Kamau v Karanja & another (Petition E005 of 2024) [2024] KESC 64 (KLR) (8 November 2024) (Judgment)

Kamau v Karanja & another (Petition E005 of 2024) [2024] KESC 64 (KLR) (8 November 2024) (Judgment) Neutral citation: [2024] KESC 64 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E005 OF 2024 MK IBRAHIM, SC WANJALA, N NDUNGU, I LENAOLA & W OUKO, SCJJ NOVEMBER 8, 2024 BETWEEN ARTHUR NJUGUNA KAMAU ............................................................. APPELLANT AND EUNICE WANGARI KARANJA ................................................. 1ST RESPONDENT COUNTY LAND REGISTRAR .................................................. 2ND RESPONDENT (Being an Appeal from the Judgment and Orders of the Court of Appeal at Nakuru (Asike-Makhandia, Ochieng & Korir, JJ.A.) in Civil Appeals No. 91 of 2019 delivered on 25th January 2024) Supreme Court strikes out an appeal for failure to set out the violated constitutional provisions The appeal related to the trial court sustaining a preliminary objection on two fronts: that the petition did not set out with a reasonable degree of precision the constitutional rights that had been violated or threatened, the specific constitutional provisions alleged to have been violated, and the reliefs sought; and that the petition was time-barred. The court held that given the court’s specialized jurisdiction, a party desiring to invoke its jurisdiction under article 163(4) of the Constitution must specifically identify the limb upon which the petition was premised. The court struck out the petition for failure to set out the constitutional provisions threatened or violated by the respondents, the specific constitutional provisions violated, and the reliefs sought. Reported by Kakai Toili Civil Practice and Procedure – appeals – appeals to the Supreme Court – requirements – specification of the limb of the Constitutional provision on the Supreme Court’s appellate jurisdiction which a litigant was invoking - what was the effect of failure to specify under which limb of article 163(4) of the Constitution a person was invoking the Supreme Court’s appellate jurisdiction – Constitution of Kenya, article 163(4). Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeals as of right in matters involving the interpretation or application of the Constitution - what were the requirements for one to appeal to the Supreme Court as of right in matters involving the interpretation or application of the Constitution - Constitution of Kenya, article 163(4)(a). Evidence Law – standard of proof – standard of proof in civil cases – balance of probabilities - whether failure of respondents to participate in proceedings relieved appellants from proving their claims on a balance of probabilities - Evidence Act (cap 80), sections 107 and

109. Brief facts At the heart of the instant case was a long- drawn ownership dispute of the suit property, which began in 1986. The appellant had led a constitutional petition together with an application under certicate of urgency at the Environment and Land Court (ELC) in 2018. In the two, the appellant applied for interim orders to restrain the respondents from further subdividing, selling, trespassing and or in any manner interfering with the suit property. In response to the application, the 1st respondent raised a preliminary objection on the ground that the court had no jurisdiction to hear the petition as the same did not disclose the rights and the manner in which the respondents violated them; and that both the application and the petition oended section 7 of the Limitation of Actions Act. The ELC agreed and sustained the preliminary objection on two fronts: that the petition did not set out with a reasonable degree of precision the constitutional rights that had been violated or threatened, the specic constitutional provisions alleged to have been violated, and the reliefs sought; and that the petition was timebarred by virtue of section 7 of the Limitation of Actions Act. The petition at the ELC was thus struck out. Aggrieved, the appellant led an appeal at the Court of Appeal. The Court of Appeal armed the ELC’s

Decision

Further aggrieved, the appellant led the instant appeal.

Issues

i. Whether failure of respondents to participate in proceedings relieved appellants from proving their claims on a balance of probabilities. ii. What was the eect of failure to specify under which limb of article 163(4) of the Constitution under which a litigant was invoking the Supreme Court’s appellate jurisdiction? iii. What were the requirements for one to appeal to the Supreme Court as of right in matters involving the interpretation or application of the Constitution?

Held

1. Both the respondents had not participated in the proceedings despite being accordingly notied of the appeal. Sections 107 and 109 of the Evidence Act cast the burden of proof on a party who desired to get a judgment from the court to prove the existence of any legal right or liability and the burden of proof as to any particular fact lay on the person who wished the court to believe in its existence, unless it was provided by law that the proof of that fact lay on any particular person. Even though the respondents had not participated in the proceedings, the respondent's absence did not relieve the appellant from proving his claim on a balance of probabilities.

2. The appellant had not specied under what limb of article 163(4) of the Constitution the appeal had been brought. Given the court’s specialized jurisdiction, a party desiring to invoke its jurisdiction under article 163(4) must specically identify the limb upon which the petition was premised. In view of the fact that the two avenues of the court's appellate jurisdiction under article 163(4)(a) and (b) of the Constitution were distinct, counsel or a litigant invoking that jurisdiction to appeal a decision of the Court of Appeal must strictly demonstrate either that the appeal was as of right under article 163(4)(a) or that the appeal had been certied as involving a matter of general public importance under 163(4) (b).

