Laban Omusundi (herein after referred to as the petitioner) came to this court under Articles 1,3,35,47,73 (2) (b) (d) of the constitution of Kenya against the K.I.E south Rift branch Nakuru Susan Kiprono and family as the 1st interested party and the Ethics and Anti-Corruption Commission as the 2nd interested party. John Karanja was enjoined as a 3rd interested party. The petitioner seeks a declaration that the action of the respondent not to disclose information sought by the petitioner is a violation of article 35 of the constitution and an order for the respondent to supply information sought by the petitioners. Moreover, an order to compel the 2nd interested party in the matter in line with their constitutional mandate to investigate and recover any un-procedural acquired assets/properties/land belonging to the Kenya Industrial Estates be reverted back to it. The petitioner seeks further a perpetuated order restraining first interested party to be a landlord on Kenya Industrial Estates public land marked X on the annexure marked LO8 behind fenced backyard as demarcated on the ground of plot number 273 from collecting rent threatening, evicting the peaceful lawful, occupants/tenants of open spaces of Kenya industrial Estates land Shabab.
The petitioner further seeks a declaration that the open spaces earmarked X on the annexure marked LO8 behind fenced backyard as demarcated on the ground of plot number 273 belong to the Kenya Industrial Estates and a declaration that plot number 4/273 belongs to Kenya Industrial Estates. Lastly, that cost of the petition to be borne by the respondents
The petitioner relied on a letter dated the 26th October 2022 addressed to the respondent requesting for information in respect to K.I.E Land in Nakuru County Shabab Ward. Furthermore, the petitioner requested to know how the land was awarded or acquired by private individuals. Moreover, the petitioner wanted to know the public participation before acquisition by the private members. The respondent replied by requesting for the specific Land Registration No. The petitioner replied by indicating that they were referring to the godowns and open spaces taken over by individuals illegally. When the information was not forth coming, the petitioner came to court.
In the replying affidavit filed by Daniel Masinjila on 20th February 2023, he states that no right in the bill of rights has been infringed hence the petitioner has not met the threshold for a constitution petition. Moreover, that the injunction sought is vague, general and lacked specificity. That the petitioner has not demonstrated that the respondent land was invaded.
The respondent states in response that sometimes back in the year 1990, she offered Nakuru Shed No. E3 (Nakuru Municipality Block 4/273) for sale on Mortgage terms to Nakuru Aluminium Works Limited. The mortgage was duly cleared and upon clearance, the respondent on 14th July 2014 wrote a letter of no objection to the National Land Commission to issuance of the ownership documents to Nakuru Aluminium Works Limited. The shed/parcel of land in question does not belong to the respondent but to the Nakuru Aluminium Works Limited hence the petitioner is not entitled to information requested from the respondent but from the lawful registered owner one Nakuru Aluminium Works Limited.
According to the respondent, there cannot be a constitutional right to access to information, information which the respondent does not have. The acquisition and transfer of the suit property to Nakuru Aluminium Works Limited was procedural and legal. The respondent has no interest in the shed/suit property and should be discharged from the proceedings herein with costs
The Petitioner is not deserving of the orders sought as against the respondent as the respondent has not complained of any grabbing or invasion of the public land and in any event the National Land Commission, a body mandated to manage public land has not complained or raised any issue or sued in this petition. The role of the management of the public land is exclusive to Commission and not amorphous entities such as the petitioner herein.
Susan Kiprono in her affidavit states that she is a beneficiary of the estate of Moses Kiprono Kairo. She is entitled to shares in Nakuru Aluminum Works Limited. Moses Kiprono Kairo was the proprietor of Nakuru Aluminum Works Limited. That on 14th July 2014 Kenya Industrial Estate authorized the National Land Commission to issue an allotment letter to Nakuru Aluminum Works Ltd in respect of Nakuru/Municipality Block 4/273. The company was closed down and put under receivership. Later the debt was cleared. She has a share in the company and therefore has rented out the land in dispute.
