim with the Tribunal being “Kwale Land Dispute Tribunal Claim No 6 of 2005; In the matter of Dispute between Juma S. Toza and Ali S. Toza versus Hon Kuria Kanyingi and Simkan Investment Limited” for its determination on who was the rightful owner of the suit land.
h) On 13th September 2005, the Tribunal heard the complaint and upheld their claim to the suit land. Copies of the proceedings before the Tribunal were at pages 11 to 15 of the exhibit.
i) On 31st January 2006, the Kwale Senior Resident Magistrate Court adopted the decision of the Tribunal as a Judgment of the court in Land Case No 23 of 2005. A copy of the court order was at page 16 of the exhibit.
j) Eventually, they were issued with a certificate of title No. CR 19582 on 2nd April, 2009. A copy of the title deed in their name was at pages 17 and 18 of the exhibits.
k) On 8th October, 2009, the 1st Respondent filed a suit at the Mombasa High Court being “Civil Case No. 348 of 2009; Simkan Investments Limited - versus - Ali Salim Toza and 3 others” alleging that it had a valid title to the suit land and that the Petitioners had obtained title to the suit land through fraudulent means. Upon filing the suit, the 1st Respondent obtained an “ex - parte“ mandatory injunction on 21st October 2009 in their absence which directed the Registrar of Titles Mombasa to cancel their title to the suit land. That suit was never heard as the 1st Respondent never prosecuted its case. Eventually, on 9th November, 2015, the case was dismissed for nonattendance.
l) In the year 2014, they referred the dispute over the suit land to the NLC for its determination.
m) The NLC reviewed the Grant issued to the 1st Respondent and on 22nd August 2017 returned a verdict that the title held by the 1st Respondent be revoked and the suit land be reverted to the Petitioners. Copies of the letters dated 9th July 2014 and 22nd August 2017 from the NLC were at pages 19 to 25 of the exhibit.
n) They communicated the decision of the NLC to the 5th Respondent but the 5th Respondent neither acted nor gave any feedback.
o) On 6th September, 2019, they escalated their grievance to the Cabinet Secretary, Ministry of Lands and Physical Planning and asked for his intervention to have the resolved. A copy of his letter dated 6th September 2019 was at page 26 of the exhibit.
p) On 11th September, 2019, the Cabinet Secretary wrote a letter to the Land Registrar, Kwale advising him to take appropriate action and resolve the matter as further delay and/or silence on the matter amounted to denial of justice to them.
q) The 5th Respondent responded to that responded to that letter on 16th September 2019 and gave a history of the suit land. He indicated in that letter that the suit land was transferred to the 2nd Respondent on 3rd October 2017 and subsequently to the 3rd Respondent on 14th December 2017. A copy of the letter dated 16th September 2019 was at pages 27 and 28 of the exhibit.
r) They sought to enforce their claim to the suit land because:-
i. It was the Petitioners’ ancestral land. They had resided and farmed on it for generations. They were still on the land. They were issued with a Certificate of Title to the suit land on 2nd April, 2009.
ii. The 1st Respondent was incorporated on 10th May 1989 and alleged to have been issued with a Letter of Allotment over the suit land on 27th April 1989 which was before it was incorporated. It was not legally possible that the 1st Respondent was allotted the suit land before it was incorporated. Consequently, the title issued to the 1st Respondent on 1st May 1989 followed an irregular allotment and could not stand.
iii. In any event the suit land was not available for allocation to the 1st Respondent because they were already in possession.
iv. Further, various government agencies including the late President Moi, Coast Provincial Commissioner, the NLC, the Commissioner of Lands, and Kwale District Disputes Land Tribunal - Matuga Division had looked into the matter and upheld their title over the 1st Respondent's title.
s) The acts of the 1st Respondent grabbing their land constitute a violation of their right to property as guaranteed under the provision of Article 40 of the Constitution of 2010.
t) Therefore, they were seeking the court to uphold their constitutional right over the suit land as enshrined under Article 40 of the Constitution.
u) The 4th to 6th Respondents were state agencies who had a constitutional duty to protect the Petitioners rights to their property. They had failed in this duty. Hence, it was the Petitioners decision to approach the court.
v) They produced the exhibit marked “A – 1”.
V. The 1st Respondent’s case
34. The 1st Respondent through ADINA DEVANI, a director of the 1st Respondent opposed the Petition through a 26th Paragraphed Replying Affidavit with Exhibits “AD – 1” to and 6” sworn on 19th March, 2024. She averred that: -
a) The 1st Respondent was at all material times the registered owner of all that parcel of land known as LR No. 14897 (CR 19582) Tiwi Beach, Kwale County - “the Suit Property”. Exhibit AD - 1 was a copy of the Certificate of title deed.
b) The suit property was allocated to the 1st Respondent in the year 1989 by the Government of the Republic of Kenya and the 1st Respondent took possession and exercised all ownership rights including using the property as security for a loan obtained from ABC Bank. Exhibit AD - 2 was a copy of the Letter of Allotment.
c) In the year 2005, she became aware that the Land Registrar apparently canceled the 1st Respondent’s title deed pursuant to a court order that the 1st Respondent was not aware of and the cancellation was entered on the title on 2nd April, 2009 as entry No. 5.
d) The 1st Respondent sought legal advice and the 1st Respondent established that the Petitioners challenged the 1st Respondent’s title in the year 2005 and filed a complaint at the Tribunal - Kwale Land Disputes Tribunal Claim No. 6 of 2005.
e) The 1st Respondent further established that the Petitioners filed the decision of the Land Disputes Tribunal for adoption by the Court.
f) The Petitioners herein never served the 1st Respondent with neither the Kwale Land Disputes Case No. 6 of 2005 nor the proceedings seeking to adopt the decision of the Tribunal as an order of the court.
g) The 1st Respondent filed a civil suit at Mombasa High Court being “HCCC No.348 of 2009, Simkan Investments Ltd – Versus - Ali Salim Toza and others”. The suit sought to ‘inter alia” to challenge the legality of the court orders that were relied on to cancel the 1st Respondent's title and to set aside the orders on account of fraud, illegality and want of service of court process. Exhibit “AD - 3” were copies of the Plaint filed by the 1st Respondent and the Defence and Counter - Claim filed by the Petitioners.
h) Subsequently, the High Court found that the cancellation of the 1st Respondent’s title was illegal and reinstated the 1st Respondent as the registered owner of the suit property through the Court order dated 21st October, 2009. Vide the said order, the court issued a mandatory injunction which directed at the Registrar of Titles Mombasa to cancel the registration of the Petitioners herein as the registered owners of the suit property. Exhibit “AD - 4” was a copy of the Court Order issued by the High Court.
i) The Petitioners filed an application dated 2nd February 2010 in which they sought to set aside the court order of 21st October 2009. However, on 12th November, 2010, the court dismissed the Application. Exhibit “AD – 5” were copies of the application dated 2nd February 2010 and the Order given on 12th November 2010.
j) The 1st Respondent paid off the loan it had taken from ABC Bank and sold the property to the 2nd Respondent in November 2016 as there was no caveat or court order that would have prevented such a sale. Exhibit “AD - 6” was a copy of the sale agreement dated 4th November 2016.
k) The Affiant had come to know that the 2nd Respondent sold the property to the 3rd Respondent but the 1st Respondent was not privy to the details of the sale.
l) The Affiant had read paragraph 12 of the Petitioners Supporting Affidavit in which the 1st Petitioner had deponded that Mombasa HCCC No. 348 of 2009 was dismissed for non-attendance on 9th November 2015. The Petitioners filed a Counter - Claim in the said suit in which they raised issues that were similar to the issues raised in this Petition.
m) The Petitioners’ remedy laid in reinstating Mombasa HCCC No. 348 of 2009 in order to prosecute their Counter - Claim but not to circumvent the court process by filing this Petition that was for all intents and purposes a duplication of the Counter - Claim filed by the Petitioners in HCCC No. 348 of 2009.
n) The Petitioners had already availed themselves of legal recourse and remedies and this constitutional Petition was not the proper forum for litigating highly contested land disputes such as the present one.
o) She had read paragraphs 13 and 15 of the Supporting Affidavit of the 1st Petitioner in which he deponed that the Petitioners referred the dispute to the NLC in the year 2014.
p) The NLC exercised administrative powers and could not purport to review ownership of a title whose ownership was pending judicial determination in the High Court.
q) The 1st Petitioner in which he deponed that the Petitioners referred the dispute to the Cabinet Secretary in charge of lands on 6th September 2019.
r) Save for assisting the court with evidence, the Cabinet Secretary for lands had no powers to intervene and purport to review ownership of a title whose ownership was pending judicial determination in the High Court.
s) The Affiant had read paragraphs 19 and 20 of the Supporting Affidavit sworn by the 1st Petitioner in which he deponed that the 1st Respondent illegally acquired the suit property and violated the Petitioner’s rights.
t) The dispute between the Petitioners and the 1st Respondent was highly contested and required a proper hearing including calling and examining of witnesses. The 1st Respondent’s advocates had advised him that they would raise an objection to the Petition.
u) The Affiant had read the contents of Paragraphs 21 and 22 in which the Petitioners had requested the court to protect their constitutional right.
v) The court should protect the constitutional rights of both parties by allowing the Petitioners and the 1st Respondent to present their case before the High Court in a full hearing rather than summary determination by affidavits as is the case in this Constitutional Petition.
w) The Affiant produced Exhibit “AD 1 to 6”.
VI. The Notice of Preliminary Objection by the 1st Respondent
35. The 1st Respondent also raised an objection dated 20th March, 2024 on the following grounds: -
a. The Petitioners have already availed themselves of other legal remedies through the following suits:-
i. Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S. Toza – Versus - Hon. Kuria Kanyingi and Simkam Investments Limited.
ii. Kwale Land Case No. 23 of 2005.
iii. Counterclaim in Mombasa ELC No. 348 of 2009, Simkam Investments Limited – Versus - Ali Salim Toza and Others.
b. This subject matter of this suit was “res judicata”.
c. It was proposed to request the court to strike out the above suit with costs.
VII. The responses by the 2nd and 3rd Respondents.
36. The 2nd and 3rd Respondents responded to the Petitioners Petition through a 63 Paragraphed Replying affidavit sworn on 13th June, 2024 by KUNAL BID, a Director of the 2nd and 3rd Respondents’ companies and sixty three (63) annextures marked as “KB -1 to KB -15” . The Deponent averred that: -
a) The Petition herein was not only defective and incompetent but never lied in law as the suit property was allotted to the 1st Respondent in the year 1989. Therefore the cause of action predated the Constitution of Kenya, 2010 which did not have retroactive application.
b) The 2nd and 3rd Respondents, admitted the contents of paragraph 1 of the supporting affidavit of Ali Salim Toza in as far as the same was descriptive of the 1st Petitioner in the instant Petition.
c) The 2nd and 3rd Respondents took notice of paragraph 2 of the supporting affidavit of Ali Salim Toza. However, for the 2nd and 3rd Respondents that the authority to swear the affidavit on behalf of the 2nd Petitioner had not been adduced before this Honourable Court.
d) The 2nd and 3rd Respondents denied the contents of paragraph of the supporting affidavit of Ali Salim Toza.
e) In further response to paragraph 3 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents stated that contrary to the Petitioners assertions, the 3rd Respondent herein was the duly registered owner of all that property known as LR No.14897CR.19582 situated within Tiwi Beach area within Kwale County - the suit property measuring five decimal seven three two hectares (5.732 ha.) registered at the Survey Records at Nairobi under Land Survey Plan Number 139699. A copy of the title over the suit property was produced and marked as annexure “KB -1.”
f) The 3rd Respondent acquired the suit property from BTB Insurance Brokers Limited, the 2nd Respondent herein, for valuable consideration. The suit property was consequently transferred to the 3rd Respondent pursuant to a Transfer dated 4th September 2018 which was registered on 14th December 2018. A copy of the Sale Agreement dated 18th August 2018 and Transfer dated 4th September 2018 and registered on 14th December 2018 were produced and marked as annexure “KB-2” and “KB-3.”
g) The 2nd Respondent herein acquired the suit property from Simkan Investments Limited, the Original Allotee of the property - the 1st Respondent herein, at a consideration of a sum of Kenya Shillings One Thirteen Million Three Twelve Thousand Four Sixty Eight Hundred (Kshs. 113,312,468.80/=). The suit property was transferred to the 2nd Respondent herein pursuant to a Transfer dated 30th August 2017, registered on 3rd October, 2017. A copy of the Agreement for Sale dated 4th November 2016, the Transfer dated 30th August, 2017 and lodged on 31st August 2017 as well as the Stamp Duty payment receipt were produced and marked as annexures “KB - 4”, “KB - 5” and “KB - 6”.
h) In further response to paragraph 3 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents stated that Simkan Investments Limited, the 1st Respondent herein, was issued with a Letter of Allotment to the suit property on 27th April 1989 for a term of 99 years effective from 1st May 1989. A copy of the Letter of Allotment dated 27th April 1989 was produced and marked as annexure “KB - 7.”
i) The 1st Respondent complied with the conditions set out in the Letter of Allotment and paid the stipulated premium and rates. The 1st Respondent herein was consequently issued with the title for suit property on 27th June, 1989 pursuant to Grant No. CR 19582 for a term of 99 years from 1st May, 1989 subject to payment of the stipulated annual premium of a sum of Kenya Shillings Seventy Two Thousand Six Hundred (Kshs. 72,600.00/=).
j) The chain of transfer of the suit property from the 1st Respondent, the original allottee, to the 3rd Respondent, the current owner, was unbroken and well explained. The allotment and subsequent transfer complied with the statutory requirement at the time and were therefore legal proper.
k) The 2nd and 3rd Respondents denied the contents of Paragraphs 4, 5, 6 and 7 of the supporting affidavit of Ali Salim Toza in as far as it contends that the 1st Respondent illegally grabbed the suit property.
l) In further response to Paragraphs 4, 5, 6 and 7 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents reiterated the contents of Paragraphs 7, 8, 9, 10, 11, 12 and 13 of this affidavit. The 1st Respondent was allotted the suit property as stated, save that the allotment was done by the then Commissioner of Lands, who was duly authorized to carry out the said allotment in its favour and issue a Title in its favour.
m) Under the statutory framework in place at the time, the late former President Daniel Moi as well as the Provincial Commissioner had no role in the allocation of land or in adjudication of disputes relating to land. The late former President therefore lacked the jurisdiction to order cancellation of any title duly issued and registered under the provisions of the Registration of Titles Act (now repealed). The alleged Order/letter of 6th May 1992 sought to be relied on by the Petitioners herein was therefore invalid and illegal.
n) The former President Daniel Moi could not consider any disputes concerning ownership of any parcel of land as this jurisdiction was vested in the High Court.
o) If the Petitioners were aggrieved by the registration and issuance of the title to the 1st Respondent they should have moved the High Court as provided for under the provision of Section 24 of the Registration of Titles Act, Cap. 281 (now repealed) seeking to have the title in favour of the 1st Respondent revoked. The Petitioners did not exercise this remedy and as such, the 1st Respondent’s title could not be arbitrarily revoked by the late former President in the manner suggested by the Petitioners herein or at all.
p) In response to the contents of Paragraphs 8, 9 and 10 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents stated that the Petitioners herein filed a claim/dispute with the Tribunal in Kwale being Kwale Land Dispute Tribunal Claim No. 6 of 2005: In the matter of Dispute between “Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi” seeking to establish ownership of the suit property. By a Decision rendered on 13th September 2005, the Tribunal in Kwale purported to determine ownership of the suit property.
q) The proceedings and decision of the Tribunal issued in “Kwale Land Dispute Tribunal Claim No. 6 of 2005: In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi”, were ultra vires, a nullity and illegal as the Land Dispute Tribunal lacked the jurisdiction to hear and determine a claim/dispute over ownership of the land including the suit property herein.
r) The jurisdiction of the Tribunal was clearly spelt out under the provision of Section 3 of the Land Disputes Tribunals Act (now repealed) and was limited to considering the following cases:-
“(1) Subject to this Act, all cases of a civil nature involving a dispute as to-
(a) the division of or the determination of boundaries to land, including land held in common;
(b) a claim to occupy or work land; or
(c) trespass to land.
shall be heard and determined by a Tribunal established under section 4.”
s) The Tribunal could neither consider nor determine claims of a civil nature involving a dispute over a title to land or even one touching on ownership of the suit property. Its determination purporting to award ownership of the suit property to the Petitioners could therefore neither issue nor be adopted by the Magistrates Court as an Order of the Court for want of the Land Dispute Tribunal's jurisdiction to consider the Petitioners Claim.
t) However, the illegal and contra statute Determination of the Tribunal was thereafter irregularly adopted into an Order by the Magistrate’s Court in “Kwale in Land Case No. 23 of 2005 (Kwale): Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi”. The Order of the Tribunal having been in excess of jurisdiction and contrary to the law, it could not be adopted as an Order of the Court and did not confer the Petitioners with a valid Order enforceable in law.
u) The order issued and dated 31st January, 2006 in “Land Case No. 23 of 2005 (Kwale): Juma S. Toza and Ali S. Toza – Versus - Kuria Kanvingi” was illegal and contra statute. The decisions by both the Tribunal as well as the Magistrate’s Court were a nullity and were void of any force in law.
v) The provision of Section 2 of the Land Disputes Tribunals Act (now repealed) limited the Land Dispute Tribunal’s jurisdiction to considering claims relating to agricultural land whether under the Registered Land Act, Cap. 300 (Now repealed) or not but excluded land under subject of determination by the Land Registration Court. The suit property herein was not agricultural land and therefore did not fall within the scope of the Tribunal's jurisdiction-
w) Without Prejudice to the above and in further response Paragraphs 8, 9 and 10 of the supporting affidavit of Ali Salim, from a review of the proceedings filed before the Tribunal, the 1st Respondent herein was not a party and had no notice of the proceedings. The said proceedings and notices were issued against Mr. Kuria Kanyingi, not the 1st Respondent. Any eventual determination was irregular and against the rules or natural justice as the 1st Respondent was not given an opportunity to defend its title having been the registered and actual owner of the suit property at the time. The said Order of cancellation could therefore not issue against the 1st Respondent and was of no legal effect or validity in law. This was clearly an attempt to steal a match against the 1st Respondents as the Tribunal could not proceed to hear the dispute without the registered owner of the suit property being present.
x) In response to Paragraph 11 of the Supporting affidavit of Ali Salim Toza, the Certificate of Title No. CR 19852 issued to the Petitioners on 2nd April 2009 was based on an ultra vires and unlawful Order and could not be issued to the Petitioners’ herein.
y) In further response to Paragraphs 11 and 12 of the supporting affidavit of Ali Salim Toza, the High Court in Mombasa in Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”, issued a Mandatory Injunction on 21st October 2009, cancelling the intended registration of the Petitioners as the owners of the Suit Property and stopping the enforcement of the Order of the Magistrate’s Court in Land Case No. 23 of 2005. A copy of the Order dated 21st October 2009 was produced and marked as annexure “KB - 8.”
z) On 3rd February, 2010, the said mandatory injunctive order was temporary stayed to allow for ‘inter - partes’ hearing on 10th March 2010 of the Petitioners Chamber Summons application seeking to stay the cancelation of their title by the civil case of “High Court in Mombasa in Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another. A copy of the Order dated 3rd February 2010 was produced and marked as annexure “KB - 9.”
aa) On 11th March 2010, upon hearing the Advocates on record for both parties in the suit, the High Court dismissed the Petitioners application dated 2nd February 2010 with costs and consequently allowed the 5th Respondent herein to cancel the title issued in its favour of the Petitioners. The Mandatory Order which was final in its effect, was formally registered against the title on 17th November 2010. A copy of the Order issued on 11th March 2010 was produced and marked as annexure “KB-10.”
bb) As it stood, no title/Grant existed in favour of the Petitioners herein as claimed having been revoked and cancelled by the Order of the High Court issued on 11th March 2010 in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”. No appeal or review was sought from the said Order. As such, the Petitioners could not claim to have any proprietary interest in the suit property as the irregular and invalid Order of the Land Dispute Tribunal was superseded by the Order of the High Court.
cc) The 2nd and 3rd Respondents were strangers to the alleged dismissal of “Civil Case No.348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another” and put the Petitioners to strict proof thereof.
dd) The matter proceeded for “inter - partes” hearing on 11th March 2010 before the Judge and the court after hearing the advocates on record for both parties, the Court directed the 4th Respondent herein to cancel their Petitioners title after hearing both parties on the merits. The Petitioners herein were attempting to mislead and have deliberately failed to disclose all material facts touching on the said case to this Honourable Court.
ee) In further response to the contest made out under Paragraphs 11 and 12 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents reiterated the contents of Paragraphs 26 to 32 of this affidavit. The Petitioners herein having unsuccessfully attempted to set aside the mandatory injunction in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another” and having failed to file an appeal from the dismissal of their application, the Order stood and they could not run away from it or claim they were condemned unheard.
ff) In response to Paragraphs 13, 14 and 15 of the supporting affidavit of Ali Salim Toza, Section 14 of the NLC Act limited the mandate of the 4th Respondent herein to considering and reviewing all Grants or dispositions of public land to establish their propriety or legality. The suit property herein was not public land having been allotted to the 1st Respondent in the year 1989 and a title issued. Therefore, the 4th Respondent did not have the jurisdiction to hear or purport to determine any claim touching on the suit property.
gg) The mandate by the 4th Respondent was limited to 5 years from the date of commencement of the Act. At the time of issuance of the 4th Respondent's determination on 22nd August 2017, the 4th Respondent's mandate had lapsed and had not been extended by Parliament. It could therefore not consider or determine the claim by the Petitioners herein.
hh) In further response to Paragraphs 13, 14 and 15 of the supporting affidavit of Ali Salim Toza, the 4th Respondent herein lacked the jurisdiction to hear and determine claims over ownership of land. The proceedings and Determination of the 22nd August 2017 were therefore illegal and contra statute for want of jurisdiction.
ii) In further response to Paragraphs 13, 14 and 15 of the supporting affidavit of Ali Salim Toza, the 2nd and 3rd Respondents reiterated the contents of Paragraphs 10 - 36 of this affidavit and further stated that a review of the Decision of the NLC dated 22nd August 2017, revealed that the 4th Respondent herein was based on the impugned decisions by the Late former President Daniel Moi, the decision of the Land Dispute Board and the Magistrate’s Court which lacked the jurisdiction to cancel the 1st Respondent's title. The decisions were ultra vires and could therefore not form the basis of the 4th Respondent’s determination.
