Basil Criticos v Attorney General & 13 others [2013] KEHC 6009 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.258 OF 2011

BETWEEN

HON BASIL CRITICOS……….....……………................................................................……..…….PETITIONER

AND

THE HONOURABLE ATTORNEY GENERAL……............................................................….1ST RESPONDENT

MINISTER OF STATE PROVINCIAL ADMINISTRATION AND INTERNAL SECURITY….2ND RESPONDENT

MINISTER OF AGRICULTURE……………...……............................................................….3RD RESPONDENT

SETTLEMENT FUND TRUSTEES…………..............................................................……….4TH RESPODNENT

THE COMMISSIONER OF LANDS………….................................................................……5TH RESPONDENT

PUBLIC SERVICE COMMISSION…………..........................................................…………6TH RESPONDENT

THE DIRECTOR LAND ADJUDICATION AND SETTLEMENT…........................................7TH RESPONDENT

THE CHAIRMAN OF THE TAVETA LAND CONTROL BOARD……....................................8TH RESPONDENT

THE DISTRICT COMMISSIONER TAVETA DISTRICT……………............................…….9TH RESPODNENT

AND

AGRICULTURAL FINANCE CORPORATION…...........................…......................…1ST INTERESTED PARTY

A. H. MALIK AND CO ADVOCATES….................................................................…..2ND INTERESTED PARTY

ALEXANDRO PANAYOTAKIS…………........................................................….……3RD INTERESTED PARTY

WATER RESOURCES MANAGEMENT AUTHORITY…….............................……..4TH INTERESTED PARTY

TOWN COUNCIL OF TAVETA…….….…...........................................................……5TH INTERESTED PARTY

JUDGMENT

1. This Petition is dated the 21st of November, 2011 and is supported by an Affidavit of even date sworn by the Petitioner at Nairobi. The 3rd Interested Party filed a Replying Affidavit dated the 30th of December, 2011 and sworn at Nairobi by P. Munge  Murage, in his capacity as the Advocate of the 3rd Interested Party. The 3rd Interested Party also filed written submissions dated the 19th of April, 2012.  The 1st Respondent filed written submissions on behalf of all the other Respondents and the same is dated the 21st of December, 2012 while The 1st Interested Party filed written submissions dated same date.

2. The Petitioner specifically seeks the following prayers from this  Court:

  “(a) An Order of Mandamus be directed to the Chairman of the Taveta Land Control Board or its successor under the Land Act, 2012 to forthwith grant consent to sub-  divide the Petitioner's Land Reference Nos. 6731 and 6732 situated in Taveta District and to expeditiously hear and grant consent to all of the sub-divisions  arising out of LR.Nos.6731 and 6732 as and when presented.

  (b) An Order of Mandamus be directed to the Public Service Commission and  the Minister of State for Provincial Administration and Internal Security to  investigate the conduct of the District Commissioner of  Taveta District H.M. Nkaduda, the Police officer-in-charge  of Taveta District and any other public officer for their roles in disobeying Court Orders, aiding and abetting the invasion of the Petitioner's private land, refusal to remove the invaders and trespassers on the Petitioner's private land and frustrating the Petitioner's efforts to obtain Land Control Board consent.

  (c)  A declaration that the 8th and 9th Respondents have infringed the Petitioner's fundamental rights and freedoms to own land and discriminated against the Petitioner's right to human dignity and access to fair  administrative justice.

  (d) A declaration that Part 11 of the Agriculture Act setting up the Settlement Funds Trustees is unconstitutional to the extent that it does not meet the Principles of Article 60 of the Constitution in that there are no published rules setting out how the citizens of Kenya are to be settled on land acquired by the Settlement Funds Trustees or a data bank showing all land owned by Settlement Funds Trustees in Kenya.

  (e)  An order of Mandamus directing the 3rd, 4th, 5th and  7th Respondents to immediately commence the exercise of settling all genuine squatters in Taveta District in a fair, equitable, democratic and transparent  manner on the 39,524 acres of land vested in the Settlement Funds Trustees and acquired from the Petitioner and provide the Court with the report within 30 days of the Order of the Court of the formula and rules to  carry out the exercise.

  (f)  An order of Mandamus be issued directing the Minister of State for Provincial Administration and Internal Security to immediately transfer the H.M. Nkaduda from  his position as District Commissioner of Taveta District  for abuse of office.

  (g) Declarations that the 9th Respondent is not fit to hold  office as a public servant for violating the Petitioner's fundamental rights and freedoms and that public servants and officers must observe the Petitioner's fundamental rights and freedoms enshrined in Chapter 4  and 5 of the Constitution and uphold the provision of the  Constitution as set out in Article 10 regarding national values and principles of governance whenever he seeks  any assistance from them in future on any matter touching his private land.

  (i)  A stay of proceedings be issued in respect of the following  suits and matters filed before the Water Appeals  Tribunal:

  (i)  Milimani HCCC No.446 of 2009 Basil Criticos vs. The Agricultural Finance Corporation.

  (ii) Bankruptcy Notice No.8 of 2009.

  (iii) Nairobi HCCC No.288 of 2006 Alexandros Panayotakis vs.Agro Development Company Limited and Basil Criticos.

  (iv) Water Appeal No.2(WR) of 2010 Agro Development Company Limited vs. Water Resources Management Authority.

  (v)  Water Appeal No.1 (WR) of 2011 Hon. Basil Criticos &  Agro Development Company Limited vs. Water Resources Management Authority.

