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JudgmentFRANCIS LERIONKA SAKAJA (suing as vthe Administration of the Estate of Raphael Koyieki Sakaja) VS KEMEI O. KISORONG AND THE LAND ADJUDICATION AND SETTLEMENT OFFICER-KILGORIS AND 5 Others15 min read

FRANCIS LERIONKA SAKAJA (suing as vthe Administration of the Estate of Raphael Koyieki Sakaja) VS KEMEI O. KISORONG AND THE LAND ADJUDICATION AND SETTLEMENT OFFICER-KILGORIS AND 5 Others

Environment and Land Court at Kilgoris Environment and Land Court · · E. M. WASHE, J

JUDGEMENT

  1. The Petitioner herein filed the present Petition dated 27.07.2023 (hereinafter referred to as “the present Petition”) seeking for the following Orders against the 1st to 7th Respondents; -
  2. A declaration be issued that the Petitioner is the lawful absolute proprietor of all that parcel of land known as LR.NO.TRANSMARA/MOITA/53.
  3. A declaration that the Petitioner’s constitutional rights under Article 40 (1) have been contravened and infringed upon by the actions of the Respondents.
  4. An Order of Certiorari be issued to bring to this Honourable Court the decision of the Minister of 23.05.2018 in APPEAL TO MINISTER CASE NO. 143 OF 1997 for purposes of being quashed including the proceedings thereto.
  5. An Order of Certiorari to prohibit the 2nd to 6th Respondents from admitting any other appeals or proceedings in respect to the demarcation, adjudication and allocation of the suit parcel of land known as LR.NO.TRANSMARA.MOITA/53  as pertaining the initial proprietorship of the Petitioner.
  6. An order of cancellation of the Title Deed issued to the 1st Respondent KEMEI O.KISORONG on 30.09.2021.
  7. An Order directing the 4th and 5th Respondents to issue the deceased Petitioner RAPHAEL KOIYAKI SAKAJAH with a Title Deed to the parcel of land TRANSMARA/MOITA/53.
  8. General damages for infringement of the constitutional rights.
  9. Costs of this Petition.
  10. The facts in support of prayers outlined hereinabove are contained in the body of the present Petition and can be summarised as follows; -
  11. The Petitioner herein was the original allottee of the property known as LR.NO.TRANSMARA/MOITA/53 measuring approximately 18.34 Hectares.
  12. The 1st Respondent being dissatisfied by the allocation of the said property known as LR.NO.TRANSMARA/MOITA/53 by the Demarcation Committee filed an Objection before the Land Adjudication Officer which Objection was dismissed on the 22.05.1997.
  13. The 1st Respondent then proceeded to file an Appeal to the 6th Respondent which was also determined in favour of the Petitioner herein in the year 1997.
  14. Subsequently thereof, the title Deed in the name of the Petitioner as the registered owner was issued on the 10.12.1997.
  15. The Petitioner states that the family of the late RAPHAEL KOYIAKI SAKAJAH took possession and is still in occupation up to date.
  16. However, in the year 2023, the 1st Respondent invaded the Petitioner’s property known as LR.NO.TRANSMARA/MOITA/53 on the strength of a second Title Deed issued on the 30.09.2021.
  17. According to the Petitioner, the issuance of the 2nd Title Deed in the name of the 1st Respondent was pursuant to a Determination by the 6th Respondent in the proceedings known as APPEAL TO THE MINISTER CASE NO. 143 OF 1997 which was pronounced on the 23.05.2018.
  18. In the determination of the APPEAL TO THE MINISTER CASE NO. 143 OF 1997, the 6th Respondent set-aside the Ruling of the Objection proceedings pronounced on the 22.05.1997 and directed that the property known as LR.NO.TRANSMARA/MOITA/53 be registered in the name of the 1st Respondent.
  19. Consequently therefore, the Adjudication Record relating to Parcel No. 53 within MOITA ADJUDICATION SECTION was amended by a cancellation of the Petitioner’s name and insertion of the 1st Respondents name.
  20. Thereafter, the 4th Respondent cancelled the Title Deed issued to the Petitioner on the 10.12.1997 and re-issued the same in the name of the 1st Respondent on the 30.09.2021.
  21. The Petitioner states that the determination by the 6th Respondent pronounced on the 23.05.2018 was irregular as it purported to adjudicate on the same issue that had been heard and determined in the year 1997 before the issuance of the first title deed on the 10.12.1997.
  22. In essence therefore, the actions by the 6th Respondent to re-open and re-determine the same Appeal as that adjudicated upon in the year 1997 is absurd, ultra vires and malicious for it interferes with the private ownership of the Petitioner.