jj) Without Prejudice and in further response to Paragraphs 15, 16 and 17, from a review of the said Determination, it was evident that the notices regarding the dispute were issued to one Kuria Kanyingi who had at the time passed on in the year 2014. He could therefore not enter appearance or defend the suit on behalf of the 1st Respondent. In any event, the 1st Respondent is a separate and distinct legal entity from its alleged Director and should therefore have been served at its offices as required in law not through the said Director. A copy of a printout from the Business Daily published on 4th November, 2014 was produced and marked as annexure “KB - 11.”
kk) Without Prejudice to the above, the 2nd and 3rd Respondents had at the time registered a caveat over the suit property protecting their interests as purchasers for value following conclusion of the agreement to purchase the suit property as they awaited the formal Transfer. The 2nd Respondent herein should have been offered a right to participate in the proceedings as required under Section 14(7) and (8) of the NLC Act. This was not done and was clearly an attempt to steal a match against the 1st, 2nd and 3rd Respondents. The 4th Respondent could not proceed to hear the dispute without the registered owners of the land being present.
ll) The 2nd and 3rd Respondents were strangers to the averments at Paragraphs 16, 17 and 18 of the supporting affidavit of Ali Salim Toza.
mm) In any event, the Cabinet Secretary, Ministry of Lands and Physical Planning has no jurisdiction to cancel any title or resolve any dispute relating to land.
nn) The 2nd and 3rd Respondents had demonstrated to this Honourable Court how the 3rd Respondent acquired the suit property. The initial allotment to the 1st Respondent and subsequent transfer to the 2nd and 3rd Respondents complied with the Constitution as well as the statutory requirements at the time and should not be revoked.
oo) The 2nd Respondent carried out the requisite due diligence prior to purchasing the suit property, which confirmed that the 1st Respondent was the duly registered owner of the suit property and had the capacity to enter into the agreement.
pp) Following an application by the 2nd Respondent’s advocates in the transaction, the 5th Respondent herein, vide a Certificate of Postal search as at 7th April 2017 confirmed that the 1st Respondent was the duly registered owner and that there was no encumbrance over the suit property save for the caveat registered on 31st March 2017 by the 2nd and 3rd Respondents director to protect the 2nd Respondent’s interest as a purchaser of the suit property pursuant to a Certificate of Postal Search dated 7th April 2017. On the strength of the confirmation that the suit property was duly owned by the 1st Respondent and was not encumbered, the 2nd and 3rd Respondents proceeded to acquire the suit property. Copies of the search, the caveat and certificate of postal search as at 7th April 2017 are produced and marked as annexures “KB - 12”,“KB - 13”and “KB - 14.”
qq) In further response to Paragraphs 20 (b) of the supporting affidavit of Ali Salim Toza, the High Court in Mombasa in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”, considered and dismissed the Petitioners Preliminary Objection dated 19th April 2009 with costs touching on the alleged non - existence of the 1st Defendant at the date of allotment. A copy of the ruling of 30th July 2010 was produced and marked as annexure “KB - 15.”
rr) No appeal was lodged against the said order, this issue having been considered by a court of competent jurisdiction, it was therefore res judicata pursuant to Section 7 of the Civil Procedure Act, Cap. 21.
ss) In further response to Paragraphs 19 (b) of the supporting affidavit of Ali Salim Toza, no appeal was filed from the said ruling or a review sought, the Petitioners could not therefore attempt to sneak the issue into this current Petition.
tt) In further response to Paragraphs 19(c) of the supporting affidavit of Ali Salim Toza, the suit land as demonstrated herein was available for allotment and was properly allotted in compliance with all statutory requirements in force at the time.
uu) In further response to paragraphs 19(d) of the supporting affidavit of Ali Salim Toza, none of the said officials who allegedly upheld the Petitioners title had the jurisdiction to consider and determine a claim for ownership of land. The alleged determinations are therefore contra-statute and illegal and could not be upheld by this Honourable Court.
vv) The contents of Paragraph 20 of the supporting affidavit of Ali Salim Toza were denied.
ww) The 2nd and 3rd Respondents shall at the hearing of this suit, raise a Preliminary Objection in limine that the Petition herein was res judicata and an abuse of the court process and should be dismissed with costs as the right of the parties to all that property known as LR No.14897 CR. 19582 situate within Tiwi Beach area within Kwale County was heard and determined and a mandatory injunction issued to the 4th Respondent cancelling the title issued to the Petitioners herein in “Civil Case No.348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”. No appeal or review was filed against the said Order and therefore it subsists till todate.
xx) The 2nd and 3rd Respondents should at the hearing of this suit, raise a further Preliminary Objection to be heard in limine on the ground that the instant Petition never met the test set down by the Court of Appeal in “Anarita Karimi Njeru – Versus - Republic”. Therefore, the Petition was incompetent and for striking out.
yy) The Petition failed to demonstrate any breach of constitutional rights and had only been framed as a Constitutional Petition to circumvent the statutory time bar under the provision of Section 7 of the Limitation of Actions Act, Cap. 22. This was because it was filed more than 12 years after the 1st Respondent had obtained title to the land, which allegedly dispossessed the Petitioners.
zz) According to the 2nd and 3rd Respondents, the 1st Respondent was granted title to the disputed property on 27th June 1989, though the lease term was backdated to commence from 1st May 1989.
aaa) In response to paragraphs 21 and 22 of Ali Salim Toza’s supporting affidavit, the 2nd and 3rd Respondents asserted that the Petitioners had no valid legal interest in the suit property and are merely engaging in an effort to harass them and unlawfully deprive them of their rightful ownership.
bbb) Further responding to Paragraphs 21 and 22 of Ali Salim Toza’s supporting affidavit, the 4th, 5th, and 6th Respondents — as state agencies — could not legally endorse or perpetuate an illegality. Consequently, they could not be accused of violating the Petitioners’ rights by refusing to dispossess the lawful and registered owners of the suit property.
ccc) The High Court in Mombasa issued a mandatory injunction ordering the cancellation of the Petitioners’ title. Since no appeal was filed against this Order, it remained legally binding and cannot be revisited or overturned by this Honourable Court, which was of coordinate jurisdiction. Therefore, the present Petition constituted an abuse of the court process and ought to be dismissed.
ddd) The allotment to the 1st Respondent was lawful and adhered to all applicable statutory provisions in force at the time of allotment and registration, consistent with the legal principles established by the Supreme Court “ in Petition No. 8 (E010) of 2021: Dina Management Limited – Versus - The County Government of Mombasa & 5 Others”.
eee) The Petitioners had failed to establish a sufficient legal or factual basis to justify granting the reliefs sought in prayers (a) to (f) of the Petition. The 2nd and 3rd Respondents respectfully urged this Honourable Court to affirm the validity of: (i) the original allotment to the 1st Respondent; and (ii) the subsequent lawful transfer to themselves. These transactions were executed in full compliance with constitutional provisions and governing statutory requirements applicable at the material time, and as such, remain legally indefeasible and not subject to revocation.
fff) As demonstrated above the Petition herein was without merit. The 2nd and 3rd Respondents prayed that it be dismissed with costs to the 2nd and 3rd Respondents.
VIII. The 4th Respondent’s response
37. The 4th Respondent through BRIAN IKOL, an Advocate of the High Court of Kenya and the Director Legal Affairs and Dispute Resolution, NLC responded to the Petition through a 23 Paragraphed Response. He averred that: -
a) The 4th Respondent was an Independent Commission established under Article 67 (1) of the Constitution of Kenya, 2010 and is operationalized by the National Land Commission Act No. 5 of 2012, and had as its fundamental functions, the management of public land on behalf of the National and County Governments.
b) The 4th Respondent was a stranger to facts and contents of the Petition save for where it was expressly admitted and puts the Petitioners to strict proof thereof.
c) Article 68 (c)(v) of the Constitution of Kenya, 2010 mandates the 4th Respondent to review all grants or dispositions of public land to establish their propriety or legality, on its own motion or on a complaint, and recommend appropriate redress.
d) In addition to the functions spelled out in the Constitution of Kenya, 2010, the 4th Respondent was also mandated under the provision of Section 14 (1) of the National Land Commission Act, 2012 and pursuant to Article 68 (c)(v) to, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or disposition of public land to establish their propriety or legality.
e) The provision of Section 14 (3) spells out manner in which the Commission should conduct the review as listed below:-
Give every person who appears to the Commission to have an interest in the grant or disposition concerned,
·A notice of such review and
·An opportunity to appear before it and to inspect any relevant documents
f) It was under this mandate as above-mentioned that the 4th Respondent received a complaint sometime in the year 2014 in respect to the suit land from the Petitioners herein.
g) The 4th Respondent thereafter invited parties for hearing of the review of grants.
h) The hearing dates were advertised on the dailies and notices of the same were further sent out to all parties who the 4th Respondent deemed had an interest on the same.
i) On 17th November 2015, as advertised, the 4th Respondent heard the matter to conclusion as prescribed by law and gave a determination on the same. Annexed in the affidavit and marked as “BI – 1” was a copy of the public notice.
j) The 4th Respondent proceeded to submit recommendations to the 1st and 5th Respondents as arrived at in the determination dated 22nd August, 2017. Annexed in affidavit and marked as “BI – 2” was a copy of the determination.
k) The provision of Section 14 (5) of the National Land Act, 2012 states that:-
(5) Where the Commission finds that the title was acquired in an unlawful manner, the Commission shall, direct the Registrar to revoke the title.
l) After adherence with the above – mentioned provisions, the 4th Respondent recommended the 5th Respondent to revoke the titles held by the 1st, 2nd and 3rd Respondents.
m) In the Matter of the National Land Commission [2015] eKLR the Supreme Court held that:-
“The words ‘recommend, advise, research, investigate, encourage, assess, monitor and oversight' - are all actions than provide a facilitative role rather than a primary one. The context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. There is therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted. In my opinion, this means that unless specified within the enabling constitutional provision, a body with oversight function, and a body that implements the recommendations of the former, are different, and their roles do not overlap.”
n) Further to Paragraph 15 above, it was for this reason that the 4th Respondent submitted its recommendations to the 5th Respondent who was mandated to implement the same.
o) In arriving at the determination, the 4th Respondent followed and acted in accordance with all the laid down procedures as spelt out by the provisions of the law.
p) The 4th Respondent was not the custodian of land documents and records and did not register interests in land as with regards to the suit property.
q) Therefore there was no cause of action against the 4th Respondent to warrant the orders sought by Petitioners.
r) The Orders as sought in the Petition were incapable of being enforced as or against the 4th Respondent.
s) He prayed that the suit against the 4th Respondent be dismissed with costs.
IX. The Responses by the 5th and 6th Respondents
38. On 3rd April, 2024 the 5th Respondent opposed the Petition through a 12th Paragraphed response where in it was contended that: -
(a) The 5th and 6th Respondents admitted the contents of Paragraphs 1, 2, 3, 4, and 5 in as far as they were vague descriptions of the parties herein save the address and service for the 5th and 6th Respondents.
(b) The 5th and 6th Respondents denied averments in Paragraphs 6, 7, 8, 9 and 10 of the Petition and the Petitioners were invited to prove legitimate ownership of CR 19582 issued on 2nd April, 2009.
(c) The 5th and 6th Respondents denied the averments of Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 and the Petitioners were invited to prove the facts thereon.
i. That it was the 5th and 6th Respondents’ further reply that, the Petitioners had failed to proof authenticity of the decisions from the tribunal and the Magistrate's courts annexed to the Petition.
ii. That without any admission thereof, the 5th and 6th Respondents averred that they were not privy to the proceedings nor were they party to the suits.
(d) In further response to the averments in Paragraphs 18, 19 and 20 of the Petition, the 5th and 6th Respondents plead that: -
i) The Petitioners request for information from the 5th Respondent and escalation of their grievance to the Cabinet Secretary, Ministry of Lands was proof of fact that the Petitioners voluntarily submitted to the alternative dispute process under the Ministry of Lands and Physical Planning.
ii) The Petitioners failed to exhaust the dispute resolution process upon receiving the letter dated 16th September 2019 from the 5th Respondent.
iii) The 5th and 6th Respondents pleaded that the right to review the information received from the 5th Defendant ought to have been enforced by the Commission on Administrative Justice.
iv) The 5th and 6th Respondents pleaded that the Petitioners had been indolent by failing to exercise the alleged rights of ownership of the suit properties.
v) Without any admission thereof, the 5th and 6th Respondents pleaded that upon receipt of the letter dated 16th September, 2019, the Petitioners ought to have invoked their rights for rectification of information from the Land Registrar requesting rectification of the alleged land ownership records as provided under Access to Information No. 31 of 2016 Section 13(2): -
A request under this section shall be made in writing to the public entity responsible for the maintenance of the record system containing the out of date, inaccurate or incomplete information and shall
(a) state that it is a request to amend certain personal information relating to the applicant;
(b) specify the personal information that is to be amended indicating how such information is out of date, inaccurate or incomplete; and
(c) specify the remedy sought by the applicant
vi) The orders sought herein, inter alia, that Petitioners be declared the rightful owners of LR 14897 CR 19582 were remedies which the Petitioner ought to have invoked seven (7)years ago.
vii) The Petition was an abuse of courts’ process since, the Petitioners ought to have invoked the jurisdiction of the Commission on Administrative Justice vide the provision of Section 14 of the Access to Information Act, which provides the commission with powers to review decisions by public entities: -
“...an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity..(h) a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13.”
viii) It was trite law that, the commission has been bestowed with the powers to investigate and conduct adversarial disputes and issue the appropriate remedies under Section 23 (2) of the Access to Information Act No 31 of 2016 and Sections 41, 42, 43 and 44 of the Commission on Administrative Justice Act No 23 of 2011.
ix) If the Petitioners were aggrieved with the decision by the Commission, they would have invoked the jurisdiction of the High Court on appeal.
(e) The Petition was an abuse of this courts process, a mockery to the justice system of the Republic of Kenya and a gross abuse of the intents and purposes of Article s 258, 23, 22, 21(1), 19 (3), 10 and Article 2 of the Constitution of Kenya particularly since:-
a. the Petitioners willingly and knowingly failed to exercise the alleged proprietary rights availed to them vide Section 91(1) of the Land Registration (General)Regulations, 2017 which provides:
“An application for rectification of an error made on the register under Section 79 (X [a]) of the Act shall be in Form LRA 87 set out in the Sixth Schedule.
92.(1) The Registrar shall issue a notice to rectification the register under Section 79 (1Xc) of the Act, in Form LRA 90 set out in the Sixth Schedule to all persons interested in the rectification of the register
(3) An order by a Registrar issued under Section 79 of the Act shall be in Form LRA 92 set out in the Sixth Schedule.”
(f) Therefore, the 5th and 6th Respondents pleaded that the Petition was incurably defective, incompetent and improperly before the Court by reason that the Applicant had neither demonstrated that the Petition involved matters of the Constitutional interpretation, application and/or violations.
(g) The 5th and 6th Respondents contested the jurisdiction of this Honourable Court to determine this matter and further plead with this Court to abide by the Supreme Court’s decision which rightly held that “even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute,” “Albert Chaurembo Mumbo &7 others – Versus - Maurice Munyao & 148 others; SC Petition No. 3 of 2016, [2019] eKLR”.
(h) The 5th and 6th Respondents pleaded that the Petitioners were undeserving of the Orders sought particularly because and without any admissions thereof that:-
i. The Petitioners sat on their rights from the year 2017 upon receipt of the 4th Respondents verdict that revoked the 1st Respondent's title.
ii. Despite the Petitioners' knowledge that the suit property had continued to be registered in the Respondents names, the Petition herein had been lodged seven (7) years after the 4th Respondent's rendered its determination ordering cancellation of 1st Respondent's title.
iii. The Petitioners had willingly and knowingly failed to explain the inordinate delay in filing the suit herein
iv. The Petitioners willingly and knowingly violated the constitutional provisions inter alia, Article 162 (2)(b) which bestowed this court with the appellate jurisdiction over the tribunals.
v. The inordinate delay was accurate proof of the underserving nature of the Petition herein, it was a nullity ab initio.
(i) The 5th and 6th Respondents pleaded that the Petition herein lacked proof of violation of rights under the provision of Article 40 of the Constitution of Kenya, 2010 and therefore not entitled to the declaratory or injunctive orders granted by the High Court. On the contrary:
i. The Petition was a violation of the Constitutional intent and purposes of the rights to be heard and access fair hearings.
ii. The Petition was a violation of the Constitutional Article 162(2)(b) which bestowed this court with the appellate jurisdiction over the tribunals
iii. The Petitioners had perpetually failed to exhaust the alternative dispute processes available to review the Land Registrar's informatory letter issued in 2019 and or the decision by NLC, the 4th Respondent herein.
(j) The 5th and 6th Respondents pleaded that this Honourable Court downed its tools since mechanisms for appeal or review and all remedies available under other written laws had not been exhausted.
(k) The 5th and 6th Respondents issued their desire to raise a preliminary objection on points of law at their earliest opportunity
39. For those reasons, the 5th and 6th Respondents pleaded that the Petitioners were undeserving of prayers sought, the Petition was an abuse of the judicial system of the Republic of Kenya which ought to be dismissed with costs.
40. The 5th Respondent through MERCY CHEPKEMOI, a Senior Registrar of Titles, responded to the Petition dated 30th November, 2023 through an 8 Paragraphed Replying Affidavit sworn on 11th July, 2024. She averred that:-
a. According to official records maintained by this office, the subject property designated as LR. No. 14897, CR.19582 was located in the southern sector of Mombasa Municipality within Kwale District, with a surveyed area of approximately 5.732 hectares (14.164 acres).
b. The suit property was initially allocated to SIMKAN INVESTMENTS LIMITED through a new Grant issued on 27th June 1989, which was subsequently registered on 3rd July 1989 at 11:04 a.m. under Certificate of Title CR. 19582/1.
c. The property register reflected multiple subsequent entries, including caveats, charges, court orders, as well as discharges and withdrawals thereof, recorded as entries Nos. 2 through 12. A certified copy of these registry records was annexed in the affidavit and marked as “MC 1” for the Court’s reference.
d. Their official records further indicated that title to the suit property was duly transferred to BTB Insurance Brokers Limited on 30th August 2017, recorded as Entry No. 13 in the property register.
e. As per their records, the suit property was further transferred to WWW.BID Investment Company Limited on 14th December, 2018 as entry No.14. Annexed in the affidavit and marked as “MC - 2” was a certified copy of the current search on the suit property.
X. Supplementary Affidavit by the Petitioner
41. With the leave of Court, the Petitioner, through ALI SALIM TOZA filed a 21 Paragraphed Supplementary Affidavit on 25th July, 2024 responding to all the new issues raised from the replies the Respondents. He averred that:-
a) The 1st Petitioner made the affidavit on behalf of the 2nd Petitioner who was his brother.
b) The 1st Respondent maintained that they were lawfully allocated the suit property in the year 1989 by the Government of Kenya, following which they took physical possession and had since exercised all attendant proprietary rights. This included utilizing the property as collateral for securing financial facilities from a banking institution.
c) The 1st Respondent obtained legal allocation of the subject property through a Letter of Allotment issued on 27th April 1989. The subsequent Grant conferred leasehold interest for a term of 99 years, effective from 1st May 1989.
d) The 1st Respondent was duly incorporated on 10th May 1989. A certified copy of the Certificate of Incorporation was annexed in the affidavit as page 1 of Exhibit A-2.
e) The 1st Respondent could not had validly received allocation of the suit property prior to its legal incorporation, nor could it have lawfully held title to the property before its existence as a corporate entity.
f) He also noted that the Letter of Allotment to the 1st Respondent stated that the suit property would be used for construction of a hotel. Similarly, condition five (5) of the grant provided that the suit property would be used for hotel purposes.
g) They lived and farmed on the suit property, as their family had done for generations. Their family had always maintained possession of the suit property, and the 1st Respondent had never evicted them from it. Additionally, no hotel had ever been constructed on the suit property.
h) The Letter of Allotment issued by the Commissioner of Lands to the 1st Respondent on 27th April 1989 constituted, for all legal purposes, a binding contractual offer. Pursuant to established property law principles, the 1st Respondent could only obtain lawful title to the subject property upon: (i) unequivocal acceptance of said offer; and (ii) full compliance with all stipulated conditions contained therein.
i) In this regard, the 1st Respondent could not accept the Letter of Allotment since it was issued before it was incorporated and further that since the 1st Respondent did not comply with the conditions set out in the Letter of Allotment and their Grant, they could not legally own title to the suit property.
j) The 1st Respondent had proposed reinstatement of the Mombasa High Court Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Ali Salim Toza & 3 Others”. A certified copy of the dismissal order was annexed in the affidavit as page 2 of the exhibit.
k) The position taken by the 1st Respondent was highly pretentious because even though they initiated the suit they did not progress it after getting the ex - parte mandatory injunction and having their title cancelled without a hearing.
l) Reinstating the dismissed suit was not tenable because the subject matter in this Petition was different from the subject matter in the dismissed suit. This was a Constitutional Petition for enforcement of a constitutional right which was not the subject of the dismissed suit. Secondly, this longstanding dispute would not be effectively solved because the 2nd to 4th Respondents were not parties to the dismissed suit. All the parties that were required for an effective determination of this dispute were now before the court.
m) Where an ownership dispute over a suit property was before the court it was in favour of all the parties in the dispute and in the public interest to have the matter heard substantively and attain closure.
n) The position taken by the 2nd and 3rd Respondents was that the mandatory order issued by the court subsisted and could not be reconsidered or overturned by this court being a court of equal jurisdiction.
o) The order was not binding on this court. The order was demonstrably wrong as it was mandatory order that was issued ex - parte without hearing their. Therefore, the court never heard the suit on merit to substantively determine the rights of the parties to the suit property based on evidence.
p) The 2nd and 3rd Respondents could not benefit from the doctrine of bona fide purchaser because the title they acquired from the 1st Respondent was irregular and the subsequent ownership of the suit property could not be protected under the provision of Article 40 of the Constitution.
q) In approaching this Honorable Court, they placed their faith in its constitutional mandate to adjudicate disputes fairly after affording all parties full opportunity to present their evidence. Their judicial system's fundamental commitment to upholding the right to be heard - a sacrosanct constitutional guarantee and bedrock principle of the rule of law - gives them confidence that this Court would ensure justice was served. Courts, as guardians of justice, must remain vigilant against permitting any injustice to stand unresolved.
r) He prayed for the court to listen to their grievance and protect their constitutional rights.
XI. The grounds of opposition by the Petitioners
42. The Petitioners opposed the Notice of Preliminary Objection dated 25th July, 2024, on the following grounds: -
a) The elements of Res Judicata as stated by the Supreme Court in the case of: “Dina Management Limited – Versus -County Government of Mombasa & 5 others [2023] KESC 30 (KLR)” and “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)” had not been met in that:
i. There was no former Judgment or order which was final on the merits of the case before the court.
ii. The parties in the listed suits were different from the parties in this Petition.
iii. The issues for determination in this Petition were different from the issues in the listed suits.
b) The subject matter of this Petition was on violation, breach and/or infringement of a Constitutional right which was not addressed in any of the listed suits.