  (h) Pending the sub-division and sale of Land Reference  Numbers 6731 and 6732 whose proceeds of sale will be used to settle all decrees and seek an amicable solution  to pending [all] suits.

  (i)  A declaration that the Settlement Funds Trustees has  failed in its mandate to settle landless people in Kenya and should be prohibited from dealing with the suit land L.R. No.5865/2 Taveta until rules have been set up providing for equitable and fair distribution of land  with priority being given to the landless citizens of Kenya.

  (j)  Exemplary damages against the Respondents and costs of the Petition be awarded to the Petitioner.”

The Petitioner's case

3. It is the Petitioner's case that he is registered as the proprietor of Land Reference Numbers 6731 and 6732 situated in Taveta district (hereinafter referred to as “the suit land”). The Petitioner admits that the suit land is charged to the 1st Interested Party and he lays emphasis on the fact that the 1st Interested Party is exempted from the provisions of the Land Control Act by virtue of Legal Notice Number 263 of 1967 in respect of any mortgage of land registered in its favour.

4. That in Milimani HCCC No. 446 of 2009 Basil Criticos vs. The Agricultural Finance Corporation, judgment was entered in favour of the 1st Respondent against the Petitioner for the sum of Kenya Shillings One Hundred Million (Kshs.100,000,000/=). The Decree extracted and dated the 21st July, 2011 also stated that the said sum would be recovered over a 12 month period between August, 2011 and August, 2012 and that the decretal sum would be realized from the proceeds of sale of the sub-divisions arising out of the suit land.

5. The Decree also contained an order directing the Land Control Board, Taveta district to forthwith fix the hearing of the applications dated the 15th September, 2008 seeking consent for the sub-divisions within 30 days of service of the order and to expeditiously hear all future applications arising from sales of the sub-divisions.

6. It is the Petitioner's claim that on the 7th September, 2011, the Land Control Board ("the Board") in Taveta District, informed him and the 1st Respondent that the Board had agreed to the sub-division of the suit land but before any consents could be issued he was informed that the the prior approvals from other government departments had to be obtained. The Petitioner further claims that two weeks prior to his appearance before the Board, he had submitted the Development Permission Form PPA 1 to all relevant government departments and so expected the final consent to be given.

7. It is his further claim that the 5th Respondent confirmed in writing vide a letter dated 18th August, 2011, that it had no objection to the sub-division plan subject to the payment of outstanding rates and a sub-division fee of Kshs.2,000/= per plot and that by a letter dated 30th September, 2011 the Ministry of Lands asked the Petitioner to pay fees for consideration of the proposed sub-division and that no other government department has given its comments or refusal to the proposed sub-division by the time this Petition was filed.

8. It is the Petitioner's case therefore that the delay in granting the requisite consents since his application in September, 2008 is an infringement on his right to deal with his private property in a manner that will assist him in offsetting his various debts and also contribute to the economic development in the wider Taveta region. Further, that the 8th Respondent by not granting the consents has acted contrary to Section 9 of the Land Control Act as no reasons for refusal have since been given.  It is also his claim that the 8th Respondent acted in ignorance of Section 24 of the Land Control Act which exempts the 1st Respondent from the provisions of the Land Control Act in respect of any mortgage registered in favour of the 1st Respondent. It is also the Petitioner's case that Regulation 2(2) of the Land Control Regulations is subsidiary to the Land Control Act and as such, cannot be a basis for the refusal to grant consent. The Petitioner avers although that consent can be granted subject to approvals from other relevant government departments, in this case, no objection to the sub-division has been lodged by anyone and so the non-grant is unlawful.

9. That the 8th and 9th Respondents have been in flagrant abuse of court orders issued in respect to the suit land and the Petitioner alleges that the area Member of Parliament together with the 9th Respondent have all refused to obey the court orders issued on the 7th April, 2006 in Mombasa HCCC No. 159 of 2005 Hon Vassilis Criticos vs. Hon Dr. Naomi Shaban & 14 Others and  claims that no efforts have been made to remove the squatters on his land, yet an order was issued in HCCC Misc Application 1019 of 2004 Hon Basil Criticos vs. The Attorney General & 2 Others. To that extent the Petitioner also claims that in Milimani HCCC No. 446 of 2009 Basil Criticos vs. The Agricultural Finance Corporation, the decree issued requiring the determination of consent applications to pave way for the sale of the suit land and removal of squatters has not been obeyed.

10. It is the Petitioner's further case that the 9th Respondent has on diverse occasions incited the public to invade the suit land and the 9th Respondent addressed a public rally on the 2nd December, 2008 during which rally, the Petitioner alleges, the 9th Respondent deliberately misinformed the public that the suit land belonged to the Government and as such any, innocent purchasers for value should be removed from the suit land by force. It is the Petitioner's claim that his Advocates have written severally to the 9th Respondent, the 1st Respondent, several Government Ministries and concerned statutory bodies complaining of the actions of the government officers posted to the area and the consequences of their refusal to obey Court orders but none responded to those issues.

11. That the 9th Respondent is not fit to hold office on account of his actions and is bent on ensuring that the Petitioner does not exercise his fundamental freedom of owning and enjoying his private property and that under Section 10 of the Public Officers & Ethics Act, a public officer is obligated to carry out his duties in accordance with the law and in doing so, s/he shall not violate the fundamental rights and freedoms entrenched in the Constitution. The Petitioner goes further to invoke Section 19 of the Public Officers and Ethics Act which espouses that a public officers shall not knowingly give false or misleading information to the Public.