  23. The Petitioner claims that the actions of the 1st to 6th Respondents in the re-opening of the Appeal filed in the year 1997 and the determination made on the 23.05.2018 infringed on his rights under Article 40 and 47 of the Kenyan Constitution,2010 and therefore this Honourable Court should declare both the proceedings and determination relating to the determination of 23.05.2018 to be unconstitutional.
  24. The present Petition was indeed served on the 1st to 6th Respondents who opposed the same.
  25. The 1st Respondent filed a Replying Affidavit sworn on the 09.11.2023 wherein he adduced the following grounds in opposition of the present Petition; -
  26. First and foremost, the 1st Respondent admitted that the Petitioner was duly registered as the first owner of the property known as LR.NO.TRANSMARA/MOITA/53.
  27. However, the 1st Respondent pleaded that the registration of the Petitioner as the registered owner of the property known as LR.NO.TRANSMARA/MOITA/53 was by mistake which mistake required to be rectified.
  28. By virtue of the mistake in the registration of the late RAPHAEL KOYIAKI SAKAJA as the owner of the property known as LR.NO.TRANSMARA/MOITA/53, there was no ownership rights that were acquired by the late RAPHAEL KOYIAKI SAKAJA as alleged.
  29. The 1st Respondent further stated that upon rectification of the mistake in registering the late RAPHAEL KOYIAKI SAKAJA as the owner of the property known as LR.NO.TRANSMARA/MOITA/53, the 1st Respondent was issued with relevant Title Deed on the 30.09.2021.
  30. The 1st Respondent informed the Honourable Court that the Petitioner herein does not occupy the property known as LR.NO.TRANSMARA/MOITA/53 as he has other properties which were identified as LR.NO.TRANSMARA/MOITA/54, LR.NO.TRANSMARA/MOITA/12 and LR.NO.TRANSMARA/MOITA/7.
  31. Consequently therefore, the Petitioner should be contended and satisfied with the other 3 properties and stop making claim to the property known as LR.NO.TRANSMARA/MOITA/53.
  32. The 1st Respondent pleaded that it is the family of the late KEMEI O.KISOROG that has been and is still in occupation of the property known as LR.NO.TRANSMARA/MOITA/53  and therefore the present Petition should be dismissed with costs.
  33. The 2nd Respondent also filed a Replying Affidavit dated 11.12.2023 wherein he stated as follows; -
  34. Indeed, the 1st Respondent filed an Appeal to the Minister in the year 1997 relating to Parcel No. 53 which is currently registered as LR.NO.TRANSMARA/MOITA/53.
  35. However, the 1st Respondent’s Appeal in the year 1997 was dismissed on the 22.05.1997 and the said property remained the asset of the Petitioner herein.
  36. In essence therefore, the purported re-opening and rehearing of the same Appeal by the 1st Respondent’s that gave arise to the second determination pronounced on the 23.05.2018 was unlawful and ultra vires.
  37. In Response to what is contained in the 1st Respondent’s Replying Affidavit sworn on the 9.11.203, the Petitioner filed a Further Affidavit sworn on the 08.12.2023 wherein he reiterated the following facts; -
  38. Both parties in the proceedings know as MINISTER’S APPEAL NO. 143 OF 1997 died between the year 1998 and 2004.
  39. At the time of undertaking the second proceedings on the 23.05.2018, the purported Appellant had no letters of administration ad litem.
  40. Consequently therefore, the proceedings undertaken on the 23.05.2018 were a nullity as they were prosecuted by a stranger and not the legal administrator of the late KEMEI O.KISORONG.
  41. In essence therefore, the said proceedings are null and void and the subsequent implementation of the determination made on the 23.05.2018 should be nullified and the records reinstated to the original name of the late RAPHAEL KOYIAKI SAKAJA.
  42. The pleadings after this Further Affidavit closed and the parties were directed to prepare, file and exchange their written submissions.
  43. The Petitioner filed his submissions on the 19.01.2024 while the 1st Respondent filed his submissions on the 15.01.2024.
  44. The Honourable Court has duly perused the pleadings herein, examined the documentary evidence adduced and the submissions by the Petitioner and the 1st Respondent.
  45. The issues for determination in the present Petition can be summarised as follows; -