XII. Submissions
43. On diverse dates of the 11th November, 2024 and 20th January, 2025 while in the presence of all parties, it was consented that the Petition dated 30th November, 2023 and the Notice of Preliminary Objections dated 20th March, 2024 and 11th July, 2024 be canvassed by way of written submissions. Indeed, thereafter, with stringent timelines, all parties fully obliged.
44. Subsequently, on 4th February, 2025, Mr. Mugambi for the Petitioners, Mr. Ochuo for the 1st Respondent, M/s. Wanja Wanjuku for the 2nd and 3rd Respondents, M/s. Mwanaszumba for the 4th Respondent and M/s. Mutheu for the 5th Respondents were accorded an opportunity to highlight their written submissions. The Honourable Court was profusely grateful to them for the professional manner in which they dutifully executed their task with great dedication, devotion and diligence.
45. Pursuant to which the Honourable Court reserved the delivery of the Judgment date on 20th March, 2025. However, due to unavoidable circumstances, it eventually delivered on 31st July, 2025.
A. The Written Submissions by the 1st & 2nd Petitioners
46. The 1st & 2nd Petitioners, Ali Salim Toza and Juma Salim Toza, through the Law firm of Messrs. Kitoo & Associates Advocate filed their written submissions dated 19th July, 2024. Mr. Mugambi Advocate commenced his submissions by stating that Kenya was replete with notorious cases where unsuspecting Kenyans fell victims to the phenomenon of land grabbing when it was in fashion for some well-connected greedy individuals to illegally acquire land for themselves. At the peak of land grabbing, courts stamped their authority in order to protect the public interest. Maraga, J (as he then was) was a trail blazer when he stated: -
‘courts should nullify titles by land grabbers who stare at your face and wave to you a title of the land grabbed and loudly plead the principle of the indefeasibility of title deed.’
See the dictum of the Court of Appeal in Kenya National Highway Authority – Versus - Shalien Masood Mughal & 5 others [2017] eKLR.
47. The Learned Counsel averred that the genesis of this Petition was land grabbing where a company was allocated land before it was incorporated. According to him, this happened despite of the fact that the Petitioners and their families had lived and farmed on the land for ages. That company went ahead to sell the land to another company. The land was now onto its third owner. As would become relevant in these submissions, the Petitioners had never given up on ascertaining their rights over their land.
48. The Learned Counsel submitted that the Supreme Court of Kenya in the case of: “Dina Management Limited – Versus - County Government of Mombasa & 5 others [2023] KESC 30 (KLR)” delivered a Judgment on 21st April 2023 which largely resonates with the Petition before the court. At paragraph 93 of its judgment, the Supreme Court quoted with approval the holding of the Court of Appeal in “Munyu Maina – Versus - Hiram Gathiha Maina [2013] eKLR” that: -
“... when a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”
49. At paragraph 110 of that judgment, the Supreme Court held: “that the title or lease was an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title could not be held as indefeasible.’ This decision from Kenya's most apex court provides the bedrock of the Petition before the court. The root of the title that was issued to the 1st Respondent and eventually passed to the 2nd and 3rd Respondents was being challenged by the Petitioners.
50. On the Petitioners’ case, the Learned Counsel recounted that it was set out in the filed Petition dated 30th November, 2023 and the supporting affidavit of Ali Salim Toza of same date. The Petitioners were brothers. The Toza brothers had been fighting for the ownership of the suit property known as land parcel L.R No 14897 CR 19582 which was situated at Tiwi Beach area within Kwale County for many years. They contended that they are the owners of the suit property which they allege was their ancestral land on which their families had lived and farmed for generations. The 1st Petitioner exhibited a copy of their title deed at pages 17 and 18 of the exhibit to his affidavit in support of the petition.
51. The Learned Counsel posited that the Petitioners alleged that sometimes in the year 1989, the 1st Respondent, Simkan Investments Limited (Simkan), illegally grabbed the suit property contending that it had been allotted to them. The 1st Petitioner exhibited copies of the Letter of Allotment dated 27th April 1989 in the name of the 1st Respondent and a Grant issued to the 1st Respondent at pages 1 to 6 of the Petitioners’ exhibit. After this discovery, the 1st Petitioner wrote to the Commissioner of Lands on 25th March 1992 requesting that ownership of the suit property be restituted to them. He exhibited a copy of the letter dated 25th March 1992 at page 7 of his exhibit.
52. According to the Learned Counsel, the Petitioners contended that letter dated 25th March 1992 was forwarded to the late President Moi who considered and approved it on 6th May 1992. On 30th December 1994, the then Coast Provincial Commissioner wrote to the Commissioner of Lands referring to the letter approved by the late President Moi and requesting his office to finalize the matter. A copy of the letter dated 30th December 1994 was exhibited at pages 8 to 10 of the Petitioners' exhibit. This letter was delivered to the Commissioner of Lands on 17th January 1995. See page 10 of the Petitioners’ exhibit.
53. The Petitioners further contend that the President’s approval was not acted upon and so in the year 2005, they lodged a claim with the Tribunal for determination of who was the rightful owner of the suit property. Their complaint was Kwale Land Dispute Tribunal Claim No 6 of 2005; “In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Hon Kuria Kanyingi and Simkan Investment Limited”. The Tribunal heard the complaint on 13th September 2005 and upheld the Petitioners’ claim to the suit property. Copies of the proceedings before the Tribunal are exhibited at pages 11 to 15 of the Petitioners’ exhibit.
54. On 31st January 2006,the Kwale Senior Resident Magistrate Court adopted the decision of the Tribunal as a Judgment of the court in Land Case No 23 of 2005. A copy of the court order in Kwale Senior Resident Magistrate Court Land Case No 23 of 2005 was at page 16 of the Petitioners' exhibit.13. The Petitioners were eventually issued with a Certificate of Title No CR 19582 on 2nd April 2009. The Counsel stated that High Court being “Civil Case No 348 of 2009;Simkan Investments Limited - Versus - Ali” the Petitioners had obtained title to the same land through fraudulent means. Upon filing the suit, in the absence of the petitioners which directed the Registrar of Titles Mombasa to cancel the Petitioners’ title to the suit land. The Petitioners contended that the High Court suit was never heard as the 1st Respondent never prosecuted its case and the case was eventually dismissed for nonattendance on 9th November 2015.
55. According to the Learned Counsel, the Petitioners never gave up. In the year 2014 they referred the dispute over the suit property to the NLC for determination. The NLC reviewed the Grant issued to the 1st Respondent. On 22nd August 2017 returned a verdict that the title held by the 1st Respondent be revoked and the suit property be reverted to the Petitioners. Copies of the letters dated 9th July 2014 and 22nd August 2017 from the NLC were at pages 19 to 25 of the Petitioners’ exhibit. The Petitioners communicated the decision of the NLC to the 5th Respondent but the 5th Respondent neither acted nor gave any feedback.
56. The Learned Counsel submitted that still the Petitioners never gave up. They escalated their grievance to the Cabinet Secretary, Ministry of Lands and Physical Planning through a letter dated 6th September 2019 and asked for his intervention to have the matter resolved. The 1st Petitioner’s letter dated 6th September 2019 was at page 26 of the Petitioners’ exhibit. On 11th September 2019, the Cabinet Secretary wrote a letter to the Land Registrar, Kwale advising him to take appropriate action and resolve the matter as further delay and/or silence on the matter amounted to denial of justice to the Petitioners.
57. The 5th Respondent responded to that letter on 16th September, 2019 and gave a history of the suit property. He indicated that the suit property was transferred to the 2nd Respondent (BTB Insurance) on 3rd October, 2017 and subsequently to the 3rd Respondent (BID Investment) on 14th December, 2017. A copy of the letter dated 16th September 2019 from the 5th Respondent was at pages 27 and 28 of the Petitioners’ exhibit. In light of the foregoing facts, the Petitioners contend that the Respondents had infringed on their constitutional right to property as enshrined under Article 40 of the Constitution of Kenya, 2010 and sought the court to uphold that right. The Petitioners demonstrated the infringement of their constitutional right under the provision of Article 40 of the Constitution as follows: -
a. The suit land is their ancestral land. They have lived there and farmed on it for generations. They are still on the land. They were issued with a certificate of title to the suit land on 2nd April 2009.
b. Simkan was incorporated on 10th May 1989 but was somewhat issued with a letter of allotment over the suit land on 27th April 1989 which was before it was incorporated. It is not legally possible that Simkan was allotted the suit land before it was incorporated. Consequently, the title issued to Simkan on 1st May 1989 followed an irregular allotment and cannot stand.
c. In any event the suit land was not available for allocation to the 1st Respondent because the petitioners were already in possession.
d. Various government agencies including the late President Moi, the Coast Provincial Commissioner, the National Land Commission, the Commissioner of Lands, and Kwale District Disputes Land Tribunal-Matuga Division have looked into the matter and upheld the petitioners' title over Simkan's title.
e. The acts of Simkan of grabbing the petitioners' land constitute a violation of their right to property as guaranteed under Article 40 of the Constitution.
f. The 4th to 6th Respondents are State agencies who have a constitutional duty to protect the petitioners' right to their property. They have failed in this duty hence their decision to approach the court.
58. Save for the 4th Respondent, all the other Respondents filed their respective responses to the Petition as follows: -
a. Simkan filed a preliminary objection dated 30th March 2024 and a Replying Affidavit of Adina Devani dated 19th March 2024.
b. BTB Insurance and BID Investment filed a Replying Affidavit of Kunal Bid dated 13th June, 2024.
c. The 5th and 6th Respondents filed a Replying to the Petition dated 3rd April, 2024. The 5th Respondent also filed a Replying Affidavit dated 11th July, 2024.
59. The 1st Respondent’s case according to the Learned Counsel was that in its preliminary objection, Simkan contended that the Petitioners have already availed themselves of other legal remedies through the following suits: -
a) Kwale Land Dispute Tribunal Claim No 6 of 2005; In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Hon Kuria Kanyingi and Simkan Investment Limited.
b) Kwale Senior Resident Magistrate Court Land Case No 23 of 2005.
c) Mombasa High Court Civil Case No 348 of 2009; Simkan Investments Limited – Versus - Ali Salim Toza and 3 others.
60. According to the Learned Counsel, Simkan's position was therefore that the subject matter of this suit was res judicata and the Petition should be struck out. The gist of Simkan's Replying Affidavit was that they were allocated the suit property in the year 1989 by the Government of Kenya and they took possession and exercised all ownership rights including using the property as security for a loan with a bank.
61. When they became aware of the proceedings before the Kwale Tribunal and the order from Kwale Senior Resident Magistrate Court, they filed Mombasa High Court Civil Case No 348 of 2009 in which they sought to challenge the legality of the orders that were relied on to cancel their title and to set aside those orders. They obtained a mandatory order directed at the Registrar of Titles, Mombasa to cancel the registration of the Petitioners as the registered owners of the suit property. The petitioners unsuccessfully sought to set aside that order.
62. Simkan also argued that the Petitioners filed a Counter - Claim in that suit raising similar issues as raised in this Petition. Therefore, their position was that the Petitioners should reinstate the dismissed suit to prosecute their Counter - Claim. They also contended that the NLC could not review ownership of title whose ownership was pending judicial determination in the High Court. They also argued that this matter ought to heard in a full hearing rather than through affidavits.
63. On the 2nd and 3rd Respondent’s case, the Learned Counsel submitted that the gist of the reply by BTB Insurance and BID Investment was that BID Investment was currently registered as the owner of the suit property having acquired it from BTB Insurance who had acquired it from Simkan. Simkan was issued with a Letter of Allotment on 27th April 1989 for a term of 99 years with effect from 1st May 1989. The decision of Tribunal was ultra vires, a utility and illegal and could not be adopted by the Kwale Senior Resident Magistrate Court. The High Court in Mombasa High Court Civil Case No. 348 of 2009 ordered the 4th Respondent to cancel the Petitioner’s title after hearing both parties on merit.
64. According to the Learned Counsel, BTB Insurance carried out requisite due diligence prior to purchasing the suit property. They also alleged that the Petition never met the test of “Anarita Karimi Njeru – Versus - Republic (1979) eKLR” neither did it disclose any constitutional violations. They contended that the matter had been clothed as a Constitutional Petition to avoid the statutory time limitation under the provision of Section 7 of the Limitation of Actions Act, Cap. 22 having been lodged over 12 years from the date the 1st Respondent was issued with a title. They also stated that the High Court at Mombasa issued a mandatory injunction which subsisted and could not be reconsidered or overturned by this court being a court of equal jurisdiction. They urged the court to uphold the allotment of the suit property to Simkan and the subsequent transfer to BTB Insurance and BID Investment.
65. The Learned Counsel submitted that the 5th and 6th Respondent’s case was largely on matters of law. Their position was that the Petitioners had failed to proof the authenticity of the decisions from the Tribunal and Kwale Senior Resident Magistrate Court. The Petitioners voluntarily submitted themselves to the alternative dispute resolution process under the Ministry of Lands and Physical Planning. The Petitioners failed to exhaust the dispute resolution process upon receiving the letter dated 16th September 2019 from the 5th Respondent. Upon receipt of that letter, the Petitioners ought to have invoked their right for rectification of information from the Land Registrar by requesting rectification of the land ownership records.
66. The Learned Counsel submitted that the Petitioners ought to have enforced the right to review the information received from the information received from the 5th Respondent through the Commission on Administrative Justice. The Petitioners ought to have invoked the jurisdiction of the Commission on Administrative Justice vide the provision Section 14 of Access to Information Act which provided the Commission with powers to review decisions by public entities and thereafter approach the High Court on appeal.
67. The Petitioners failed to exercise rights availed to them vide Regulations 91 (1) of the Land Registration (General) Regulations, 2017. The Petitioners had been indolent by failing to exercise their rights of ownership of the suit properties. That the Petitioners ought to have invoked the remedies sought seven (7) years ago. The Petition did not involve matters of constitutional interpretation, application and/or violations and that the Court did not have jurisdiction to determine the matter. In the Replying Affidavit of Mercy Chepkemoi, the 5th Respondent indicated that the virtue of a grant issued on 27th June, 1989. The suit property was transferred on 30th August, 2017 to BTB Insurance and later to BID Investment.
68. On issue for determination, the Learned Counsel relied on the following issues for determination and analysis by the Honourable Court: -
a. Whether this court has jurisdiction to entertain this matter?
b. Whether the Petition raises constitutional matters?
c. Whether the Petition meets the threshold of a Constitutional Petition?
d. Whether the Petition is Res judicata?
e. Are the Petitioners guilty of delay in filing this Petition?
f. Whether there are alternative dispute resolutions mechanisms that the Petitioners should have used?
g. Was the allotment of the suit property to the 1st Respondent valid?
h. Are the 2nd and 3rd Respondents bona fide purchasers of the suit property?
i. Are the Petitioners entitled to the orders sought in the Petition?
69. On analysis of the issues, facts and the law, and whether this Court has jurisdiction to entertain this matter. The Learned Counsel submitted that the Environment and Land Court (ELC) is a creature of Article 162 (2) (b) of the Constitution and the Environment and Land Court Act, No. 19 of 2011. It is a court with the status of the High Court. The jurisdiction of the ELC is set out under the provision of Section 13 of the Environment and Land Court Act. The court has original and Appellate jurisdiction to hear and determine all disputes relating to environment and land. In exercising its powers, the ELC has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. See Hon. Lady Justice Mumbi Ngugi (as she then was) in “Royal Media Services Limited – Versus - Attorney General & 6 others [2015] eKLR”.
70. Protection of right to property was a right within the Bill of Rights. In this matter, the court was being called upon to determine whether the Petitioners’ right to property has been violated by the Respondents. Therefore, the court had jurisdiction to hear the dispute and issue appropriate relief.
71. On whether the Petition raised constitutional matters. The Learned Counsel submitted Chapter Four (4) of the Constitution was on the Bill of Rights. Article 40 of the Constitution was on Protection of the right to property. Every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. Every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. See the provision of Article 22 (1) of the Constitution.
72. It followed that the Petitioners were entitled to the enjoyment and protection of their rights as set out in the Bill of Rights and where any person violates, infringes or threatens these rights this Court had powers to intervene and granted the appropriate relief(s). The Petitioners’ case was that Simkan illegally grabbed their land and the 4th to 6th Respondents being state agencies failed to protect the Petitioners’ right to their property. This constituted a question of violation of the Petitioners’ right to property as guaranteed under Article 40 of the Constitution. Therefore, the Petition raised a constitutional issue namely whether the Petitioners’ right to the suit property has been denied, violated, breached and/or infringed upon by the Respondents.
73. On whether the Petition meets the threshold of a constitutional Petition. The Learned Counsel submitted that BTB Insurance and BID Investment contend that the Petition never met the test established in “Anarita Karimi Njeru – Versus - Republic (supra)”. In “Anarita Karimi Njeru (Supra)”, the court held that:
“If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.”
74. The practice and procedure in Constitutional Petition is provided under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules). Rule 4 (1) of the Mutunga Rules provides that where any right or fundamental freedom provided for in the constitution was allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to those rules.
75. Rule 10 of the Mutunga Rules provides the form that a Constitutional Petition should take. The details to be disclosed in a Petition are provided under sub rule (2) as follows:(a) the Petitioner's name and address, (b) the facts relied upon, (c) the constitutional provision violated, (d) the nature of injury caused or likely to be caused to the Petitioner or the person in whose name the Petitioner has instituted the suit; or in a public interest case to the public, class of persons or community, (e) details regarding any civil or criminal case, involving the Petitioner or any of the Petitioners, which is related to the matters in issue in the Petition, (f) the Petition shall be signed by the Petitioner or the advocate of the Petitioner, (g) the relief sought by the Petitioner.
76. This Petition was divided into the following parts: the parties, the factual background, the constitutional provisions on which the Petition is based, protection of right to property under Article 40 of the Constitution, breach of Article 40 of the Constitution and the relief sought. It was in their view that the Petition met the threshold of what would constitute a Constitutional Petition in that there was a precise complaint and the specific provision of the constitution alleged to have been infringed has been stated. The manner in which the constitutional provision had been infringed has also been set out.
77. On whether the Petition was res judicata. The Learned Counsel submitted that the issue of res judicata was raised by Simkan. This issue was also raised before the Supreme Court in the Dina Management case. In resolving the issue, the Supreme Court acknowledged that res judicata is embodied in Section 7 of the Civil Procedure Act, Cap. 21. The Supreme Court then restated the elements that must be proven before a court can arrive at the conclusion that a matter is res judicata as were laid out by the same court in the case of:- “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)” as follows:
a. There is a former Judgment or order which was final;
b. The Judgment or order was on merit;
c. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d. There must be between the first and the second action identical parties, subject matter and cause of action.
78. The Supreme Court further held that the elements set out above are to be conjunctive rather than disjunctive before a suit or an issue is to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former Judgment which was final, it was on merit and by a court having jurisdiction and have identical parties, subject and cause of action.
79. The main issue raised in this Petition was violation, breach and/or infringement of constitutional right to property. According to the Counsel, whereas the three suits listed by Simkan concerned the suit property, the issues for determination were different. None of those suits addressed a constitutional issue. Further the 2nd to 6th Respondents were not parties in Kwale Land Dispute Tribunal Claim No 6 of 2005 and Kwale Senior Resident Magistrate Court Land Case No 23 of 2005. The 2nd to 5th Respondents were not parties in Mombasa High Court Civil Case No 348 of 2009. In this Petition, all the parties that were necessary for the conclusive determination of this longstanding dispute were present to enable the court make a final determination.
80. To buttress his position, the Counsel referred Court to the case of “Dina Management case”, where the Supreme Court held that where res judicata was pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounted to an allegation that all the legal rights and obligations of the parties were concluded by the earlier Judgment, which may have involved the determination of questions of law as well as findings of fact. The Learned Counsel relied on the case of “Mombasa High Court Civil Case No. 348 of 2009”, there was no Judgment or order which was final and based on merit. It could not therefore be said that this dispute was at any point conclusively determined.
81. The Learned Counsel asked the Court to return a verdict that the Petition was not res judicata as the elements to make such a finding had not been met. The 2nd and 3rd Respondents also contended that the High Court at Mombasa issued a mandatory injunction which cancelled the Petitioners’ title and that order subsists and cannot be reconsidered or overturned by this court being a court of equal jurisdiction. The Supreme Court in the “Dina Management Limited case” held that decisions made by courts of concurrent jurisdiction made in rem were not binding on courts of equal jurisdiction. In this regard he respectfully asked this court not to follow that order for the following reasons: -
a) The mandatory order was issued ex - parte without hearing the Petitioners. The Petitioners unsuccessfully applied to have it set aside.
b) There was no merit consideration of whether the application had met the test for grant of the mandatory order.
c) The court never thereafter hear the suit on merit.
d) The court did not substantively determine the rights of the parties to the suit property based on evidence
e) The order was issued before the promulgation of the 2010 Constitution when courts leaned more towards technicalities. With the advent of the 2010 Constitution courts look more towards substantive justice.
f) The order was per incuriam and was demonstrably wrong. See “Michael Waweru Ndegwa – Versus - Republic [2016] eKLR”.
82. Simkan also suggested that the Petitioners' remedy was to reinstate Mombasa High Court Civil Case No 348 of 2009. This was not tenable because the Petitioners were seeking to enforce their constitutional right which was not the subject of the dismissed suit and the 2nd to 6th Respondents were not parties to that suit. This court appreciated in the case of:- “Brookshil Limited & another – Versus - County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) [2023] KEELC 17188 (KLR)” that where an ownership dispute over a suit property was before the court it was in favour of all the parties in the dispute and in the public interest to have the mater heard substantively and attain closure.
83. On whether the Petitioners were guilty of delay in filing this Petition. The Learned Counsel averred that the 2nd, 3rd, 5th and 6th Respondents had accused the Petitioners of being indolent by failing to exercise their rights of ownership of the suit property. They say there was inordinate delay in bringing this Petition. In the case of: “Chief Land Registrar & 4 others – Versus - Nathan Tirop Koech & 4 others [2018]eKLR”, the Court of Appeal considered delay and doctrine of laches in Constitutional Petitions and held as follows: -
“Laches means the failure or neglect, for an unreasonable length of time, to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or decline to assert it. This equitable defense is based upon grounds of public policy, which requires the discouragement of stale claims for the peace of society.”
