BRIEF FACTS
This is a judgment in respect of the Petition filed on 15th November, 2023. The Petitioners contend that they lawfully purchased the suit property from Skov Estate Limited (the lessor). The Petitioners further contend that by virtue of the judgments in NAKURU ELC NO 251 OF 2012 SKOV ESTATE LIMITED & OTHERS V AGRICULTURAL DEVELOPMENT CORPORATION AND LANDS LIMITED and NAKURU ELC 318 OF 2018 AGRICULTURAL DEVELOPMENT CORPORATION V BONIFACE MOKAYA & 19 OTHERS the same has left the Petitioners in precarious situation since they are in occupation of the suit property. The Petitioners also contend that by the Respondent’s acts and omissions, their constitutional rights have been violated.
The Petitioners sought for the following orders:
a) A declaration that eviction of the Petitioners from the suit land LR. NO. 9467 by the Respondent or any other Government entity would constitute violation of the Petitioners’ fundamental rights.
b) A declaration that the Respondent is time barred from legally filing suit seeking possession of the suit land L. R. NO. 9467 from the Petitioners.
c) An order for permanent injunction restraining the Respondent, it’s agents, officers, employees, any person claiming authority or interested under the Respondent or any other Government entity from evicting the Petitioners from the suit land LR NO. 9467 or in any manner interfering with the Petitioners possession or occupation of the suit land.
d) An order for the Respondent to transfer the suit land LR. NO. 9467 to the Petitioners under the terms in which it had offered the land for sale in 1982 subject to such variations as this Honourable Court will deem fair and just.
ALTERNATIVELY
e) An order for mandamus ordering the Interested Party NATIONAL LAND COMMISSION to make recommendations on the manner and terms under which the suit land LR. NO. 9467 shall be transferred by the Respondent to the Petitioners.
f) This Honourable Court be pleased to issue an order that each party should bear their own costs on the grounds that this Petition is in the public interest.
g) An order that the Deputy Registrar of this Honourable Court do execute all the relevant documents requisite to effect the orders made herein.
h) This Honourable court be pleased to issue such further or other orders as it may deem just and expedient for the ends of justice.
Petitioners’ case
The Petitioners aver that they purchased the suit property from SKOV Limited. They further aver that they took occupation in 1982 and have since done developments on the suit property.
They contend that dismissal of the above suits has placed them in an awkward situation since they are in possession of the suit land registered to the Respondent. They further contend that the Respondent has been legally barred from suing while the Petitioners’ claim by virtue of contractual ownership has also been barred by the dismissal of the said suits.
It is the Petitioners’ contention that their rights to property under Article 40 of the Constitution has been violated by the Respondent.
Response
The Respondent filed its amended response dated 20th July, 2023. He averred that the Petitioner intentionally failed to disclose material information regarding the matter. He averred that the Respondent has been the registered owner of the suit land and that it had leased the same to SKOV limited for a period of 48 years. He added that the relationship between the Respondent and SKOV Limited was that of a Landlord and Tenant. That, there was no evidence that the Petitioners legally entered into a sale agreement with SKOV Limited. It was further averred that the petition has nothing to do with constitutional infringement for the reason that it is based in illegal and unlawful trespass onto public land. He added that the said claim is purely civil in nature.
The Respondent also raised a cross-petition against the Petitioners and others who have since trespassed onto the suit land. He averred that the Respondent’s attempt to regain possession of the suit land for the last 20 years after the lease expired has been met with resistance from the Petitioners. The Respondents sought for the following orders:
i. A declaration that the suit parcel, LR No. 9467, has been unlawfully and illegally trespassed by the Petitioners and others not before this Honorable Court use for private proprietary interest.
ii. An eviction order to issue against the Petitioners and those not before this Honorable Court, directing them to vacate and render vacant possession of suit property, LR No. 9467, to the Respondent within reasonable time i.e. within 90 days from the date of delivery of the judgment.
iii. An order directed to the County Commissioner and Police Commander of Mau Summit Tipis area to issue, instructing them to render any necessary assistance during the eviction.
iv. A declaration that the Respondent is the legal and beneficial owner of the suit parcel, LR No. 9467, situated at Mau Narok Tipis area.
v. Mense profits.
vi. A permanent injunction restraining the Petitioners and several others not before this Honorable Court from alienating, selling and/or in any way interfering with the Respondents enjoyment of the suit parcel, LR No. 9467.
vii. Costs of this suit with interest.
viii. An order for collateral estoppel to issue against the Petitioners and those not before this Honorable Court as litigation has to come to an end, however painful!
Submissions
Counsel for the Respondent filed his submissions dated 15th July, 2024 where he gave a background of the case and identified the main issue as follows:
i. Whether the Petition meets the threshold of a Constitutional Petition; if yes, whether the Petitioner has proven his case and if so, what orders should the Court make.