12. It is the Petitioner's submission that the 9th Respondent through his actions and conduct has violated the spirit of Chapter 6 of the Constitution of Kenya and that according to Article 129 of the Constitution, executive authority is derived from the People of Kenya and should be exercised in accordance with the Constitution, 2010. The Petitioner relies on the decision in Trusted Society of Human Rights Alliance vs. The Attorney General & Others (2012) eKLR where the Court stated that;

  "The people of Kenya did not intend that these provisions  on integrity and suitability for public officers be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations. Kenyans intended that the provisions on integrity and  suitability for office for public and state offices should have substantive bite. In short, the people of Kenya  intended that the provisions on integrity of our leaders and public officers will be enforced and implemented. They desired these collective commitments to ensure good  governance in the Republic will be put into practice."

13. The Petitioner also relies on the holding in CREAW & Others vs. the Attorney General & Others (2012) eKLR where it was held that anything done in order to implement the  Constitution, 2010 is done so as to faithfully accord with the provisions of the Constitution. Indeed it is the Petitioner's case that the Public Service Commission should rise up and exercise its mandate as stipulated under Article 234 of the Constitution and investigate the acts and conduct of the 9th Respondent and other public officers deemed to have frustrated the Petitioner's fundamental rights and freedoms.

14. It is also Petitioner's prayer that the following suits be stayed, to enable the sale of the suit land and the settlement of his outstanding debts from the proceeds of the sale thereof:

1. Milimani HCCC No. 446 of 2009 Basil Criticos vs. The Agricultural Finance Corporation

2. HCCC Misc Application 1019 of 2004 Hon Basil Criticos vs. The Attorney General & 2 Others

3. Bankruptcy Notice No. 8 of 2009 filed by A. H. Malik Advocates

4. Nairobi HCCC No. 288 of 2006 Alexandros Panayotakis vs. Agro Development Company Limited and Basil Criticos

5. Water Appeal No. 2(WR) of 2010 Agro Development Company Limited vs. Water Resources Management Authority

6. Water Appeal No. 1 (WR) of 2011 Hon. Basil Criticos & Agro Development Company Limited vs. Water Resources Management Authority

15. The Petitioner further claims that the Government has in the past purchased large tracts of land in Tavetawith the sole aim of settling squatters and it is his case that in the 1990s he donated 3,000 acres for the settlement of squatters and that he also sold 21,000 acres of land at a heavily discounted price to the 4th Respondent so as to settle the said squatters.

16. He also alleges that one of his properties known as LR No. 5865/2 in Taveta District which was charged to Kenya National Capital Corporation was  illegally sold to the 4th Respondent on the 5th of September, 2007 in flagrant disregard of various Court orders in force preventing the sale of the property and that the 5th Respondent thereby illegally acquired close to 40,000 acres of land that belonged to the Petitioner.

17. It is the Petitioner's further contention that the 4th Respondent has been acting illegally and in breach of the Constitution because no rules have been created pursuant to Section 181 of the Agriculture Act that govern the mode through which the 4th Respondent acquires land with the sole aim of settling squatters and landless citizens in Kenya. It is the Petitioner's case that the 4th Respondent does not have a transparent and equal distribution policy of land allocation and re-distribution specifically in Taveta. That the government should have removed the invaders and trespassers on the suit land and settled them on the 39,524 acres of land now allegedly owned by the 4th Respondent and he relies on Article 35 of the Constitution to seek orders to have the 5th Respondent issue a concise account of the persons to whom land has been allocated by name, tribe and the amount of money received by it from each allottee in reference to land in Taveta County.

18. It is also the Petitioner's submission that there is now a National Land Commission created under Article 60 of the Constitution which Commission is mandated to deal with the management of public land and considering that there are no rules that govern the 5th Respondent, the 4th Respondent is now an amorphous entity and the Petitioner seeks a declaration from this Court that Part 11 of the Agriculture Act that sets up the 4th Respondent should be declared unconstitutional.

19. The Petitioner also relies on the holding in Samuel Momanyi vs. The Attorney General & Another (2012) eKLR and Cradle vs. The Attorney General (2006) eKLR which deal with the discriminatory effect of a statute and the subsequent declaration of a statute's unconstitutionality. He further relies on the South African case of Leach Mokeli Mohlomi vs. Minister of Defence (1996) ZACC 20, 1997(1) SA 124, 129 where it was held that because of limitation of time most litigants especially those who were not aware or poorly informed of their rights, end up not being afforded an adequate and fair opportunity to seek judicial redress.

20. Further, that in President of the Republic of South Africa & Anor vs. Modderklip Boerdery (Pty) Ltd and Others (2006) 2 LRC 38 the Court dealt with the issue of the rule of law and unlawful occupation of private land. The full bench in delivering its judgment held inter alia… that;

  "The Court had no information whether or not the state had other land available to it which it could have used to relocate the occupiers and at the same time enable its obligations to M to have been fulfilled. That possibility could not be ruled out. If such alternative land was available, it would not be just and equitable to order the state to acquire specific land on M's farm."

His argument is that squatters had no right to occupy his land and he was entitled to the protection of law.

21. It is also the Petitioner's claim that the 3rd, 4th, 5th, 7th and 9th Respondents have created an artificially induced squatter invasion into his land and this has infringed on the Petitioner's fundamental rights and freedoms as envisaged in Parts 4 and 5 of the Constitution and that the suit land was sold by the 1st Interested Party to the 2nd Respondents in breach of existent court orders issued barring the sale aforesaid.

