Introduction
1. The Petition dated 22 nd October 2020 is supported by the Petitioners’ verifying affidavits in support of similar date and a further affidavit dated 18 th May 2023. The Petition was subsequently amended on 25 th October 2021.
2. The gravamen of this Petition is an allegation by the Petitioners that the 2 nd Respondent fraudulently acquired their property known as L.R. No.13154 situated along Mbogani Road in Karen, Nairobi, measuring 4.816 acres, under the pretext of the 1 st Respondent. They contend that as a result of the misrepresentations made by the 2 nd Respondent in various suits, the Court found in favour 1 st Respondent, hence sanctioned an illegality, inadvertently.
3. Consequently, the Petitioners seek the following reliefs against the Respondents:
a) It be declared that the dispute resolution mechanism or process adopted in determining the above cases contravened the Bill of Rights and was inconsistent with the Constitution.
b) It be declared that by reason of the fraud practiced on the Courts by the 2 nd Respondent, the Courts in exercising judicial authority in the above cases were obstructed from promoting and/or protecting the purpose and principle of the Constitution.
c) It be declared that by reason of the frauds practiced on the Courts by the 2 nd Respondent, the Petitioners' right to fair trial or hearing was contravened or violated.
d) It be declared that the actions taken by the 2 nd Respondent of bringing legal action in HCCC No. 1181 of 1992 or other related cases in the name or under the cover or disguise of the 1 st Respondent and giving false evidence in those suits to support the false claims were in contravention of the Constitution and invalid.
e) It be declared that all the judgments, rulings, decrees, and orders made in favour of the 1 st Respondent in the above disputes are unconstitutional, null and void.
f) The 1 st and 2 nd Respondents pay damages to the Petitioners for the said Constitutional violations.
g) The 1 st and 2 nd Respondents be ordered to pay the costs of the Petitioners in all the above disputes or cases.
h) The costs of this Petition be paid by the 1 st and 2 nd Respondents.
Petitioners’ Case
4. The Petitioners who are father and son, depone that they are the registered owners of the property known as L.R. No.13154 situated along Mbogani Road in Karen, Nairobi, measuring 4.816 acres. They allege that at some point, it was claimed that the 1 st Respondent purchased the said parcel of land via an auction sale in 1992. This as expected instigated disputes concerning the purported auction sale.
5. The Petitioners state that these disputes were canvassed before various Courts in: Nairobi ELC No 1389 of 2004, Nairobi HCCC No 1181 of 1992, Nairobi HCCC No 2310 of 1993, Nairobi HC Misc No 546 of 2004, Milimani HCCC No 44 7 of 2004 and Civil Application No NAI 21 of 2006 UR 12/ 2006 .
6. The Petitioners aver that Nairobi HCCC No 1181 of 1992 revolved around the 1 st Respondent and the Kenya National Capital Corporation ( chargee ) which purportedly sold the property at the said auction. It is stated that the 2 nd Respondent in the matter, falsely misrepresented to the Courts and the Petitioners that the 1 st Respondent was the lawful purchaser. Equally, it is stated that the suits allegedly commenced by the 1 st Respondent were prosecuted solely by the 2 nd Respondent who claimed to be one of the Directors, shareholder and authorized Agent of the 1 st Respondent. The 2 nd Petitioner states that the Courts acting on the honest representations of the 2 nd Respondent awarded Judgments in favour of the 1 st Respondent in the said cases.
7. The 2 nd Petitioner avers that in 2014, a suit being Misc. Application No.326 of 2014 was filed in Court. It revolved around the ownership and directorship of the 1 st Respondent. He states that in the Judgment dated 16 th November 2015, the Court found that there were various malpractices concerning the 1 st Respondent’s affairs. It is noted unfortunately that the 2 nd Respondent who was the architect of the unlawful actions was not a party to the suit in this matter.
8. Soon thereafter in 2019, it is averred that the police established that the 2 nd Respondent was neither a director nor shareholder of the 1 st Respondent at the time auction sale took place. Equally, no authorization was granted by the 1 st Respondent to commence the said cases. Furthermore, it was stated that the Parties that were presented to the Court as being the Directors and shareholders of the 1 st Respondent were not.
9. It was also established that the 1 st Respondent never purchased the suit property at the auction sale and no legal proceedings were commenced by the 1 st Respondent which led to the grant of a favorable award in favour of the impugned auction. Owing to this, it is alleged that the Director of Public Prosecutions commenced a criminal suit against the 2 nd Respondent being Criminal Case No. 1552 of 2019 for the alleged fraud.
10. The Petitioners aver that the cited cases herein have since been concluded and Judgments issued. The Petitioners protest that the Judgments do not connect the 2 nd Respondent he was the one responsible for the alleged constitutional violations, which if upheld, would render the said Judgments unconstitutional, null and void.
11. The Petitioners aver therefore that the instant suit has been instigated so that this Court can determine the constitutionality of the 2 nd Respondent’s actions and the legal effect on the said Judgments. According to them, the dispute resolution mechanism that was utilized in the cited cases and rendered the said Judgments in favour of the 1 st Respondent, violated the Petitioners right to a fair trial and hearing, by perpetrating the fraud and misleading the Court. As a result of this, the Petitioners argue that the Court ended up dispensing justice in a manner that contravened Article 10 and 159(1)(e) of the Constitution and issuing Judgments inconsistent with the Constitution.
12. The Petitioners in their further affidavit impugn the 2 nd Respondent’s reliance on Judicial Review Application No. E076 of 2022 and argue that the allegations therein are false and misleading. The Petitioners argue that the instant matter and the JR matter are distinct and founded on different facts. The Petitioners aver that this matter is founded on the new facts that came to light in 2019 from the affidavit of one Meschack Meshack Owino Njega Owino. It is alleged that the sworn statement of Meshack Owino was never disputed. The Petitioners as well stress that the issues raised in the Petition present unique issues that have not been tried before and also raise constitutional violations.
