JACOB BUHUNGI ELAKI petitioned this court against the Respondents herein for orders that;
- An order of certiorari be issued quashing the decision of the 1st Respondent allegedly to compulsorily acquire parcel No. NYANG’ORI/HAMISI’B’/305.
- declaration that the alleged compulsory acquisition of parcel NO. NYANGORI/HAMISI” B”/305 and the intended removal and eviction of the applicant from his land by the Respondents will infringe on the Petitioner’s right to ownership of land and as such null and void ab intio and an order be issued quashing the acquisition and the Respondent be directed to remove the restriction.
- In the alternative and strictly without prejudice to the foregoing, the petitioner be compensated for the land, all improvements and developments on the land at current market value.
- Costs of the petition be provided for.
The facts upon which the petition was based were that the Petitioner is the legal bon fide and registered owner of land parcel number NYANGORI/HAMISI “B”/305 measuring 1.8 Ha (herein the suit land) for which title was issued to him on 12th November 1999. That sometime in the year 2015 the petitioner sued the 3rd and 5th Respondent vide KAKAMEGA H.C PET NO. 3 OF 2015 seeking the removal of the restriction registered by the 4th Respondent alleging compulsory acquisition of the suit land which case was dismissed for want of prosecution. That on appeal to the Court of Appeal vide CIVIL APPEAL NO. 220 OF 2015 the dismissal was upheld. That in the circumstances that the suit was never heard and /or determined on merit.
That there is an office building that has been put up on the suit land under the direct control and use by the national government officers. That the 1st Respondent, has sought to remove and evict the petitioners and his dependents from the suit land. That the petitioner has never been compensated. That unless the court intervenes, the 1st Respondent is likely to evict the petitioner from the land. That the actions of the Respondents are in contravention of constitutional rights and freedoms of the petitioner and in violation of the law as follows; -
That the preamble of the Constitution of Kenya 2010 speaks of the commitment of the people of Kenya to nurturing and protecting the wellbeing of the individual property, article 2 binds all state organs at both levels of government and that any action that is inconsistent or in contravention of the Constitution is void to the extent of the inconsistency. Article 21(2) (1) obligates the state and every state organ to observe respect and protect, promote and fulfil the Rights and Fundamentals Freedoms in the Bill of Rights. Articles 47 and 73 of the Constitution provides for the right to fair administrative action. That article 40 of the Constitution provides for the protection of the right to property which right of the petitions was violated inter alia as follows;
- there was no actual notice to the petitioner in respect of compulsory acquisition.
- amount of compensation has never been paid.
- the petitioner has never been heard in respect of the compulsory acquisition.
The petition was not opposed. Affidavit of service was filed to show that the Respondent was served with the petition. Directions were taken on 8/10/2023 that the petition be disposed by way of Affidavit evidence and submissions. Affidavit of service filed shows that the Respondents were served with extract of the directions. The Respondent filed no response to the petition and no submissions.
Submissions by the petitioner.
Written submissions dated 29th October 2023 were filed on behalf of the Petitioner by Ms Kipkosgei Choge & Co Advocates.
Counsel submitted that the issue in this matter concern the application of article 40 of the Constitution which protects proprietary rights. That in case the government wishes to acquire land registered in the name of the title holder, article 40 provides the terms under which land can be so acquired.
Counsel submitted further that whereas government may alienate private land which has been identified for public purpose, the process of such alienation must be through a process recognized by law.
Counsel relied on the provisions of articles 40 (a), 40 (b) and 47 (1) of the Constitution and the case of Adan Abdirahani Hassan and 2 others vs Registrar of Titles and others Nairobi Petition No. 7 of 2012 (2013) eKLR where it was held that the petitioners should have been accorded a hearing before any administrative action could be taken in respect of the suit property.
That even where property is alleged to be illegally acquired it cannot be disposed without due process. That under section 4 of the Fair Administrative Action Act every person must be accorded fair administrative action. That petitioner’s right to fair administrative action and the right to be heard have been violated. That the actions of the Respondent are in violation of the Petitioners right to protection of property.
Counsel submitted further that the Respondent did not follow the procedure for compulsory acquisition of private land in the Land Acquisition Act Cap 295. Counsel submitted further that the petitioner is entitled to relief as provided for under article 23 of the Constitution of Kenya 2010.
Issues for determination
From the petition, the evidence placed before court and the submissions filed, the following emerge as the issues for determination.
- Whether or not the matter before court is re judicata.
- Whether or not the petitioner is entitled to the relief sought.
- Costs.
Analysis and determination.
The first issue for determination is whether or not the matter before court is res judicata. The petitioner pleaded that he filed a Petition being KAKAMEGA HIGH COURT PET. NO.3 OF 2015 against the 3rd and 4th Respondents seeking removal of a restriction lodged by the 3rd Respondent and registered by the 4th Respondent on the grounds of compulsory acquisition of the suit land. That the petition was dismissed for want of prosecution and that on appeal to the court of Appeal in Civil Appeal No. 220 of 2019, the dismissal of the petition was upheld.
Although the Petitioner indicated a copy of the petition in the former suit was annexed to the petition and marked JBE2, the same was not so annexed. It is however clear from the averments by the petitioner that there has been a former suit over the same subject matter that was decided at the High Court and Court of appeal level. That the subject matter was the restriction placed on the suit land on grounds of compulsory acquisition of the land by government. The restriction is the subject matter in the present petition. The Pleadings proceedings and decisions in the previous litigation have not been placed before court.
The doctrine of res judicata as provided for in section 7 of the Civil Procedure Act prohibits the court from handling a matter that has already been handled and decided by a court of competent jurisdiction. Section 7 of the Civil Procedure Act 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.
Explanation (1) – The expression “former suit” means a suit which has been decided before the suit in question, whether or not it was instituted before it.
Explanation (2) – For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) – The matter above referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly, by the other.
Explanation (4) – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation (5) – Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purpose of this section be deemed to have been refused.
Explanation (6) – where persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and others, all persons interested in such right shall for the purpose of this section, be deemed to claim under the persons so litigating.”
The onus was on the petitioner to prove that the present petition, though related to the former petition and appeal to the Court of Appeal is not res judicata. In the absence of such proof and on the basis of the pleadings by the petitioner regarding the existence and subject matter of the former suit, I find that the petition herein is res judicata.
Having found that the petition is res judicata, the court will not delve into the second issue for determination which is whether or not the petitioner is entitled to the relief sought.
The Petition is therefore hereby struck out. No order as to costs.
Orders accordingly.
Judgement dated and signed at Vihiga and delivered this 13th Day of February, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi- Court Assistant.
Sang for the Petitioner.
No appearance for the Respondents.