3. It was a basic rule of procedure that jurisdiction must, in the rst instance exist when the proceedings were initiated and because the question of jurisdiction was so fundamental, it could be raised at any stage of the proceedings before the nal decision was rendered. It could be raised by any party or even by the court suo motu. In fact, it was customary for the court to independently conrm that an appeal had been properly led and that it had jurisdiction before hearing it.

4. The onus of proving that the appeal involved a question of constitutional interpretation or application was upon the party relying on article 163(4)(a) of the Constitution. The court did not automatically acquire jurisdiction merely because a party claimed in their pleadings or submissions that the appeal concerned the interpretation or application of the Constitution.

5. A party must identify with precision the relevant articles of the Constitution that were the subject of interpretation or application and show that the subject of the appeal before the court was the same one upon which either the High Court or courts of equal status and indeed the Court of Appeal based their respective decisions. Where the decision being challenged on appeal had nothing or little to do with the interpretation or application of the Constitution, such a decision could not be the subject of a further appeal to the court under the provisions of article 163(4)(a).

6. Though the grievance was presented as a constitutional question, there was no constitutional issue involved that required the ELC’s interpretation or application. The question was simply, who between the appellant and the 1 st respondent was entitled to the suit property. From the pleadings, the issues raised in the petition were purely factual, and the reliefs sought had no bearing on the application or interpretation of the Constitution at all.

7. Based on the fact that the petition did not specify what constitutional rights had been violated, the trial court allowed the 1st respondent’s notice of preliminary objection, agreeing that it lacked jurisdiction to entertain the petition. The court struck out the petition for failure to set out the constitutional provisions threatened or violated by the respondents, the specic constitutional provisions violated, and the reliefs sought. The claim was statute-barred in terms of section 7 of the Limitation of Actions Act.

8. The two courts below were unanimous in their conclusions that the appellant did not particularize or present evidence of how the respondents breached his rights. The petition was dismissed at a preliminary stage without its merits being considered by both courts. Mere citation of constitutional provisions in the pleadings did not in itself bring an appeal within the scope of article 163(4)(a) of the Constitution.

9. The appellant had failed to directly point to the specic instances where the Court of Appeal erred in its interpretation and application of the Constitution and the matter turned purely on factual issues being camouaged as constitutional violations, and for which the court lacked jurisdiction to determine. Appeal dismissed.

Orders

i. The petition dated May 4, 2024 was dismissed. ii. The court directed that the sum of Kshs. 6,000 be deposited as security for costs therein be refunded to the appellant. iii. No orders as to costs. Citations Cases Kenya

1. Anarita Karimi Njeru v Republic Miscellaneous Criminal Application 4 of 1979; [1979] KEHC 30 (KLR) — (Explained)

2. Ibren v Independent Electoral and Boundaries Commission & 2 others Petition 19 of 2018; [2018] KESC 75 (KLR) — (Mentioned)

3. Joho & another v Shahbal & 2 others Petition 10 of 2013; [2014] KESC 34 (KLR) ; [2014] 1 KLR 111 — (Followed)

4. Kiliswa v Independent Electoral & Boundaries Commission & 2 others Petition 28 of 2014; [2015] KESC 17 (KLR) — (Mentioned)

5. Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others Civil Appeal 290 of 2012; [2013] KECA 445 (KLR) — (Explained)

6. Nduttu & 6000 others v Kenya Breweries Ltd & another Petition 3 of 2012; [2012] KESC 9 (KLR); [2012] 2 KLR 804 — (Mentioned)

7. Njihia v Kimani & another Civil Application 3 of 2014; [2015] KESC 19 (KLR) — (Followed)

8. Opore v Independent Electoral and Boundaries Commission & 2 others Petition 32 of 2018; [2018] KESC 5 (KLR) — (Followed)

9. Rai & 3 others v Rai & 5 others Petition 4 of 2012; [2013] KESC 21 (KLR); [2013] 1 KLR 685 — (Followed)

10. Sonko v County Assembly of Nairobi City & 11 others Petition 11 (E008) of 2022; [2022] KESC 76 (KLR) — (Followed)

11. Speaker of the Senate & another v Attorney-General & another; Law Society of Kenya & 2 others (Amicus Curiae) Advisory Opinion Reference 2 of 2013; [2013] KESC 7 (KLR) — (Followed)

12. Steyn v Ruscone Application 4 of 2012; [2013] KESC 11 (KLR) ; [2012] 3 KLR 391— (Mentioned) Regional Court Mukisa Biscuits Manufacturing v West End Distributors [1969] EA 696 — (Mentioned) Statutes Kenya

1. Constitution of Kenya articles 22(3)(b); 40; 47; 163(4)(a)(b) — (Interpreted)

2. Evidence Act (cap 80) sections 107, 109 — (Interpreted)

3. Land Registration Act (cap 300) section 73(2) — (Interpreted)

4. Limitation of Actions Act (cap 22) section 7 — (Interpreted) Advocates Mr Elijah Maragia for the appellant

Judgment

A. Introduction

1. At the heart of this appeal is a protracted dispute over the ownership, occupation, and usage rights of a parcel of land known as Nyandarua/Olkalau Central/1088 (the ‘suit property’) between two families, the appellant’s and the 1st respondent’s which has been litigated at all court levels. B. Factual Background