The petitioner submits that he has the locus standi to institute the petition by dint of Articles 3,22,258 of the constitution of Kenya 2010. Secondly, the petitioner argues that the respondent has refused to disclose the information sought. The information sought is ownership and procedure used to acquire the land by private persons.
On whether the respondent followed law in allocating of the suit properties to individuals, among them the 1st interested party, the petitioner argues that there is no evidence that the land was allocated procedurally. The respondent was trustee for the public. The petitioner argues that the suit properties were reserved for public utilities hence was not available for private individuals.
In a nutshell, the 3rd interested party argues that he has locus standi because he is a Kenyan and therefore can litigate in public interest matters. Moreover, that no legal document has been availed as evidence of ownership of the property by the 1st interested party. Moreover, that the 1st interested party has no right to collect rent from the public in the open space. That the interested party has no right to evict individuals from the parcel of land.
The respondent submits that Article 35(1) of the Constitution states that every citizen has a right of access to information held by the state and information held by another person and required for the exercise or protection of any right or fundamental freedom. Under the said article, one must request for information, and only if it is not granted should one seek the assistance of the Court.
He contends that the information sought by the Petitioner was vague, general and lacked specificity and the respondent notified the petitioner of the same vide a letter dated 16th November, 2022. It is evident from the said letter that the Petitioner in his letter dated 26th October, 2022 never supplied the respondent with the specific property or particulars of parcel of land for which he required documentation of information. Further, at the institution of the instant petition the Petitioner never cited the parcel of land purported to have been invaded.
The petitioner cited the parcel of land as an afterthought when he amended the instant petition, it is only then that it became clear that the suit property to which the petitioner was seeking information was and/or is Nakuru Shed No. (Nakuru Municipality Block 4/279).
The petitioner submits that with regard to the right to information there ought to be a violation of the right or threat before a party can approach the court seeking relief. The petitioner in the Instant suit has not shown that there was a violation of the right to information as they did not show that there was a request for information which was refused.
The 1st issue for determination is whether the petitioner and 3rd interested party have Locus standi to file the petition. The general provision of the constitution enshrined in chapter seventeen on the enforcement of the constitution of Kenya is that every person has a right to institute court proceedings to protect the constitution. Article 258 provides that every person has the right to institute court proceedings claiming that this constitution has been contravened or is threatened with contravention. A person can act on behalf of another person who cannot act in his own name and can act as a member or in the interest of a group. This Article expands the scope of Locus Standi and therefore the petitioner fits perfectly in the expanded Locus Standi. Further, Article 3 of the constitution provides that every person has an obligation to respect uphold and defend the constitution of Kenya 2010. This court finds that the petitioner being a person envisaged under Article 260 of the constitution has a right to defend the constitution of Kenya 2010.
On disclosure of information, I do find that Article 35 of the constitution of Kenya is clear and provides that every citizen has the right of access to information held by the state and information held by another person and required for the exercise or protection of any right or fundamental freedom. The respondent having sold land owned by the Kenya Industrial Estates ought to have divulged the information revolving on the transactions of sale of the property to the 1st interested party. The information was requested in writing but was nave disclosed. The respondent had a duty to disclosure to the petitioner of the information that was requested thus the registration number of the lands owned by Kenya Industrial Estates and the manner of disposal of the land to individual.
This court further finds that the suit property is public land occupied by public body or state organ and therefore not available for allocation or sale.
According to section 2 of the Government Lands Act (Repealed), the following is the definition of unalienated land;
“unalienated Government land” means Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment.
Section 3 of the Physical Planning Act, Cap 286 of the Laws of Kenya defines un-alienated land in similar fashion.
The Court has held time and again that public land is not available for allocation.
The court of appeal in High Court Civil Appeal No. 288 of 2010, Kipsirgoi Investments Limited vs Kenya Anti-Corruption Commission relied on section 2 of the Government Lands Act and Section 3 of the Physical Planning Act when it found that the suit property was planned as an open space and held that the subsequent lease under section 3 of the GLA was irregular as the land was already alienated.