84. The Court of Appeal then reviewed decided cases on the issue and concluded that there was no time limit within which a party could file a claim for violation of constitutional rights. The Constitution does not set a time limit within which applications for enforcement of fundamental rights should be brought. Unless expressly stated in the Constitution, the period of limitation in the Limitation of Actions Act did not apply to violation of rights and freedoms guaranteed in the Constitution. The law concerning limitation of actions cannot be used to shield the state or any person from claims of enforcement of fundamental rights and freedoms protected under the Bill of Rights. Subject to the limitations in Article 24 of the 2010 Constitution, fundamental rights and freedoms cannot be tied to the shackles of Limitation of Actions Act, Cap. 22.
85. In any event, the Petitioners had demonstrated that all along they had actively been pursuing their right to the suit property through all available legal avenues. They had knocked on the doors of the late President Daniel Arap Moi, the then Coast Provincial Commissioner, the NLC, the Commissioner of Lands, and the Kwale District Disputes Land Tribunal - Matuga Division agitating for their property. They had never slept on their rights.
86. On whether there were alternative dispute resolutions mechanisms that the Petitioners should have used. The Learned Counsel asserted that the Hon. Attorney General's position was that the Petitioners should have exhausted the alternative dispute resolution process under the Ministry of Lands and Physical Planning before filing this Petition. The Hon. Attorney General further contended that the Petitioners should have engaged the Commission on Administrative Justice to enforce the information received from the 5th Respondent.
87. The succinct answer to this was that the grievance before this court was one of a constitutional nature. The Attorney General's position was based on the misguided notion that this was a matter for rectification of information and review of decisions made by public entities. Only the High Court and courts of equal status to the High Court such as this court had jurisdiction to hear and determine applications for redress of violation or threatened violation of fundamental rights. This court's jurisdiction to hear and determine Petitions under the Bill of Rights could not be ousted or exercised through alternative mechanisms.
88. On whether the allotment of the suit property to the 1st Respondent was valid. The Learned Counsel argued that Simkan traced its ownership of the suit land to the Letter of Allotment dated 27th April 1989. What had baffled the Petitioners over the years was that Simkan was incorporated as a company by limited guarantee on 10th May 1989 but was somewhat issued with a Letter of Allotment over the suit property on 27th April 1989 before it was incorporated. The Petitioners therefore argued that it was not legally possible that Simkan was allotted the suit property before it was incorporated. Consequently, the title issued to Simkan with effect from 1st May 1989 followed an irregular allotment and could not stand.
89. To support their position, the Learned Counsel referred Court to the case of:- “Cross Current Indigenous Network – Versus – Commissioner of Lands & Another [2018] eKLR”,. In that matter, there was a dispute as to who between Cross Current Indigenous Network Ltd (as a company) and Cross Current Indigenous Network (as an NGO) was allocated the property that was subject of the suit. In resolving the dispute, the court held that the evidence that was not in dispute was that the NGO was registered on 25th September 1997. The court then asked itself, how could it have been allocated the suit property on 15th May, 1992 as pleaded? The court answered that the NGO had not been registered and had not come into existence and it could not therefore have been allocated the property as claimed.
90. Indeed, the law was that a company could not transact before it was incorporated. Simkan was non-existent at the time it was issued with a Letter of Allotment over the suit property. The right to be allocated a property was a contractual right and must be determined in accordance with the ordinary rules of contract. See the case of:- “Martha Wambui – Versus - Joseph Kangogo & another [2021] eKLR”. Therefore, the Letter of Allotment dated 27th April 1989 from the Commissioner of Lands to Simkan was for all intents and purposes a contract. Under special condition number two (2) of the Letter of Allotment, the Commissioner of Lands required the allotee (Simkan) to accept the conditions attached to the allotment letter and to make payment of a sum of Kenya Shillings (Kshs. Four Twenty Seven Thousand and Seventy Hundred (Kshs. 427,072/=).
91. The Learned Counsel relied on the Court of Appeal decision in the case of:- “Clement Muturi Kigano – Versus - Kibera Development Company Limited [2019] eKLR” where it was held that:-
“Until a company has been incorporated, it cannot contract or do any act. Nor once incorporated, can a company become liable for or entitled under contracts purporting to be made on its behalf prior to incorporation - for ratification is not possible when the ostensible principal did not exist.”
92. In this regard, Simkan could not accept the Letter of Allotment since it was issued before it was incorporated neither could Simkan make payment the payment required by the letter of allotment prior to its incorporation. Title to property can only come into existence after the allotee accepts and meets all the conditions stated in the letter of allotment. The letter of allotment stated that the suit property would be used for construction of a hotel. Similarly, condition number five (5) of the Grant provided that the suit property would be used for hotel purposes. The Petitioners lived and farmed on the suit property as their family has done for generations. No hotel had been constructed on the suit property. Simkan never complied with the conditions set out in the letter of allotment and therefore they could not legally own title to the suit property without meeting the conditions on the said Letter of Offer.
93. On whether the 2nd and 3rd Respondents were bona fide purchasers of the suit property. The Learned Counsel submitted that the Supreme Court in the case of:- “Dina Management Limited case” considered the doctrine of a bona fide purchaser as set out in the paragraphs below. The Supreme Court quoted the Black’s Law Dictionary 9th Edition definition of “a bona fide purchaser” as: -
“One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”
94. Additionally, the Learned Counsel cited the Court of Appeal in Uganda in the case of:- “Katende – Versus - Haridar & Company Ltd [2008] 2 EA 173”, defined a bona fide purchaser for value as follows: -
“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine he must prove that:
1. he holds a Certificate of title;
2. he purchased the property in good faith;
3. he had no knowledge of the fraud;
4. he purchased for valuable consideration;
5. the vendors had apparent valid title;
6. he purchased without notice of any fraud; and
7. he was not party to the fraud.”
95. On the same issue, the Court of Appeal in “Samuel Kamere – Versus Lands Registrar [2015] eKLR” stated as follows: -
“..........in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...”
96. The Supreme Court also held that in order to establish whether a party is a bona fide purchaser for value, the court must first go to the root of the title, right from the first allotment. The court also held that the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The Court also held that where the first registered owner did not acquire the title regularly, the subsequent ownership of the suit property could not be protected under Article 40 of the Constitution and the subsequent purchaser could not benefit from the doctrine of bona fide purchaser.
97. The Learned Counsel submitted that they had clearly demonstrated that the allocation of the suit property to Simkan was irregular. Simkan therefore had no valid legal interest which they could pass to BTB Insurance who in turn could pass it to BID Investment.
98. On whether the Petitioners were entitled to the orders sought in the Petition. The Learned Counsel submitted that the court directed the Petition to be heard by way of affidavit evidence and documents annexed thereto even though the Petitioners would have loved to give viva voce evidence. The substratum and core of this Petition was therefore documentary evidence. The history of the suit property could be traced through the investigations carried out by the Kwale Land Dispute Tribunal and the NLC.
99. The Tribunal was made up of a panel of elders. The Claimants before the Tribunal were the Toza brothers - the Petitioners herein. The Respondents were Kuria Kanyingi and Simkan. The Tribunal had been constituted after the Toza brothers objected to issuance of a title deed to the suit property to Simkan. The panel of elders heard from the Commissioner of Lands who indicated that he visited the suit property on 10th August 1993 and found the Toza family living and farming crops on the land. There was no fence on the land. The Commissioner for Lands admitted before the Tribunal that the suit property was given to Kuria Kanyingi wrongly but he feared to cancel the certificate of title. He paused at this juncture and reflected that maybe this was because the newspaper article exhibited by the 2nd and 3rd Respondents described Kuria Kanyingi as a politician who served as the director of the motor vehicle inspection unit during the Moi era, he served as Limuru Member of Parliament between the years 2002 and 2007 and he was nicknamed Mr. Moneybags. Clearly, he was an influential man.
100. The panel of elders visited the suit property on 23rd August 2005. They found that there were coconut trees about forty-five (45) years old. They also found houses belonging to the Petitioners. Beacons were put on the suit property from 19th to 21st August 2005 while Administration Police were on guard to harass the Petitioners. The panel of elders also established that the land belonged to the Toza family even before Kenya got independence. The elders therefore resolved that Kuria Kanyingi had grabbed the suit property and had it registered in the name of Simkan wherein he was a director alongside one Devan. The elders directed that the title deed in the name of Simkan be revoked and cancelled and a new title deed be issued in the name of the Petitioner free from any encumbrances.
101. Further, the NLC reviewed the history of the suit property and determined that the title held by Simkan should be revoked as earlier directed by other organs and decisions made previously and the land be reverted to the Petitioners. Even the then Coast Provincial Commissioner recommended to the Commissioner of Lands that the ownership of the suit property be restituted to the Petitioners. Therefore, according to the Counsel, the Petitioners had legitimate expectation that decisions made by the late President Moi, Coast Provincial Commissioner, the NLC, the Commissioner of Lands and the Tribunal - Matuga Division concerning their ownership of the suit property would be implemented and they would be granted title to their land. This had not been done over the years. The Counsel held that it was very unfortunate that the Government – the Honourable Attorney General on the one hand and the NLC on the other seem to be speaking from different sides of the mouth.
102. Thus, the Learned Counsel submitted that the Petitioners had a legitimate claim to the suit property. It should be protected by this Court under Article 40 of the Constitution. The Petitioners had proved their case and were entitled to the following reliefs: -
a) A declaration that their right to property in respect of L.R No 14897 CR 19582 has been denied, violated, breached and/or infringed upon by the Respondents.
b) A declaration that they are the rightful owners of L.R No 14897 CR 19582.
c) An order cancelling the title to L.R No 14897 issued to the 1st Respondent and subsequently to the 2nd and 3rd Respondents.
d) A permanent injunction restraining the 1st, 2nd and 3rd Respondents as well as their agents from any further denial, violation, breach and/or infringement of the petitioners' rights to L.R No 14897 CR 19582 in particular, the right to access, quiet possession, to develop and in any way to enjoy its use.
103. Further the Learned Counsel submitted that this was also a proper case for the court to award damages to the Petitioners. In the case of: “Coastal Properties Limited – Versus - County Government of Kwale; Director of Survey Kwale County & 3 others (Interested Parties) [2022] KEELC 15337 (KLR)” this court acknowledged that it was mandated to among other reliefs to issue conservatory orders, orders of injunction, and orders for compensation. The court was persuaded by the decision in “David Gitau Thairu – Versus - County Government of Machakos & 2 others [2020] eKLR” where the court enumerated the circumstances under which exemplary damages could be awarded namely: -
a) Oppressive arbitrary or unconstitutional action by servants of government.
b) Conduct calculated by the defendant to make him a profit which may well exceed the compensation payable to the plaintiff, or
c) Cases in which the payment of exemplary damages is authorized by statute.
104. The Petitioners had been on a lifelong quest to reclaim their ancestral land from land grabbers. They had been denied the quiet enjoyment of their land for ages. The suit property was a prime piece of land. Simkan sold it to BTB on 4th November 2016 at a sum of Kenya Shillings Seventy Nine Million Three Eighteen Thousand Seven Twenty Eight Hundred and Sixteen (Kshs. 79,318,728.16/=). BTB sold it to BID on 18th August 2018 at a sum of Kenya Shillings One Twenty Million (Kshs. 120,000,000/=). The land grabbers had been swimming in loads of money whereas the Petitioners had been deprived on their ancestral land. All this had been happening under the watchful eye of government agencies.
105. The Learned Counsel asked the Court to send a warning to land grabbers that they could not just profit at the detriment of rightful land owners. Paraphrasing the words of P.O Kiage, JA in the case of:- “Kenya National Highway Authority – Versus - Shalien Masood Mughal & 5 others [supra]” rightful land owners could not be deprived of their land by private individuals who had access to the shakers and movers for purposes of selling them off to line their pockets.
106. In conclusion, the Learned Counsel submitted that bearing in mind the number of years the Petitioners had suffered and the value of the suit property, a sum of Kenya Shillings Thirty Million (Kshs. 30,000,000.00/=) would be adequate compensation in this case. They also asked the court to award the costs of the Petition to the Petitioners to be borne jointly and severally by the Respondents.
B. The Written Submissions by the 1st Respondent
107. The 1st Respondent through the Law firm of Messrs. Ochwo & Co Advocates filed their written submissions dated 9th October, 2024. Mr. Ochwo Advocate commenced the submission by stating that the Petition before Court was dated 30th November, 2023. It sought the afore - stated prayers on the face of the Petition. The Petition was opposed by all the Respondents who had filed their responses as follows: -
i. Notice of Preliminary Objection dated 20th March and Replying Affidavit sworn by Aldina Divani on 19th March, 2024 on behalf of the 1st Respondent.
ii. Replying Affidavit sworn on 13th June, 2024 by Kunal Bid on behalf of the 2nd and 3rd Respondents.
iii. Preliminary Objection and Replying Affidavit sworn on 11th July 2024 on behalf of the 5th and 6th Respondents.
iv. The 4th Respondent had not entered appearance
108. The matter came up for mention on 6th May 2024 when the court directed that the two Preliminary Objections filed by the 1st , the 5th and the 6th Respondents to be heard together with the Petition.
109. The facts by the Learned Counsel averred that they had perused the Petitioner’s submissions dated 17th July, 2024 and noted that the Petitioners had provided a summary of the Petitioner and Respondent’s cases at Paragraphs 6 to 41 of the said submissions. They agreed with the summary but would point out additional facts from the parties’ affidavits in the course of their submissions.
110. On the issues for determination, the Learned Counsel relied on the following: -
a) Whether this court has jurisdiction to entertain this matter?
b) Whether the Petition raised constitutional matters?
c) Whether the Petition met the threshold of a Constitutional Petition?
d) Whether the Petition was res judicata?
e) Are the Petitioners guilty of delay in filing this Petition?
f) Whether there are alternative dispute resolutions mechanisms that the Petitioners should have used?
g) Was the allotment of the suit property to the 1st Respondent valid?
h) Are the 2nd and 3rd Respondents bona fide purchasers of the suit property?
i) Are the Petitioners entitled to the orders sought in the Petition?
111. They wished to frame the following additional issues as they were of the view that they were necessary for the proper determination of the Petition: -
a. Whether the Court Order dated 21st October 2009 issued in Mombasa HCCC No. 348 of 2009 was binding on the parties;
b. What is the legal status of the suit property in view of the proceedings in Mombasa HCCC No. 348 of 2009;
c. Whether Petition has offended the Doctrine of Constitutional Avoidance;
d. Whether the Land Disputes Tribunal had jurisdiction to hear ownership disputes for land registered under the Registration of Titles Act (now repealed
e. Whether President Daniel Moi (as he then was) had power to determine land disputes
f. Whether the National Land Commission’s power to review titles to land had expired by the time it purported to issue a determination on ownership of the suit property?
g. Whether such determination was valid?
h. What was the proper forum for this dispute?
i. Whether the 1st Respondent properly transferred the suit property to the 2nd Respondent.
112. The Preliminary Objection raised by the 1st Respondent is dated 20th March, 2024. It raised the following grounds of objection:-
1) The Petitioners have already availed themselves of other legal remedies through the following suits:-
a) Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S. Toza – Versus - Hon. Kuria Kanyingi and Simkam Investments Limited.
b) Kwale Land Case No. 23 of 2005.
c) Counterclaim in Mombasa ELC No. 348 of 2009, Simkam Investments Limited – Versus - Ali Salim Toza and Others..
2) This subject matter of this suit is res judicata.
3) It is proposed to request the court to strike out the above suit with costs.
113. The Preliminary Objection by the 5th and 6th Respondents is dated 11th July 2024. It raises the following grounds of objection:-
1) That the Petition offends the Doctrine of Constitutional Avoidance.
2) That the Petition was a simple claim founded on ownership of land but disguised as a Constitutional Petition and hence should not have been filed as a Constitutional Petition but as an ordinary suit.
3) That the matter could be properly decided on another basis other than by a constitutional petition.
114. The Learned Counsel submitted that the Petitioners failed to exhaust the available remedies as provided under the provision of Section 13 (2) of the Access to Information Act No, 31 of 2016 and Section 91 of the Land registration (General) Regulations 2017.
115. On whether the Court Order dated 21st October 2009 issued in Mombasa HCCC No. 348 of 2009 was binding on the parties. The Learned Counsel deposed that the Petitioners had admitted that the suit property had been the subject of previous litigation. (See the admissions at paragraphs 8,10 and 12 of the Petitioners Supporting Affidavit sworn on 30th November 2023). The first suit was “Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S.Toza – Versus - Hon Kuria Kanyingi & Simkan Investments Limited”. The Tribunal issued an order that the 1st Respondent's title be cancelled and the same be suit property be transferred to the Petitioners. The Tribunal’s decision was adopted as an order of the court in Kwale Land Case No. 23 of 2005.
116. The 1st Respondent had sworn at Paragraphs 6, 7 and 8 of its Replying Affidavit that they were not served with the suit papers and filed “Mombasa HCCC No. 348 of 2009 Simkan Investments Ltd – Versus - Ali Salim Toza and Others” seeking orders to set aside the orders issued by the Tribunal. As deponed at Paragraphs 10 of the 1st Respondent’s Replying Affidavit, the High Court in Mombasa HCCC No. 348 of 2009 issued a mandatory injunction on 21st October 2009 and directed the Registrar of Lands Mombasa to cancel the registration of the Petitioners as registered owners of the suit property and the ownership be reverted back to the 1st Respondent (see page 36 of the Replying Affidavit where the order was annexed as “Exhibit AD – 4”).
117. The 1st Respondent had sworn at Paragraph 11 of its Replying Affidavit that the Petitioners filed an application dated 2nd February 2010 seeking to set aside the court order dated 21st October 2009. The High Court dismissed the application on 12th November 2010 and the Petitioners never preferred an appeal against the dismissal order. (See pages 37 to 42 of the Replying Affidavit where the application and order was annexed as “Exhibit AD – 5”). It was trite law that a court order was valid and binding on the parties unless otherwise reviewed or set aside on appeal.
118. Therefore, the Learned Counsel argued that the court order dated 21st October 2009 was valid and binding more so between the 1st Respondent and the Petitioners who were the parties to Mombasa HCCC No.348 of 2009. The Petitioners never filed an appeal therefrom. This Petition had been filed 14 years later and it attacked the court order dated 21st October 2009 issued in the civil case - Mombasa HCCC No. 348 of 2009. The Petition was in their view largely a disguised appeal seeking to set aside the said court order.
119. On what was the legal status of the suit property in view of the proceedings in Mombasa HCCC No. 348 of 2009. The Learned Counsel submitted that as sworn at paragraph 14 of the 1st Respondent's Replying Affidavit the Petitioners filed a Counter - Claim in Mombasa HCCC 348 of 2009. The 1st Respondent had annexed the Defence and Counter - Claim at pages 22 to 28 of its Replying Affidavit. The Petitioners pleaded their claim to the suit property in the Counter - Claim and invited the court to consider the same and find in their favour. It was trite law that a Counter - Claim was an independent suit and could stand on its own.
120. The Petitioners had sworn at Paragraph 12 of their supporting affidavit that Mombasa HCCC 348 of 2009 was dismissed for non-attendance on 9th November, 2015. This dismissal included the Counter - Claim in which the Petitioners had requested the court to find that they were the owners of the suit property. They submitted that the position obtained as at 9th November, 2015 when the order of dismissal was made was as follows: -
i) Ownership of the suit property had reverted to the 1st Respondent way back on 21st October 2009 pursuant to the court order of even date which was a mandatory injunction directed at the Registrar of Titles Mombasa to cancel the registration of the Petitioners as owners and to revert the ownership to the 1st Respondent.
ii) The Petitioners' Counter - Claim in which they sought Judgement remained unproven and was dismissed for non-attendance.
iii) The Petitioners failed to take steps to set aside the order for dismissal for non-attendance and the position in relation to ownership of the suit property remains as per (i) and (ii) above.
iv) The upshot of the above is that the 1st Respondent is the registered owner of the suit property while the Counter - Claim that would have upset the said ownership had it been allowed was dismissed for non-attendance
121. On whether the Petition offended the Doctrine of Res – Judicata. The Learned Counsel reiterated their submissions in Paragraphs 19 to 22 above and urged the Court to find that the ownership dispute between the Petitioners and the 1st Respondent was now res judicata notwithstanding that the Petitioners had joined other parties to this Petition.
122. He referred Court to the provision of Section 7 of the Civil Procedure Act, Cap. 21 provides as follows:-
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
123. They submitted that res - judicata applies to a suit that has been dismissed for want of prosecution or non-attendance. The only remedy available to a party whose suit had been dismissed was to revive the suit by filing an application to set aside the order of dismissal and not to file a fresh suit disguised as a Constitutional Petition. On this point, the Counsel relied on the Court of Appeal decision in “Co - operative Bank of Kenya Limited – Versus - Cosmas Mrombo Moka & Legacy Auctioneering Services [2019] eKLR” where the Learned Judges cited the court of appeal decision in the “Njue Ngai case” as follows: -
“Now, we have seen that a dismissal for want of prosecution was as good as a final Judgment in the appeal unless a successful application for setting aside was filed. There can be no doubt therefore that Njue's appeal to the High Court was decided by a competent court. The dismissal also meant that the decision of the Appeals Committee stood unchallenged and final, wart (sic) and all. The fresh suit filed by Njue was christened ‘Declaratory Suit’ which he contended was an alternative to 'Judicial Review’. By whatever name called, it was a new suit and, as earlier stated, he was time barred in filing a Judicial review application to quash the decision of the Appeals Committee made 12 years earlier. The semantic change was merely a clever turn (but that legal ingenuity was within a cul-de-sac).' (Emphasis added)”.
124. According to the Learned Counsel, in coming to its decision, the Court of Appeal cited Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 Page 798 and said:-
“Consequently, a Judgment is a judicial determination or decision of a court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit. A dismissal of a suit under Order 12 Rule 6 of the Civil Procedure Rules is a Judgement...”
125. The Petitioners could not therefore be heard to say that Mombasa HCCC 348of 2009 was not heard and determined since the legal position was that a Judgment included a dismissal order and subject to res judicata under the provision of Section 7 of the Civil Procedure Act, Cap. 21.
126. On whether this suit offended the Doctrine of Constitutional Avoidance. According to the Learned Counsel, contrary to the Petitioner's submissions, the Constitutional Court was not the forum for litigating disputed issues of ownership of property. This was a matter for the ordinary civil courts where all the parties would have the chance to call their witnesses to properly ventilate their cases. They had shown that the Petitioners filed Tribunal case No.6 of 2005 and later on filed Kwale case No. 23 of 2005. The Petitioners also filed a Counter - Claim in Mombasa HCCC No.438 of 2009 where they raised all issues including the issue of alleged wrongful allocation of the suit property to the 1st Respondent and whether the 1st Respondent had capacity to be allocated land. The Petitioners should pursue the civil cases to their logical conclusion.