1 st and 2 nd Respondents’ Case
13. On a preliminary note, the 2 nd Respondent made a Reply to the Petitioner vide his Replying Affidavit sworn on 19 th January 2021. Afterward, he unfortunately passed away where upon his wife took over the prosecution of this matter vide a Replying Affidavit sworn on 13 th July 2021. The 2 nd Respondent’s wife and Co - Director of the 1 st Respondent subsequently filed further affidavits dated 2 nd May 2023 and 13 th February 2024.
14. In his affidavit, the 2 nd Respondent deponed that he is the Managing Director of the 1 st Respondent. On the onset, he argued that the Petition should be dismissed as the issues raised had already been determined by Courts of competent jurisdiction and so this matter is an abuse of the Court process. Besides, he informs that the orders sought herein were placed before the said Courts.
15. Furthermore, the 2 nd Respondent asserted that the Petitioners were not honest as the issues of the alleged fraud were dismissed in the now concluded matter in Suit No.1181 of 1992 vide the Judgment delivered on 13 th November 2020. He informed that the matters were also determined by the Court of Appeal, hence this Court lacks jurisdiction to adjudicate the matters afresh. This is especially in light of HCCC 1389 OF 2004 and the Court of Appeal matter in Civil Appeal 130 OF 2016 .
16. In his view, the Petitioners are on a fishing expedition to deny the 1 st Respondent justice through the numerous suits filed. Further to that, he argued that there can never be a violation of constitutional rights against a party where the rights have been ordered and complied with through a Court sanction. He noted in particular that the right to sale by auction and transfer of property was sanctioned by a competent Court and that those orders have never been vacated or challenged successfully. That said, he argued that the Petition was time barred hence this Court lacks jurisdiction to entertain this matter.
17. The 2 nd Respondent’s wife in her further affidavits avers that she filed a judicial review matter in JR No. 076 of 2022 to challenge the Petitioners’ assertion that there existed a criminal component of fraud as a result of which charges were preferred. She alleges that the Court in its Judgment dismissed the charges against the 1 st and 2 nd Respondents. This is because the component of criminality had been adjudicated and decided upon by Courts of competent jurisdiction together with the appellate Court and thus the charges were a misuse of the criminal process.
18. Equally, she notes that the Petitioners allegations were considered and dismissed in Constitutional Petition No. E298 of 2022 . She emphasizes that this Court in its Judgment dated 26 th January 2024 in like manner pronounced that the decisions rendered in the civil cases determined in finality, that the 1 st Respondent is a legal entity and its certificate of incorporation is not a forgery and also that it lawfully acquired the property.
19. In light of this, she stresses that these pronouncements cannot be ignored as the Petitioners allegations have been properly concluded in a competent Court of equal jurisdiction.
3 rd Respondent’s Case
20. In response to the Petition, the 3 rd Respondent filed a Notice of Preliminary Objection dated 17 th December 2020 on the premise:
i. The Petition herein discloses an ordinary land [L.R No. 13154 – IR No. 25749 (Original Number Part of 6861/4)] ownership dispute which is disguised as a constitutional issue and this is contrary to the provisions of Article 162(2) and 165(5) of the Constitution as read together with Section 4 and 13(2) of the Environment and Land Act are contravened therefore an abuse of the process of the court.
ii. By dint of Articles 162(2) and 165(5) of the Constitution, as read together with Section 4 and 13(2) of the Environment and Land Act, this Court lacks the requisite jurisdiction to hear an determine this Petition. This Petition ought to have been filed in the Environment and Land Court and not in this Court.
iii. This Court lacks the jurisdiction to transfer this Petition to the Environment and Land Court.
iv. To the extent that the Application and the Petition concern the validity of an auction sale and directorship of company, that is a party herein, this Petition does not raise any constitutional question(s) but a chain of commercial transactions – litigated over several cases before other Courts of competent jurisdiction over a span of three decades. The respective factual and legal issues raised in those cases belong to the respective Courts that they had been respectively raised and litigated over; and the Courts with relevant appellate jurisdiction. Cloaking the issues raised therein with the constitutional gowns is an abuse of this court’s process.
v. The Application and Petition herein seeks to invoke the jurisdiction of this Court over the matters litigated before, and determined by, Courts of similar jurisdiction and a higher jurisdiction. This presents an abuse to this Court’s process.
vi. The Application and Petition herein are disguised appeals and/or review applications, done outside the statutory/constitutional timelines; and outside the pronouncements of the Courts of record. This Court, therefore, has no jurisdiction to supervise or sit on appeal on its decisions.
vii. Under both the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 and 2013 (The Gicheru / Mutunga Rules - Respectively), decree that should a constitutional issue arise in any divisions of the [High] Court, that Court has the requisite jurisdiction to determine the same under the Rules. Accordingly, challenging all the decisions including orders, judgments and decrees made in respect to the issues in question in all the referred Court proceedings herein through a Petition, in this division, is an abuse of process and fatal to the Petition.
viii. The Application and Petition herein, as drafted, fail to give sufficient details to the Respondents, particularly the 3 rd Respondent, in order to call for a proper response. Particularly, the Petition fails to comply with Rules 10 (2) (e) and 11 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2013 in as far as it does not give the details of the cases listed therein in as far as they are related to the Petition.
ix. The Petitioner does not give the details of fraud as alleged; other than annexing a charge sheet ‘ARH -2’, which in law is not final finding by a Court of competent jurisdiction of the actual fraud.
x. In as far as the Petitioners herein have appeared before other Courts of competent jurisdiction, and in one way or the other the issues they raised therein were determined [see paragraph 17 of the Petition], the act of approaching this court amounts to forum shopping. It is meant to embarrass this Court and it is therefore an abuse of this Court’s process.
xi. In toto the Application and Petition herein are incompetent and an abuse of this Court’s process. The same should be dismissed on a preliminary, with costs to the 3 rd Respondent.