2. The genesis of this dispute can be traced to a sale agreement dated 12 June 1986 between the appellant’s father, John Kamau Njuguna, who was the purchaser, and Joseph Mwangi Ndagwatha, the seller. In exchange, the former gave out his parcel of land known as Nyandarua/Kiambaga/1440 in addition to a further consideration of Kshs 13,000/-. Following this agreement, the appellant’s father immediately took possession of the suit property and built a permanent residential house. It, however, turned out that the suit property had been registered in the name of the wife of the seller, the late Ludia Wachuka Ndagwatha, and that upon her death, the property devolved to her son, Hezekiah Karanja, also deceased. Hezekiah Karanja was the husband of the 1st respondent. She had obtained the documents of title to the suit property.

3. But since the appellant’s deceased father was in occupation, Hezekiah Karanja moved to the District Land Tribunal in 2004, under the now repealed Land Disputes Tribunals Act, 1990, seeking orders to evict him. During the pendency of those proceedings, Hezekiah Karanja passed on and was substituted in the proceedings by his sons. After hearing the parties, the District Land Tribunal armed the legality of the title deed issued to Hezekiah Karanja and ordered the eviction of the appellant and his family from the suit property.

4. Aggrieved, the appellant lodged an appeal to the Provincial Appeals Committee. During the pendency of these proceedings, the 1st respondent obtained title to the suit property in Nyahururu Principal Magistrates Court Succession Cause No 83 of 2006. By its decision dated November 17, 2010, the Provincial Appeals Committee declined to determine the dispute on merit, citing lack of jurisdiction, since the ownership of the suit property had passed to the 1st respondent through transmission. Following this decision, and in accordance with section 7 of the Land Disputes Tribunals Act, the 1st respondent moved the Principal Magistrate’s Court at Nyahururu in Land Dispute No 18 of 2011, for the adoption of the Tribunal’s award following the Committee’s declaration that it had no jurisdiction.

5. Once more, being dissatised by this determination and also by the fact that the 1st respondent had moved to the Principal Magistrates’ Court for adoption of those orders, the appellant instituted Judicial Review No 117 of 2011 in the High Court to prohibit the Principal Magistrate from adopting the decision of the Tribunal. He urged, in the application that the Tribunal acted in error by entertaining, without jurisdiction a dispute concerning ownership and acquisition of land; and secondly, that the 1st respondent did not have capacity to participate in the proceedings on behalf of her deceased husband without a grant of letters of administration.

6. By a ruling dated 31 May 2007, the High Court (Odero, J) held that, on account of the Provincial Appeals Committee’s decision that it lacked jurisdiction, there was no award capable of adoption. With this reasoning, the court in eect invalidated the Tribunal’s decision which had determined on merit the question of ownership of the suit property. Consequently, it granted an order of prohibition restraining the Principal Magistrate’s Court at Nyahururu in Succession Cause No 83 of 2006 from adopting the award of the Nyandarua Olkalau Disputes Tribunal issued on 15th September 2004. The court awarded costs to the appellant’s father. C. Further Litigation History i. Proceedings at the Environment and Land Court

7. Armed with the above decision of the High Court, the appellant moved to the Environment and Land Court where he led ELC Petition No 2 of 2018 seeking that; i. The proceedings and nal orders in Nyahururu Principal Magistrate Court Succession Cause No 83 of 2006 in respect of the Estate of Hezekiah Karanja Njagi be declared null and void in so far as they pertain to the suit property; ii. The issuance of the title deed to the 1st respondent similarly be declared illegal, null and void; iii. The subdivision in respect of all that parcel of land, namely, Nyandarua/Olkalau Central/1088 be nullied; iv. The title deed issued to the 1st respondent on 31st May 2007 in respect of Nyandarua/Olkalau Central/1088, and all entries or transactions resulting from the said title deed be canceled; and v. The 2nd respondent be directed to issue to the appellant a new title deed for all that piece of land, namely, Nyandarua/Olkalau Central/1088.

8. In response, the 1st respondent denied the appellant’s claim, arguing that she acquired the suit property lawfully through succession proceedings in Nyahururu Principal Magistrates Succession Cause No 83 of 2006; that the appellant ought to have moved the subordinate court through objection proceedings instead of petitioning the Environment and Land Court; and that, though her late husband, Hezekiah Karanja, was registered as the owner of the suit property on 4th August 1988, there had been persistent eorts to remove the appellant and his family from the property.

9. The 1 st respondent also raised a Preliminary objection, challenging the court’s jurisdiction on the grounds that the matter was time-barred under section 7 of the Limitation of Actions Act. In addition, she contended that the constitutional petition was incompetent, fatally defective, and an abuse of the court process. She asserted that the suit was purely a land recovery claim camouaged as a constitutional petition to circumvent the law of Limitation of Actions; there was no violation of any constitutional rights to warrant invocation of article 22 of the Constitution, and the prayers sought were unavailable to the appellant who was not a party to Succession Cause No 83 of 2006.