127. The Petitioners had also pursued administrative action at the NLC and the former President of the Republic of Kenya. Hon. Daniel Arap Moi as he then was. The Petitioners should pursue this to their logical conclusion as submitted by the Attorney General who filed submissions dated 11th July 2024 and raised issues on the Doctrine of Constitutional Avoidance. They associated themselves fully with the Attorney’s General’s preliminary objection dated 11th July, 2024 and submissions of even dated filed on behalf of the 5th and 6th Respondents. As far as it concerned the Learned Counsel, this Petition offended the Doctrine of Constitutional Avoidance as the Petitioners had other available forums (including the ordinary ELC Courts) and which had not been exhausted.
128. The Court said in the case of “CNM – Versus – WGM (2018) eKLR”, that a constitutional matter is one that compels a court to consider Constitutional rights or values and not a matter in which a court was essentially called to examine the contractual terms and conditions between the parties. They wished to point out the following: -
i) They had not exhausted the civil cases that they filed in respect of the suit property and had not executed whatever orders that they thought were issued in their favour.
ii) The Civil Procedure Act, Cap. 21 and Rules provides for the complete code and procedure for filing, prosecution and execution of court orders.
iii) They had not exhausted administrative remedies as submitted by the Attorney General.
iv) The Petitioners had not provided particulars in the Petition to demonstrate how their right to property had been breached. In the case of:- “High Court Petition No.455 of 2018, Consumer Federation of Kenya – Versus - Toyota Motors & 4 others”, the court clarified the “Anarita Karimi case (Supra)” and said that a party must provide evidence that demonstrates how their rights had been violated as merely citing provisions of the constitution that was alleged to have been violated was not enough
129. The Learned Counsel submitted that the Petitioners rights to property had not been breached. They had shown that the Petitioners filed suits to recover the suit property in the year 2005 and a Counter - Claim in the year 2009. The Petitioners had already availed themselves of legal remedies and should pursue the existing suits to their logical conclusion. The Petition was otherwise in their view an abuse of court process meant to disadvantage the 1st Respondent who was entitled to have its day in court and had an opportunity to call witnesses and properly defend itself in an ordinary civil suit.
C. The rejoinder Submissions by the 1st Respondent in respect of the 4th Respondent’s submissions dated 19th December, 2024
130. The 1st Respondent through the Law firm of Messrs. Ochwo & Co Advocates filed their written submissions dated 31st January, 2025. Mr. Ochwo Advocate reiterated the issues in his earlier submission. He statedg that the parties appeared before Court on 20th January, 2025 for purposes of highlighting of submissions on the Petition dated 30th November 2023.
131. The court granted the 1st, 2nd and 3rd Respondents leave to file rejoinder submissions in respect of the 4th Respondents submissions dated 19th December 2024. The National Land Commission Act (NLC Act) that operationalized the National Land Commission was assented to on 27th April 2012 and commenced on 2nd May 2012. The provision of Section 14 (1) of the NLC Act provides as follows:-
“(1) Subject to Article 68 (c) (v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality.”
132. The 4th Respondent’s mandate to review grants was therefore limited to five (5) years from the date of commencement of the NLC Act. They had submitted in paragraph 3 above that the NLC Act commenced on 2nd May, 2012 meaning that the five years lapsed on 2nd May, 2017. The 4th Respondent submitted that they reviewed the Grant and issued a final determination recommending revocation of the title issued to the 1st Respondent and that the land be reverted to the Petitioners. The letter containing the determination is dated 22nd August 2017 and was annexed to the 4th Respondents submissions as “Exhibit B1 – 2”.
133. The Learned Counsel further reiterated that the determination was a nullity and of no legal consequence, as it was issued after the 4th Respondent’s mandate under the provision of Section 14 (1) of the NLC Act had lapsed on 2nd May 2017. This was evident in the case of “Oseko & Another – Versus - The Chairman-National Land Commission & 4 others [2023](KLR)” where the court found that the NLC’s review of grants beyond the five-year period prescribed by Section 14(1) of the NLC Act (which expired in 2nd May 2017) rendered the determination made in July 2017 ultra vires and void. The court emphasized that the NLC's authority to review Grants had expired, making the decision a nullity. This case firmly supported the position that any determination outside the statutory timeline was legally invalid.
134. The Learned Counsel submitted that the determination was a nullity and of no consequence, as it was issued after the 4th Respondent’s mandate under Section 14(1) of the NLC Act had lapsed on 2nd May 2017. This position was supported by the above cited case of:- “Oseko & Another – Versus - The Chairman-National Land Commission & 4 others (Supra)”, where the court held in that:-
“All the foregoing aside, if the Commission is relying on a determination made on 10th July 2017, such determination is Ultra vires because pursuant to Section 14(1) of the NLC Act, review of grants was to be done within 5 years of the commencement of the Act. The NLC Act commenced on 2nd May 2012. It means the power to review grants expired on 2nd May 2017. The Commission could therefore not purport to make a review of grants on 10th July 2017, which is beyond the 5-year period. It has not been shown to me that the 5-year period was ever extended…”
135. This case according to the Learned Counsel clearly illustrated that a determination issued beyond the statutory period was invalid. In any case, the 4th Respondent made an erroneous conclusion that the 1st Respondent could only acquire the land through purchase and ignored the fact that the 1st Respondent was an allottee of the land having been issued with a Letter of Allotment by the Commissioner of Lands. Further, the 4th Respondent erroneously reviewed the Grant yet the same was the subject of litigation in court including “Mombasa HCCC No. 348 of 2009,Simkam Investments Limited – Versus - Ali Salim Toza & Another”.
136. In that suit, the Court issued a mandatory injunction on 21st October, 2009 directing the Registrar of Lands Mombasa to cancel the registration of the Petitioners as registered owners of the suit property and the ownership be reverted back to the 1st Respondent ( see page 36 of the 1st Respondent's Replying Affidavit and the court order annexed as “Exhibit AD – 4”). The Court order had not been set aside and was binding. They submitted that the determination by the 4th Respondent would for the above reason alone be nullity for attempting to usurp the court's powers as the final arbiter of the parties' rights.
137. In conclusion, they consequently urged the Court to find that the determination by the 4th Respondent was a nullity in law and disregarded the same for two reasons: -
i) That the same was issued after the 5 years mandate under the provision of Section 14(1 )of the NLC Act had lapsed;
ii) The same was issued in contravention of court orders issued on 21st October 2019 in Mombasa HCCC No. 348 of 2009.
D. The Written Submissions by the 2nd and 3rd Respondents
138. The 2nd and 3rd Respondents through the Law firm of Messrs. Issa & Company Advocate filed their written submissions dated 10th October, 2024. M/s Wanja Wanjuku Advocate submitted that the Petition dated 30th November 2023 was supported by the affidavit of Ali Salim Toza sworn on even date. The Petitioners sought the above cited Orders.
139. The Learned Counsel clearly set out the background of the case by recapping to the Court on all the pleadings filed. She stated that the Petition was opposed by the 1st Respondent through the Replying Affidavit of Aldina Devani sworn on 19th March, 2024. The 5th and 6th Respondents on their part filed a Reply to Petition dated 3rd April 2024 together with the Replying Affidavit of Mercy Chepkemoi sworn and dated on 11th July 2024 in opposition to the Petition. The 2nd and 3rd Respondents opposed the Petition through the Replying Affidavit of Kunal Bid sworn on 13th June 2024. The 1st Respondent further filed a Preliminary Objection dated 11th July 2024. The 5th and 6th Respondents also filed a preliminary objection dated 11th July, 2024. The Petitioners filed a supplementary affidavit sworn on 25th July, 2024 in support of the Petition.
140. On the brief background, the Learned Counsel submitted that the Commissioner of Lands by a letter dated 27th April 19891 allotted the 1st Respondent the property known as LR No. 14897 CR 19582 situated within Tiwi Beach Area Kwale County for a term of 99 years from 1st May 1989 subject to the payment of the standard premium and the annual rent set out in the Letter of Allotment. The said Letter of Allotment confirmed that the Commissioner of Lands had the requisite approval to allot the suit property. It was copied to the Director of Surveys, the District Commissioner Kwale and the Senior Plan Record Officer among other officials in the Ministry of Lands and at the Survey of Kenya.
141. Subsequently, the 1st Respondent complied with the requirements set out in the Letter of Allotment. It was issued with a Grant over the suit property on 27th June 1989 by Mr. Wilson Gachanja, the then Commissioner of Lands. The Grant issued to the 1st Respondent confirmed that the Deed Plan as well as the Survey Plan Number 139699 for the suit property had been prepared, approved and was deposited at the Survey Office in Nairobi. The 1st Respondent took over occupation and use of the suit property immediately upon receiving the Grant and even used the suit property to secure a financial facility from African Banking Corporation Limited on 13th December 1996. The Charge was only discharged on 26th February 2016.
142. The Learned Counsel submitted that in the year 2009 upon learning of the irregular entries on their title, the 1st Respondent filed a suit at the High Court in “Mombasa in Civil Case No.348 of 2009:Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another” seeking inter alia to have the illegal and irregular entries and orders obtained by the Petitioners revoked. On 8th October 2009, the High Court in Mombasa issued a temporary injunction restraining the Petitioners from taking possession or otherwise dealing with the suit property pending hearing and determination of the application and scheduled a date for ‘inter – partes’ hearing. On 21st October 2009, during the inter partes hearing, the High Court issued an injunction restraining the Petitioners herein from interfering with the suit property pending hearing and determination of the suit and granted a mandatory injunction directing the Registrar of Titles in Mombasa to cancel the registration of the Petitioners herein as registered owners of the suit property.
143. The Learned Counsel averred that the Petitioners herein filed an application dated 2nd February, 2010, presented in court on 3rd February, 2010, seeking to review the Court’s earlier order issued on 21st October, 2009. The High Court temporarily stayed the mandatory injunction but maintained the injunction restraining the Petitioners herein from interfering with the suit property.
144. On 12th November, 2010, after hearing counsel for both the Petitioners herein and the 1st Respondent herein, the High Court dismissed the Petitioners Chamber Summons application dated 2nd February 2010 with costs to the Plaintiff, the 1st Respondent herein. No appeal was filed against the dismissal of the Petitioners application of the Order granting the mandatory injunction directing the Registrar of Titles to cancel the title illegally obtained by the Petitioners herein. The 2nd Respondent, being interested in purchasing the suit property, carried out due diligence to confirm ownership of the suit property or encumbrances registered against the title. On 4th April 2017, the 2nd Respondent made an application for a postal search at the Lands Registry in Mombasa through its transaction Advocates Aboo & Company Advocates. The 2nd Respondent also applied for registration of a caveat against the title claiming purchaser's interest.
145. The Registrar of Titles confirmed that as 7th April 2017, the suit property was registered in favour of Simkan Investments Limited and that there were no encumbrances against the title save for the caveat registered by one of its directors, Mr. Rahul Bid, on 31st March 2017. The 2nd Respondent having received confirmation that the suit property was free of encumbrance and was registered in favour of the 1st Respondent herein according to the records maintained at the Lands Registry in Mombasa, it proceeded to enter into an agreement to purchase the suit property from the 1st Respondent at a consideration of a sum of Kenya Shillings One Thirteen Million Three Twelve Thousand Four Sixty Eight Hundred and Eighty cents (Kshs. 113,312,468.80/-). The 2nd Respondent paid the stamp duty and eventually had the suit property transferred into its name on 3rd October 2017.
146. In the course of time, the 2nd Respondent transferred the suit property to the 3rd Respondent herein. The 3rd Respondent were the current registered owner of the suit property, pursuant to a Transfer dated 4th September 2018 registered on 14th December 2018. The transaction was exempted from payment of stamp duty being a transfer between sister companies as duly marked on the Transfer.
147. The Learned Counsel relied on the following issues for determination for the Honourable Court: -
a. Whether the Petition raises any constitutional issues
b. Whether the 1st Respondent rightfully acquired the suit property
c. Whether the suit property was legally transferred to the 2nd and eventually the 3rd Respondents herein
d. Whether the Land Dispute Tribunal, the Magistrates Court, the President or the National Land Commission had the jurisdiction to consider the Petitioners claims;
e. Whether the Petitioners had demonstrated that their right to property had been denied, violated, breached and/infringed;
f. What reliefs should issue
148. The Learned Counsel submitted that on the said issues and the merits of the Petition as herein below. On whether the Petition raised any constitutional issues, the crux of the Petition before this Honourable Court was a dispute over ownership of L.R. No. 14897 CR 19582 situated in Kwale, the suit property. The Petitioners claim that they were the rightful owners of the suit property which was currently registered in favour of the 3rd Respondent and sought to have this Honourable Court declare them as the rightful owners of the suit property. Their clam was opposed by the Respondents.
149. The Learned Counsel submitted that the Petition herein had not met the threshold of specificity established in the case of “Anarita Karimi – Versus - Republic (Supra)” where the Court of Appeal held as follows: -
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
150. According to the Learned Counsel, it was not enough for the Petitioners to simply invoke the provision of Article 40 of the Constitution of Kenya, 2010 to claim that their rights had been violated or to frame their Petition as required under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, - “The Mutunga Rules.” The Petitioners were under an obligation to provide evidence to demonstrate how the said provision had been infringed or violated, which they had failed to do. As such, the 2nd and 3rd Respondents Preliminary Objection ought to be allowed.
151. Without prejudice to the above, the Learned Counsel contended that this Petition did not disclose a constitutional issue requiring to be canvassed by way of a constitutional Petition as there were other statutory mechanism in place for the resolution of such disputes. The Learned Counsel relied on the holding by the Court of Appeal in “Gabriel Mutava & 2 Others – Versus - Managing Director, Kenya Ports Authority (2016) eKLR” where the court held as follows: -
“Constitutional litigation is a serious matter that should not be sacrificed on the altar of all manner of frivolous litigation christened constitutional when they are not and would otherwise be adequately handled in other legally constituted forums. Constitutional litigation is not a panacea for all manner of litigation; we reiterate that the first port of call should always be suitable statutory underpinned forums for the resolution of such disputes.”
152. Similarly, the High Court in allowing a Preliminary Objection challenging the filing of the claim challenging ownership of land as a Constitutional Petition held as follows in:- “Mwangi – Versus - Kawendo Investments Limited & 4 Others (Environment & Land Petition E002 of 2023)[2023]KEELC 21993 (KLR) (5 December 2023) (Ruling)”;
“20.A reading of the application and the Petition shows that the Petitioner/Applicant is challenging the manner in which the 2nd Respondent acquired ownership of the land which questions can best be determined in an ordinary claim which would also afford parties the chance to present their evidence and give their testimonies. My analysis and conclusion is that the matter before this court is one of an ordinary claim that can be heard through filing of a plaint and it does not raise any constitutional issue.”
153. The Learned Counsel argued that the instant Petition concerned an ordinary civil dispute over ownership of land and ought to had been filed as a civil suit with each party being granted an opportunity to call witnesses in favour of its case. The Petitioners had not laid any basis for filing the Petition where the facts are contested and where they were simply asserting a right of ownership. The claim having arisen in the year 1989 and having been known to the Petitioner for over the last 35 years, the suit was time barred and had only been framed as a Constitutional Petition as a means of evading and escaping the twelve (12) statutory time limit for claiming any interest over land.
154. Further, since the facts in this Petition were highly contested, it did not meet the threshold of a Constitutional Petition and therefore it should be struck out. In support of this submission, the Learned Counsel relied on the holding by the Environment and Land Court in the case of:- “Edward Karanja Chogo & 2 Others – Versus - County Government of Kakamega (2018) eKLR” where the court held as follows:-
“A Constitution Petition is meant to deal with clear constitutional matters. It is to be applied in clear cases where facts can be ascertained, it is my view that, where there is need for further facts then the Petitioner ought to revert to a civil claim....”
155. The Learned Counsel therefore submitted that the Petition should be struck out and dismissed in limine as the claim was statute barred and the Petition was an abuse of the court process.
156. On whether the 1st Respondent rightfully acquired the suit property. The Learned Counsel submitted that the Commissioner of Lands by a letter dated 27th April 1989 allotted the 1st Respondent the property known as LR No. 14897 CR 19582 situated within Tiwi Beach Area Kwale County for a term of 99 years from 1st May 1989 subject to the payment of the standard premium and the annual rent set out in the Letter of Allotment.
157. The Petitioners contended that this allotment was illegal as the 1st Respondent was yet to receive its Certificate of Incorporation as a company by limited guarantee under the provision of Cap. 486 and was therefore non-existent. The Learned Counsel submitted this allegation and submit that this issue is res judicata and could not be relitigated before this Honourable Court. The Petitioners herein raised a Preliminary Objection dated 19th April 2009 in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another”, on the same ground claiming that the 1st Respondent herein did not exist at the time of allotment and could therefore not be allotted the suit property.
158. The Learned Counsel submitted that the High Court in Mombasa after considering the rival submissions, dismissed the Petitioners Preliminary Objection with costs in its ruling of 30th July 2010. No appeal was filed against the said ruling. This Honourable Court being court of concurrent jurisdiction to the High Court in Mombasa, it cannot sit on appeal of the High Court's ruling in “Civil Case No. 348 of 2009: Simkan Investments Limited – Versus - Juma Ali Salim Toza & Another” as it is being asked to do. The 2nd and 3rd Respondents Preliminary Objection on this issue is therefore for allowing.
159. Without prejudice to the above submissions, the 2nd and 3rd Respondents submitted that the Petitioners assertions and submissions, the allotment of the suit property and subsequent issuance of the title to the 1st Respondent was proper and complied with the statutory requirements at the time. The Letter of Allotment confirmed that the Commissioner of Lands had the requisite approval to allot the suit property and was copied to the Director of Surveys, the District Commissioner Kwale and the Senior Plan Record Officer among other officials in the Ministry of Lands and at the Survey of Kenya.
160. The 1st Respondent fully complied with the requirements set out in the Letter of Allotment and was issued with a Grant over the suit property on 27th June 1989 by Mr. Wilson Gacanja, the then Commissioner of Lands. At the time the title was processed, the 1st Respondent was already incorporated as a limited liability company. The Grant issued to the 1st Respondent confirmed that the 1st Respondent had complied with the requirements set out in the Letter of Allotment and further stated that the Deed Plan as well as the Survey Plan number 139699 for the suit property had been prepared, approved and were deposited at the Survey Office in Nairobi.
161. The Learned Counsel submitted that contrary to the Petitioners assertions, the title to the suit property in favour of the 1st Respondent was valid in law. The title to the suit property was issued in favour of the 1st Respondent on 27th June 1989, when the company was incorporated contrary to the allegations by the Petitioner. It could not therefore be said to be illegal or irregular.
162. On whether the suit property was legally transferred to the 2nd and 3rd Respondents. The Learned Counsel submitted that Black's law Dictionary Eighth Edition, Bryan Garner, Thompson West Publishing defined a “bona fide purchaser” as: -
“One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”
163. The Court of Appeal in the case of:- “Moses Lutomia Washiali – Versus - Zephaniah Ngaira Angweve & Another (2013) eKLR”, held that a bona fide purchaser would not be bound by any interests of which he or she does not have actual, constructive or imputed notice, as long as he or she did reasonable due diligence before purchasing the land.
164. The Learned Counsel asserted that they legally acquired the suit property without being aware of any alleged default in the title to the suit property. The 2nd Respondent carried out due diligence to confirm the registered owner of the suit property and whether there were any encumbrances registered against the title prior to entering into the Agreement for Sale. The 2nd Respondent thereafter, proceeded to apply for registration of a caveat against the title claiming purchaser's interest at the Lands Registry on 31st March 2024. It confirmed that it had secured its interest through its application for postal search dated 4th April 2017, through its transaction advocates Aboo & Company Advocates, which was received at the Lands Registry in Mombasa on even date.
165. The Registrar of Titles, the 6th Respondent herein, confirmed that as 7th April 2017, the suit property was registered in favour of Simkan Interments Limited and that there were no encumbrances against the title save for the caveat registered by one of its directors, Mr. Rahul Bid, on 31st March 2017. The 6th Respondent confirms that this is still the position through the Replying Affidavit of Mercy Chepkemoi, the Senior Registrar of Titles in Mombasa.
166. The 2nd Respondent having received confirmation that the suit property was free of encumbrances and was registered in favour of the 1st Respondent herein according to the records maintained at the Lands Registry in Mombasa, purchased the suit property from the 1st Respondent at a consideration of a sum of Kenya Shillings One Thirteen Million Three Twelve Thousand Four Sixty Eight Hundred and Eighty cents (Kshs. 113,312,468.80/-). The 2nd Respondent paid the stamp duty and eventually had the suit property transferred into its name on 3rd October 2017.
167. The Learned Counsel submitted that they had produced documentary evidence to demonstrate that they conducted due diligence in respect of the suit property prior to the purchase. The 2nd and 3rd Respondents having purchased the suit property without notice of any defect of the title held by the 1st Respondent, if any at all, their title is indefensible and cannot be challenged in law.
168. On whether the Land Dispute Tribunal, the magistrates court, the President or the National Land Commission had been jurisdiction to consider the Petitioners claims. The Learned Counsel submitted that the land disputes tribunal, that the proceedings and eventual decision of the Land Disputes Tribunal sitting in Kwale in “Kwale Land Dispute Tribunal Claim No. 6 of 2005: In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi” rendered on 13th September 2005 were ultra vires, a nullity and illegal. The said decision could not be considered, enforced or adopted by this Honourable Court as the Tribunal lacked the jurisdiction to hear and determine any claims seeking to establish/determine ownership of land, including the suit property herein.
169. The Learned Counsel posited that the jurisdiction of the tribunal was clearly spelt out under the provision of Section 3 of the Land Disputes Tribunals Act (now repealed) and was limited to considering the following case:-
“(1) Subject to this Act, all cases of a civil nature involving a dispute as to-
(a) the division of, or the determination of boundaries to land, including land held in common;
(b) a claim to occupy or work land; or
(c) trespass to land,
shall be heard and determined by a Tribunal established under section 4.”
170. Section 2 of the Land Disputes Tribunals Act (now repealed) limited the Land Dispute Tribunal's jurisdiction to considering claims relating only to agricultural land whether under the Registered Land Act or not but excluded land under subject of determination by the Land Registration Court. The suit property herein, however, fell outside the scope of the Tribunal’s jurisdiction as the land was not agricultural having been reserved for the construction of a hotel. Any dispute concerning the suit property herein could therefore not be considered by the Tribunal.
