Mabavu & 6 others v Bahati Properties Limited (Civil Application 141 of 2019) [2023] KECA 1525 (KLR) (8 December 2023) (Ruling)
Neutral citation:
[2023] KECA 1525 (KLR)
Republic of Kenya
Civil Application 141 of 2019
AK Murgor, KI Laibuta & GV Odunga, JJA
December 8, 2023
Between
Said M Mabavu
1st Applicant
Anna W Dereva
2nd Applicant
Abdalla Mwachibulo Hema
3rd Applicant
Fatuma S Nchizumo
4th Applicant
Omar Mashaka
5th Applicant
Mahfudh Mohamed Mwamtuku
6th Applicant
Rama Matano Mwarinda
7th Applicant
and
Bahati Properties Limited
Respondent
(An application for Certificate to appeal against the judgement of the Court of Appeal at Mombasa (Warsame, Musinga & Murgor, JJ. A.) on 4th June, 2021 on a matter of general public importance and for stay of execution of the judgment in Civil Appeal No. 141 of 2019
Civil Appeal 141 of 2019,
Environment & Land Case 31 of 2015
)
Ruling
1.By a Notice of Motion dated 28th November, 2022 brought pursuant to Articles 159(2) (b) and 164(3) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act, rules 5(2) (b), 42 and 47 of the Court of Appeal Rules, 2022 the applicants are seeking orders for:(i)stay of execution of the judgment, orders or decree of this Court pending the hearing and determination of an intended appeal to the Supreme Court and(ii)certification of the intended appeal to the Supreme Court as constituting a matter of general public importance, and for leave to be granted to the applicants to file an appeal against the judgment of this Court to the Supreme Court.
2.The motion is brought on the grounds set out on its face, and is supported by the sworn affidavit of Said Mabavu, the 1st applicant, who contended that the applicants are the bonafide registered proprietors of the parcel of land known as Kwale/Diani Beach/Block 149 (the “suit property”) measuring about 22 acres, situated at Diani location within Msambweni District of Kwale County. It was contended that the applicants were enjoying peaceful possession of the suit property until 2014 when the respondent instituted a suit against them claiming that the property belonged to it, pursuant to its acquisition from one Prince Sadrudin Aga Khan; that the Environment and Land Court in Mombasa found in favour of the respondent, thereby divesting them of their proprietary rights over the suit property. Aggrieved by the decision of the ELC, they filed an appeal to this Court, which dismissed the appeal. Dissatisfied with the outcome of their appeal, they intend to lodge an appeal to the Supreme Court and have filed a Notice of Appeal in this Court.
3.The 1st applicant averred that the intended appeal is arguable with very high chances of success; that the determination of the issues to be canvassed in the Supreme Court will transcend the circumstances of the applicants’ case, and will have a significant bearing on the public interest; and that the appeal raises questions of law that affect the public generally, and will consider the decisions of public bodies and their effect on both private and public rights. It was contended that the main issue for determination is the perennial subject of irregular registration of proprietary interests on the Coastal strip, which has left many indigenous communities as squatters in their ancestral land, and resulted in historical injustices. It was also contended that, the suit property having been public land at the point of allocation, gave rise to a matter of general public importance, given that public land is regulated by the Constitution.
4.Lastly, the 1st applicant deponed that this Court ordered that the applicants be permanently restrained from entering, occupying, using, taking possession of, damaging, wasting, selling, leasing alienating, transferring, charging, mortgaging or in any way dealing with the suit property which order, if executed before the intended appeal is heard and determined, will result in the applicants being rendered homeless; and that if the orders sought are not granted, the substratum of the intended appeal will be lost and render the appeal nugatory.
5.Annexed to the application was a draft petition to the Supreme Court setting out 22 grounds substantive of which are, inter alia: whether the applicants’ constitutional right to the suit property arose before the registration and issuance of a lease by the Colonial Government in 1914; whether the property previously registered as Kwale/Diani Block 59, but now known as Kwale/Diani Beach Block/149 was irregularly and unlawfully expropriated by the colonial government in violation of the applicants’ right to property; whether Prince Sadruddin Aga Khan had an interest in the suit property as at 1992 when it was sold and transferred to the respondent; whether it is proper to render a community squatters on their own property despite the fact that they hold a title to the property.