22. In praying for damages, the Petitioner relies on the case of Bank of Baroda (K) Ltd vs. Timwood Products Ltd 2008 eKLR and Kenya Revenue Authority vs. Menginya Salim Murgani (2010) eKLR which upheld the decision in Rookes vs. Barnard (1964) 1 ALL ER 367 that there are only two categories of cases in which an award of exemplary damages could serve a useful purpose viz; in the case of oppressive, arbitrary or unconstitutional action by the servants of the government and in the case where the defendant's conduct had been calculated to make a profit for himself which might well exceed the compensation payable to the plaintiff.

23. Further, that in Merson vs. Cartwright & Another (2006) 3 LRC 264 the Court held that in assessing the sum appropriate for damages the trial judge would have to consider the nature of the particular infringement and the circumstances relating to the infringement and the appropriate sum would be at the discretion of the judge. In the instance the Petitioner submits that an amount of Kenya Shillings Fifty Million (Kshs.50,000,000/=) would be appropriate as an award in damages.

The Respondents' Case

24. It is the Respondents' case that for a party to bring an action before a Court of law and be entitled to the reliefs sought, the said party must demonstrate before the Court that it has the right of standing. The Respondents aver that the party must also demonstrate that it has suffered or imminently stands to suffer an injury or prejudice through the actions of the Respondents. The Respondents rely on the case of Law Society of Kenya vs. The Commissioner of Lands and others NKR HCCC No. 464 of 2000 in which the Court held that for a party to have locus standi it must show that his own interests have been prejudiced. If the interest be a public one, then one must show that the matter complained of has injured him over and above that suffered by the rest of the public. The Respondents further submitted that the courts should not be misused for settling scores as was the decision in Janata Dal vs. H S Chowdhry (1992) 4 SCC 305.

25. The Respondents further aver that the Petitioner also lacks locus standi because he has failed to establish his ownership over the suit land. The Respondents further state that the Petitioner has admitted that the suit land is charged to the 1st Interested Party and it is the Respondents' argument that the inability of the Petitioner to settle his debt with the 1st Interested Party gives the 1st Interested Party the entitlement to sell the suit land to recover its debt. The Respondents add that by fact of the charge over the Property, the Petitioner has lost his right over the suit land and in reference to LR Number 5865/2 it is the Respondents contention that the said property was sold to the 4th Respondent and if anything, the Respondents submit that the property LR No. 5865/2 has not been a subject of this Petition and as such they are unable to respond to any allegations connected to it.

26. It is the Respondents' further case that the Petitioner has failed to demonstrate how his fundamental rights and freedoms have been infringed and violated and rely on the case of Anarita Karimi Njeru vs. The Republic (1979) KLR 154 where the Court held that a person seeking redress from the High Court on a matter which involves a reference under Constitution must set out with precision that of which he complains to have been infringed and the manner in which the same was infringed. The Respondents also submit that the Petitioner has failed to demonstrate how the operations of the 5th Respondent are indeed unconstitutional and urge the Court to dismiss the Petition.

The 1st Interested Party's Case

27. The 1st Interested Party states that there is a judgment of Kenya Shillings One Hundred Million in its favour and further submits that the Petitioner has all along co-operated with it by offering the suit land for sale. However the 1st Interested Party also contends that efforts to obtain the requisite consents and approvals to facilitate the sale of the suit land have been frustrated by what it alleges to be vested interests. It submits that these actions have impeded the Petitioner from meeting his obligations and that it is incumbent upon the Court to grant the orders sought by the Petitioner so as to facilitate the 1st Interested Party's realization of the fruits of its judgment. Further that the alleged actions of the Respondents have not only denied the 1st Interested Party its entitlement but have also seen it undergo losses that were not anticipated.  It therefore supports the Petition.

The 3rd Interested Party's Case

28. The 3rd Interested Party from the onset in submissions made the clarification that it's case was filed and adjudged at the High Court and not before the Water Appeals Tribunal as stated in the Petition and that HCCC No. 288 of 2006 was filed on the 23rd of March, 2006 and judgment delivered on the 25th of February, 2010 for United States Dollars 14,000/= and that the Petitioner was not aggrieved by this decision as no appeal to has been filed to date. Further that upon judgment being entered, he proceeded with the execution process but was halted when the Petitioner's Advocates issued an undertaking intimating that the decretal amount would be settled but that the Petitioner has failed to settle the same and has now filed this Petition seeking to stay the proceedings in HCCC No.288 of 2006 for no lawful reason.

29. It is the 3rd Interested Party's submission that not all matters filed within the Constitutional and Human Rights Division raise constitutional issues and submits that the relief/prayer sought by the Petitioner to seek a stay of the proceedings in HCCC No. 288 of 2006 should have been made within the primary suit and not through a Constitutional Petition and it is his contention that the Petitioner has failed to particularize the purported infringement of his constitutional rights as was decoded om Anarita Karimi case (supra) and Rose Moraa and Another vs. Attorney General (2006) eKLR which quoted with approval the decision in Matiba vs. The Attorney General Misc. No. 60 of 1990. The 3rd Interested Party also submits that the Petitioner has not demonstrated how the 3rd Interested Party has infringed upon his fundamental rights and freedoms as entrenched in the Constitution or at all.