Petitioners’ Submissions
21. Sharley Barret and Company Advocates for the Petitioners filed submissions dated 1 st March 2021 and further submissions dated 16 th March 2022.
22. Submitting on the 3 rd Respondent’s Preliminary Objection, Counsel relying and reiterating the contents of the Petition, submitted that the Preliminary Objection is founded on disputed facts which a Preliminary Objection should not be. Reliance was placed in Mukisa Biscuit Co. v West End Distributors [1969] E.A. 696 where it was held that:
“A Preliminary Objection is in the nature of what used to be 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 has to be ascertained or of what is sought is the exercise of judicial discretion".
23. Essentially, Counsel submitted that this Petition originates from the constitutional violations which arose from HCCC No.1181 of 1992 where the 2 nd Respondent falsely represented that he is an authorized agent of the 1 st Respondent and which in the end led to the impugned Judgment. It was noted that the 2 nd Respondent was not a party in these suits in his own capacity but under the 1 st Respondent. Equally, Counsel pointed out that the 1 st Respondent was not a duly registered company at the time when HCCC No. 1181 of 1992 was commenced, as can be gleaned from the adduced annextures. Counsel therefore argued that the Petition discloses the attendant constitutional violations.
24. Counsel as well disputed the issue of jurisdiction with key focus on the Environment and Land Court. This is since the impugned matter was tried by the High Court under the Civil Procedure Act, not Article 162(2) of the Constitution. For this reason, Counsel asserted that this Court has jurisdiction to entertain this matter, being a constitutional dispute.
25. Turning to the Petition, Counsel stated that the issues that arise for determination are: whether the 1 st Respondent is a person and a proper party in the present case, whether on the facts of this case the Petition discloses and proves infringement or violation of the rule of law under Article 10 of the Constitution, whether on the facts of this case the Petition discloses and proves the infringement or violation of the right to fair hearing or fair trial, whether on the facts of this case the Petition discloses or proves the infringement or violation of the right to justice and proper exercise of judicial authority as guaranteed Article 159 of the Constitution, whether on the facts of this case the Petition discloses and proves any act or omission in contravention of the Constitution , if the answer to any or all of the above is in the affirmative did the said infringements or violations also violate the Petitioners right under the Constitution and remedies or reliefs are the Petitioners entitled to .
26. On the first issue, Counsel submitted that at the close of pleadings in the Petition, it was established that the 1 st Respondent never legally existed as it did not have a valid Memorandum and Articles of Associated signed by the subscribers. On this basis, Counsel submitted that the 1 st Respondent lacks the legal capacity to defend or participate in the present proceedings as is not a person within the meaning of Article 260 of the Constitution. Counsel urged therefore that the name of the 1 st Respondent be struck off.
27. On the second issue, Counsel referring to the impugned suit HCCC 1181 of 1992 submitted that it was not a proper and valid suit on the ground that the 1 st Respondent was not a valid company. Counsel argued that effectively, there was no valid plaintiff in that suit, thus no person in whose favour the Court could issue a decree.
28. Counsel on the third issue submitted that HCCC No.1181 of 1992 and cited cases were disputes within the meaning of Article 25 and 50 of the Constitution. Counsel emphasized that the suits had been prosecuted on the false representation that the 1 st Respondent was a legal entity with capacity to institute a suit. Counsel argued that hearing and determination of the said suit was an outcome of a fraud practiced on the Court by the 2 nd Respondent in contravention of the right to a fair hearing and trial.
29. Turning to the fourth issue, Counsel argued that there was a total failure and miscarriage of justice in the cited cases as the Court was misled to believe and determine the said cases, by relying on the 2 nd Respondent’s false misrepresentations that the 1 st Respondent existed as lawful party.
30. In light of the foregoing, Counsel submitted that ultimately the Petitioners suffered injuries and loss which resulted in violation of their constitutional rights due to the 2 nd Respondent’s unlawful actions. Counsel stressed that unless these constitutional contraventions are nullified, the Petitioners stand to suffer serious injuries and loss in view of the said parcel of land , lose their right to redeem their securities charged under the loan agreement , lose sums exceeding Ksh.14,000,000 as legal costs to be paid to the 1 st Respondent as an illegal entity and all of which will violate their rights under Article 27(a) and 40 of the Constitution .
31. Counsel in the sixth issue in light of the facts argued that the Petition discloses serious constitutional contraventions by the 2 nd Respondent and so the Petitioners are entitled to remedies and relief as follows:
a) A declaration that Southdown Developers Limited, the purported 1 st Respondent in the present petition is not a person as defined under Article 260 of the Constitution or a company under the Companies Act and lacks the capacity to be enjoined as a party in the present Petition or participate in the proceedings herein.
b) A declaration that all actions or omissions in the name of Southdown Developers Limited as a limited liability company or legal person within the meaning of Article 260 of the Constitution including the actions or omissions in the said HCCC No. 1181 of 1992 and other cases refereed in paragraph 9 of the Petition arising from the judgement and decree in the said case were in contravention of the Constitution, invalid, null and void;
c) The judgements and decrees issued in the name and/ or in favour of Southdown Developers Limited as a limited liability company or a person within the meaning of Article 260 of the Constitution in the said HCCC No. 1181 of 1992 and other related cases referred to in paragraph 9 of the petition were in contravention of the constitution invalid, null and void and incapable of being executed;
d) A declaration that all the actions and omissions done or not by the 2 nd Respondent in the name of or on behalf of Southdown Developers Limited as a limited liability company or a legal person as defined under Article 260 of the constitution were in contravention of the constitution invalid, null and void;
e) The 2 nd Respondent do pay compensation or damages to the Petitioners being:
f) The additional interest accruing on the said loan agreement or charge after January 1992 which the Petitioners are or will be required to pay in order to redeem their securities charged to the lender.
g) All the legal costs, in full indemnity basis incurred by the Petitioners in the cases referred paragraph 9 of the Petition.
h) The costs of the present Petition or suit.
i) Interest on (ii) and(iii) above.