171. The Learned Counsel submitted that the Tribunal could neither consider nor determine claims of a civil nature involving a dispute over a title to land or even one touching on ownership of the suit property. In support of this submission, the Learned Counsel relied on the decision of the “Court of Appeal in M'Marete – Versus – Republic Civil Appeal 259/2000 (2004) eKLR”, where the court held as follows: -
“In our view, the dispute before the Tribunal did not relate to boundaries, a claim to occupy or work on the land, but a claim of ownership, taking into account the provisions of Section 3 of the Act, and what was before the tribunal, and we are of the view that the Tribunal went beyond its jurisdiction when it purported to award parcels of Land registered under the Registered Land Act to the Appellant. In our view, the Tribunal acted in excess of its jurisdiction.”
172. Similarly, the High Court in “Masagu Ole Naumo – Versus - Principal Magistrate Kajiado Law Courts and Another (2014)eKLR”, the court held as follows: -
“In my view, the view that the tribunal had no powers to deal with registered land is incorrect. What the tribunal was prohibited from undertaking is a determination with respect to title to land.”
173. The provision of Section 3(4) of the Land Disputes Tribunals Act (now repealed) provided for service of claims as follows:-
“(4) Every claim shall be served on the other party, or, where there are more than one, on each of the other parties to the dispute and the provisions of the Civil Procedure Act as regards service of summonses shall thereafter apply.”
174. The Learned Counsel submitted that the proceedings in September 2005 before the Tribunal were defective and failed to follow due process. A review of the proceedings confirmed that the 1st Respondent herein, the then registered owner of the suit property, was not a party and had no notice of the proceedings. The Petitioners stated that the notices were issued against one Mr. Kuria Kanyingi and not the 1st Respondent. Any eventual Determination by the Land Dispute Tribunal was invalid and violated the 1st Respondent’s right to fair hearing.
175. Other than exceeding its jurisdiction, the Decision of 13th September 2005 was irregular and against the rules or natural justice as the 1st Respondent was not given an opportunity to defend its title as the registered and actual owner of the suit property at the time. The Order of cancellation that was made without jurisdiction was of no legal effect or validity in law. This was clearly an attempt to steal a match against the 1st Respondents as the Tribunal could not proceed to hear the dispute without the registered owner of the suit property being present. In support of this submission, the Learned Counsel relied on the holding of the Environment and Land Court in the case of “Muthoni Van Someren – Versus - Kieni West Land Disputes Tribunal & 4 Others (2014) eKLR” where the court held as follows: -
The ex - parte applicant alleged that she was not served with the claim by the interested parties and that in pursuance of the claim the tribunal proceeded to hear the interested parties absence. In response to this allegation the interested parties have stated in the affidavit of Sammy Kihonge Someren that she was served and have annexed the claim that was before the tribunal. However there is no evidence of service by way of affidavit of service or otherwise. The court finds that the interested parties and the Respondents have failed to prove that there was service of the claim and hearing notice. It is trite law that no person can be condemned unheard therefore doing so is in breach of this fundamental principle of natural justice and any decision made in breach of the same is available for review. Indeed in Pashito Holdings & another – Versus - Ndungu & 2 others KLR (E&L)1 295 the Court of appeal held that the rule of audi alteram partem is a rule of natural justice and an indispensable requirement of justice that the party who made the decision shall hear both sides, giving each an opportunity of hearing what is urged against him. The applicant was not given such opportunity by the tribunal contrary to section 3 (4) of the Act and therefore the decision was made in breach of the principles of natural justice.”
176. The Land Dispute Tribunal's Determination purporting to award ownership of the suit property to the Petitioners was therefore invalid, illegal and a nullity for want of the Tribunal's jurisdiction.
177. On the magistrate Court, the Learned Counsel submitted that the Petitioners herein filed a claim before the Magistrates Court in “Land Case No. 23 of 2005 (Kwale): Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi” seeking to have the Magistrates Court adopt and issue an Order to enforce the Decision of the Kwale Land Dispute Tribunal in “Kwale Land Dispute Tribunal Claim No. 6 of 2005: In the matter of Dispute between Juma S. Toza and Ali S. Toza – Versus - Kuria Kanyingi”.
178. The Learned Counsel submitted that as the Land Disputes Tribunal acted in excess of its jurisdiction and contrary to the law, the said Decision was illegal and contra statute. Therefore, the Magistrates Court illegally and unlawfully adopted the said Decision and issued an Order in “Land Case No. 23 of 2005 (Kwale): Juma S. Toza and Ali S. Toza – Versus - Kuria Kanvingi” purporting to cancel the 1st Respondent's title to the suit property. The Order issued and dated 31st January 2006 in Land Case No. 23 of 2005 (Kwale):Juma S. Toza and Ali S. Toza vs. Kuria Kanyingi was therefore illegal and contra statute and a nullity law. In support of this submission, the Learned Counsel relied on the decision of the “High Court in Mary Kerubo Ogoti – Versus - Chief Magistrate's Court, Kisii Law Courts & 5 Others (2017) eKLR”, where the Court held that: -
“17. As I have come to the conclusion and holding that the Kiogoro Land Dispute Tribunal lacked the jurisdiction to deal with the matter of title relating to the registration of the Petitioner as owner of land parcel No. Nyaribari Chache/B/B/Boburia/6939 its decision recommending the revocation and/or cancellation of the title was null and void and equally the adoption of the decision by the 1st Respondent as judgment of the court and issue of the decree was a nullity and of no effect. In the case of Macfoy – Versus - United Africa Co. Ltd [1961] 3ALL ER 1169 at page 1172, Lord Denning succinctly stated thus:-
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
That statement holds true to the circumstances and facts of this case. The tribunal proceeded to deal with the matter without jurisdiction and its proceedings were hence null and void. The magistrate’s court purported to adopt the null and void proceedings/decision. The magistrate’s adoption of the tribunal’s decision was incurably bad and hence also null and void. In the words of Lord Denning “You cannot put something on nothing and expect it to stay there. It will collapse.”
179. According to the Learned Counsel, although the Magistrates Court, adopted the determination of the Kwale Land Disputes Tribunal, the Honourable Court failed to consider whether the Tribunal had the jurisdiction to issue the Orders sought to be adopted. The Decision of the Land Disputes Tribunal having been issued without jurisdiction, it could not be adopted by the Honourable Court and therefore its adoption does not give any validity to the decision of Tribunal. Further, the Petitioners herein, having failed to include the 1st Respondent as a party to the proceedings, the proceedings were fundamentally flawed and a nullity in law as they contravened the rules of justice and the 1st Respondent's right to fair hearing.
180. The Order of the Tribunal having been in excess of jurisdiction and contrary to the law, it could not be adopted as an Order of the Court by the Magistrates Court as it purported to do and further, it did not confer the Petitioners with a valid Order enforceable in law.
181. On the issue of the President. The Learned Counsel submitted that the Petitioners contended that the former President, Mr. Daniel Moi, approved their request to have the suit property transferred into their name on 6th May 1992. The Learned Counsel argued that the approval had not statutory or constitutional foundation. The provision of Section 24 of the Registration of Titles Act (now repealed) provided that: -
24.Any person deprived of land or of any interest in land in consequence of fraud or through the bringing of that land under the operation of this Act, or by the registration of any other person as proprietor of the land or interest, or in consequence of any error or misdescription in any grant or certificate of title or any entry or memorial in the register, or any certificate of search, may bring and prosecute an action at law for the recovery of damages against the person upon whose application the land was brought under the operation of this Act, or the erroneous registration was made, or who acquired title to the interest through the fraud, error or misdescription…”
182. The Learned Counsel further submitted that the statutory framework under the Registration of Titles Act, Cap. 281 (now repealed), under which the suit property was registered, did not authorize or grant the late former President Daniel Moi or even the Provincial Commissioner any role in the allocation of land or in adjudication of disputes relating to land. The late former President therefore lacked the jurisdiction to order cancellation of any title duly issued and registered under the provisions of the Registration of Titles Act (now repealed). The alleged Order/letter of 6th May 1992 sought to be relied on by the Petitioners herein is therefore invalid and illegal.
183. The jurisdiction to consider disputes relating to ownership of land was vested exclusively with the High Court. If the Petitioners were aggrieved by the registration and issuance of the title to the 1st Respondent they should have moved the High Court as provided for under Section 24 of the Registration of Titles Act (now repealed) seeking to have the title in favour of the 1st Respondent revoked. The Petitioners did not exercise this remedy and are therefore guilty of latches for failing to file a claim on time and are now time barred.
184. The suit property having been allotted and registered in favour of the 1st Respondent, its title could not be arbitrarily revoked by the late former President in the manner suggested by the Petitioners herein or at all and vested in their favour. In any event, the alleged approval had not been produced before this Honourable Court. Therefore its existence was doubtful. Similarly, the Cabinet Secretary, Ministry of Lands and Physical Planning does not have any role in the allotment of titles or in hearing any disputes concerning ownership of land under the Land Act and the provision of Section 101 of the Land Registration Act, he could not purport to ask the Land Registrar to cancel the 3rd Respondent’s title as allegedly done through the letters dated 6th and 11th September 2019.
185. In support of this submission, the Learned Counsel relied on the decision of the “High Court in Kuria Greens Limited – Versus - Registrar of Titles, & Another [2015] eKLR” where the High Court held: -
“I have carefully searched the Land Title Act, the Government Lands Act and the Land Control Act, and I have not come across any provision that grants power to a Registrar of Titles or the Commissioner of Lands, to arbitrarily revoke a valid land title. In my view therefore, the Registrar of Title exceeded his power and thus (acted) ultra vire in purporting to revoke the Petitioner’s title. There can be no doubt that an ultra vires act by a public authority is unlawful…”
186. Similarly, the alleged approval by the late former President authorizing cancellation of the 1st Respondent's title and the Order by the Cabinet Secretary were therefore illegal, unprocedural and irregular and could not bind the office he held then or any officer to whom it was directed are a nullity. The National Land Commission, Learned Counsel submitted that the 4th Respondent’s mandate under Section 14 of the National Land Commission Act was limited to considering and reviewing all grants or dispositions of public land to establish their property or legality. The suit property herein was not public land having been allotted to the 1st Respondent in the year 1989 and a title issued. The 4th Respondent therefore did not have the jurisdiction to hear or purport to determine any claim touching on the suit property.
187. The 4th Respondent herein lacked the jurisdiction to hear and determine claims over ownership of land. The proceedings and Determination of the 22nd August 2017 were therefore illegal and contra statute for want of jurisdiction. In support of this submission, the Learned Counsel relied on the decision of the “High Court in Republic – Versus - National Land Commission Ex-Parte Cecilia Chepkoech Leting & 3 Others [2016] eKLR”, where the court held as follows: -
“52. It is however my view and I so find that though land which was unlawfully acquired does not confer a good title and is not protected under Article 40 of the Constitution, where the land in question has acquired the status of private land pursuant to Article 62 as read with Article 64 of the Constitution, it is only the Environment and Land Court that has the jurisdiction to investigate and determine the legality of such title.
53. To permit the Commission to investigate all types of lands no matter their status would amount to clothing the Commission with jurisdiction it does not have, vet it is trite that a judicial or quasi-judicial tribunal, such as the Commission herein has no inherent powers.”
188. In any event, the said mandate was limited to 5 years from the date of commencement of the Act. At the time of issuance of the 4th Respondent’s determination on 22nd August 2017,the 4th Respondent’s mandate had lapsed and had not been extended by Parliament. It could therefore neither consider nor determine the claim by the Petitioners herein. The 4th Respondent herein further determined to revoke the title issued in favour of the 1st Respondent herein, the Learned Counsel that the 4th Respondent lacked the jurisdiction to revoke its title and its entire decision was ultra vires. In support of this submission, the Learned Counsel on the decision of the Environment and Land Court in “Mwangi Stephen Muriithi – Versus - the National Land Commission and 3 Others [2018] eKLR” where the court held as follows: -
“I find that there is no is provision empowering the Commission to revoke titles even where it is established that the same were unlawfully or irregularly acquired. The power to revoke title is vested in the Registrar and not the Commission which can only recommend. In this regard I fully associate myself with the sentiments of Odunga, J in the case of Robert Mutiso Lelli and Cabin Crew Investments Limited – Versus - National Land Commission & 3 others [2017] eKLR
In any case, the provisions of Article 67 (2) of the Constitution cited above is clear and overrides the provisions of section 14 (4) of the act which provides that “after hearing the parties in accordance with sub - section (3), the Commission shall make a determination.” The Constitution is the Supreme Law of the Land as is indeed espoused under Article 2 (4).
To the extent that the 1st Respondent rendered a determination as opposed to a recommendation, I find that the decision is tainted with illegality.
189. Similarly in the case of:- “Republic – Versus – National Land Commission & 4 Others ex - parte Fulson Company Limited and another”, the High Court held as follows: -
“In this case, Kilifi Beach properties Limited, the ex - parte Applicant is a private limited liability company, Shah Sesa and Edward Mzee Karezi are all private individuals. There is no material from the National Land Commission to rebut the claim that the subject land is private land. How the ex - parte Applicant acquired it from the Interested Parties is a matter of claims under private law between those parties. The National Land Commission has neither the legal authority to review and much less to revoke titles relating to private land. On this ground alone, the ex - parte applicant succeeds in its application for issue of an order of certiorari to quash the Commission's purported review and revocation of the ex-part Applicant title.”
190. In any event, the Learned Counsel submitted that a review of the decision of the National Land Commission dated 22nd August 2017, revealed that the 4th Respondent herein based its determination on the impugned decisions by the Late former President Daniel Moi, the decision of the Land Disputes Tribunal and the Magistrate's Court which lacked the jurisdiction to cancel the 1st Respondent’s title. The decisions were ultra vires and could therefore not form the basis of the 4th Respondent's determination.
191. Notice of the proceedings having been served upon one Kuria Kanyingi and not the 1st Respondent who at the time had passed away in the year 2014. He could therefore not enter appearance or defend the suit on behalf of the 1st Respondent as it was a separate and distinct legal entity from its alleged Director. Therefore, it should have been served at its offices as required in law not through the said Director. The 2nd Respondent having legally acquired an interest in the suit property at the date of the said proceedings, the 2nd Respondent should have been a party to the proceedings as required under Section 14(7) and (8) of the National Land Commission Act as well as Article 50 of the Constitution. The 4th Respondent having proceeded to hear and determine the dispute in the absence of the registered owners of the land, the proceedings were a nullity and illegal.
192. On alleged non – compliance with special conditions on the Letter of Allotment and the Grant. The learned Counsel submitted that the Petitioners contended that the title granted to the 1st Respondent was invalid for alleged non compliance with the special conditions set out in the grant. The Learned Counsel further submitted that the Petitioners contention was unfounded in law and could not form a basis for cancelation/ revocation of the 1st Respondent's title save as provided for under the provision of Section 77 of the repealed Government Lands Act, Cap. 280. Section 77 of the Government Lands Act provides that: -
(1) If the rent or royalties or any part thereof reserved in a lease under this Act is at any time unpaid for the space of thirty days after the same has become due, or if there is any breach of the lessee's covenants, whether express or implied by virtue of this Act, the Commissioner may serve a notice upon the lessee specifying the rent or royalties in arrear or the covenant of which a breach has been committed, and at any time after one month from the service of the notice may commence an action in the High Court for the recovery of the premises, and, on proof of the facts, the High Court shall, subject to relief upon such terms as may appear just, declare the lease forfeited, and the Commissioner may re-enter upon the land.
(2) In exercising the power of granting relief against forfeiture under this section, the Court shall be guided by the principles of English law and the doctrines of equity.
193. The Learned Counsel submitted that in the event the Commissioner of Lands intended to cancel the 1st Respondent’s title for alleged non - compliance with the special conditions, which in any event was denied, the Commissioner of Lands was by law required to issue the 1st Respondent with a 30 days’ notice of default stating the special conditions breached and a notice of intention to re – enter the suit property. In the event the breach persisted, the Commissioner of Lands, was at liberty to move the High Court seeking an order declaring the lease/title forfeited before any cancelation or revocation could be done. In support of this submission, the relied on the decision of the Environment and Land Court in the case of:- “Kisekem Ltd – Versus - Michael Kipkering Cherwon & 3 Others (2019) eKLR” where the court held as follows:-
“The argument by the defendants is that the Commissioner of Lands exercised his powers under special condition No. 2 of the lease. This court finds that the special condition was subject to the rule of law that requires a party to be heard before a decision is made. The action of the commissioner of lands was an affront to the rule of law and the principle of legitimate expectation. Section 77(1) of Government Lands Act Cap. 280, Laws of Kenya (repealed), which states that:
...Which section is in pari materia with section 31(1) of Land Act that provides:
... This provision did not allow the re-planning and re-survey of parcel number 231 that was already registered in the plaintiff's name. This court finds that the re-planning, re-survey extinguished parcel number 231 unprocedurally, illegally and deprived the Plaintiff of his parcel of land. The said re-planning is a nullity in law”
194. In this case, no notice of re – entry and/ or proceedings of the High court to repossess the suit property were ever commenced with respect to the suit property, the title in favour of the 1st Respondent therefore remains valid and could be transferred.
195. On whether the Petitioners had demonstrated that their right had been denied, violated, breached and/ infringed. The Learned Counsel opined that the Petitioners contended that the suit property was their ancestral land and that they had been residing on the suit property for many years. The Respondents opposed this contention as the 2nd and 3rd Respondents took over possession, use and occupation of the suit property from the date of purchase of the suit property from the 1st Respondent who had been in possession of the property priorly.
196. The Learned Counsel submitted that no evidence had been placed before this Honourable Court to demonstrate that the Petitioners had a legitimate claim to the suit property or that it is their ancestral land as claimed. Therefore, the Petitioners had failed to discharge their burden of proof to demonstrate that their right property had been infringed upon or that they had any legitimate claim to the suit property. The decisions relied upon by the Petitioners in support of their claim having been issued ultra vires, were a nullity in law and never lend any validity to the Petitioners claims.
197. On what reliefs should be issued. The Learned Counsel submitted that they had demonstrated to this Honourable Court, how the 1st Respondent acquired the property. That it was incorporated at the time it received the Grant to the suit property and that the subsequent transfer to the 2nd and 3rd Respondents, complied with the statutory requirements in place at the time. The allotment and registration in favour of the 1st Respondent should therefore be upheld together with the subsequent transfers to the 2nd and 3rd Respondents.
198. The Learned Counsel further submitted that they had also demonstrated that the Petitioners had no legitimate claim to the suit property, the decisions by the Tribunal, the Magistrate Court, the National Land Commission as well as the approval from the former President, having been a nullity in law, they could not be enforced and were illegal. Therefore, the Petition herein should be dismissed with costs to the 2nd and 3rd Respondents.
199. In conclusion, the Learned Counsel submitted that the Petition herein being an ordinary dispute over ownership of land, never met the threshold of a constitutional Petition, there were substantive laws that had been enacted under the Constitution through which the Petitioners claim should have been filed and determined, this claim was therefore for dismissal.
200. The Petitioners claim having been filed over thirty-five (35) years from the date of allotment and registration of the suit property in favour of the 1st Respondent, the claim was time barred under the Limitation of Actions Act, Cap. 22. The Petition was therefore filed as an attempt to circumvent the law. Thus, it was an abuse of the court process. The 2nd and 3rd Respondents had demonstrated that the decisions relied upon by the Petitioners in support of their claim was a nullity in law and was for dismissal. The 2nd and 3rd Respondents through legal representative therefore prayed that the Petition be dismissed with costs and the court to make a determination that the 3rd Respondent holds the title to the suit property
E. The written rejoinder submissions by the 2nd and 3rd Respondents
201. The 2nd and 3rd Respondent through the Law firm of Messrs. Issa & Company Advocate filed their rejoinder written submissions dated 3rd February, 2025. M/s. Wanjuku Advocate submitted that the 2nd and 3rd Respondents filed these submissions pursuant to leave granted by this Honourable Court on 20th January, 2025 in response to the issues raised in the 4th Respondent’s submissions dated 19th December, 2024. The 2nd and 3rd Respondents reiterated and fully relied on their earlier submissions dated 10th October 2024 together with the 2nd and 3rd Respondents’ Replying Affidavit sworn by Kunal Bid on 13th June 2024 in opposition to the Petition dated 30th November 2023. The broad issue for submission herein was, “Whether the 4th Respondent's Determination dated 22nd August, 2017 was issued in accordance with the law and whether it is enforceable or can be relied upon by this Honourable Court in the determination of the Petition before this Honourable Court.”
202. The Determination of the 4th Respondent herein published/ issued vide letter dated 22nd August, 2017 was bad in law and was per incuriam as by its own admission, it relied on the decision and recommendations of the Kwale Land Dispute Tribunal. in Claim No. 6 of 2005 as well as the Order of the Kwale Senior Magistrates Court in Land Case No. 23 of 2005. The Tribunal did not have the jurisdiction to consider a dispute touching on ownership of land. Therefore, its determination could not have been properly adopted into an order of the Court by the Kwale Senior Magistrates Court and further could not form the basis of the 4th Respondent’s determination and recommendation to the Chief Land Registrar, Mombasa, the 5th Respondent herein.
203. The Learned Counsel submitted that at the time the Petitioners’ allegedly lodged the complaint, though no complaint had been produced as evidence before this Honourable Court, the suit property did not fall within the ambit of public land as defined under the provision of Article 62 of the Constitution, 2010 having been lawfully allotted to the 1st Respondent in the year 1989. Further the alleged dispute having been with respect to the proper ownership of the suit property, the 4th Respondent herein lacked the jurisdiction to hear, consider or determine such a dispute as it fell squarely with the ambit of the Environment and Land Court pursuant to Article 162(2) as read together with Section 13 of the Environment and Land Court Act.
204. The Learned Counsel submitted that the 4th Respondent herein could therefore not purport to review the grant issued with respect to the suit property pursuant to Section 14 of the National Land Commission Act as it did not have either the constitutional or statutory mandate to do so. In support of this submission, the Learned Counsel relied on the decision of the “High Court in Republic – Versus - National Land Commission Ex-Parte Cecilia Chepkoech Leting & 3 Others (2016) eKLR” where Justice G. V. Odunga held as follows: -
“47.It is therefore clear that any land classified as private land cannot, unless an Act of Parliament defines it so, be public land. The only land which though falls under the general definition of private land but may be deemed as public land would be Government land according to an Act of Parliament which was unalienated at the effective date. In other words Government land which was at the effective date alienated and which is private land as defined under Article 64 of the Constitution cannot for the purposes of Article 62(1) be public land. According to Article 64, it is the holding or tenure as opposed to the process of alienation that defines what constitutes private land save for what would otherwise be private land but was Government land before the effective date.
48.In this case, according to the Grant the subject of these proceedings, the suit parcel was alienated on 1st November,1988. The effective date for the purposes of the 2010 Constitution was 27th August, 2010. It therefore follows that the subject parcel of land was alienated before the effective date which fall squarely under the definition of private land and the only basis for claiming jurisdiction is that the Commission intends to investigate the circumstances under which the suit parcel of land was acquired and transformed into a private land.