30. The 3rd Interested Party also relies on Church Road Development Limited vs. Barclays Bank of Kenya Ltd and Others HCCC No.296 of 2006 which cited with approval the case of Kemrajih Harrikissoon vs. The Attorney General of Trinidad and Tobago 1973 3 WLR 62 wherein it was held that: “The Constitution is not a general substitute for the normal procedure for invoking judicial controls of administrative action. Where infringement of rights can found a claim under substantive law, the proper course of action is to bring the claim under that law and not the Constitution.”

31. It is the 3rd Interested Party's further that the applicable law for stay of proceedings is the Civil Procedure Act and Rules made thereunder and that Order 42 Rule 6 of the Civil Procedure Rules is the right rule to invoke in which cannot aid the Petitioner in any event.

32. The 3rd Interested Party affirms that as HCCC No.288 of 2006 was indeed finalized and is not ongoing and that a stay of proceedings can only be sought and granted in a suit that is alive and ongoing. In any event, that upon extraction of a decree, the only relief that may be sought is a stay of execution as there are no proceedings on course.

33. In the alternative, the 3rd Interested Party in its submissions, argues that the Petitioner has not indeed satisfied the requirements for a stay of proceedings and states that the jurisdiction of the Court to stay proceedings is unfettered but the discretion must be judicially exercised with a view to meeting the ends of justice and in ensuring that there is an end to litigation. That an Application for stay of proceedings should also be hinged upon the likelihood of an event happening if the stay is not granted which is not the case in the instant Petition. The 3rd Interested Party relies on the decision in Yagnesh Devani & 4 Others vs. Joseph Ngindari & 3 Others (2005) eKLR  where the Court of Appeal held that: "…………the burden on the applicant was to satisfy us that the appeal filed in court is an arguable one, or to put another way, that the appeal is not frivolous; and that if we refuse to grant the applicants the order of stay of proceedings and their appeal were to succeed, that success would be rendered nugatory."

The argument made is that if the stay order is not granted, nothing will be rendered nugatory as no proceedings are pending.

34. The 3rd Interested Party further submits that in Article 159 of the Constitution Courts are obligated to do justice for all irrespective of status and that justice shall not be delayed that the overriding objective of the Civil Procedure Act under Section1A is that the Act and Rules which also govern stay of proceedings should be seen to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes governed by that Act and that the Petitioner has a duty to ensure the timely disposal of proceedings at a cost affordable to all parties. Further that if a stay of proceedings is granted then it will defeat the purpose of Article 159 of the Constitution of Kenya as was held in Hunker Trading Company Limited vs. Elf Oil Kenya Ltd (2010) eKLR.

35. On costs, the 3rd Interested Party submits that the Petitioner dragged him into this suit without due regard to the substantive laws available to the Petitioner and that he is entitled to costs for defending this Petition and urges this Court to dismiss the Petition with costs to the 3rd Interested Party as being misconceived and incompetent.

The 4th Interested Party's Case

36. It is the 4th Interested Party's case that in line with its mandate, on the 8th of May, 2010 it ordered a company known as Taveta Development Company Limited to pay the sum of Kshs.780,176/= being the charges owing to the Authority on account of water use charges and for the issuance of a water abstraction permit as required under the Water Act, 2002.

37. It is the 4th Interested Party's case that without complying with the said order, the said Taveta Development Company lodged Appeal No. 2 of 2010 (WR) simultaneously with a Certificate of Urgency before the Water Appeal Board on the 10th June, 2010 seeking injunctive orders against the Authority's directive for the payment of Kshs.780,176/= for water used and in default, it would be stopped from abstracting water from Kitumweni Springs for purpose of irrigation.  That the Water Appeals Board issued the interim orders for injunction and that due to these orders the Authority has not levied fees on water use charges despite its claim that there are charges legitimately payable under the Water Act, 2002.

38. Further that despite Taveta Development Company Ltd acknowledging that it uses water from the water resource in question for commercial irrigation, the company has not taken any steps towards making payments of water used since 2010 and that this Petition has therefore been filed in bad faith and is aimed at frustrating the statutory obligations of the 4th Interested Party.

39. It is submitted in that regard that in law, a natural person and a body corporate are two different entities and that the Petitioner herein is not a party to Appeal No. 2 (WR) of 2010 and neither has the Petitioner demonstrated the capacity in which he has filed the Petition on behalf of Taveta Development Company Limited.

40. It is added that there is no nexus between the Petition and the proceedings in Appeal No. 2 (WR) of 2010 and 1 (WR) of 2011 and that where a party institutes proceedings before any Court or tribunal then the said party is at liberty to withdraw the proceedings subject to the court/tribunals directions on costs and that the relief sought to stay the proceedings before the Water Appeal Board by the Petitioner is unfounded.

41. Further, that the Petitioner is forum shopping and avoiding obligations arising out of the matters filed before the Appeal Board and that the Board is the only body clothed with the jurisdiction to deal with any matters arising out of Appeal No. 2 (WR) of 2010 and 1 (WR) of 2011. It is the submission of the 4th Interested Party therefore that this Court ought to safeguard its integrity and due process and dismiss the Petition as being misguided.

The 5th Interested Party's Case

42. It is the 5th Interested Party's case that it has already surveyed and demarcated 2000 acres awarded to it by the Government through the 5th Respondent. Further,that it has issued over 5000 letters of allotment to alleged beneficiaries of the plots subsequent to the survey and demarcation of the aforesaid 2000 acres.  That the said beneficiaries have already paid allotment fees to the Council and the Council has utilized part of these funds  to develop roads and for the installation of electricity in the affected area.