ISSUE NO. 1- DID THE PETITIONER HAVE ANY CONSTITUTIONAL RIGHT OVER THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/53?

ISSUE NO. 2- WERE THE PROCEEDINGS & DETERMINATION UNDERTAKEN BY THE 6TH RESPONDENT ON THE 23.05.2018 INFRINGE ON THE PETITIONER’S RIGHTS UNDER ARTICLE 40 & 47 OF THE KENYAN CONSTITUTION, 2010?

ISSUE NO. 3- WAS THE 4TH RESPONDENTS ACTIONS OF CANCELLING THE PETITIONER’S TITLE TO LR.NO.TRANSMARA/MOITA/53 AND RE-ISSUING THE ANOTHER TITLE TO THE LATE KEMEI O. KISORONG BY VIRTUE OF THE DETERMINATION MADE ON 23.05.2018 CONSTITUTIONAL?

ISSUE NO.4- IS THE PETITIONER ENTITLED TO THE PRAYERS SOUGHT IN THE PRESENT PETITION?

ISSUE NO. 5- WHO BEARS THE COSTS OF THIS PETITION?

  1. The issues for determination having been duly outlined hereinabove, the same will now be discussed and determined as hereinbelow.

ISSUE NO. 1- DID THE PETITIONER HAVE ANY CONSTITUTIONAL RIGHT OVER THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/53?

  1. The first issue for determination in the present Petitioner is to establish whether or not the Petitioner has established any constitutional right over the property known as LR.NO.TRANSMARA/MOITA/53.
  2. According to the Petitioner’s pleadings, the property known as LR.NO.TRANSMARA/MOITA/53 was duly adjudicated in his name way back in the year 1997.
  3. An Adjudication Record was indeed issued in his name by the Land Adjudication Officer upon which the 1st Respondent filed an Objection and an Appeal to the Minister.
  4. The Petitioner stated that both the Objection proceedings as well as the Appeal to the Minister filed by the 1st Respondent in the year 1997 were dismissed.
  5. Consequently therefore, a Certificate of Title for the property known as LR.NO.TRANSMARA/MOITA/53 was issued in favour of the Petitioner on the 10.12.1997.
  6. Indeed, the Certified Copy of the Green Card to the property known as LR.NO.TRANSMARA/MOITA/53 confirmed that property known as LR.NO.TRANSMARA/MOITA/53 was registered in the name of the Petitioner on the 10.12.1997.
  7. Section 25 and 26 of the Land Registration Act, No. 3 of 2012 expressly provides that the person whose name appears on a Certificate of Title is held to be the proprietor of such land free from all other interests and claims whatsoever.
  8. In essence therefore, once a person is duly registered as the proprietor in the proprietorship section of a Green Card, then such proprietorship is protected under Article 40 of the Kenyan Constitution, 2010.
  9. In other words, the Petitioner herein has sufficiently established that the late RAPHAEL KOYIAKI SAKAJAH had a constitutional right to the property known LR.NO.TRANSMARA/MOITA/53 as the duly registered owner pursuant to his registration on the Green Card on the 10.12.1997.

ISSUE NO. 2- WERE THE PROCEEDINGS & DETERMINATION UNDERTAKEN BY THE 6TH RESPONDENT ON THE 23.05.2018 INFRINGE ON THE PETITIONER’S RIGHTS UNDER ARTICLE 40 & 47 OF THE KENYAN CONSTITUTION, 2010?