49 .As I have said above, the jurisdiction of the Commission is, as far as relevant to these proceedings, not defined by the process of acquisition of the land but the status of the land at the time of the investigation and at the effective date. Apart from the Constitution it has not been pointed out to me that there is another definition of public land that would bring private land as. defined under the Constitution within the ambit of public land in order for the Commission to have jurisdiction to review its disposition in order to establish the propriety or legality thereof...
...where the land in question has acquired the status of private land pursuant to Article 62 as read with Article 64 of the Constitution, it is only the Environment and Land Court that has the jurisdiction to investigate and determine the legality of such title.
53. To permit the Commission to investigate all types of lands no matter their status would amount to clothing the Commission with jurisdiction it does not have, yet it is trite that a judicial or quasi-judicial tribunal, such as the Commission herein has no inherent powers. In Choitram – Versus - Mystery Model Hair Salon [1972]EA 525, Madan, J (as he then was) was of the view that powers must be expressly conferred; they cannot be a matter of implication. Similarly in Gullamhussein Sunderji Virji – Versus - Punja Lila and Another HCMCA No. 9 of 1959 [1959] EA 734, it was held that Rent Restriction Board is the creation of statute and neither the Board nor its chairman has any inherent powers but only those expressly conferred on them.”
205. The provision of Section 14 (1) of the National Land Commission Act limited the 4th Respondent’s mandate to review grants and dispositions with respect to public land as follows: -
“14. Review of grants and dispositions
(1) Subject to Article 68 (c) (v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality.”
206. The Learned Counsel further submitted that the National Land Commission Act was assented to on 27th April 2012 and commenced on 2nd May 2012. The five (5) year mandate granted to the National Land Commission under Section 14 of the National Land Commission Act therefore lapsed on 2nd May 2017. No extension of its mandate was passed by Parliament by the said date. The Decision of the 4th Respondent was issued on 22nd August 2017 long after the 4th Respondent's mandate to review grants under Article 68(v) of the Constitution and Section 14 of the National Land Commission Act had lapsed and had not been extended by any Act of Parliament. The 4th Respondent could therefore not review any grants with respect to public land and especially could not review the grant with respect to the suit property as it was private land. In support of this submission, the Learned Counsel relied on the decision of the “Environment and Land Court as in Republic – Versus - National Land Commission & 2 Others Ex - Parte Biren Amrital Shah (2019) eKLR” where the court held as follows: -
“15. Article 64 of the Constitution defines private land as registered land held by any person under any freehold or leasehold tenure or any other land declared to be private land under an Act of Parliament. The Suit Property is private land. The Respondent's mandate under Article 67 is to deal with public land and not private land.
The court notes that the respondent's decision is dated October 9, 2017, by which time the period within which the respondent was empowered to review grants of public land had lapsed. The respondent therefore lacked the legal mandate to review grants of public land at the time it made its decision.”
207. From the documents produced by the Petitioners, the 4th Respondent's Chairperson, had already made a determination in favour of the Petitioners as early as 9th July 2014 the alleged hearing conducted on 13th December 2015 was therefore only intended to sanitize the conclusion reached by the 4th Respondent without due process. Further, no complaint had been produced before this Honourable Court, the jurisdiction of the 4th Respondent to consider any alleged dispute was therefore clearly not properly invoked.
208. The provision of Section 14 (3) of the National Land Commission Act provides that the 4th Respondent shall: -
“In the exercise of the powers under subsection (1), the Commission shall give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.”
209. Regulation 19 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations further obligates the 4th Respondent as follows:-
“19.Notice of hearing
(1)The Commission shall send a hearing notice to all parties to a complaint or review in Form NLC03 set out in the First Schedule.
(2 )The notice of hearing shall be sent by mail or electronically at least thirty days prior to the hearing date or within such other period as the Commission may consider reasonable in the circumstances.”
210. From the gazette notice produced as annexure “BI-1” in the affidavit of Brian Ikol sworn on 19th December 2024, the notices were issued to a “Simkan Investments Ltd”. not the 1st Respondent herein. Further, the alleged notices were not issued in accordance with the National Land Commission (Review of Grants and Dispositions of Public Land)Regulations and therefore were not proper. No notice was ever issued to the 1st Respondent herein as alleged and therefore the alleged hearing was illegal, unlawful and contra statute.
211. The Learned Counsel submitted that without prejudice to the foregoing, the notices issued with respect to the alleged hearing conducted by the 4th Respondent were defective as they were not delivered to the 1st Respondent’s as they were not delivered to the 1st Respondent's address despite its address being known and therefore do not satisfy the requirements under Section 14(3) of the National Land Commission Act as read together with Regulation 19 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations. In support of this submission, the Learned Counsel relied on on the decision in “Mwangi Stephen Muriithi – Versus - National Land Commission & 3 Others (2018) eKLR” where the court held as follows: -
“30. My finding is that the right to be heard transcends mere notice and extends to the person being given sufficient information to enable them prepare and/or present their case. Such a person is entitled to be furnished, in good time, with information, including reports and documents in the body's possession that may be prejudicial to his/her case and which would guide that body relied in arriving at its decision. Section 14 (3) of the Act is clear that such a person, apart from entitlement to notice, has the right to inspect any relevant document.
31.Having perused the documents placed before this Court, I am convinced that the Petitioner was neither furnished with the details of the complaint before the 1st Respondent nor granted access to the critical documents before the 1st Respondent. I find that in the circumstances of this case, it would be unfair then to expect or conclude that in the absence of such critical information, the Petitioner was granted a fair hearing as envisaged under Article 50 of the Constitution. In this respect I agree with the finding of Mativo, J in the case of Sceneries Limited – Versus - National Land Commission [2017] eKLR.
32. In the absence of adequate notice, and access to the complaint as outlined herein, I am inclined to find that the Petitioner was not granted a fair hearing.”
212. In conclusion, the Learned Counsel submitted that they had demonstrated before this Honourable Court that the determination by the 4th Respondent was not only per incuriam but that it was made with respect to private property in respect to which it has no mandate and further, was issued outside the 4th Respondent's statutory mandated period to review grants for disposition of public land. As the determination was made without jurisdiction, the same was and is null and void in law.
213. Further, the 2nd and 3rd Respondents had demonstrated that the 1st Respondent herein was properly allotted the suit property and subsequently transferred it to them for value. The initial allotment and transfers were properly carried out in accordance with the law and should be upheld and the instant Petition dismissed with costs.
F. The Written Submissions by the 4th Respondent
214. The 4th Respondent through the National Land Commission c/o of Magdalene Mutheu Advocate on 19th December, 2024. M/s. Mutheu Advocate commenced by stating these were submission on behalf of the National Land Commission the 4th Respondent herein in response to the Petition dated 30th November 2023. The 4th Respondent would rely on the Replying Affidavit of Brian Ikol sworn on 19th December 2024, the evidence he presented as well as our submissions filed herein.
215. On background, the Learned Counsel submitted that the Petitioners, Ali Salim Toza and Juma Salim Toza, were brothers who claimed to own the suit property which was situated at Tiwi Beach area within the County of Kwale for many years. They contended that they were the owners of the suit property, which they alleged was their ancestral land on which their families had lived and farmed for generations.
216. The Petitioners alleged that sometimes in year 1989, the 1st Respondent, Simkan Investments Limited (Simkan), illegally grabbed the suit property contending that it had been allotted to them. The suit property had since then changed hands. It was noted from pleadings filed herein that the suit property was transferred to the 2nd Respondent (BTB Insurance) on 3rd October 2017 by the 1st Respondent and subsequently to the 3rd Respondent (BID Investment) on 14th December 2017. It was now registered in the name of the 3rd Respondent.
217. Sometime, in the year 2014, the 4th Respondent received a complaint from the Petitioners in respect of the suit property. The request was for the Commission to review the Grant in respect of the suit property on the basis that the same was illegally and or fraudulently appropriated. Pursuant to the complaint, the Commission issued a public notice inviting all interested parties to attend public hearings in respect of the subject property at the Kenya School of Government, Matuga on 13th December 2015. The Commission heard presentations from both the Petitioners. However, the 1st Respondent did not appear nor have any representation during the hearing despite the Commissions efforts through various notices being issued to them including in the daily newspapers. The Respondents' failure to honour the Commissions invitations only proved that they were not interested in the proceedings. Therefore, the subject matter of the case.
218. Over and above the submissions of the parties, the Commission undertook investigations, site visit and reviewed documents and records at the Ministry of Lands and Physical Planning to make its determination.
219. On the issued for determination the Learned Counsel relied on the issue of whether the Petitioners had any justiciable claim as against the 4th Respondent. The Learned Counsel submitted that the provision of Section 14 of the National Land Commission Act, stated that subject to Article 68 (c)(v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality. (2) Subject to Articles 40, 47 and 60 of the Constitution, the Commission shall make rules for the better carrying out of its functions under subsection (1) (3) In the exercise of the powers under subsection (1), the Commission shall give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.
220. The Learned Counsel submitted that in this instance, the Commission received a complaint from the Petitioners in respect to the suit property to review the grant issued to the 1st Respondent and make a determination, the Commission confirmed that it met the criteria and guidelines required under Section 14 and Article 68 (c)(v) of the Constitution of Kenya, 2010. Having established this, the Commission set out to commence the process of review of grants by publishing a public notice in the daily newspapers. In arriving at the determination, the 4th Respondent followed and acted in accordance with all the laid down procedures as spelt out by the provisions of the law.
221. On 13th December 2015, the Commission held public hearings pursuant to the public notice inviting parties for the same. The Petitioners appeared and their evidence was taken whereas the 1st Respondent did not appear despite numerous invitations and public notices on the subject having been served upon it. The Commission dispensed with the requirement of section 14(3) of the National Land Commission Act to “give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents”.
222. The provision of Section 14 of the National Land Act, 2012. Section 14(5) states that where the Commission finds that the title was acquired in an unlawful manner, the Commission shall, direct the Registrar to revoke the title. The legality or lawfulness of a title hinges on the compliance of the process of the allocation of that land with the constitutional and statutory requirements for the grant of the land: Any grant or allocation or public and that is in contravention of legal requirements is therefore null and void.
223. Under the provision of Section 14(6), where the Commission finds that the title was irregularly acquired, the Commission shall take appropriate steps to correct the irregularity and may also make consequential orders. Irregularly acquired titles are those titles that were procured in compliance with the constitutional and statutory requirements for the grant of those lands, but which, in the process, were marred by certain administrative anomalies that do not go to the root of the title.
224. During investigations, the Commission noted that the Respondents were not locals and had never resided on the land. Therefore, it was not possible that they enjoyed ancestral rights of ownership or adjudication rights. They could only acquire the properties as purchasers yet they had no proof of purchase or transfer of the properties. In arriving at its determination, the Commission was guided by among others, the decision of the Land Dispute Tribunal Kwale Vide Claim No. 6 of 2005 and the Judgment of the Kwale Senior Resident Magistrates Court in Land Case No. 23 of 2005 where the court ordered the Land Registrar to cancel the title deed held by the 1st Respondent and a new title issued in the name of the Petitioners as the owners of the property.
225. The Commission’s final determination was for revocation of the title issued to Simkan Investments Limited and the land be reverted to the Petitioners. The said determination was served upon the Land Registrar Kwale, Chief Officer, Lands-Kwale County, Simkan Investments Limited and the Petitioners herein. After adherence with the provisions of section 14(5) of the National Land Commission Act, the 4th Respondent recommended the 5th Respondent to revoke the titles held by the 1st, 2nd and 3rd Respondents. It was the mandate of the Land Registrar to register interests in land as he is the custodian of land documents and records.
226. The Learned Counsel referred Court to the case of:- “The Matter of the National Land Commission |2015] eKLR” the Supreme Court held that: -
“The words 'recommend, advise, research, investigate, encourage, assess, monitor and oversight' - are all actions than provide a facilitative role rather than a primary one. The context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. There is therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted. In my opinion, this means that unless specified within the enabling constitutional provision, a body with oversight function, and a body that implements the recommendations of the former, are different, and their roles do not overlap.”
227. It was therefore the Learned Counsel’s submission that there was no cause of action against it to warrant the orders sought by the Petitioners.
228. In conclusion, the Learned Counsel asserted that it carried out the review of grants process in accordance with the law and it had produced sufficient evidence to prove this. Additionally, its role in a review process never extended to the rectification of the Land Registrar as this was the responsibility and mandate of the 5th Respondent who was the custodian of land records. Thus, the 4th Respondent prayed through its legal representative that this Honourable Court finds that: -
i) The review of grants process was conducted in accordance with the governing laws
ii) The Commission only recommended for revocation of titles. It played no role in rectification of land records.
iii) The Petitioners had raised no reasonable cause of action against it.
iv) The Petition as against the 4th Respondent be dismissed with costs.
G. The Written Submissions by the 5th and 6th Respondents
229. The 5th and 6th Respondents through the offices of the State Law (The Honourable Attorney General) and the State Counsel filed their written submissions dated 11th July, 2024. M/s. Mwanaszumba, the State Legal Counsel submitted that what was before the Honourable Court was a Petition seeking the above stated reliefs.
230. The 5th Respondent filed a Replying Affidavit sworn by the Senior Land Registrar, Mombasa, M/s. Mercy Chepkemoi and filed a Preliminary Objection both dated 11th July, 2024. The Affidavit by Mercy Chepkemoi gave a history of the transactions in LR No. 14897 CR 19582 as per the records held by the Land Registry, Mombasa. The recent official search indicating that the suit property was registered in the name of WWW.BID Investment Company Limited on 14th December, 2018.
231. On the 5th and 6th Respondents’ preliminary objection. The Learned Counsel submitted that they filed a Preliminary Objection going to the jurisdiction of this Honourable Court to hear the Petition on the following grounds: -
a). That the Petition offends the doctrine of Constitutional Avoidance.
b). That the Petition was a simple claim founded on ownership of land but disguised as a Constitutional Petition and hence should not have been filed as a Constitutional Petition but as an ordinary suit.
c). That the matter could be properly decided on another basis other than by a Constitutional Petition.
d). That the Petitioners failed to exhaust the available remedies as provided under Section 13 (2) of the Access to Information Act No, 31 of 2016 and Regulation 91 of the Land Registration (General) Regulations 2017.
232. On whether the Court has jurisdiction to determine the suit herein. The Learned Counsel submitted that this Honourable Court has no jurisdiction to entertain this Petition as it offended the doctrine of Constitutional Avoidance. In the first instance, the Petition as filed did not disclose how the listed Articles of the Constitution had been violated. Thus, it failed the test of specificity established by the authority of “Anarita Karimi Njeru” (Supra). The test was stated thus: -
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
233. Secondly, the Learned Counsel submitted that the Petition offended the Doctrine of Constitutional Avoidance. They relied on the Court's decision in “Kenya Association of Stock Brokers and Investment Banks – Versus - Attorney General & another High Court, Nairobi, Pet. 22 of 2015 [2015] eKLR” where it considered the operation of Constitutional Avoidance doctrine and in so doing made reference to Supreme Court decision in “Communications Commission of Kenya & 5 Others – Versus - Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR” where the Court observed thus: -
[105]. We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”
[106]. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held:.
[256]..The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
234. The Petition before the Honourable Court according to the Learned Counsel claimed a violation of the provision of Articles 2, 10, 19, 22, 23, 40 & 60 of the Constitution. However, in addition to failing to pass the specificity test established in “Anarita Karimi Njeru”, the Claim was a simple one founded on ownership of land but disguised as a Constitutional Petition and hence should not have been filed as a Constitutional Petition but as an ordinary suit. The only specific violation stated by the Petitioners is on Article 40 at paragraphs 32-41 of the Petition. The provision of Section 13 of the Environment and Land Court Act provides for the Jurisdiction of the Court as follows: -
(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes-
(ai relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.
235. Further, the Act granted the Court powers to issue declaratory orders under section 13(5). Therefore, the Petitioners ought to have filed a normal suit in the Environment and Land Court and not a Constitutional Petition. They further submitted that the Petitioners had failed to comply with the doctrine of exhaustion by failing to exhaust the available remedies as provided for under Section 13(2) of the Access to Information Act No. 31 of 2016 and Section 91 of the Land Registration (General) Regulations 2017.
236. A 5-Judge Bench in the case of:- “Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR” elaborately dealt with the Doctrine of Exhaustion. The Court stated as follows: -
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017]eKLR, where the Court opined thus:
42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992]KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”
237. The Learned Counsel submitted that they noted that the actions by the Petitioners in escalating their grievances to various government authorities was proof of fact that they voluntarily submitted to the alternative dispute resolution process under the Ministry of Lands. The Petitioners failed to exhaust the dispute resolution process upon receiving the letter dated 16th September, 2019 from the Registrar of Titles, Mombasa sequencing the history of ownership of the suit property. Upon receipt of said letter, the Petitioners ought to have invoked their right to rectification of information from the Land Registrar, requesting rectification of the alleged land ownership records as provided for under section 13(2) of the Access to Information Act No, 31 of 2016 and Regulation 91 of the Land Registration (General) Regulations 2017. The provision of Section 13 (2) of the Access to Information Act No, 31 of 2016 provides for correction of information thus: -
(1) At the request of the applicant, a public entity or private body shall within reasonable time, al its own expense, correct, update or annotate any personal information held by it relating to the applicant, which is out of date, inaccurate or incomplete.
(2) A request under this section shall be made in writing to the public entity responsible for the maintenance of the record system containing the out of date, inaccurate or incomplete information and shall-
(a, state that it is a request to amend certain personal information relating to the applicant;(b) specify the personal information that is to be amended indicating how such information is out of date, inaccurate or incomplete; and
(c) specify the remedy sought by the applicant
238. Regulation 91 of the Land Registration (General) Regulations 2017 gives the registrar powers to rectify the register upon hearing all persons interested.
239. It was the Learned Counsel’s submission that the remedies sought by the Petitioners were available to them then and they failed to exhaust the available avenues for them. This Court should therefore not entertain the Petition for violating the doctrine of exhaustion.
240. In conclusion, it was their humble prayer that the Petition herein should not be entertained for violating the constitutional avoidance doctrine and the doctrine of exhaustion.
XIII. Analysis and Determination
241. I have carefully considered all the filed pleadings pertaining to the Petition dated 30th November, 2023, the Affidavits by the the Petitioners, the articulate & comprehensive detailed both written and oral (through highlighting of the submissions in Court) submissions by both the 1st & 2nd Petitioners and the 1st, 2nd, 3rd, 4th, 5th & 6th Respondents herein, the myriad of cited authorities, the appropriate provisions of the Constitution of Kenya, 2010 and the statures.
242. For the Honorable Court to reach an informed, just, fair and reasonable decision, it has condensed the Subject matter into the following five (5) salient issues for its determination. These are:-
a) Whether the Petition herein meets the threshold and thus raises constitutional questions violations.
b) Whether the Preliminary Objection raised by the 1st Respondent herein meets the threshold for an objection based on Law and Precedents.
c) Whether the Notice of Preliminary objection dated 20th March, 2024; If the answer in (b) is in the affirmative whether the 1st Respondent has made out a case for the dismissal of the Petition dated 30th November, 2023;
d) Whether the parties herein are entitled to the reliefs sought.
e) Who will bear the Cost of the Petitioner?
ISSUE No. a). Whether the Petition herein raises constitutional questions violations.
243. Under this Sub – heading, notwithstanding the fact that there has been raised two (2) Preliminary objection by the 1st and the 5th & 6th Respondents dated 20th march, 2024 and 11th July, 2024 respectively, the Honourable Court feels strongly obligated in the interest of Justice, Equity and Conscience to imperatively, first and fore most commence by deliberating on the legal efficacy, viability and the jurisprudence of the Petition before embarking on the Objections. The Court will then deal with the two objections at a later stage of this Judgement.
244. Certainly, from the filed pleadings, this is a protracted and highly contested matter. On the one hand, the Petitioners have raised quite a number of weighty issues pertaining to the legal and absolute ownership, the subsequent land dispute and the various mechanisms of resolving them at different fora and the decisions made thereof and the status quo of the suit land between them and the 1st Respondent. According to the Petitioners, in all these processes and proceedings they perceive the to be of constitutional nature them being utter breach, violation, threat, infringement and denial of their Constitutional fundament Rights. Indeed, they have held that they have been subjected to long and historical land dispute to what they term as their ancestral land from time immemorial. Clearly, this has been travesty of justice, fairness and Equity. To them, it was through filing of the Constitution Petition that was the most suitable legal mechanism to resolve and attain the appropriate legal remedy to the long standing land dispute.
245. Juxtapose, on the other hand, the 1st, 2nd, 3rd, 5th and 6th Respondents have a contrary view to the filed Constitution Petition. To them they hold that this Court is not clothed with he Jurisdiction to entertain the matter altogether based on several broad grounds. Firstly, to them the Petition offends the Doctrines of Res Judicata having been deliberated and finally decided in several other legal avenues and Constitutional Avoidance; Secondly, this is a case that ought to have been adjudicated through filing of an ordinary suit than disguising it as Constitution Petition as it never met the threshold of a Constitution Petition. Thirdly, the Petition was brought way after the lapse of several tears and hence it was statutorily barred by limitation as founded under the provisions of the Limitation of Action Act, Cap. 22 of the Laws of Kenya.
246. Be that as it may, therefore, the Honourable Court will inevitably and critically assess certain aspects of the concept of Constitutional provision. To begin with, under the provision of Article 2 (1) & (4) of Constitution of Kenya defines the Constitution as being the Supreme law of the Republic and it bids all persons and all States at all levels. Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency and any act or omission in in contravention of this Constitution is invalid.
247. Additionally, I dare say that a Constitution is a living tissue. Just like all other tissues, it has to be fed and watered. It breathes without oxygen and freshness it will die. I have learnt that these things are not just metaphorical. They are real. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:-
a. Promotes its purposes, values and principles;
b. Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c. Permits the development of the law; and
d. Contributes to good governance……”
248. This Court must give a liberal interpretation and consideration to any provision of the Constitution and have regard to the language and wording of the Constitution and where there is no ambiguity attempt to depart from the straight texts of the Constitution must be avoided. It must always be interpreted and considered as a whole with all the provisions sustaining and coordinating each other and not destroying the other.