32. In reply, to the Respondents submissions, the Petitioners filed the supplementary submissions. On the dominant issue in the Petition, Counsel submitted that it is the violation of the Petitioners constitutional rights under Article 2(4),10, 27, 50 and 159 of the Constitution contrary to the 3 rd Respondent’s averment otherwise.
33. On the allegation that the matter is res judicata in light of the previous suits which have since been determined, Counsel submitted that the 2 nd and 3 rd Respondents were not parties in the suits, further the facts and evidence relied upon in the present Petition was at all material times held by the State and Respondents and only came to the Petitioners knowledge in 2019. Counsel argued that the Respondents had withheld this crucial information. On this premise, Counsel reasoned that the claim on res judicata is unsustainable.
34. That said, Counsel maintained that the Respondents had not disputed the correctness of the sworn statement by Meshack Owino Njega Odera, therefore are estopped from relying on their own unlawful actions and violation of the Constitution.
35. On the review and appellate jurisdiction, Counsel submitted that this argument is irrational and untenable since if this Court finds, that on the unchallenged evidence and the facts proved by the sworn statement of Meshack Owino Njega Odera Advocate, the 1 st Respondent never existed in law as a legal person or entity, then all previous proceedings between the Petitioners and the 1 st Respondent were null and void ab initio, as the Court lacked jurisdiction.
36. Furthermore, Counsel submitted that this is the first litigation between the Petitioners and the 2 nd and 3 rd Respondents therefore there has never been a judgment or judgments between these parties, capable of being appealed against or reviewed in the present Petition. Lastly, Counsel pointed out that the Petition is grounded on information, evidence and facts which the Petitioner accessed for the first time in 2019. In sum, Counsel urged that the Petition is merited.
1 st and 2 nd Respondents’ Submissions
37. Ayieko Kangathe and Company Advocates for these Respondents filed submissions dated 4 th May 2021 and highlighted the single issue for discussion as: whether this Court has jurisdiction to grant the reliefs sought .
38. Counsel submitted that the instant suit touches on issues that have been litigated before by superior Courts in respective suits filed by the Petitioners. Counsel contended that the Petitioners had clothed the issues herein as having constitutional underpinnings whereas the said subject matter has been properly tried and dismissed in the High court and the Court of Appeal. On this basis, Counsel submitted that this Court does not have jurisdiction to entertain this matter. Reliance was placed in Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) limited [1989] KLR 1 where it was held that:
“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognizance of 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 the 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 both of 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 the 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...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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
39. Comparable reliance was paced in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others [2012] eKLR and Uganda General Trading Co. Ltd vs. N T Patel Kampala HCCC No. 351 of 1964 [1965] EA 149 .
40. Counsel as well submitted that Article 165(6) of the Constitution bars this Court from exercising supervisory jurisdiction over another superior Court. In this matter, Counsel underscored that the Petitioners seek to annul the said proceedings, judgments, rulings, orders and decrees before this Court which is supervisory jurisdiction. Considering this, Counsel urged the Court not to entertain the Petition as it is an abuse of the Court process.
41. Reliance was placed in Kenya Hotel Properties Limited v Attorney General & 5 others [2018] eKLR .
3 rd Respondent’s Submissions
42. The 3 rd Respondent filed two sets of submissions in relation to its Notice of Preliminary Objection dated 8 th February 2021 and to the Petition dated 18 th March 2022.
43. On the first set of submissions, Counsel discussed the issues under various subtitles. On the onset, Counsel submitted that the Petitioners key issue being annulment of issued Judgments and decrees, demonstrates that the dominant cause of action involves the auction, transfer and current ownership of the land in issue which are questions which have been litigated over for more than three decades.
44. On the first topic, lack of constitutional and statutory jurisdiction , Counsel submitted that this Court lacks the requisite jurisdiction to entertain this Petition. Reliance was also placed in Owners of Motor Vessel Lillian “S” (supra). This is since the factual basis of the Petition discloses a cause of action that should be filed before the Environment and Land Court and second, ought to have been dealt with by way of a review under Order 44 of the Civil Procedure Rules, or through an appeal to the Court of Appeal.
45. Reliance was placed in Honey Creepers Investment Limited v Cab Investments Company Ltd & 4 others [2020] eKLR where it was held that:
“In the end we find and hold that the dominant issue in the petition is the right to renewal of leases over the suit land. We further find that the issue is intrinsically connected to the use and title to land. The dispute thus falls squarely within the purview of the ELC under Article 162(2) of the Constitution as read with Section 13 of the ELC Act. We also find that although the petitioner claims violation of various constitutional rights, those claims are intertwined with the dominant issue and that the ELC has jurisdiction to deal with the alleged violations…the Petitioner’s main issue is the alleged alienation of his title and land by the 2 nd Respondent. The alleged violation of constitutional rights through the actions of the 2 nd Respondent will be dealt with by the E&LC. I therefore find and hold that this court lacks jurisdiction to entertain the Petitioner’s case.”
46. Counsel as such urged that this Petition belongs to the Environment and Land Court, on account that the dominant cause of action is the sale /auction, transfer and current ownership of L. R No. 13154. Further that this Court lacks jurisdiction to transfer the matter to any other Court. In sum, Counsel argued that the suit, as filed, is incompetent and the same should be struck out. To buttress this point reliance was placed in Delmonte Kenya Limited v County Government of Murang’a & another [2019] eKLR where the Court held that:
“The jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Court Act. In this regard, my view is that the intention of the Constitution is that if an issue arises touching on land in respect of its use, possession
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1. The Petition dated 22 nd October 2020 is supported by the Petitioners’ verifying affidavits in support of similar date and a further affidavit dated 18 th May 2023. The Petition was subsequently amended on 25 th October 2021.