Counsel also submitted that the Petitioners have illegally encroached and/or trespassed onto Government Land and also abused the court process for years to stop any kind of eviction. He relied on the case of Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2007] eKLR. He further relied on Sections 41 and 42 of the Limitations of Actions Act and submitted that it was not tenable for the court to grant an order barring the Respondent from filing a suit for possession of the suit land. He submitted that the Respondent being a wholly owned subsidiary of Agricultural Development Corporation, is a Government State Corporation and therefore subject to Section 41 and 42 of the Limitations of Actions. He submitted that the suit land being public land does not allow any person including the Petitioners to acquire title to public Land.
On the issue of sale of the suit land to SKOV Limited as alleged by the Petitioners, he submitted that the matter was settled in Nakuru ELC Number. 251 of 2012 SKOV Limited & 5 others V Agricultural Development Corporation & Another where the court found that the conditional acceptance of the offer letter by the Petitioners did not yield a contract. He further submitted that the Petitioners could not benefit from the doctrine of bona fide purchaser since there was never a sale of the subject suit land. He cited Article 40(6) of the Constitution and the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021 [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023). Counsel submitted that the issue of ownership is not contested and that the Petitioners illegally encroached and trespassed onto the suit land. He relied on the case of William Peter Mayaka vs Richard Kipkorir Mutai & 3 others HCCC No. 246 of 2004 Nakuru and Section 24(a) of the Land Registration Act. He went on to submit that the Respondent being the absolute owner of the suit parcel, they are entitled to enjoy rights and privileges associated with such ownership without any interference by the Petitioners.
It was counsel’s submission that in order for a constitutional petition to be sustained, the Petitioners must provide evidence which demonstrates how their rights have been violated, as opposed to merely citing the provisions of the Constitution alleged to have been violated. He submitted that the Petition as drafted has not met the threshold and constitutional test for violation of constitutional rights. He relied on the cases of Anarita Karimi Njeru versus The Republic (1976 1980) and Mumo Matemu versus Trusted Society of Human Rights Alliance. He submitted that the Petitioners failed to demonstrate that they are the legal beneficial owners of the subject suit land but are only forum shopping to seek legitimization of their illegal encroachment and trespass.
He submitted that the Petitioners trespassed on a portion of the suit land where they have put temporary structures. He relied on the case of Telkom Kenya Limited V County Government of Muranga [2019] eKLR. He further submitted that the Respondents are therefore entitled to the prayers sought in the cross petition.
Analysis and Determination
This court has considered the case put forward by the Petitioners and Respondent and the submissions filed and is of the view that the sole issue for determination is:
Whether the Petition has met the constitutional threshold.
It is trite law that a party seeking a constitutional relief must describe the party's nature and particulars of the rights and freedoms infringed, the manner of infringement, details of the violations, loss, and damage caused, and the evidence of violations or the breaches. In addition, parties are bound by their pleadings and issues flow from pleadings.
In the case of Anarita Karimi Njeru V Republic (Criminal Appeal 4 of 1979) [1979] KECA 12 (KLR) (Crim) (25 May 1979) (Judgment) the court held that:
“…the basis of the grievance must be stated, including the manifestation of contravention or infringement since it serves as a foundation of conviction and good faith in engaging the constitutional process of dispute settlement.”
Further, in the case of Mumo Matemu V Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice & Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists & Kenya Human Rights Commission (Civil Appeal 290 of 2012) [2013] KECA 445 (KLR) (Civ) (26 July 2013) (Judgment) the court held as follows:
“…there must be precision and clarity on the particular Constitutional rights or freedoms that have been infringed or violated, so that the opposite party and the court may know what the issues were before it. There must also be evidence of proof of constitutional violations.”
In the case of Abdullah Mangi Mohamed V Lazarus Beja & 5 Others (Constitutional Petition 59 of 2011) [2012] KEHC 706 (KLR) (30 November 2012) held that:
“a constitutional court should not be dogged with applications for enforcement of purported rights which require prior determination and that it was an improper practice to make all private disputes as to ownerships of property under the guise of breach of a constitutional right to property.”
In the present petition, the Petitioners have pleaded the issue of ownership and trespass onto the suit land by the Respondents. It is this court’s view that the dispute could be resolved in a civil claim, but not through a constitutional petition. It is also courts view that a clear reading of the petition does not show any infringement of provisions of the constitution.
The upshot of the foregoing is that the petition does not raise any constitutional issues at all. In addition, the Petitioners failed to prove the alleged infringement of constitutional right to the required standards. I therefore find that the Petition does not meet the required standard of a constitutional petition and is thus dismissed. It is noteworthy that the Respondent also filed a cross-petition which this court having considered the prayers, the same raises the same issues as in the petition and it is therefore also dismissed. Each party to bear its own costs. It is so ordered.