249. Based on the principles set out in the edit of the Court of appeal case of the “Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another (2013) eKLR” provided the standards of proof in the Constitutional Petitions as founded in the case of “Anarita Karimi Njeru – Versus - Republic [1980] eKLR 154” where the court is satisfied that the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:-
“Constitutional violations must be pleaded with a reasonable degree of precision…………”
Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR said in the year 1876 and which hold true today:
“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule……was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing……………
………………..We would however again stress that if a person is seeking redress from the High Court on a matter that involves a reference to the Constitution it is important (if only to ensure that justice is done to his/her case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
250. The provision of Article 23(3) of the Constitution empowers a court to grant appropriate reliefs in any proceedings brought under Article 22 where there has been violation or threat of a violation of a fundamental right or freedom. The relief may include a conservatory order.
251. In this Petition, the Petitioners seek for the above stated order. The Petitioners based their Petition on Article 2 of the Constitution of Kenya, 2010 states that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
252. Article 10 of the Constitution provides the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law, or makes or implements public policy decisions. These national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.
253. Article 19 (3) of the Constitution states that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the state. They did not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with the chapter on Bill of Rights; and they are subject only to the limitations contemplated in the Constitution.
254. Article 20 (1) of the Constitution states that the Bill of Rights applies to all law and binds all State organs and all persons. It is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
255. Article 21(1) of the Constitution provides that it is the fundamental duty of the State and every state organ to observe, respect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
256. Article 22 (1) of the Constitution states that every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
257. Article 23 of the Constitution of Kenya grants this court jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The court has jurisdiction to grant appropriate relief including those set out at sub-article (3) thereof.
258. Article 40 of the Constitution of Kenya, 2010 enshrines the protection of right to property. Every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. Article 40 (3) of the Constitution provides that the State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter five of the Constitution or is for a public purpose or in the public interest and is carried out in accordance with the Constitution and any Act of Parliament that requires prompt payment in full, of just compensation to the person and allows any person who has an interest in, or right over, that property a right of access to a court of law.
259. Article 258 (1) of the Constitution grants every person the right to institute court proceedings, claiming that the Constitution has been violated, or is threatened with contravention.
260. The question would therefore be whether the Petition herein raises constitutional questions violations, the Court in “Anarita Karimi Njeru (Supra)” and restated by the Court of Appeal in “Mumo Matemu – Versus - Trusted Society of Human Rights Alliance & others [2013] eKLR” set the law as to what constitutes a Constitutional Petition. A party seeking redress by way of constitutional petition must set out with reasonable degree of precision the provisions which the proponent alleges to have been infringed and the manner of the alleged infringement.
261. In the instant case, the Petitioners have particularized their case on several aspects whereby they claim a breach, violation, threat and denial of their fundamental right in particular that of private property being the suit land. In that retrospect, the Petitioners alleged that they were the legal owners of all that parcel of land known as known as L.R No 14897 CR 19582 situated within Tiwi Beach area within the County of Kwale. The suit land was their ancestral land. The Petitioners and their families had lived and farmed on the suit land for generations. Sometimes, in the year 1989, the 1st Respondent illegally grabbed the suit land contending that the then President of the Republic of Kenya, the late President Daniel Arap Moi, had allotted the land to them.
262. On 25th March, 1992, the 1st Petitioner wrote to the Commissioner of Lands requesting that ownership of the suit land be restituted to them. The petition was forwarded to the late President Moi who considered it and approved it on 6th May, 1992. The President’s approval was not acted upon and so in 2005, the Petitioners lodged a claim with the Kwale Land Dispute Tribunal for determination of who was the rightful owner of the suit land. The complaint was Kwale Land Dispute Tribunal Claim No 6 of 2005; In the matter of Dispute between Juma S. Toza and Ali S. Toza versus Hon Kuria Kanyingi and Simkan Investment Limited.
263. The Tribunal heard the complaint on 13th September, 2005 and upheld the Petitioners’ claim to the suit land. On 31st January, 2006, the Kwale Senior Resident Magistrate Court adopted the decision of the Kwale Land Dispute Tribunal as a judgment of the court in Land Case No 23 of 2005. The Petitioners were eventually issued with a Certificate of Title No CR 19582 on 2nd April, 2009. On 8th October, 2009, the 1st Respondent filed a suit at the Mombasa High Court being Civil Case No 348 of 2009; Simkan Investments Limited versus Ali Salim Toza and 3 others alleging that it had a valid title to the suit land and that the Petitioners had obtained title to the same land through fraudulent means. Upon filing the suit, the 1st Respondent obtained an ex parte mandatory injunction on 21st October, 2009 in the absence of the Petitioners which directed the Registrar of Titles Mombasa to cancel the Petitioners’ title to the suit land. That suit was never heard as the 1st Respondent did not prosecute its case and the case was eventually dismissed for nonattendance on 9th November, 2015. In 2014, the Petitioners referred the dispute over the suit land to the National Land Commission for determination.
264. It is apparent that in light of the above, the Petitioners had fulfilled the requirements calling for a Petition such as the instant one to be brought in a Constitutional Petition framework. They cited the provisions of the Constitution that were violated and the manner the said constitution was violated. While any party is welcomed to file Constitutional Petitions, legally speaking, this Honourable Court appreciates that not all Constitutional Petitions are necessitated going by the circumstances of the dispute. In other words, not all grievances should justify the filing of a Constitutional Petition.
265. In this instance, the Petitioners seek to have this Court issue a declaration for the cancellation of the title to L.R No 14897 issued to the 1st Respondent and subsequently to the 2nd and 3rd Respondents. I strongly hold and based on the Doctrine of Constitutional Avoidance, the Constitution is not a general substitute for the normal or conventional or ordinary Civil procedure and Courts have held that private law claims should not form the basis of Constitutional Petitions. Instead, such disputes should be resolved by using the usual process of civil litigation. To support this legal position, I wish to seek refuge from the case of “Dennis Wanyonyi Simiyu & 2 Others – Versus - Caroline Nafula Omondi & Another [2020] eKLR”.
266. Concerning private law claims in “Dennis Wanyonyi Simiyu & 2 others – Versus - Caroline Nafula Omondi & Another [2020] eKLR”, the court stated as follows: -
“Courts have held that private law claims should not form the basis of Constitutional Petitions and should be resolved by using the usual process of civil litigation. See Benjoh Amalgamated Limited & Another – Versus - Kenya Commercial Bank Limited (2007) eKLR. In Uhuru Muigai Kenyatta – Versus - Nairobi Star Publications Limited (2013) eKLR Lenaola J applied the holding in the Re application by Bahadur (1968) LR C (cost) 297 and held that:-
“Where there is remedy in civil law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries (Supra) where the converse may have been expressed as the position. My mind is clear however that not every ill in society should attract a constitutional sanction ….”.
In the Re-application by Bahadur Case (Supra), the court held as follows:-
“ The constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action. Where infringements of rights can found a claim under substantive law, the proper course is to bring the claim under that law and not under the constitution”.
I have analysed the petition before me and I do not find it to raise any constitutional issues for due consideration by this court. It is my considered view that the Petitioner’s claim is a civil claim which will be best determined as prescribed by the Civil Procedure Act and the Rules made thereunder.”
267. As already indicated above, I see the issues raised in this instant Petition are on the issuance of title to the 1st, 2nd and 3rd Respondents herein. Certainly, these are extremely serious and weighty issues. However, I discern they are being raised at a wrong fora. The Constitutional Court may not get the luxury of causing indepth interrogation and investigation of these facts as it would have been if it was in an ordinary suit. These include but not limited to:
a) What are the legal efficacy and effect of the acquisition of the suit land – “the root of the title” (eg. Was it ancestral or not) by the parties as per the provisions of the Law – Sections. 23 & 24 of the Registration of Title Act, Cap. 281 (Now repealed) Section 77 of the Government Act, cap. 280; ; Sections 24, 25 and 26 of Land registration Act, No. 3 of 2012;
b) What are the empirical evidence on the allegation of title having been acquired through fraudulent scheme; - through “the burden of proof” under Section 107, 108 and 109 of the Evidence Act, Cap. 80.
c) What are the appropriate mechanism to resolve the protracted legal and land dispute – the Constitution & Administration of Justice; the NLC etc.
d) What are the most available legal remedies to resolve this matter – eg. Rectification of the Registries; Cancelation of title deed.
268. In my view, these are issues that a Constitutional Petition may have difficulties in entertaining and resolving whatsoever. Furthermore, the Petitioners seem to be seeking eviction remedies and permanent injunctions here disguised as a Petition. In my view, the Court is being invited to sit as an appeal to the Land Case No. 23 of 2005 (Kwale Senior Resident Magistrate Court) which adopted the decision of the Kwale Land Dispute Tribunal. I reiterate that the issues advanced by the Petitioners in this Petition are those that do not have to necessary be advance through a Petition.
269. I will be discussing indepth the issue of the Doctrine of Res judicata at a later stage of this Judgement while addressing the two Notices of Preliminary Objection. There was also an issue raised by the Respondents on the limitations of filing the said Petition. The position with regard to Limitation of Time in Constitutional Petition was recently restated by the Court of Appeal in the case of “Chief Land Registrar and 4 Others – Versus - Nathan Tirop Koech and 4 others (2018) eKLR”, where the Court held as follows:-
“Guided and convinced of the sound jurisprudence that there is no time limit for filing a constitution petition, we find the ground that the trial judge, erred in failing to dismiss the petition on account of delay acquiescence and laches has no merit. Unless expressly stated in the constitution, the period of Limitation in the Limitation of Actions do not apply to violation of rights and freedom guaranteed in the Constitution…. In our view, subject to the Limitations of Article 24 of the 2010 Constitution, fundamental rights and freedoms cannot be tied to the shackles of Limitation of Actions, Act. However, each case is to be decided on its merits…”
270. The Court of Appeal took the same view in the vase of “James Kanyiita Nderitu – Versus - Attorney General and Another (2019) eKLR” where the Court held that: -
“in our view, subject to the Limitations in and freedoms cannot be tied to the shackles of Limitation of Actions Act. However, each case is to be decided on its own merits and a caveat need to be stated…….”
271. Additionally, in “High Court Petition No. 306 of 2012, Kenneth K’ogutu – Versus - Kenyatta University and 2 Others” as well as the decision in “Abraham Kaisha Kanzika and Another – Versus - Central Bank of Kenya”, both Petitions failed because they had filed more than 10 years after the alleged, infringement of rights had occurred. In the present Petition the said dispute emanated around the year 2019 when the 5th Respondent when it responded to the letter by the Ministry giving a history of the suit land. He indicated in that letter that the suit land was transferred to the 2nd Respondent on 3rd October 2017 and subsequently to the 3rd Respondent on 14th December 2017.
272. This leads this Court another limb of this discussion; where does an appeal from the decision of the 5th Respondent go to? This forum would be appropriate were it not that the Petitioners’ claim in structured in such a manner that the same seems to be “an appeal” to the previous decision. Thus, in a nutshell, from the surrounding facts and given circumstances of this subject matter, the Court fully concurs with the 1st, 2nd, 3rd , 5th and 6th Respondents that that the instant Constitution Petition was erroneously instituted instead of an ordinary suit. Its total contravention of the Doctrine of Constitutional Avoidance. For that stand alone aspect it must fail.
ISSUE No. b). Whether the Notice of Preliminary objection dated 20th March, 2024 meets the thresholds of an objection.
273. Under this Sub – heading, the Honourable Court will decipher on the substratum of the matter is whether the objection raised pure points of law. In determining this instant Notice of Preliminary Objection, the Court will first consider what amounts to a Preliminary Objection and then Juxtapose the said description herein and come up with a finding on whether what has been raised herein fits the said description.
274. According to the Black Law Dictionary a Preliminary Objection is defined as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
275. According to Black’s Law Dictionary 11th Edition, a Preliminary Objection is an objection that if upheld would render further proceedings before the tribunal impossible or unnecessary. Our Courts have various defined Preliminary objection as one that consists of a point which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point my dispose of the suit.
276. The above legal preposition has been made graphically clear in the now famous case of “Mukisa Biscuits – Versus - Westend Distributor Ltd [1969] EA 696”, the court observed that: -
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue.”
277. This statement of the law has been echoed time and again by the courts: see for example, “Oraro – Versus - Mbaja [2007] KLR 141”.
278. The same position was held in the case of “Nitin Properties Ltd – Versus - Jagjit S. Kalsi & another Court of Appeal No. 132 of 1989[1995-1998] 2EA 257” where the Court held that;
“A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.”
279. Similarly in the case of “United Insurance Company LTD – Versus - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that;
“A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .”
280. Therefore from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that;
“A Preliminary Objection cannot be raised if any facts has to be ascertained.”
281. I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR” as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia:-
(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
(ii) A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
282. Taking into account the above findings and holdings of various Courts on what amounts to a preliminary Objection, the Court now turns to the grounds raised by the 1st Respondent herein which are the Honourable Court lacked jurisdiction to hear and determine this suit on account of the Petition being res judicata. In this case, I am satisfied that the objection raises pure points of law in that the preliminary objection. Since an issue going to the jurisdiction of this Court has been raised that issue must be dealt with in limine
283. As indicated, in the instant case, an objection to the jurisdiction of the court has been cited as one of the preliminary objections that consists a point of law. The 1st Respondent raised a Preliminary Objection citing that the court lacks jurisdiction to entertain the suit herein and pray that the Petition be dismissed. What is clear from the foregoing is that the character and nature of a preliminary objection is one that should only raise a point of law which is argued on the assumption that the facts raised are undisputed. The objection raised should not be one that calls for proof or seeks to adduce evidence for its authentication. The objection once argued should be capable of disposing of the suit or the application.
284. The preliminary objection herein is premised on the alleged violation of “the Constitutional Avoidance” and “the Doctrine of Res Judicata”. The doctrine of Constitutional Avoidance has been adequately deliberated hereon. As for the Doctrine of Res judicata is premised on the provision of Section 7 of the Civil Procedure Act, Cap. 21. Objectively, and legally speaking, it prevents the Court from re-determining a matter/issue that has been finally determined by a competent Court. It is not in doubt that this issue goes to the jurisdiction of the Court and is capable of preliminarily disposing off the suit.
285. However, the question as to whether the issue of res judicata can be argued by way of preliminary objection has been the subject of debate. In the case of “Henry Wanyama Khaemba – Versus - Standard Chartered Bank Ltd & Another [2014] eKLR”, the Court held as follows: -
“That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on preliminary objection. Court of laws have always had a well-founded quarrel with parties who resort to raising preliminary objections in improperly.”
286. Similarly, the Court in the case of:- “Moses Mbatia – Versus - Joseph Wamburu Kihara [2021] eKLR”, also considered whether the question of res judicata was a proper preliminary objection as follows: -
“It is my view that all the relevant facts as summarized above are not in dispute and the matter did not call for the exercise of the trial Court’s discretion. Resultantly therefore the objection is a pure point of law.”
287. The 1st Respondent also raised an objection dated 20th March, 2024 on the following grounds: -
a. The Petitioners have already availed themselves of other legal remedies through the following suits:-
i. Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S. Toza vs Hon. Kuria Kanyingi and Simkam Investments Limited.
ii. Kwale Land Case No.23 of 2005.
iii. Counter - Claim in Mombasa ELC No. 348 of 2009, Simkam Investments Limited vs Ali Salim Toza and Others
b. This subject matter of this suit is res judicata.
288. The 1st Respondent prayer for the court to strike out the above Petition with costs. Luckily, the existence of the cases are not factually disputed. If anything, it’s a matter all the parties have adjudicated on from different perspectives. The court is privy to the aforesaid. In the circumstances, the Court does not consider that any extraneous evidence is required in this regard and finds that the objection is properly before it. The substantive law on res judicata is found in the provision of Section 7 of the Civil Procedure Act, Cap. 21 which provides that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
289. In the case of “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment)”, the Supreme Court delved into an in-depth discussion of the concept of res judicata thus;
“…The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].
Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads:
(i) the matter in issue is identical in both suits;
(ii) the parties in the suit are the same;
(iii) sameness of the title/claim;
(iv) concurrence of jurisdiction; and
(v) finality of the previous decision.”
290. From the foregoing, it is clear that for res judicata to suffice, a Court should look at all the four corners set out above namely; the matter directly and substantially in issue in the subsequent suit was the same matter which was directly and substantially in issue in the former suit. Further, the former suit must have been between the same parties or parties under whom they claim; the parties litigated under the same title; the Court which decided the former suit must have been competent and the former suit must have been heard and finally decided by the Court in the former suit.
291. It is crucial to note that the doctrine of res judicata does not apply only to suits but also to applications. This legal position was stated in the case of “Mburu Kinyua – Versus - Gachini Tuti [1978] KLR 69 at 81” and reiterated by the Court of Appeal in “Uhuru Highway Development Limited – Versus - Central Bank of Kenya & 2 Others [1996] eKLR” as follows: -
“That is to say, there must be an end to applications of similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation.”
292. Simkan's position was therefore that the subject matter of this suit is res judicata and the petition should be struck out. The gist of Simkan's replying affidavit is that they were allocated the suit property in 1989 by the Government of Kenya and they took possession and exercised all ownership rights including using the property as security for a loan with a bank. The Supreme Court further held that the elements set out above are to be conjunctive rather than disjunctive before a suit or an issue is to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former judgment which was final, it was on merit and by a court having jurisdiction and have identical parties, subject and cause of action.
293. In the Dina Management case, the Supreme Court held that where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that all the legal rights and obligations of the parties were concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact.
294. It is my view that all the relevant facts as summarized above are not in dispute and the matter did not call for the exercise of the trial Court’s discretion. Resultantly therefore the objection is a pure point of law. The gist of section 7 of the Civil Procedure Act defines the principle of res judicata to apply where the issues in the previous suit ought to have been “heard and finally decided.”
295. The Black’s Law Dictionary 10th Edition defines the terms “heard and determined” as follows:-
“of a case, having been presented to a Court that rendered Judgment.”
296. The term “hearing” is defined in the same dictionary as follows: -
“A judicial session usually open to the public held for the purpose of deciding issues of fact or of law sometimes with witnesses testifying.”
ISSUE No. c). Whether the Notice of Preliminary objection dated 20th March, 2024; If the answer in (b) is in the affirmative whether the 1st Respondent has made out a case for the dismissal of the Petition dated 30th November, 2023;
297. Under this Sub heading, the 1st Respondent argues that the Petitioners have already pursued similar claims in previous cases, making the current suit redundant. The cited cases are:
• Kwale Land Disputes Claim No. 6 of 2005 – Juma S. Toza – Versus - Hon. Kuria Kanyingi & Simkam Investments Ltd
• Kwale Land Case No. 23 of 2005
• Counterclaim in Mombasa ELC No. 348 of 2009 – Simkam Investments Ltd – Versus - Ali Salim Toza & Others
298. In the case of:- “Tee Gee Electrics and Plastics Company Ltd – Versus - Kenya Industrial Estates Limited [2005] KLR 97” the Court stated: -
“Both the policy rationale as well as our case law lean in the direction that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to suits that are dismissed on preliminary technical points. res judicata bars a future suit only when the case is resolved based on the facts and evidence of the case or when the final judgment concerned the actual facts giving rise to the claim.”
299. Resonating with the above decision, this Honourable Court observes that a judgment in Kwale Land Disputes Claim No. 6 of 2005, in the matter of Dispute between Juma S. Toza vs Hon. Kuria Kanyingi and Simkam Investments Limited and the same was adopted. Further the Respondents in their submissions reiterated that res judicata applies to a suit that has been dismissed for want of prosecution or non-attendance.
300. The only remedy available to a party whose suit has been dismissed is to revive the suit by filing an application to set aside the order of dismissal and not to file a fresh suit disguised as a Constitutional Petition. The Petitioners could not therefore be heard to say that Mombasa HCCC 348 of 2009 was not heard and determined since the legal position is that a judgment includes a dismissal order and subject to res judicata under Section 7 of the CPA, Cap. 21.
301. The successful raising of the plea of res judicata is a complete bar to the jurisdiction of a Court. The case of”- “Court of Appeal in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 4 others – Versus - Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (Consolidated)) [2022] KECA 15 (KLR) (8 February 2022) (Judgment)” spoke to the doctrine of jurisdiction in general as follows: -
36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.
302. The locus classicus on jurisdiction is the celebrated case of “Owners of the Motor Vessel “Lillian S’ – Versus - Caltex Oil (Kenya) Ltd [1989] KLR 1”. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows: -…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
303. A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae. As said, a Notice of Preliminary Objection was filed in furtherance of the urge to strike out the Petition. The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of Judgments by reducing the possibility of inconsistency in Judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice.
304. I will not diverge into a lot as it has already dawned on the Court that it does not have the requisite jurisdiction to proceed with the determination of the Petition herein. Be that as it may the Petition dated 30th November, 2023 be and is hereby dismissed for being res judicata and the Notice of Preliminary Objection dated 20th March, 2024 is found to have merit and is upheld.
ISSUE No. c). Who will bear the Costs of the Petition
305. It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides :-
“(1) The award of costs is at the discretion of the Court.
(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”
306. In the case of “Reids Heweet & Company – Versus - Joseph AIR 1918 cal. 717” and “Myres – Versus - Defries (1880) 5 Ex. D. 180”, the House of the Lords noted:-
“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it…..”
307. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held:-
“……….the basic rule on attribution of costs is that costs follow the event…..it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”.
308. Therefore, the events in the instant case is that the Petitioner herein have not succeeded in establishing its case on preponderance of probabilities. For that very fundamental reason, therefore, the costs of this Petition and the Notice of Preliminary Objection be and is hereby awarded to the Respondents to be paid by the Petitioners jointly and severally.
XIV. Conclusion and Disposition
309. Consequently, having intensively and thoroughly deliberated on all the framed issues herein, this Honorable Court arrives at the finding that the Petitioners herein have not succeeded in all the prayers sought from its filed Petition. For avoidance of doubt, I disallow the Petition dated 30th November, 2023 specifically under the following terms:-
a) THAT the Notice of Preliminary Objection dated 20th March, 2024 be and is hereby found to have merit and the same is upheld with costs to the Respondents.
b) THAT the Petition dated 30th November, 2023 be and is hereby found to be res judicata and the same is dismissed with costs to the Respondents.
c) THAT the costs of this Petition dated 30th November, 2023 and the Notice of Preliminary objection dated 20th March, 2024 will be made out to the Respondents to be paid by the Petitioners jointly and severally.
IT IS SO ORDERED ACCORDINGLY.
Judgement delivered in the presence of:-
a. Mr. Daniel Disi – the Court Assistant
b. Mr. Juma Advocate holding brief for Mr. Mugambi Advocate for the 1st & 2nd Petitioners.
c. M/s. Adongo Advocate holding brief for Mr. Ochwo Advocate for the 1st Respondents.
d. M/s. Wanja Wanjuku Advocate holding brief for Mr. Isa Mansur Advocate for the 2nd & 3rd Respondents.
e. No appearance for the 4th, 5th & 6th Respondents.