The commissioner of land had delegated powers under Section 3 of the Government Lands Act Cap 280 Laws of Kenya. The section provides that the President, in addition to, but without limiting, any other right, power or authority vested in him under this Act, may—
(a) subject to any other written law, make grants or dispositions of any estates, interests or rights in or over unalienated government land;
The act further states;
The powers of the President under this paragraph are delegated to the Commissioner in the following cases only (Cap. 155 (1948), Sub. Leg.)—
(a) for religious, charitable, educational or sports purposes on terms and conditions in accordance with the general policy of the Government and the terms prescribed for such purpose by the President;
In James Joram Nyaga & Another v the Hon. Attorney General & Another [2007] eKLR, the court, in reference to sections 3 and 7 of the Government Lands Act stated;
The above section clearly limits the power of the Commissioner to executing leases or, conveyances on behalf of the President and the proviso to the section specifically limits the power to alienate unalienated land to the President. We find and hold that the Commissioner of Lands had no authority to alienate the disputed plot to the Applicants as he purported to do vide the letter of 18th December, 1997. That was the preserve of the President. It follows that the Commissioner of Lands could not have made any grant under the Government Lands Act Cap 280 Laws of Kenya nor could he pass any registerable title under the Registration of Titles Act Cap 281 Laws of Kenya.
I do find that it was un-procedural for the Kenya Industrial Estates to sell alienated government land reserved for public use to private individual without following the proper procedure. This court finds that the parcel of land in dispute is public and not available for allocation. Any purported sale or allocation was illegal null and void.
I do find the petition merited and do grant orders that the action of the respondent not to disclose information sought by the petitioner is a violation of article 35 of the constitution. Consequently, I do make an order for the respondent to supply information sought by the petitioners. Moreover, an order to compel the 2nd interested party in the matter in line with their constitutional mandate to investigate and recover any un-procedural acquired assets/properties/land belonging to the Kenya Industrial Estates be reverted back to it.
The court further issues an order restraining first interested party from acting as a landlord on Kenya Industrial Estates public land and from collecting rent threatening, evicting the peaceful lawful, occupants/tenants of open spaces of Kenya industrial Estates land Shabab.
The court further makes a declaration that the open spaces behind fenced backyard as demarcated on the ground of plot number 273 belong to the Kenya Industrial Estates and a declaration that plot number 4/273 belongs to Kenya Industrial Estates. There be no orders as to costs as this is public litigation.
Judgment dated signed and delivered electronically at Nakuru this 27th day September 2024.
The petitioner further seeks a declaration that the open spaces earmarked X on the annexure marked LO8 behind fenced backyard as demarcated on the ground of plot number 273 belong to the Kenya Industrial Estates and a declaration that plot number 4/273 belongs to Kenya Industrial Estates. Lastly, that cost of the petition to be borne by the respondents
The petitioner relied on a letter dated the 26th October 2022 addressed to the respondent requesting for information in respect to K.I.E Land in Nakuru County Shabab Ward. Furthermore, the petitioner requested to know how the land was awarded or acquired by private individuals. Moreover, the petitioner wanted to know the public participation before acquisition by the private members. The respondent replied by requesting for the specific Land Registration No. The petitioner replied by indicating that they were referring to the godowns and open spaces taken over by individuals illegally. When the information was not forth coming, the petitioner came to court.
In the replying affidavit filed by Daniel Masinjila on 20th February 2023, he states that no right in the bill of rights has been infringed hence the petitioner has not met the threshold for a constitution petition. Moreover, that the injunction sought is vague, general and lacked specificity. That the petitioner has not demonstrated that the respondent land was invaded.
The respondent states in response that sometimes back in the year 1990, she offered Nakuru Shed No. E3 (Nakuru Municipality Block 4/273) for sale on Mortgage terms to Nakuru Aluminium Works Limited. The mortgage was duly cleared and upon clearance, the respondent on 14th July 2014 wrote a letter of no objection to the National Land Commission to issuance of the ownership documents to Nakuru Aluminium Works Limited. The shed/parcel of land in question does not belong to the respondent but to the Nakuru Aluminium Works Limited hence the petitioner is not entitled to information requested from the respondent but from the lawful registered owner one Nakuru Aluminium Works Limited.
