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172 Residents Within Lake Bogoria National Reservee & 170 others v National Land Commission & 7 others (Environment & Land Petition 16 of 2018) [2021] KEELC 4732 (KLR) (17 March 2021) (Ruling)

172 Residents Within Lake Bogoria National Reservee & 170 others v National Land Commission & 7 others (Environment & Land Petition 16 of 2018) [2021] KEELC 4732 (KLR) (17 March 2021) (Ruling)
Citation
172 Residents Within Lake Bogoria National Reservee & 170 others v National Land Commission & 7 others [2021] KEELC 4732 (KLR)
Media Neutral Citation
[2021] KEELC 4732 (KLR)
Court
Environment and Land Court
Court station
Environment and Land Court at Eldoret
Outcome
Dismissed
Case number
Environment & Land Petition 16 of 2018
Attorneys
Counsel: Mr. Korir for Arusei, Mr. Odongo,
Alternative citations
172 Residents within lake Bogoria National Reserve & 170 others v National Land Commission & 7 others [2021] eKLR
Judges
SM Kibunja
Judgment date
17 March 2021
Language
English
Type
Judgment
Original source file
Download DOCX (49.1 KB)
Date published
26 October 2024
Case action
Ruling
Court division
Environment and Land
Filing county
Uasin Gishu
Order
The Court finds no merit in the 1st Respondent’s preliminary objection dated the 29th October, 2019 and the same is dismissed with costs to abide the outcome of the petition
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[1ST Respondent’s Preliminary Objection Dated 29Th October, 2019]
1.The 1st Respondent filed the Notice of Preliminary Objection dated the 29th October, 2019 and filed on the 30th October, 2019 on the petition raising six (6) grounds summarized as follows;(a)That the Petitioner is without capacity to file and maintain the petition and is without proprietary interest over the suit land.(b)That the Court is without jurisdiction to entertain the petition by dint of Article 67(3) of the Constitution, Section 15 of the National Land Commission Act and Part viii of the Land Act.(c)That this petition being a claim for compensation clothed as a violation of fundamental rights and freedoms should have been filed as an ordinary suit, and not a petition, and should therefore be struck out with costs.
2.That upon hearing Counsel for the parties on 6th February, 2020, directions were given for the preliminary objection to be heard through written submissions, to be filed and served within the timelines given. That the learned Counsel for the Petitioners and 7th Respondent filed their submissions dated the 20th July, 2020 and 18th September, 2020 respectively. The Petitioners’ Counsel filed a supplementary submission dated the 19th October, 2020. That during the mention of 26th November, 2020, the learned Counsel for 2nd, 6th and 8th Respondents associated himself with and adopted the submission filed by the learned Counsel for the 7th respondent.
3.That as there are no submissions received from the learned Counsel for the 1st Respondent, the court will consider that filed by the 7th Respondent’s Counsel first as it is in support of the preliminary objection. The learned Counsel submitted that the preliminary objection raises questions of law and is therefore in agreement with the threshold set in Mukisa Biscuits Manufacturing Company Limited Vs West End Distributors (1969) E. A. 696. That the Petitioner, who is registered under the Ministry of Labour, Social Security and Service, is not a legal person capable of suing or being sued on its own name. That as was held in the cases of National Bank of Kenya Ltd Vs Christian Community Life Church [2020] eKLR and Kituo Cha Sehria Vs John Ndirangu Kariuki & Another [2013] eKLR, the petition should be struck out as the Petitioner is without capacity. That the Endorois Welfare Certificate filed with the petition was issued in February, 2018 but there is no evidence to confirm that the 172 residents named were alive when the petition was filed. The learned counsel also cited the cases of Kipsiwo Community Self-Help Group Vs Attorney General and 6 Others [2013] eKLR, and David Kamau Njoroge (Deceased) Vs Savings & Loan Ltd (2006) eKLR, and asked the court to strike out the petition. The learned Counsel further submitted that the Petitioners have not shown that they have interest in the suit land or have acquired any rights on the suit land. The Counsel referred to the case of Vekariya Investment Limited Vs Kenya Airports Authority & 2 Others [2014] eKLR and Joseph Ihugo Mwaura and Others Vs The Attorney General and Others Nairobi Petition No. 498 of 2009 (unreported) on the requirement for a party to demonstrate that they hold recognizable rights over the suit property to succeed. It was submitted that the Petitioners have not demonstrated any proprietary interests over the suit land, having lost it at the expiry of 12 years from the time the land was alienated by the Government. That the petition is therefore statute time barred by dint of Section 7 of the Limitation of Actions Act. That the Petitioners’ claim arose over 50 years ago and to allow it, will amount to unfairness and violation of the rule of law. The Counsel cited the case of Mehta Vs Shah [1965] E.A. 32. The learned Counsel further submitted that the Court is without jurisdiction and should down its tools as was held in the case of Owners of the Motor Vessel Lilian S [1989] KLR 1, Kennedy Mureithi & Another Vs Peterson Karimi Gacewa [2016] eKLR, and Bosire Ongero Vs Royal Media Services [2015] eKLR. That further, the claim should have been pursued as an ordinary suit and not a constitutional petition and should therefore be dismissed for being an abuse of the judicial process with costs.