2. The gravamen of this Petition is an allegation by the Petitioners that the 2 nd Respondent fraudulently acquired their property known as L.R. No.13154 situated along Mbogani Road in Karen, Nairobi, measuring 4.816 acres, under the pretext of the 1 st Respondent. They contend that as a result of the misrepresentations made by the 2 nd Respondent in various suits, the Court found in favour 1 st Respondent, hence sanctioned an illegality, inadvertently.
3. Consequently, the Petitioners seek the following reliefs against the Respondents:
a) It be declared that the dispute resolution mechanism or process adopted in determining the above cases contravened the Bill of Rights and was inconsistent with the Constitution.
b) It be declared that by reason of the fraud practiced on the Courts by the 2 nd Respondent, the Courts in exercising judicial authority in the above cases were obstructed from promoting and/or protecting the purpose and principle of the Constitution.
c) It be declared that by reason of the frauds practiced on the Courts by the 2 nd Respondent, the Petitioners' right to fair trial or hearing was contravened or violated.
d) It be declared that the actions taken by the 2 nd Respondent of bringing legal action in HCCC No. 1181 of 1992 or other related cases in the name or under the cover or disguise of the 1 st Respondent and giving false evidence in those suits to support the false claims were in contravention of the Constitution and invalid.
e) It be declared that all the judgments, rulings, decrees, and orders made in favour of the 1 st Respondent in the above disputes are unconstitutional, null and void.
f) The 1 st and 2 nd Respondents pay damages to the Petitioners for the said Constitutional violations.
g) The 1 st and 2 nd Respondents be ordered to pay the costs of the Petitioners in all the above disputes or cases.
h) The costs of this Petition be paid by the 1 st and 2 nd Respondents.
Petitioners’ Case
4. The Petitioners who are father and son, depone that they are the registered owners of the property known as L.R. No.13154 situated along Mbogani Road in Karen, Nairobi, measuring 4.816 acres. They allege that at some point, it was claimed that the 1 st Respondent purchased the said parcel of land via an auction sale in 1992. This as expected instigated disputes concerning the purported auction sale.
5. The Petitioners state that these disputes were canvassed before various Courts in: Nairobi ELC No 1389 of 2004, Nairobi HCCC No 1181 of 1992, Nairobi HCCC No 2310 of 1993, Nairobi HC Misc No 546 of 2004, Milimani HCCC No 44 7 of 2004 and Civil Application No NAI 21 of 2006 UR 12/ 2006 .
6. The Petitioners aver that Nairobi HCCC No 1181 of 1992 revolved around the 1 st Respondent and the Kenya National Capital Corporation ( chargee ) which purportedly sold the property at the said auction. It is stated that the 2 nd Respondent in the matter, falsely misrepresented to the Courts and the Petitioners that the 1 st Respondent was the lawful purchaser. Equally, it is stated that the suits allegedly commenced by the 1 st Respondent were prosecuted solely by the 2 nd Respondent who claimed to be one of the Directors, shareholder and authorized Agent of the 1 st Respondent. The 2 nd Petitioner states that the Courts acting on the honest representations of the 2 nd Respondent awarded Judgments in favour of the 1 st Respondent in the said cases.
7. The 2 nd Petitioner avers that in 2014, a suit being Misc. Application No.326 of 2014 was filed in Court. It revolved around the ownership and directorship of the 1 st Respondent. He states that in the Judgment dated 16 th November 2015, the Court found that there were various malpractices concerning the 1 st Respondent’s affairs. It is noted unfortunately that the 2 nd Respondent who was the architect of the unlawful actions was not a party to the suit in this matter.
8. Soon thereafter in 2019, it is averred that the police established that the 2 nd Respondent was neither a director nor shareholder of the 1 st Respondent at the time auction sale took place. Equally, no authorization was granted by the 1 st Respondent to commence the said cases. Furthermore, it was stated that the Parties that were presented to the Court as being the Directors and shareholders of the 1 st Respondent were not.
9. It was also established that the 1 st Respondent never purchased the suit property at the auction sale and no legal proceedings were commenced by the 1 st Respondent which led to the grant of a favorable award in favour of the impugned auction. Owing to this, it is alleged that the Director of Public Prosecutions commenced a criminal suit against the 2 nd Respondent being Criminal Case No. 1552 of 2019 for the alleged fraud.
10. The Petitioners aver that the cited cases herein have since been concluded and Judgments issued. The Petitioners protest that the Judgments do not connect the 2 nd Respondent he was the one responsible for the alleged constitutional violations, which if upheld, would render the said Judgments unconstitutional, null and void.
11. The Petitioners aver therefore that the instant suit has been instigated so that this Court can determine the constitutionality of the 2 nd Respondent’s actions and the legal effect on the said Judgments. According to them, the dispute resolution mechanism that was utilized in the cited cases and rendered the said Judgments in favour of the 1 st Respondent, violated the Petitioners right to a fair trial and hearing, by perpetrating the fraud and misleading the Court. As a result of this, the Petitioners argue that the Court ended up dispensing justice in a manner that contravened Article 10 and 159(1)(e) of the Constitution and issuing Judgments inconsistent with the Constitution.
12. The Petitioners in their further affidavit impugn the 2 nd Respondent’s reliance on Judicial Review Application No. E076 of 2022 and argue that the allegations therein are false and misleading. The Petitioners argue that the instant matter and the JR matter are distinct and founded on different facts. The Petitioners aver that this matter is founded on the new facts that came to light in 2019 from the affidavit of one Meschack Meshack Owino Njega Owino. It is alleged that the sworn statement of Meshack Owino was never disputed. The Petitioners as well stress that the issues raised in the Petition present unique issues that have not been tried before and also raise constitutional violations.