43. It is the 5th Interested Party's further case that some beneficiaries have begun developing their allotted plots and have followed the laid down procedures in acquiring the suit land from the Government through the 5th Respondent. Indeed the 5th Interested Party submits that it paid Kshs.7,006,262/= to the 5th Respondent, was issued with a Certificate of Outright Purchase and is now pursuing a discharge of charge of its portion of land so as to process title deeds for the acquired interests.  That this sale was done above board and with the full knowledge and blessing of the Ministers for Lands and Local Government.

44. It is the 5th Interested Party's further submission that it followed the laid down procedures to plan, demarcate and allocate the suit land and it held the requisite meetings and has all the minutes to confirm deliberations therein and that the ownership of the suit land by the Petitioner is fraught with irregularities, tainted with fraud and as such is in all probability fraudulent.

45. It is the 5th Interested Party's claim that it has expended enormous resources in the construction of residential units, social amenities and other infrastructure ancillary thereto in New Taveta Town and that the orders sought by the Petitioner, if granted, would result in great loss and this loss may not be adequately compensated by way of damages. It seeks that the Petition should be dismissed with costs.

Determination

46. I have considered the contending and competing submissions in this Petition and save for the Submissions on locus standi, which have no relevance to the matter at hand, I agree with the reasoning in all the authorities submitted by the parties. The Petitioner alleges that the Respondents are infringing on his fundamental rights and freedoms as the owner of the suit land while the Interested Parties who are his creditors, some secured and others unsecured, have put him on notice. The Petitioner raises various issues which this Court has been called upon to determine and will do so as follows;

47. The Petitioner prays for an order of mandamus directing the Chairman, Taveta Land Control Board to forthwith grant consent to sub-divide the Petitioner's Land Reference Nos. 6731 and 6732 situated in Taveta District and to expeditiously hear and grant consent to all of the sub-divisions arising out of LR.Nos.6731 and 6732 as and when presented.

48. The suit land, it emerges, were parcels categorized as agricultural land. The Land Control Act Cap 302 was an Act of parliament to provide for controlling transactions in agricultural land. Section 6(1) of the Land Control Act defines a controlled transaction to also include; “(a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area”  In my ruling issued on the 12th of October, 2012 I ordered the 1st Respondent to address the non-repeal of the Land Control Act which issue has not been addressed to date.

49. This issue, it is agreed, is in any event spent as the Land Control Act has been repealed but regarding the order sought and directed at the 8th Respondent, I will say something about the same later in this Judgment.

50. Regarding the Order of Mandamus to issue regarding the conduct of the 9th Respondent, and other public servants the Public Service Commission Act, Chapter 13 of 2012 establishes the Public Service Commission whose guiding principles under Section 4 of the Act include national values and principles of governance in Article 10 and the values and principles of public service in Article 232 of the Constitution. The functions of the Public Service Commission are provided for under Article 234 (2) (b) of the Constitution which provides inter-alia that;

 “The Commission shall; (b) exercise disciplinary control over and remove persons holding or acting in those offices”

51. Further, Article 243 of the Constitution establishes the National Police Service and Section 87 of  National Police Service Act No. 11 of 2011 establishes the Internal Affairs Unit which is mandated to receive and investigate complaints against members of the  Police Service. The Unit is also mandated to receive complaints from members of the public.  The Public Service Commission and the National Police Service, like the Judiciary, are all creatures of the Constitution; one an arm of government and the other two Constitutional Commissions made up of personnel that fall under the Executive arm of government.  Each is expected to act independently of the other and subject only to the Constitution.

52. In Trusted Society of Human Rights Alliance vs. The Attorney General & Others (supra), it was held that; 

“In answering these constitutional questions, it is imperative that we begin by re-stating that the doctrine of separation of powers is alive and well in Kenya. Among other pragmatic manifestations of the doctrine, it means that when a matter is textually committed to one of the coordinate arms of government, the Courts must defer to the decisions made by those other coordinate branches of government. Like many modern democratic Constitutions, the New Kenyan Constitution consciously distributes power among the three co-equal branches of government to ensure that power is not concentrated in a single branch. This design is fundamental to our system of government. It ensures that none of the three branches of government usurps the authority and functions of the others. This constitutional design is a direct influence from Montesquieu, the noted French Philosopher who is often called the father of modern constitutionalism. Noting that separation of powers was essential to the liberty of the individual, Montesquieu famously said: When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.... There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. 1 Charles Secondat, Baron de Montesquieu, The Spirit of the Laws 151-52 (Thomas Nugent trans., Hafner Publishing Co. 1949) (1748).”

I agree with the above holding and; 

53. It is clear from the foregoing that the  Judiciary cannot usurp the authority preserved for Commissions created under the Constitution or the Executive arm of government as this would run contrary to the spirit of the Constitution. The Constitution calculatingly and with intent, donated powers to various institutions so as to augment the operations of such institutions without intrusion from the other. Discipline of personnel and transfer of officers is a preserve of the Public Service Commission and the Police Service Commission and there would be anarchy if the Judiciary issued orders such as the one prayed for by the Petitioner.  That is why I agree that “... the justiciability doctrine expresses fundamental limits on judicial power in order to ensure that courts do not intrude into areas committed to the other branches of government. The arguments on this issue are based on the foundational doctrine of separation of powers and its application to the case at hand.” See - Trusted Society of Human Rights Alliance vs. The Attorney General & Others (supra).

For the above reasons I decline to issue the orders sought in prayers (b) and (f) of the Petition before me.