According to the respondent, there cannot be a constitutional right to access to information, information which the respondent does not have. The acquisition and transfer of the suit property to Nakuru Aluminium Works Limited was procedural and legal. The respondent has no interest in the shed/suit property and should be discharged from the proceedings herein with costs
The Petitioner is not deserving of the orders sought as against the respondent as the respondent has not complained of any grabbing or invasion of the public land and in any event the National Land Commission, a body mandated to manage public land has not complained or raised any issue or sued in this petition. The role of the management of the public land is exclusive to Commission and not amorphous entities such as the petitioner herein.
Susan Kiprono in her affidavit states that she is a beneficiary of the estate of Moses Kiprono Kairo. She is entitled to shares in Nakuru Aluminum Works Limited. Moses Kiprono Kairo was the proprietor of Nakuru Aluminum Works Limited. That on 14th July 2014 Kenya Industrial Estate authorized the National Land Commission to issue an allotment letter to Nakuru Aluminum Works Ltd in respect of Nakuru/Municipality Block 4/273. The company was closed down and put under receivership. Later the debt was cleared. She has a share in the company and therefore has rented out the land in dispute.
The petitioner submits that he has the locus standi to institute the petition by dint of Articles 3,22,258 of the constitution of Kenya 2010. Secondly, the petitioner argues that the respondent has refused to disclose the information sought. The information sought is ownership and procedure used to acquire the land by private persons.
On whether the respondent followed law in allocating of the suit properties to individuals, among them the 1st interested party, the petitioner argues that there is no evidence that the land was allocated procedurally. The respondent was trustee for the public. The petitioner argues that the suit properties were reserved for public utilities hence was not available for private individuals.
In a nutshell, the 3rd interested party argues that he has locus standi because he is a Kenyan and therefore can litigate in public interest matters. Moreover, that no legal document has been availed as evidence of ownership of the property by the 1st interested party. Moreover, that the 1st interested party has no right to collect rent from the public in the open space. That the interested party has no right to evict individuals from the parcel of land.
The respondent submits that Article 35(1) of the Constitution states that every citizen has a right of access to information held by the state and information held by another person and required for the exercise or protection of any right or fundamental freedom. Under the said article, one must request for information, and only if it is not granted should one seek the assistance of the Court.
He contends that the information sought by the Petitioner was vague, general and lacked specificity and the respondent notified the petitioner of the same vide a letter dated 16th November, 2022. It is evident from the said letter that the Petitioner in his letter dated 26th October, 2022 never supplied the respondent with the specific property or particulars of parcel of land for which he required documentation of information. Further, at the institution of the instant petition the Petitioner never cited the parcel of land purported to have been invaded.
The petitioner cited the parcel of land as an afterthought when he amended the instant petition, it is only then that it became clear that the suit property to which the petitioner was seeking information was and/or is Nakuru Shed No. (Nakuru Municipality Block 4/279).
The petitioner submits that with regard to the right to information there ought to be a violation of the right or threat before a party can approach the court seeking relief. The petitioner in the Instant suit has not shown that there was a violation of the right to information as they did not show that there was a request for information which was refused.
The 1st issue for determination is whether the petitioner and 3rd interested party have Locus standi to file the petition. The general provision of the constitution enshrined in chapter seventeen on the enforcement of the constitution of Kenya is that every person has a right to institute court proceedings to protect the constitution. Article 258 provides that every person has the right to institute court proceedings claiming that this constitution has been contravened or is threatened with contravention. A person can act on behalf of another person who cannot act in his own name and can act as a member or in the interest of a group. This Article expands the scope of Locus Standi and therefore the petitioner fits perfectly in the expanded Locus Standi. Further, Article 3 of the constitution provides that every person has an obligation to respect uphold and defend the constitution of Kenya 2010. This court finds that the petitioner being a person envisaged under Article 260 of the constitution has a right to defend the constitution of Kenya 2010.