  1. The second issue for determination is whether or not the proceedings undertaken by the 6th Respondent on the 23.05.2018 under the MINISTER’S APPEAL NO.143 OF 1997 infringed on the Petitioner’s Constitutional Rights under Article 40 and 47 of the Kenyan Constitution, 2010.
  2. Article 40 of the Kenyan Constitution, 2010 provides that any person has a right to acquire and own property anywhere within the Republic of Kenya.
  3. Article 40 (2) of the Kenyan Constitution, 2010 specifically provides as follows; -

“(2) Parliament shall not enact a law that permits the state or any person-

  1. To arbitrarily deprive a person of property of any description or of any interest- in, or right over, any property or any description; or
  2. To limit, or in any way restrict the enjoyment of any right under this Article on the basis of any grounds specified or contemplated in Article 27(4).”
  3. The Petitioner pleads in the present Petition that the 1st Respondent in collaboration with the 5th Respondent purported to re-open and re-determine the MINISTER’S APPEAL NO. 143 OF 1997 in the year 2018.
  4. The Petitioner’s position is that the MINISTER’S APPEAL NO. 143 OF 1997 was heard and determined in the year 1997 and therefore it was illegal and unlawful for the 5th Respondent to pronounce a second determination over the same issue on the 23.05.2018 which interfered with the ownership of the property known as LR.NO.TRANSMARA/MOITA/53.
  5. This determination pronounced on the 23.05.2018 by the 5th Respondent in the proceedings known as the MINISTER’S APPEAL NO.143 OF 1997 was purely to deprive the Petitioner of his ownership rights over the property known as LR.NO.TRANSMARA/MOITA/53 contrary to Article 40 (2) (a).
  6. The 1st Respondent did not respond to the Petitioner’s allegation that the said MINISTER’S APPEAL NO.143 OF 1997 had already been determined in the year 1997.
  7. What the 1st Respondent pleaded was that there was a mistake in the registration of the Petitioner’s name on the property known as LR.NO.TRANSMARA/MOITA/53 which was rectified by the 4th and 5th Respondents and thereafter a Certificate of Title issued in favour of the late KEMEI O.KISOROG 30.09.2021.
  8. The 2nd Respondent in his Replying Affidavit supported the Petitioner’s position that indeed the MINISTER’S APPEAL NO. 143 OF 1997 was heard and determined in favour of the Petitioner in the year 1997.
  9. Consequently therefore, the proceedings and determination done on the 23.05.2018 were unlawful and illegal.
  10. To begin with, this Honourable Court has been supplied with the proceedings of the MINISTER’S APPEAL NO. 143 OF 1997 undertaken in the year 1997 by both the Petitioner and the 2nd Respondent.
  11. A perusal of these proceedings undertaken in the year 1997 confirms that the 1st Respondent appealed against the determination of the Objection proceedings by the Land Adjudication officer as relates to Parcel No. 53 which is now titled as LR.NO.TRANSMARA/MOITA/53.
  12. The 5th Respondent through the District Commissioner then determined the said Appeal by the 1st Respondent on the 22.05.1997.
  13. The decision of the 5th Respondent pronounced on the 22.05.1997 was that the 1st Respondent’s Appeal was time barred having been filed 7 months after the ruling of the Land Adjudication Officer.
  14. The 1st Respondent on the other hand is seeking to rely on the proceedings undertaken on the 23.05.2018 and the subsequent determination thereof in the same MINISTER’S APPEAL NO. 143 OF 1997.
  15. In these proceedings undertaken on the 23.05.2018, the 5th Respondent for a second time purported to determine the 1st Respondent’s appeal against the Petitioner as regards the property known as LR.NO.TRANSMARA/MOITA/53.