54. Regarding the further submission that the 9th Respondent has violated Chapter 6 of the Constitution of Kenya, I only need to state that Article 79 of the Constitution provides that an independent ethics and anti-corruption Commission shall be established for purposes of ensuring compliance with, and enforcement of, the provisions of Chapter 6 aforesaid.  An Ethics and Anti-Corruption Commission was indeed established under Act No.22 of 2011 and at Section 11 thereof one of the functions of the Commission is “to receive complaints on the breach of the code of ethics by Public officers” established under the Public Officers Ethics Act, 2003.  As was held in the case of ICPC & 5 Others vs AG & 4 Others, Petition No.552 of 2011, where mechanisms of inquiry into unethical conduct have been created by statute, then those mechanisms must be followed before a party can properly approach the High Court for any relief in that regard.

The point here is that the Petitioner has other ways of seeking to have the 9th Respondent's conduct investigated and if need be, punished, before approaching this Court by way of a Constitutional Petition.

Prayer (g) of the Petition cannot therefore stand and is hereby dismissed.

55. Another of the Petitioner's prayers is that Part II of the Agriculture Act that creates the 4th Respondent (Settlement fund Trustees) be declared unconstitutional for failing to meet the principles of land policy in Article 60 of the Constitution.  It is urged in that regard that there do not exist published rules setting out how citizens of Kenya are to be settled on land acquired by the Trustees neither is there a data bank showing all land under the control of the said Trustees.

56. To my mind, the arguments advanced by the Petitioner do not meet the threshold for declaring a statute or parts of it to be unconstitutional.  Article 60 of the Constitution has more than seven principles including equitable access to land, security of land rights, and encouragement of communities to settle land disputes through recognized local community initiatives consistent with the Constitution.

57. It has not been shown, with sufficient evidence, that the continued existence of the Settlement Fund Trustees is in conflict with Article 60 aforesaid.  The history of the Trust is well known; a post-independence initiative to settle Kenyans on previously European Setter-owned.  It has largely succeeded and today, Section 134 of the Land Act 2012 obligates the National Land Commission to implement settlement programmes and in doing so, assist the national and country governments in the administration of settlement programmes.

58. Neither the principles set out in Article 60 nor the enhanced role of the National Land Commission should be seen as contradictory to that of the Settlement Fund Trustees and I am certainly not of the mind that its existence or activities are in any way contrary to the Constitution.  All other arguments against the operations of the 4th Respondent including the argument that it has failed to settle landless persons are pedestrian and find no favour with this Court.

I will dismiss prayers (d) and (e) of the Petition without further ado.

59. The Petitioner has also prayed that the following suits be stayed pending the sub-division and sale of Land Reference Numbers 6731 and 6732 whose proceeds of sale will be used to settle all decrees against him;

1. Milimani HCCC No.446 of 2009 Basil Criticos vs. The Agricultural Finance Corporation.
2. Bankruptcy Notice No.8 of 2009.
3. Nairobi HCCC No.288 of 2006 Alexandros Panayotakis vs. Agro Development Company Limited and Basil Criticos.
4. Water Appeal No.2(WR) of 2010 Agro Development Company Limited vs. Water Resources Management Authority.
5. Water Appeal No.1 (WR) of 2011 Hon. Basil Criticos & Agro Development Company Limited vs. Water Resources Management Authority.

64. Staying of proceedings entails the suspension of a certain legal action. With reference to the above matters; Milimani HCCC No. 446 of 2009 Basil Criticos vs. The Agricultural Finance Corporation and Nairobi HCCC No. 228 of 2006 Alexandros Panayotakis vs. Agro Development Company Limited and Basil Criticos are civil matters filed under the Civil Procedure Act and Rules 2010. In both matters, decrees have been extracted and as such the only available remedy to the Petitioner is a stay of execution which is provided for under Order 22 of the Civil Procedure Rules. The Bankruptcy Act Cap 53 Laws of Kenya also provides for stay of proceedings under Section 108:  which provides that;

  “The Court may at any time, for sufficient reason, make an order staying the proceedings under a bankruptcy  Petition, either altogether or for a limited time, on such terms and subject to such conditions as the court may think just.”

Further, the Water Act 2002, (Water Appeals Board Rules, 2007)

Rule 21 states that:

  “The Board may issue any interlocutory order upon application by any of the parties.”

65. With that background, it is obvious that the Petitioner's prayers are misplaced before this Court and in Speaker of the National Assembly v Karume (2008) I KLR 425, the Court stated as follows;

  "In our view, there is considerable merit in the submission that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure  should be strictly followed...."

I agree wholly and I decline to stay any of the suits and prayer (i) of the Petition is dismissed.

66. Having dealt with the ancillary issues arising, I will now embark on dealing with the alleged infringement of the Petitioner's fundamental rights and freedoms. The Petitioner alleges that the following fundamental rights and freedoms as entrenched in the Constitution of Kenya 2010 have been infringed:

i) Article 27-equality and freedom from discrimination

ii) Article 40-protection of right to property

iii) Article 25(c)-right to a fair trial

iv) Article 47-fair administrative action

v) Article 48-access to justice

vi)  Article 64-right to private law

66. In determining whether the fundamental rights and freedoms of the Petitioner have been violated, I will be guided by the holding in Matiba vs. The Attorney –General Misc. Application No. 666 of 1990, where the Court stated as follows:

  “An applicant in an application under Section 84(1) of  the Constitution is obliged to state his complaint, the provisions of the Constitution he considers has been infringed in relation to him and the manner in which he believes they have been infringed. Those allegations are the ones which if pleaded with particularity invoke the jurisdiction of the court under the section. It is not enough to allege infringement without particularizing the details and manner of infringement.”