6.Submitting on behalf of the applicants, learned counsel Mr. Omiti stated on the question of certification that the intended appeal seeks pronouncement by the Supreme Court on the question whether the State was negligent in the issuance of multiple title deeds over the suit property, which negligence should be borne by the State; whether the applicants’ constitutional rights in the suit property arose before the registration and issuance of the lease by the colonial government in 1914; whether or not the suit property was properly acquired by the government; whether or not it was public land at the time of allocation to the applicants; whether or not it was available for allocation to the applicants, and whether it is proper to render a community as squatters on their own property despite the fact that they hold a title deed to the property.
7.Counsel went on to submit that the intended appeal also seeks a determination of whether private property can be said to have been properly allocated if it concerned compulsorily acquired property, and only a portion of it was converted to public use; and that these were issues that have been the subject of conflicting decisions by this Court, and are matters of general public importance as they touch on the subject of land rights, public interest, the rights of public bodies to alienate and allocate public land.
8.Counsel further stated that the intended appeal was arguable as it raised substantial legal issues for determination by the Supreme Court, such as whether a person has a legitimate expectation to be guaranteed ownership over a parcel of land pursuant to an allotment and issuance of a title deed by the State.
9.On the nugatory aspect, counsel asserted that the applicants are currently in occupation of the suit property, and that, unless the judgment and consequential orders and decree of this Court are stayed, the respondent may have their title to the suit property cancelled and have them evicted, which would render the appeal nugatory were it to succeed.
10.In reply, Mr. McCourt, learned senior counsel for the respondent submitted that this case did not give rise to any legal uncertainty, and neither did it transcend the circumstances of the case; that no consequences have been set out that go beyond the private parties to this dispute, and that there is no lacuna in the law that requires to be remedied, or provisions that require to be clarified. Counsel submitted that the law on the questions raised were settled, and that the verdict of this Court was unlikely to have any ramifications on the general public; that as a consequence, the issues in respect of the dispute could not be termed as a matter of general public importance.
11.Counsel further submitted that the applicant’s motion did not disclose any arguable issues; that the questions of whether the State was negligent in the issuance of multiple title deeds over the suit property and the applicants’ constitutional right to ownership of the suit property prior to registration and issuance of a lease by the colonial government in 1914 were fresh issues, which were neither raised nor canvassed by the applicants in this Court or the Environment and Land Court; that those were matters that ought to have been canvassed through the hierarchy of courts before being escalated to the Supreme Court for determination.
12.In brief, the facts as they pertain to the intended appeal are that the respondent filed a suit against the applicants in the Environment and Land Court seeking orders that they are the rightful owners of the suit property having bought it from Prince Sadruddin Aga Khan, who held a 99-year lease from the Government of Kenya from 1st January 1914 through a transfer of lease dated 18th September 1992, and on payment of a consideration of Kshs.11,000,000. It contended that a purported allotment and subsequent issuance of title over the suit property to the applicants was illegal, fraudulent, null and void, and sought declaratory orders and an order directing the Lands Registrar, Kwale, to rectify the registers for Kwale/Diani Beach Block/59 and Kwale/Diani/149, and issue it with a certificate of lease for the suit property.
13.On their part, the applicants asserted that they were the rightful registered owners of the suit property as it belonged to their forefather, one Mwachimwindi Diya, who was forcefully evicted from the land by the colonial government in 1948 without payment of any compensation; and that, in 1999, the family petitioned the Government of Kenya for allotment of the suit property, and were subsequently issued with a letter of allotment and Certificate of Lease over the suit property.
14.Upon considering the facts on the contested ownership of the suit property, the trial judge found in favour of the respondent and granted all the prayers sought in the plaint. The court held, inter alia, that Kwale/Diani Beach/Block 59 and Kwale/Diani Beach Block/149 referred to one and the same parcel of land; that, since the suit property had been leased to the respondent, a valid lease existed by the time the applicants sought to have the property allocated to them; and that under the provisions of the repealed Government Lands Act, the property was not available for allotment to the applicants.