This is a judgment in respect of the Petition filed on 15th November, 2023. The Petitioners contend that they lawfully purchased the suit property from Skov Estate Limited (the lessor). The Petitioners further contend that by virtue of the judgments in NAKURU ELC NO 251 OF 2012 SKOV ESTATE LIMITED & OTHERS V AGRICULTURAL DEVELOPMENT CORPORATION AND LANDS LIMITED and NAKURU ELC 318 OF 2018 AGRICULTURAL DEVELOPMENT CORPORATION V BONIFACE MOKAYA & 19 OTHERS the same has left the Petitioners in precarious situation since they are in occupation of the suit property. The Petitioners also contend that by the Respondent’s acts and omissions, their constitutional rights have been violated.
The Petitioners sought for the following orders:
a) A declaration that eviction of the Petitioners from the suit land LR. NO. 9467 by the Respondent or any other Government entity would constitute violation of the Petitioners’ fundamental rights.
b) A declaration that the Respondent is time barred from legally filing suit seeking possession of the suit land L. R. NO. 9467 from the Petitioners.
c) An order for permanent injunction restraining the Respondent, it’s agents, officers, employees, any person claiming authority or interested under the Respondent or any other Government entity from evicting the Petitioners from the suit land LR NO. 9467 or in any manner interfering with the Petitioners possession or occupation of the suit land.
d) An order for the Respondent to transfer the suit land LR. NO. 9467 to the Petitioners under the terms in which it had offered the land for sale in 1982 subject to such variations as this Honourable Court will deem fair and just.
ALTERNATIVELY
e) An order for mandamus ordering the Interested Party NATIONAL LAND COMMISSION to make recommendations on the manner and terms under which the suit land LR. NO. 9467 shall be transferred by the Respondent to the Petitioners.
f) This Honourable Court be pleased to issue an order that each party should bear their own costs on the grounds that this Petition is in the public interest.
g) An order that the Deputy Registrar of this Honourable Court do execute all the relevant documents requisite to effect the orders made herein.
h) This Honourable court be pleased to issue such further or other orders as it may deem just and expedient for the ends of justice.
Petitioners’ case
The Petitioners aver that they purchased the suit property from SKOV Limited. They further aver that they took occupation in 1982 and have since done developments on the suit property.
They contend that dismissal of the above suits has placed them in an awkward situation since they are in possession of the suit land registered to the Respondent. They further contend that the Respondent has been legally barred from suing while the Petitioners’ claim by virtue of contractual ownership has also been barred by the dismissal of the said suits.
It is the Petitioners’ contention that their rights to property under Article 40 of the Constitution has been violated by the Respondent.
Response
The Respondent filed its amended response dated 20th July, 2023. He averred that the Petitioner intentionally failed to disclose material information regarding the matter. He averred that the Respondent has been the registered owner of the suit land and that it had leased the same to SKOV limited for a period of 48 years. He added that the relationship between the Respondent and SKOV Limited was that of a Landlord and Tenant. That, there was no evidence that the Petitioners legally entered into a sale agreement with SKOV Limited. It was further averred that the petition has nothing to do with constitutional infringement for the reason that it is based in illegal and unlawful trespass onto public land. He added that the said claim is purely civil in nature.
The Respondent also raised a cross-petition against the Petitioners and others who have since trespassed onto the suit land. He averred that the Respondent’s attempt to regain possession of the suit land for the last 20 years after the lease expired has been met with resistance from the Petitioners. The Respondents sought for the following orders:
i. A declaration that the suit parcel, LR No. 9467, has been unlawfully and illegally trespassed by the Petitioners and others not before this Honorable Court use for private proprietary interest.
ii. An eviction order to issue against the Petitioners and those not before this Honorable Court, directing them to vacate and render vacant possession of suit property, LR No. 9467, to the Respondent within reasonable time i.e. within 90 days from the date of delivery of the judgment.
iii. An order directed to the County Commissioner and Police Commander of Mau Summit Tipis area to issue, instructing them to render any necessary assistance during the eviction.
iv. A declaration that the Respondent is the legal and beneficial owner of the suit parcel, LR No. 9467, situated at Mau Narok Tipis area.
v. Mense profits.
vi. A permanent injunction restraining the Petitioners and several others not before this Honorable Court from alienating, selling and/or in any way interfering with the Respondents enjoyment of the suit parcel, LR No. 9467.
vii. Costs of this suit with interest.
viii. An order for collateral estoppel to issue against the Petitioners and those not before this Honorable Court as litigation has to come to an end, however painful!
Submissions
Counsel for the Respondent filed his submissions dated 15th July, 2024 where he gave a background of the case and identified the main issue as follows:
i. Whether the Petition meets the threshold of a Constitutional Petition; if yes, whether the Petitioner has proven his case and if so, what orders should the Court make.