On disclosure of information, I do find that Article 35 of the constitution of Kenya is clear and provides that every citizen has the right of access to information held by the state and information held by another person and required for the exercise or protection of any right or fundamental freedom. The respondent having sold land owned by the Kenya Industrial Estates ought to have divulged the information revolving on the transactions of sale of the property to the 1st interested party. The information was requested in writing but was nave disclosed. The respondent had a duty to disclosure to the petitioner of the information that was requested thus the registration number of the lands owned by Kenya Industrial Estates and the manner of disposal of the land to individual.
This court further finds that the suit property is public land occupied by public body or state organ and therefore not available for allocation or sale.
According to section 2 of the Government Lands Act (Repealed), the following is the definition of unalienated land;
“unalienated Government land” means Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment.
Section 3 of the Physical Planning Act, Cap 286 of the Laws of Kenya defines un-alienated land in similar fashion.
The Court has held time and again that public land is not available for allocation.
The court of appeal in High Court Civil Appeal No. 288 of 2010, Kipsirgoi Investments Limited vs Kenya Anti-Corruption Commission relied on section 2 of the Government Lands Act and Section 3 of the Physical Planning Act when it found that the suit property was planned as an open space and held that the subsequent lease under section 3 of the GLA was irregular as the land was already alienated.
The commissioner of land had delegated powers under Section 3 of the Government Lands Act Cap 280 Laws of Kenya. The section provides that the President, in addition to, but without limiting, any other right, power or authority vested in him under this Act, may—
(a) subject to any other written law, make grants or dispositions of any estates, interests or rights in or over unalienated government land;
The act further states;
The powers of the President under this paragraph are delegated to the Commissioner in the following cases only (Cap. 155 (1948), Sub. Leg.)—
(a) for religious, charitable, educational or sports purposes on terms and conditions in accordance with the general policy of the Government and the terms prescribed for such purpose by the President;
In James Joram Nyaga & Another v the Hon. Attorney General & Another [2007] eKLR, the court, in reference to sections 3 and 7 of the Government Lands Act stated;
The above section clearly limits the power of the Commissioner to executing leases or, conveyances on behalf of the President and the proviso to the section specifically limits the power to alienate unalienated land to the President. We find and hold that the Commissioner of Lands had no authority to alienate the disputed plot to the Applicants as he purported to do vide the letter of 18th December, 1997. That was the preserve of the President. It follows that the Commissioner of Lands could not have made any grant under the Government Lands Act Cap 280 Laws of Kenya nor could he pass any registerable title under the Registration of Titles Act Cap 281 Laws of Kenya.
I do find that it was un-procedural for the Kenya Industrial Estates to sell alienated government land reserved for public use to private individual without following the proper procedure. This court finds that the parcel of land in dispute is public and not available for allocation. Any purported sale or allocation was illegal null and void.
I do find the petition merited and do grant orders that the action of the respondent not to disclose information sought by the petitioner is a violation of article 35 of the constitution. Consequently, I do make an order for the respondent to supply information sought by the petitioners. Moreover, an order to compel the 2nd interested party in the matter in line with their constitutional mandate to investigate and recover any un-procedural acquired assets/properties/land belonging to the Kenya Industrial Estates be reverted back to it.
The court further issues an order restraining first interested party from acting as a landlord on Kenya Industrial Estates public land and from collecting rent threatening, evicting the peaceful lawful, occupants/tenants of open spaces of Kenya industrial Estates land Shabab.
The court further makes a declaration that the open spaces behind fenced backyard as demarcated on the ground of plot number 273 belong to the Kenya Industrial Estates and a declaration that plot number 4/273 belongs to Kenya Industrial Estates. There be no orders as to costs as this is public litigation.
Judgment dated signed and delivered electronically at Nakuru this 27th day September 2024.