15.Aggrieved by the judgment, the applicants preferred an appeal to this Court and faulted the learned judge for misapplying the provisions of the Government Lands Act to find that the suit property was not available for allotment to them, and in disregarding the provisions of the repealed Land Acquisition Act.
16.As earlier stated, this Court dismissed the appeal which prompted this application for certification of an intended appeal to the Supreme Court.
17.After consideration of the application, the response, the rival submissions and the law applicable, we find that the issues that fall for determination are:i)whether this matter qualifies for certification to the Supreme Court; andii)whether this Court should stay execution of its judgment under rule 5(2) (b) of the Court of Appeal Rules.
18.On the question of certification, Article 163(4) (b) of the Constitution grants this Court the mandate to certify a matter for determination by the Supreme Court if it considers it to be one of general public importance.
19.In the case of Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone [2013] eKLR, the Supreme Court identified the principles governing the determination of a matter as one of general public importance, in the following terms:
20.These principles were reiterated in the case of Malcolm Bell v Hon.Daniel Torotich arap Moi and Another,Supreme Court Application No. 1 of 2013 thus:See also Kenya Plantation and Agricultural Workers’ Union v Kenya Export Floriculture, Horticulture and Allied Workers’ Union (Kefhau);represented by its Promoters; David Benedict Omulama & 9 others [2018] eKLR.
21.In a nutshell, the Supreme Court’s guidance is that matters of general public importance are those that, inter alia, raise a substantial point of law, or occasion a state of uncertainty in the law, or arise from contradictory precedents, or will affect a considerable number of persons in general or as litigants.
22.On substantial issues of law, this Court in Mwambeja Ranching Company Ltd & another v Kenya National Capital Corporation [2023] KECA 660 (KLR) held that:
23.In determining the appeal, this Court upheld the finding of the High Court that, by the time the Letter of Allotment was issued to the 2nd to 6th applicants, the suit property was already leased out to a private person for a term of 99 years with effect from 1st January 1914 and was due to expire in 2013. What this meant was that:
24.From the foregoing, the question is: what substantial issue of law requires to be determined, and what is the nature of the public interest that can be said to arise? In our considered view, the allocation of alienable and unalienable land together with the powers of the President of Kenya and the Commissioner of Lands to allot land are not novel issues for determination by the Supreme Court. Furthermore, the applicants have not specified what elements of law remain unsettled and require consideration by the Supreme Court. Neither have they specified how the conclusions will impact third parties or other litigants. If anything, it is clear to us that the applicants merely seek to dispute the decision of this Court on the basis that they, and not the respondent, are entitled to ownership of the suit property. This, in our view, cannot amount to a matter that transcends the public interest, particularly since they ultimately seek to benefit from ownership of the suit property as private individuals. In effect, the applicants have not satisfied us that the intended appeal involves matter(s) of general public importance so as to warrant certification to the Supreme Court.
25.Now turning to whether this Court should stay execution of its judgment. The applicants have invoked rule 5(2) (b) of the Court of Appeal Rules which provides:
26.In the case of Mukesh Kumar Kantilal Patel v Charles Langat [2021] eKLR this Court held:
27.In the case of Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others [2022] KECA 494 (KLR) this Court held:
28.The afore-cited cases are clear that the prayers for stay of execution of this Court’s judgment pending hearing of the intended appeal to the Supreme Court are incapable of being granted since it is functus officio and lacks jurisdiction to grant such orders. See also Karanja v Ndirangu & another (Civil Application 5 of 2021) [2021] KECA 57 (KLR).
29.In sum, the applications for certification and stay of execution lack merit and are hereby dismissed with costs to the respondent.It is so ordered.
DATED AND DELIVERED AT MALINDI THIS 8TH DAY OF DECEMBER, 2023A. K. MURGOR....................................JUDGE OF APPEALDr. K. I. LAIBUTA....................................JUDGE OF APPEALG. V. ODUNGA....................................JUDGE OF APPEALI certify that this is a true copy of the originalsignedDEPUTY REGISTRAR