Counsel also submitted that the Petitioners have illegally encroached and/or trespassed onto Government Land and also abused the court process for years to stop any kind of eviction. He relied on the case of Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2007] eKLR. He further relied on Sections 41 and 42 of the Limitations of Actions Act and submitted that it was not tenable for the court to grant an order barring the Respondent from filing a suit for possession of the suit land. He submitted that the Respondent being a wholly owned subsidiary of Agricultural Development Corporation, is a Government State Corporation and therefore subject to Section 41 and 42 of the Limitations of Actions. He submitted that the suit land being public land does not allow any person including the Petitioners to acquire title to public Land.
On the issue of sale of the suit land to SKOV Limited as alleged by the Petitioners, he submitted that the matter was settled in Nakuru ELC Number. 251 of 2012 SKOV Limited & 5 others V Agricultural Development Corporation & Another where the court found that the conditional acceptance of the offer letter by the Petitioners did not yield a contract. He further submitted that the Petitioners could not benefit from the doctrine of bona fide purchaser since there was never a sale of the subject suit land. He cited Article 40(6) of the Constitution and the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021 [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023). Counsel submitted that the issue of ownership is not contested and that the Petitioners illegally encroached and trespassed onto the suit land. He relied on the case of William Peter Mayaka vs Richard Kipkorir Mutai & 3 others HCCC No. 246 of 2004 Nakuru and Section 24(a) of the Land Registration Act. He went on to submit that the Respondent being the absolute owner of the suit parcel, they are entitled to enjoy rights and privileges associated with such ownership without any interference by the Petitioners.
It was counsel’s submission that in order for a constitutional petition to be sustained, the Petitioners must provide evidence which demonstrates how their rights have been violated, as opposed to merely citing the provisions of the Constitution alleged to have been violated. He submitted that the Petition as drafted has not met the threshold and constitutional test for violation of constitutional rights. He relied on the cases of Anarita Karimi Njeru versus The Republic (1976 1980) and Mumo Matemu versus Trusted Society of Human Rights Alliance. He submitted that the Petitioners failed to demonstrate that they are the legal beneficial owners of the subject suit land but are only forum shopping to seek legitimization of their illegal encroachment and trespass.
He submitted that the Petitioners trespassed on a portion of the suit land where they have put temporary structures. He relied on the case of Telkom Kenya Limited V County Government of Muranga [2019] eKLR. He further submitted that the Respondents are therefore entitled to the prayers sought in the cross petition.
Analysis and Determination
This court has considered the case put forward by the Petitioners and Respondent and the submissions filed and is of the view that the sole issue for determination is:
Whether the Petition has met the constitutional threshold.
It is trite law that a party seeking a constitutional relief must describe the party's nature and particulars of the rights and freedoms infringed, the manner of infringement, details of the violations, loss, and damage caused, and the evidence of violations or the breaches. In addition, parties are bound by their pleadings and issues flow from pleadings.
In the case of Anarita Karimi Njeru V Republic (Criminal Appeal 4 of 1979) [1979] KECA 12 (KLR) (Crim) (25 May 1979) (Judgment) the court held that:
“…the basis of the grievance must be stated, including the manifestation of contravention or infringement since it serves as a foundation of conviction and good faith in engaging the constitutional process of dispute settlement.”
Further, in the case of Mumo Matemu V Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice & Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists & Kenya Human Rights Commission (Civil Appeal 290 of 2012) [2013] KECA 445 (KLR) (Civ) (26 July 2013) (Judgment) the court held as follows:
“…there must be precision and clarity on the particular Constitutional rights or freedoms that have been infringed or violated, so that the opposite party and the court may know what the issues were before it. There must also be evidence of proof of constitutional violations.”
In the case of Abdullah Mangi Mohamed V Lazarus Beja & 5 Others (Constitutional Petition 59 of 2011) [2012] KEHC 706 (KLR) (30 November 2012) held that:
“a constitutional court should not be dogged with applications for enforcement of purported rights which require prior determination and that it was an improper practice to make all private disputes as to ownerships of property under the guise of breach of a constitutional right to property.”
In the present petition, the Petitioners have pleaded the issue of ownership and trespass onto the suit land by the Respondents. It is this court’s view that the dispute could be resolved in a civil claim, but not through a constitutional petition. It is also courts view that a clear reading of the petition does not show any infringement of provisions of the constitution.
The upshot of the foregoing is that the petition does not raise any constitutional issues at all. In addition, the Petitioners failed to prove the alleged infringement of constitutional right to the required standards. I therefore find that the Petition does not meet the required standard of a constitutional petition and is thus dismissed. It is noteworthy that the Respondent also filed a cross-petition which this court having considered the prayers, the same raises the same issues as in the petition and it is therefore also dismissed. Each party to bear its own costs. It is so ordered.