1 st and 2 nd Respondents’ Case
13. On a preliminary note, the 2 nd Respondent made a Reply to the Petitioner vide his Replying Affidavit sworn on 19 th January 2021. Afterward, he unfortunately passed away where upon his wife took over the prosecution of this matter vide a Replying Affidavit sworn on 13 th July 2021. The 2 nd Respondent’s wife and Co - Director of the 1 st Respondent subsequently filed further affidavits dated 2 nd May 2023 and 13 th February 2024.
14. In his affidavit, the 2 nd Respondent deponed that he is the Managing Director of the 1 st Respondent. On the onset, he argued that the Petition should be dismissed as the issues raised had already been determined by Courts of competent jurisdiction and so this matter is an abuse of the Court process. Besides, he informs that the orders sought herein were placed before the said Courts.
15. Furthermore, the 2 nd Respondent asserted that the Petitioners were not honest as the issues of the alleged fraud were dismissed in the now concluded matter in Suit No.1181 of 1992 vide the Judgment delivered on 13 th November 2020. He informed that the matters were also determined by the Court of Appeal, hence this Court lacks jurisdiction to adjudicate the matters afresh. This is especially in light of HCCC 1389 OF 2004 and the Court of Appeal matter in Civil Appeal 130 OF 2016 .
16. In his view, the Petitioners are on a fishing expedition to deny the 1 st Respondent justice through the numerous suits filed. Further to that, he argued that there can never be a violation of constitutional rights against a party where the rights have been ordered and complied with through a Court sanction. He noted in particular that the right to sale by auction and transfer of property was sanctioned by a competent Court and that those orders have never been vacated or challenged successfully. That said, he argued that the Petition was time barred hence this Court lacks jurisdiction to entertain this matter.
17. The 2 nd Respondent’s wife in her further affidavits avers that she filed a judicial review matter in JR No. 076 of 2022 to challenge the Petitioners’ assertion that there existed a criminal component of fraud as a result of which charges were preferred. She alleges that the Court in its Judgment dismissed the charges against the 1 st and 2 nd Respondents. This is because the component of criminality had been adjudicated and decided upon by Courts of competent jurisdiction together with the appellate Court and thus the charges were a misuse of the criminal process.
18. Equally, she notes that the Petitioners allegations were considered and dismissed in Constitutional Petition No. E298 of 2022 . She emphasizes that this Court in its Judgment dated 26 th January 2024 in like manner pronounced that the decisions rendered in the civil cases determined in finality, that the 1 st Respondent is a legal entity and its certificate of incorporation is not a forgery and also that it lawfully acquired the property.
19. In light of this, she stresses that these pronouncements cannot be ignored as the Petitioners allegations have been properly concluded in a competent Court of equal jurisdiction.
3 rd Respondent’s Case
20. In response to the Petition, the 3 rd Respondent filed a Notice of Preliminary Objection dated 17 th December 2020 on the premise:
i. The Petition herein discloses an ordinary land [L.R No. 13154 – IR No. 25749 (Original Number Part of 6861/4)] ownership dispute which is disguised as a constitutional issue and this is contrary to the provisions of Article 162(2) and 165(5) of the Constitution as read together with Section 4 and 13(2) of the Environment and Land Act are contravened therefore an abuse of the process of the court.
ii. By dint of Articles 162(2) and 165(5) of the Constitution, as read together with Section 4 and 13(2) of the Environment and Land Act, this Court lacks the requisite jurisdiction to hear an determine this Petition. This Petition ought to have been filed in the Environment and Land Court and not in this Court.
iii. This Court lacks the jurisdiction to transfer this Petition to the Environment and Land Court.
iv. To the extent that the Application and the Petition concern the validity of an auction sale and directorship of company, that is a party herein, this Petition does not raise any constitutional question(s) but a chain of commercial transactions – litigated over several cases before other Courts of competent jurisdiction over a span of three decades. The respective factual and legal issues raised in those cases belong to the respective Courts that they had been respectively raised and litigated over; and the Courts with relevant appellate jurisdiction. Cloaking the issues raised therein with the constitutional gowns is an abuse of this court’s process.
v. The Application and Petition herein seeks to invoke the jurisdiction of this Court over the matters litigated before, and determined by, Courts of similar jurisdiction and a higher jurisdiction. This presents an abuse to this Court’s process.
vi. The Application and Petition herein are disguised appeals and/or review applications, done outside the statutory/constitutional timelines; and outside the pronouncements of the Courts of record. This Court, therefore, has no jurisdiction to supervise or sit on appeal on its decisions.
vii. Under both the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 and 2013 (The Gicheru / Mutunga Rules - Respectively), decree that should a constitutional issue arise in any divisions of the [High] Court, that Court has the requisite jurisdiction to determine the same under the Rules. Accordingly, challenging all the decisions including orders, judgments and decrees made in respect to the issues in question in all the referred Court proceedings herein through a Petition, in this division, is an abuse of process and fatal to the Petition.
viii. The Application and Petition herein, as drafted, fail to give sufficient details to the Respondents, particularly the 3 rd Respondent, in order to call for a proper response. Particularly, the Petition fails to comply with Rules 10 (2) (e) and 11 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2013 in as far as it does not give the details of the cases listed therein in as far as they are related to the Petition.
ix. The Petitioner does not give the details of fraud as alleged; other than annexing a charge sheet ‘ARH -2’, which in law is not final finding by a Court of competent jurisdiction of the actual fraud.
x. In as far as the Petitioners herein have appeared before other Courts of competent jurisdiction, and in one way or the other the issues they raised therein were determined [see paragraph 17 of the Petition], the act of approaching this court amounts to forum shopping. It is meant to embarrass this Court and it is therefore an abuse of this Court’s process.
xi. In toto the Application and Petition herein are incompetent and an abuse of this Court’s process. The same should be dismissed on a preliminary, with costs to the 3 rd Respondent.