4.The learned Counsel for the Petitioners submitted that none of the five grounds on Notice of Preliminary Objections raised by the 1st Respondent constitutes a true preliminary objection as defined in Mikisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd [1969] E. A. 696 and Oraro Vs Mbajja Civil suit No. 85 of 1992. That the ground that the Petitioners are without capacity allegedly because some are dead, is not a pure point of law as it would require evidence to be tabled. That the 1st and 7th Defendants who have raised the allegation have a legal duty to tender proof as was held in Evans Otieno Nyakwana Vs Cleophas Bwana Ongaro [2015] eKLR. That the ground of capacity must fail.That on ground two of the petition being premature and hence the court lacking jurisdiction, the learned Counsel disputed that the petition is about historical injustices. He submitted that the petition has invoked Articles 10, 19, 20 to 23, 27, 40, 47 to 48 and 50 of the Constitution as the Petitioners’ rights in the bill of rights have been denied, violated or infringed, which issues cannot be investigated by the National Land Commission. The learned Counsel referred to the case of Kenya National Chamber of Commerce Industry KNCCI (Murunga Chapter) & 2 Others Vs Delmonte Kenya Ltd & 3 Others; County Government of Kiambu (Interested Party) [2020] eKLR, on what amounts to a historical injustice. That ground 2 is not a pure point of law as evidence would need to be availed and should fail also. That the further amended petition raises questions of law that by dint of Article 165(3)(b) of the Constitution can only be determined by the court and not the National Land Commission.The learned Counsel submitted that ground three that the petitioners have not exhausted the internal mechanism under Part viii of the Land Act and hence the Court has no jurisdiction is also not a pure point of law, and must fail as the suit lands were compulsorily acquired under the Constitution of Kenya (Repealed) and the Trust Land Act before the enactment of the Land Act.That on ground 4, the learned Counsel submitted that it is not a pure point of law as it requires delving into facts to determine whether or not the Petitioners have proprietary interests over the suit land.That on ground 5, the Counsel submitted that it is not a question of pure point of law as it would require facts to be ascertained, and therefore the preliminary objection should be dismissed with costs. The learned Counsel for the Petitioners later filed the supplementary affidavit to respond to the 7th Respondent’s submissions. It is their submissions that the preliminary objection was improperly raised, and leads to unnecessary increase of costs and delay. That the 171 Petitioners are before the Court in their own names as the Amended Petition is not a representative suit. That in view of Article 22 of the Constitution, the ground of locus standi fails. That the superior courts’ decisions cited by the 7th Respondent among them National Bank of Kenya Ltd Vs Christian Community Life Church, Kituo Cha Sheria Vs John Ndirangu Kariuki & Another, Kipsiwo Community Self-Help Group Vs Attorney General & 6 Others and David Kamau Njoroge (Deceased) Vs Savings & Loans (K) Ltd have no application to the instant petition and are distinguishable. That the petition is not by Endorois Welfare and the Petitioners do not represent the said Welfare. That the 2nd to 171st Petitioners have come to court in their own names, and therefore have capacity and the preliminary objection is misconceived. That the Petitioners have grounded their petition on Articles 117(2) (4) and 118(1) of the Constitution of Kenya (Repealed) and Section 7(1), 8 and 13 of the Trust Land Act Chapter 288 of Laws of Kenya as it is a claim by the local inhabitants of the land then vested on them under African Customary Law, that was set apart without prompt payment of full compensation. That the Petitioners therefore have a right to a prompt payment of full compensation and the decisions in Vekariya Investment Limited Vs Kenya Airports Authority & 2 Others [2014] eKLR and Joseph Ihugo Mwaura and Others Vs The Attorney General and Others are distinguishable. That the question as to whether the Petitioners have proprietary interests capable of protection by the court cannot be decided without ascertaining the same through facts which cannot be determined in limine through a preliminary objection.The learned Counsel cited the case of Bahola Mkalindi Rhigho & 9 Others Vs Michael Seth Kaseme & 3 Others [2016] eKLR, on the position that setting apart of the land without prompt payment of full compensation was of no effect. The Counsel further submitted that there is no time limit for filing of constitutional petitions and the 7th Respondent cannot hide under the Limitations of Actions Act. The Counsel cited the case of Chief Land Registrar and 4 Others Vs Nathan Tirop Koech & 4 Others (2018) eKLR, where the Court of Appeal reviewed previous decisions and concluded that there is no time limit for filing of a Constitutional petition, and that the period of limitation in the Limitation of Actions Act does not apply to violation of rights and freedoms guaranteed under the constitution. That the Court has jurisdiction to hear and determine the petition in light of Article 165(3) (b) of the Constitution and the preliminary objection should be dismissed with costs.