I agree but I have also previously stated in other matters of this kind, that particularity should not be raised to the level of scientific exactitude but that a party must present such details of infringements as to enable a Court glean breach and violation to be able to give a reasonable remedy.

67. In that context, the Petitioner alleges that his rights under Article 27 of the Constitution were violated by the Respondents who discriminated against him on account of his race. The Petitioner does not table any evidence that can, without a shadow of doubt, dictate that the Petitioner suffered discrimination because of his race. On the flip side he was once the Member of Parliament for Taveta Constituency which denotes acceptance by all to the extent that not only does he own huge tracts of land in the area but he is also popularly elected, more than once, to represent the people of Taveta in the National Assembly.  Enough said.

68. The Petitioner also alleges that his fundamental rights as entrenched in Article 40 have been infringed. The evidence before this court is that several injunctive orders have been entered in favour of the Petitioner in relation to the suit land with the sole aim of either preserving the status quo or driving away invaders and trespassers. Article 40 provides for the protection of property and the Petitioner alleges that on account of inaction  and abuse of office by the Respondents, their agents and/or servants he has been frustrated from deriving economic benefit from his land and in turn he cannot meet his financial obligations.

69. The evidence before me indicates that in Misc Civil Application No. 1019 of 2004, Ibrahim J (as he then was) issued a ruling where he stated inter-alia that: "I am satisfied that the Applicant's sisal crops have been destroyed and/or burnt down since the filing of these proceedings. I am also satisfied that the applicant and his employees have been threatened with violence and they live in constant fear and anxiety……….Accordingly I hereby do grant an Order of Eviction against all invaders and trespassers on the suit properties as defined in Category 5 above."

70. In High Court at Mombasa Civil Suit No. 159 of 2005, Justice Sergon in his ruling stated that: “In this case the defendants have not hidden their objective to reclaim the suit premises from the Plaintiff by an unlawful means. I am satisfied that this is a proper case to grant both prohibitory and mandatory orders as prayed in the summons.”

71. In HCCC 446 of 2009 Basil Criticos vs. Agricultural Finance Corporation; a consent was entered in 2008 where the decretal sum would be raised from the sale of the suit land. Indeed the Land Control Board was also ordered to facilitate issuance of the requisite consents and the other relevant government departments to issue the requisite approvals. In the same consent order, prohibitory and/or inhibitory orders were to issue as against the suit property barring all parties, including the Petitioner and any other party, from dealing with the property.

How can he now claim that the law has not protected his property?  How can he, with all sincerity, cast the Constitution in bad light when he is a beneficiary of its proper application?

72. It foregoing it is clear to me that where preservatory orders have been sought and granted and the beneficiary is the Petitioner, the fact that they have been flouted is no reason to say that one is unprotected by the Constitution.  Suffice it to say that I do not see any violation of Article 40 of the Constitution.

73.  Regarding the allegations breach of Articles 25(c), 27, 47 and 48 of the Constitution, I will spend little time with those allegations as I do not have sufficient material, either in pleadings or in Submissions, to enable me make clear findings in the  Petitioner's favour.  I reiterate the holding in Matiba (supra) save to add that in Anarita Karimi Njeru vs Republic (1976 – 1980) I KLR 1272, it was also the holding of the Court that allegations of contravention of fundamental rights must also be accompanied by evidence of the “manner in which they are infringed”  The Petitioner has failed that test and in fact, he has been given a hearing in all the suits cited above and later in this judgment, the thorny issue of execution of judgments in his favour will be settled.

74. I should now turn to one other issue which I must quickly dispose of; the import of the consent order between the Petitioner and the 1st Interested party.  To my mind, that is the only straight forward matter in this Petition.  I have attempted to see reasons why the Land Control Board Consent was denied and I find none.  No reason has also been given as to why the orders cannot be complied with and I agree with the 1st Interested party in that regard.  Where a Court makes an order, it must be complied with unless it has been set aside.  The latter position cannot apply in this case and I will make the necessary orders shortly.

 

75. Having held as above, the only other issue that I must address is that of damages for breach of fundamental rights.  It is obvious that once I found no evidence of breach it follows that no damages are awardable (including exemplary damages) and that is all there is to say on the subject.

Conclusion

76. When I began hearing this matter, it was my hope that the “Criticos Matter” would be put to an end one way or the other.  At the end however it seems to me that only one aspect of it can properly be settled.  A number of critical issues were raised but I have stated that in most instances, the orders sought cannot be granted.

77. In the end therefore it follows that the final orders to be made are the following;

i) An order of Mandamus be directed to the Chairman and  Members of the Taveta Land Control Board (and in its  absence, its Successor under the Land Act, 2012) to forthwith grant consent to sub-divide the Petitioner's L.R. Nos.6731 and  6732 situated in Taveta District (now Taveta County) and to expeditiously hear and grant consent to all the sub-divisions arising out of L.R. Nos.6731 and 6732 as and when they are presented.

ii)  Prayers (b), (c), (d), (e), (f), (g), (i)  and (j) of the Petition dated 21st November 2011 are all dismissed

ii)  As to costs, let each bear its own costs in view of the nature of the dispute before the Court.

78. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 14TH DAY OF JUNE, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Irene – Court clerk

Mr. Gichuhi for Petitioner

Mr. Moimbo for Respondents

Mr. Odhiambo for Interested Party

 

Order

Judgment duly read.

ISAAC LENAOLA

JUDGE