Petitioners’ Submissions
21. Sharley Barret and Company Advocates for the Petitioners filed submissions dated 1 st March 2021 and further submissions dated 16 th March 2022.
22. Submitting on the 3 rd Respondent’s Preliminary Objection, Counsel relying and reiterating the contents of the Petition, submitted that the Preliminary Objection is founded on disputed facts which a Preliminary Objection should not be. Reliance was placed in Mukisa Biscuit Co. v West End Distributors [1969] E.A. 696 where it was held that:
“A Preliminary Objection is in the nature of what used to be 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 has to be ascertained or of what is sought is the exercise of judicial discretion".
23. Essentially, Counsel submitted that this Petition originates from the constitutional violations which arose from HCCC No.1181 of 1992 where the 2 nd Respondent falsely represented that he is an authorized agent of the 1 st Respondent and which in the end led to the impugned Judgment. It was noted that the 2 nd Respondent was not a party in these suits in his own capacity but under the 1 st Respondent. Equally, Counsel pointed out that the 1 st Respondent was not a duly registered company at the time when HCCC No. 1181 of 1992 was commenced, as can be gleaned from the adduced annextures. Counsel therefore argued that the Petition discloses the attendant constitutional violations.
24. Counsel as well disputed the issue of jurisdiction with key focus on the Environment and Land Court. This is since the impugned matter was tried by the High Court under the Civil Procedure Act, not Article 162(2) of the Constitution. For this reason, Counsel asserted that this Court has jurisdiction to entertain this matter, being a constitutional dispute.
25. Turning to the Petition, Counsel stated that the issues that arise for determination are: whether the 1 st Respondent is a person and a proper party in the present case, whether on the facts of this case the Petition discloses and proves infringement or violation of the rule of law under Article 10 of the Constitution, whether on the facts of this case the Petition discloses and proves the infringement or violation of the right to fair hearing or fair trial, whether on the facts of this case the Petition discloses or proves the infringement or violation of the right to justice and proper exercise of judicial authority as guaranteed Article 159 of the Constitution, whether on the facts of this case the Petition discloses and proves any act or omission in contravention of the Constitution , if the answer to any or all of the above is in the affirmative did the said infringements or violations also violate the Petitioners right under the Constitution and remedies or reliefs are the Petitioners entitled to .
26. On the first issue, Counsel submitted that at the close of pleadings in the Petition, it was established that the 1 st Respondent never legally existed as it did not have a valid Memorandum and Articles of Associated signed by the subscribers. On this basis, Counsel submitted that the 1 st Respondent lacks the legal capacity to defend or participate in the present proceedings as is not a person within the meaning of Article 260 of the Constitution. Counsel urged therefore that the name of the 1 st Respondent be struck off.
27. On the second issue, Counsel referring to the impugned suit HCCC 1181 of 1992 submitted that it was not a proper and valid suit on the ground that the 1 st Respondent was not a valid company. Counsel argued that effectively, there was no valid plaintiff in that suit, thus no person in whose favour the Court could issue a decree.
28. Counsel on the third issue submitted that HCCC No.1181 of 1992 and cited cases were disputes within the meaning of Article 25 and 50 of the Constitution. Counsel emphasized that the suits had been prosecuted on the false representation that the 1 st Respondent was a legal entity with capacity to institute a suit. Counsel argued that hearing and determination of the said suit was an outcome of a fraud practiced on the Court by the 2 nd Respondent in contravention of the right to a fair hearing and trial.
29. Turning to the fourth issue, Counsel argued that there was a total failure and miscarriage of justice in the cited cases as the Court was misled to believe and determine the said cases, by relying on the 2 nd Respondent’s false misrepresentations that the 1 st Respondent existed as lawful party.
30. In light of the foregoing, Counsel submitted that ultimately the Petitioners suffered injuries and loss which resulted in violation of their constitutional rights due to the 2 nd Respondent’s unlawful actions. Counsel stressed that unless these constitutional contraventions are nullified, the Petitioners stand to suffer serious injuries and loss in view of the said parcel of land , lose their right to redeem their securities charged under the loan agreement , lose sums exceeding Ksh.14,000,000 as legal costs to be paid to the 1 st Respondent as an illegal entity and all of which will violate their rights under Article 27(a) and 40 of the Constitution .
31. Counsel in the sixth issue in light of the facts argued that the Petition discloses serious constitutional contraventions by the 2 nd Respondent and so the Petitioners are entitled to remedies and relief as follows:
a) A declaration that Southdown Developers Limited, the purported 1 st Respondent in the present petition is not a person as defined under Article 260 of the Constitution or a company under the Companies Act and lacks the capacity to be enjoined as a party in the present Petition or participate in the proceedings herein.
b) A declaration that all actions or omissions in the name of Southdown Developers Limited as a limited liability company or legal person within the meaning of Article 260 of the Constitution including the actions or omissions in the said HCCC No. 1181 of 1992 and other cases refereed in paragraph 9 of the Petition arising from the judgement and decree in the said case were in contravention of the Constitution, invalid, null and void;
c) The judgements and decrees issued in the name and/ or in favour of Southdown Developers Limited as a limited liability company or a person within the meaning of Article 260 of the Constitution in the said HCCC No. 1181 of 1992 and other related cases referred to in paragraph 9 of the petition were in contravention of the constitution invalid, null and void and incapable of being executed;
d) A declaration that all the actions and omissions done or not by the 2 nd Respondent in the name of or on behalf of Southdown Developers Limited as a limited liability company or a legal person as defined under Article 260 of the constitution were in contravention of the constitution invalid, null and void;
e) The 2 nd Respondent do pay compensation or damages to the Petitioners being:
f) The additional interest accruing on the said loan agreement or charge after January 1992 which the Petitioners are or will be required to pay in order to redeem their securities charged to the lender.
g) All the legal costs, in full indemnity basis incurred by the Petitioners in the cases referred paragraph 9 of the Petition.
h) The costs of the present Petition or suit.
i) Interest on (ii) and(iii) above.