5.The issues for the Court’s determination are as follows;(a)Whether the Petitioners have proprietary interest over the suit land.(b)Whether the Petitioners are with capacity/locus standi to file and prosecute this petition.(c)Whether the Court is with jurisdiction in the petition.(d)Who pays the costs?
6.The court has carefully considered the five grounds on the preliminary objection, the submissions by the learned Counsel for the 7th Respondent and Petitioners, the superior courts’ decisions cited thereon, the pleadings filed and come to the following determinations;(a)That these proceedings were commenced through the Petition dated the 3rd December, 2018 that was amended on 24th December, 2018 and further amended on the 6th May, 2019. That the initial petition dated the 3rd December, 2018 named the Petitioner as “The 172 Residents within Lake Bogoria National Reserve” and had seven named Respondents. The Petitioners’ names were listed under paragraph 5 of the Petition totaling 170. That the petition dated 3rd December, 2018 was amended through the Amended Petition dated 24th December, 2018 that cancelled the names of the 170 Petitioners appearing under paragraph 5 of the petition and introducing another list of similar number. That the Amended Petition dated 24th December, 2018 was replaced by the Further Amended Petition dated the 6th May, 2019 which retained the initial Petitioners as the 1st Petitioner and added the 2nd to 171st Petitioners, and the 8th Respondent at the heading among other amendments. That the 1st Respondent’s Notice of Preliminary Objection dated the 29th October, 2019 has been supported by the 7th Respondent through their written submissions dated 18th September, 2020 on four grounds that the Petitioners lack legal capacity; and do not have proprietary interest capable of protection by the court; that the court has no jurisdiction; and that Petitioners’ claim for compensation ought to have been commenced through an ordinary suit and not a petition.(b)That after considering the submissions filed by the learned Counsel for 7th Respondent and the Petitioners, and the decided superior courts’ decisions cited, the court finds that the position put forward by the 7th Respondent could have been correct had the Petition not have been amended through the Further Amended Petition of 6th May, 2019 which introduced the 2nd to the 171st Petitioners as parties in their names. That the Further Amended Petition, however, retained as the 1st Petitioner the original party named “The 172 Residents within Lake Bogoria National Reserve”. That while the capacity of the 1st Petitioner may be challenged on the basis of not being a legal person, and failing to sue through the registered or elected officials as was held in the case of Kituo Cha Sheria Vs John Ndirangu Kariuki & Another [2013] eKLR, among others, the other Petitioners who have raised a claim of infringement of their rights have a right under Article 22 of the Constitution, 2010 to move the court for redress. The relevant part of the said Article states;“
22.(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”
That as can be discerned from paragraphs 16, 17, 18, 26, 30 and 39 of the Further Amended Petition, the Petitioners have invoked Articles 10, 19, 20, 21, 23, 27, 40, 47, 48 and 50 of the Constitution, which are matters that can best be dealt with through a petition and not an ordinary suit.(c)That on the issue of limitation and in view of the long period the matter has taken from the date of cause of action to the time the Petition was filed, the post 2010 constitution decision of the Court of Appeal in the case of Chief Land Registrar & 4 Others Vs Nathan Tirop Koech & 4 Others [2018] eKLR, that Limitation of Actions Act does not apply in proceedings for violation of rights and freedoms guaranteed under the Constitution means that ground must fail. The Court of Appeal’s decision is binding to this court.(d)That paragraphs 9 to 12 of the Further Amended Petition shows the origin or basis of the Petitioners’ claim. That as can be seen in the decision cited by the Petitioners’ Counsel of Bahola Mkalindi Rhigho & 9 Others Vs Michael Seth Kaseme & 3 Others [Supra], such determinations are better dealt with through the Court as the National Land Commission is without jurisdiction.(e)That pursuant to Article 22 (1), 23(1) and (3), 162(2)(b) and 165(5)(b) of the Constitution, 2010, this court has jurisdiction to hear and determine this petition contrary to the preliminary objection raised by the 1st Respondent and the submissions by the 7th Respondents.(f)That though the court finds no merit in the preliminary objection, the Court is of the view that the costs should abide the outcome of the petition.
7.That from the foregoing, the Court finds no merit in the 1st Respondent’s preliminary objection dated the 29th October, 2019 and the same is dismissed with costs to abide the outcome of the petition. It is so ordered.
DELIVERED VIRTUALLY AND DATED AT ELDORET THIS 17TH DAY OF MARCH, 2021.S. M. KIBUNJAJUDGEIn the presence of:Petitioners: Absent.Respondents: Absent.Counsel: Mr. Korir for Arusei for Petitioners.M/s Oduor for 7th Respondent.Mr. Odongo for 2nd, 6th and 8th Respondents.Court Assistant: Christineand the Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.
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Cited documents 5

Act 4
1. Constitution of Kenya 40261 citations
2. Land Act 4778 citations
3. Limitation of Actions Act 4366 citations
4. National Land Commission Act 458 citations
Judgment 1
1. JOSEPH IHUGO MWAURA & 82 OTHERS V ATTORNEY GENERAL & 2 OTHERS [2012] KEHC 3379 (KLR) 9 citations

Documents citing this one 0