  16. In this second hearing, the same 5th Respondent but now through the Deputy County Commissioner revised its earlier determination pronounced on the 22.05.1997.
  17. First and foremost, it is clear in the mind of this Honourable Court that the 1st Respondent’s Appeal against the Ruling of the Land Adjudication Officer through the MINISTER’S APPEAL NO. 143 OF 1997 was heard and determined on the 22.05.1997.
  18. The certified proceedings placed before this Honourable Court by both the Petitioner and the 2nd Respondent reflect the true and correct position of the said Appeal.
  19. This being the case, it goes without saying that the Register of Parcel No. 53 within MOITA ADJUDICATION SECTION which is now titled as LR.NO.TRANSMARA/MOITA/53 was finalise immediately after the pronouncement of the 5th Respondent determination on the 22.05.1997.
  20. Once the Record was finalised and the 4th Respondent issued a Certificate of title for the property known as LR.NO.TRANSMARA/MOITA/53 to the Petitioner on instructions of the 5th Respondent, then the provisions of the Land Adjudication Act, Cap 284 ceased to be applicable.
  21. In other words, once the 4th Respondent issued a Certificate of Title to the Petitioner over the property known as LR.NO.TRANSMARA/MOITA/53, then the legal regime that applied on this property was the Registered Land Act, Cap 300 (as it then was) and subsequently Land Registration Act, No.3 of 2012.
  22. The 5th Respondent can not therefore again rely on the provisions of Section 29 of the Land Adjudication Act, Cap 284 to cancel the registration of the Petitioner as the proprietor of the property known as LR.NO.TRANSMARA/MOITA/53.
  23. As already stated in another judgement of similar facts, the dispute resolution mechanisms under the Land Adjudication Act, Cap 284 are usually open and operational during the adjudication process but not after the registration and issuance of titles.
  24. Be as it may, this Honourable Court has considered the legality and constitutionality of the proceedings undertaken on the 28.05.2018 and states that follows.
  25. First and foremost, the Minister’s Appeal No. 143 of 1997 filed by the 1st Respondent was declared to be time barred on the 22.05.1997.
  26. In other words, unless the 1st Respondent applied and obtained an Order of extending   time within which to file a fresh Appeal to the Minister, then the proceedings undertaken by the Deputy County Commissioner on behalf of the 5th Respondent were a nullity.
  27. So far, the 1st Respondent and/or the administrator has not shown any order extending time within which the said Appeal was allowed to proceed for hearing after it was declared time barred on the 22.05.1997.
  28. Secondly, once the 4th Respondent registered the ownership of the Petitioner and issued him with the relevant Title Deed on the 10.12.1997, then the 5th Respondent could not have any legal basis to undertake any further dispute resolution proceeding as happened on the 28.05.2018 under the Land Adjudication Act, Cap 284 because the legal regime applicable on the property was now the Registered Land Act, Cap 300 and/or the Land Registration Act, No. 3 of 2012.
  29. In essence therefore, this Honourable Court is of the considered view that the proceedings undertaken on the 28.05.2018 by the Deputy County Commissioner on behalf of the 5th Respondent were unlawful, illegal and ultra vires.
  30. The implementation of the determination by the Deputy County Commissioner made on the 28.05.2018 on behalf of the 5th Respondent infringed on the Petitioner’s right under Article 40 and 47 of the Kenyan Constitution, 2010 as it unlawfully deprived him of his ownership of the property known as LR.NO.TRANSMARA/MOITA/53.