32. In reply, to the Respondents submissions, the Petitioners filed the supplementary submissions. On the dominant issue in the Petition, Counsel submitted that it is the violation of the Petitioners constitutional rights under Article 2(4),10, 27, 50 and 159 of the Constitution contrary to the 3 rd Respondent’s averment otherwise.
33. On the allegation that the matter is res judicata in light of the previous suits which have since been determined, Counsel submitted that the 2 nd and 3 rd Respondents were not parties in the suits, further the facts and evidence relied upon in the present Petition was at all material times held by the State and Respondents and only came to the Petitioners knowledge in 2019. Counsel argued that the Respondents had withheld this crucial information. On this premise, Counsel reasoned that the claim on res judicata is unsustainable.
34. That said, Counsel maintained that the Respondents had not disputed the correctness of the sworn statement by Meshack Owino Njega Odera, therefore are estopped from relying on their own unlawful actions and violation of the Constitution.
35. On the review and appellate jurisdiction, Counsel submitted that this argument is irrational and untenable since if this Court finds, that on the unchallenged evidence and the facts proved by the sworn statement of Meshack Owino Njega Odera Advocate, the 1 st Respondent never existed in law as a legal person or entity, then all previous proceedings between the Petitioners and the 1 st Respondent were null and void ab initio, as the Court lacked jurisdiction.
36. Furthermore, Counsel submitted that this is the first litigation between the Petitioners and the 2 nd and 3 rd Respondents therefore there has never been a judgment or judgments between these parties, capable of being appealed against or reviewed in the present Petition. Lastly, Counsel pointed out that the Petition is grounded on information, evidence and facts which the Petitioner accessed for the first time in 2019. In sum, Counsel urged that the Petition is merited.
1 st and 2 nd Respondents’ Submissions
37. Ayieko Kangathe and Company Advocates for these Respondents filed submissions dated 4 th May 2021 and highlighted the single issue for discussion as: whether this Court has jurisdiction to grant the reliefs sought .
38. Counsel submitted that the instant suit touches on issues that have been litigated before by superior Courts in respective suits filed by the Petitioners. Counsel contended that the Petitioners had clothed the issues herein as having constitutional underpinnings whereas the said subject matter has been properly tried and dismissed in the High court and the Court of Appeal. On this basis, Counsel submitted that this Court does not have jurisdiction to entertain this matter. Reliance was placed in Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) limited [1989] KLR 1 where it was held that:
“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognizance of 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 the 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 both of 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 the 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...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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
39. Comparable reliance was paced in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others [2012] eKLR and Uganda General Trading Co. Ltd vs. N T Patel Kampala HCCC No. 351 of 1964 [1965] EA 149 .
40. Counsel as well submitted that Article 165(6) of the Constitution bars this Court from exercising supervisory jurisdiction over another superior Court. In this matter, Counsel underscored that the Petitioners seek to annul the said proceedings, judgments, rulings, orders and decrees before this Court which is supervisory jurisdiction. Considering this, Counsel urged the Court not to entertain the Petition as it is an abuse of the Court process.
41. Reliance was placed in Kenya Hotel Properties Limited v Attorney General & 5 others [2018] eKLR .
3 rd Respondent’s Submissions
42. The 3 rd Respondent filed two sets of submissions in relation to its Notice of Preliminary Objection dated 8 th February 2021 and to the Petition dated 18 th March 2022.
43. On the first set of submissions, Counsel discussed the issues under various subtitles. On the onset, Counsel submitted that the Petitioners key issue being annulment of issued Judgments and decrees, demonstrates that the dominant cause of action involves the auction, transfer and current ownership of the land in issue which are questions which have been litigated over for more than three decades.
44. On the first topic, lack of constitutional and statutory jurisdiction , Counsel submitted that this Court lacks the requisite jurisdiction to entertain this Petition. Reliance was also placed in Owners of Motor Vessel Lillian “S” (supra). This is since the factual basis of the Petition discloses a cause of action that should be filed before the Environment and Land Court and second, ought to have been dealt with by way of a review under Order 44 of the Civil Procedure Rules, or through an appeal to the Court of Appeal.
45. Reliance was placed in Honey Creepers Investment Limited v Cab Investments Company Ltd & 4 others [2020] eKLR where it was held that:
“In the end we find and hold that the dominant issue in the petition is the right to renewal of leases over the suit land. We further find that the issue is intrinsically connected to the use and title to land. The dispute thus falls squarely within the purview of the ELC under Article 162(2) of the Constitution as read with Section 13 of the ELC Act. We also find that although the petitioner claims violation of various constitutional rights, those claims are intertwined with the dominant issue and that the ELC has jurisdiction to deal with the alleged violations…the Petitioner’s main issue is the alleged alienation of his title and land by the 2 nd Respondent. The alleged violation of constitutional rights through the actions of the 2 nd Respondent will be dealt with by the E&LC. I therefore find and hold that this court lacks jurisdiction to entertain the Petitioner’s case.”
46. Counsel as such urged that this Petition belongs to the Environment and Land Court, on account that the dominant cause of action is the sale /auction, transfer and current ownership of L. R No. 13154. Further that this Court lacks jurisdiction to transfer the matter to any other Court. In sum, Counsel argued that the suit, as filed, is incompetent and the same should be struck out. To buttress this point reliance was placed in Delmonte Kenya Limited v County Government of Murang’a & another [2019] eKLR where the Court held that:
“The jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Court Act. In this regard, my view is that the intention of the Constitution is that if an issue arises touching on land in respect of its use, possession
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