ISSUE NO. 3- WAS THE 4TH RESPONDENTS ACTIONS OF CANCELLING THE PETITIONER’S TITLE TO LR.NO.TRANSMARA/MOITA/53 AND RE-ISSUING THE ANOTHER TITLE TO THE LATE KEMEI O. KISORONG BY VIRTUE OF THE DETERMINATION MADE ON 23.05.2018 CONSTITUTIONAL?

  1. The third issue for determination is whether or not the 4th actions of cancelling the Petitioner’s title over the property known as LR.NO.TRANSMARA/MOITA/53 on the basis of the determination by the Deputy County Commissioner on behalf of the 5th Respondent were lawful and constitutional or not.
  2. As earlier stated, the Petitioner was duly registered as the proprietor of the property known as LR.NO.TRANSMARA/MOITA/53 on the 10.12.1997.
  3. The issuance of the Title Deed known as LR.NO.TRANSMARA/MOITA/53 on the 10.12.1997 was on the provisions of the Registration Land Act, Cap 300 (as it was then) and subsequently the Land Registration Act, Cap 3 of 2012 after the new Constitution.
  4. The determination made on the 28.05.2018 under the MINISTER’S APPEAL NO. 143 OF 1997 was implemented by the 4th and 5th Respondents through their letter dated 21.09.2021.
  5. The effect of the letter dated 21.09.2021 was not to amend or rectify the particulars of the Adjudication Record but to completely cancel the registration of the Petitioner’s title issued on the 10.12.1997 over the property known as LR.NO.TRANSMARA/MOITA/53.
  6. It is now settled law that a Certificate of Title whose legality is founded on the provisions of the Land Registration Act, Cap 3 of 2012 can only be cancelled by an Order of a competent Court.
  7. Consequently therefore, the action of the 4th Respondent to cancel the Petitioner’s Title Deed issued on the 10.12.1997 without obtaining an Order from a competent Court which would guarantee the owner’s participation before determination was contrary to the provisions of Article 47 of the Constitution of Kenya, 2010 and therefore unconstitutional.

ISSUE NO.4- IS THE PETITIONER ENTITLED TO THE PRAYERS SOUGHT IN THE PRESENT PETITION?

  1. The fourth issue for determination is whether the Petitioner is entitled to the prayers sought in the present Petition or not.
  2. Based on the determination of Issue No. 1, 2 and 3, the Petitioner has proved violation and/or infringement of his ownership rights protected under Article 40 and 47 of the Kenyan Constitution, 2010 and is entitled to the prayers sought therein.

ISSUE NO. 5- WHO BEARS THE COSTS OF THIS PETITION?

  1. The last issue for determination is who should bear the costs of the present Appeal.
  2. Costs usually follow the even and in this present Petition, the Petitioner is entitled to costs.

CONCLUSION

  1. In conclusion therefore, this Honourable Court hereby makes the following determinations relating to the Petition dated 27.06.2023; -
  2. THE PETITION DATED 27.06.2023 IS MERITED.
  3. A DECLARATION BE AND IS HEREBY ISSUED THAT THE PETITIONER IS THE LAWFUL ABSOLUTE PROPRIETOR OF THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/53.
  4. A DECLARATION BE AND IS HEREBY MADE THAT THE PETITIONER’S CONSTITUTIONAL RIGHTS UNDER ARTICLE 40 (2) & 47 HAVE BEEN CONTRAVENED AND/OR INFRINGED BY THE ACTIONS OF THE RESPONDENTS.
  5. AN ORDER OF CERTIORARI BE AND IS HEREBY ISSUED TO BRING TO THIS HONOURABLE COURT THE DECISION OF THE MINISTER DATED 23.05.2018 IN APPEAL TO MINISTER CASE NO. 143 OF 1997 AND IS HEREBY QUASHED INCLUDING THE PROCEEDINGS THERETO.
  6. AN ORDER BE AND IS HEREBY ISSUED TO THE 4TH RESPONDENT TO CANCEL THE TITLE DEED ISSUED ON THE 30.09.2021 AS WELL AS THE ENTRY ON THE GREEN CARD THEREOF IN FAVOUR OF KEMEI O.KISORONG FORTHWITH.
  7. AN ORDER BE AND IS HEREBY ISSUED TO THE 4TH RESPONDENT RE-ISSUE THE LATE RAPHAEL KOIYAKI SAKAJAH TITLE DEED ISSUED ON THE 10.12.1997 ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/53 WITHIN THE NEXT THIRTY (30) DAYS FROM THE DATE OF THIS JUDGEMENT.
  8. THE PETITIONER IS AWARDED COSTS OF THIS PETITION.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 13TH MARCH 2024.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATE FOR THE PETITIONER: MR. MACHAGE

ADVOCATE FOR THE RESPONDENTS: MR. OCHWANGI FOR 1ST

     RESPONDENT (N/A) 

     MS. OSEBE FOR 2ND – 7TH

     RESPONDENT

Details

Delivered
Court rank
Environment and Land Court
Station
Kilgoris Environment and Land Court (Environment and Land Court at Kilgoris Environment and Land Court)
Division
Environment and Land Court
Case type
ELC Land Petition
Bench
E. M. WASHEJ

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