REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
CONSTITUTIONAL PETITION NO. OF 2020
IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23,27, 28, 29(d), 40, 47, 48, 50(1), 52, 64, 162(2)(b)
AND 159 OF THE CONSTITUTION
=AND=
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS UNDER ARTICLES
AND 159 OF THE CONSTITUTION AND OTHER FUNDAMENTAL FREEDOMS
AND
IN THE MATTER OF CONTRAVENTION OF RIGHT TO ACQUIRE, OWN AND ACCESS
PROPERTY
AND
IN THE MATTER OF LAND ACT AND LAND REGISTRATION ACT
AND
IN THE MATTER OF FAIR ADMINISTRATIVE ACT
AND
ANDREW MUTHAISU MUTHOKA (suing as the Administrator of the
Estate of Mwangangi Muthoka)………………………………...…………..…………..PETITIONER
=VERSUS=
1. GODFREY KISWII MUSYIMI (Suing as the administrator of the
Estate of Musyimi Kilonzo)………………….…………………………………..…RESPONDENT
2. THE CABINET SECRETARY, MINISTRY OF LANDS AND HOUSING…..RESPONDENT
3. THE REGISTRAR OF LANDS, MINISTRY OF LANDS AND HOUSING....RESPONDENT
4. THE ATTORNEY GENERAL………………………………………………………RESPONDENT
PETITION
TO:
THE ENVIRONMENT AND LAND COURT OF KENYA
AT MACHAKOS
The Humble Petition of ANDREW MUTHAISU MUTHOKA (suing as the Administrator of the
Estate of Mwangangi Muthoka as a matter of right seeking redress for infringement of the Estate’s
Constitutional rights to acquire, own, use and access Land and developments thereon and other
fundamental rights and freedoms including right to a fair hearing whose address of service for
purposes of this petition is care of B.M MUNG’ATA & COMPANY ADVOCATES, THE
SARTAJ, 4TH FLOOR, Post Office Box Number 1064-90100, MACHAKOS.
JURISDICTION
1. The petitioner brings this suit as a matter of right seeking redress for contravention of the
Estate’s Constitutional rights to acquire, own, use and access Land and developments
thereon and other fundamental rights and freedoms including right to a fair hearing and
this Honourable Court has jurisdiction over all the claims for relief sought herein under
Articles 19, 20, 21, 22, 23,27, 28, 29(d), 40, 47, 48, 50(1), 52, 64, 162(2)(b) and 159 of the
Constitution of Kenya.
PARTIES
2. The Petitioner is a male adult of sound mind residing and working for gain in the Republic
of Kenya and brings this Petition on behalf of the Estate of Mwangangi Muthoka.
3. The 1st Respondent is a male adult of sound mind residing and working for gain in the
Republic of Kenya and brings this Petition on behalf of the Estate of Musyimi Kilonzo.
4. The 2nd, 3rd and 4th Respondents are the Cabinet Secretary, Ministry of Lands and Housing,
the Registrar of Lands, Ministry of Lands and Housing and the Attorney General of the
republic of Kenya respectively.
BACKGROUND TO THE PETITION
5. That sometimes in the year 1973, the 1st Respondent sued the Petitioner at District
Magistrates Court at Yatta in Civil case number L48 of 1973 on Land ownership and
boundary dispute. During the proceedings, the Court took evidence of several witnesses
and even visited the Suit Land.
6. On delivering its judgment, the Court made a finding that the boundary between the parties
herein was Kwakatuta stream which ran from the Masinga-Kangonde road through Katuta
pod. The Court thus declared that as the boundary save that it was to deviate a bit and
incorporate a portion occupied by the Petitioner herein together with his garden. it thus
awarded the Petitioner herein (the Defendant in that suit) a portion of that land on the other
side of the river where he had a homestead and a garden.
7. The Court even drew a map of the area pursuant to its judgment and the parties continued
staying peacefully thereafter. The 1st Respondent never appealed against the said judgment
to date.
8. THAT later, the area was declared an adjudication section during which process
demarcation officer gave the portion which had been awarded by Court to the Petitioner
herein to the 1st Respondent. In effect, the demarcation officers disregarded to the Court
Judgment.
9. That the said Portion was incorporated to the land belonging to the 1st Respondent herein
and assigned number 1525.
10. THAT the 1st Responded filed committee case number 21 dated 28 th June 1994, the
Committee acknowledged that the Petitioner had a portion awarded to him by Court at
Yatta and he should ask for it. They however, did not give Orders awarding the same to the
Petitioner herein.
11. THAT the Petitioner herein appealed to Arbitration Board under Case number ARD/7/998
dated 27.2.2001 which was heard but dismissed again disregarding the Yatta case number
and proceedings.
12. Dissatisfied with the judgment, the Petitioner herein appealed to the minister, the 2nd
Respondent herein and set out several grounds.
13. THAT before the appeal could be heard, the Petitioner herein passed on.
14. Consequently, the appeal was heard in absence of an Administrator of the Estate of the
Petitioner and the same was dismissed with costs.
15. THAT the representative of the minister who heard the Appeal was biased as he considered
extraneous matters and conveniently omitted and failed to consider the materials before
him.
16. THAT for instance, he alleges that prove was supposed to be beyond reasonable doubt
when in fact it was a civil case
17. THAT secondly, he alleges that the allegations by the Appellant therein were not proved
yet the Judgment of the Yatta Court was presented before him.
18. THAT throughout the proceedings, he does not even mention the exhibits produced by the
Appellant a clear sign that he abused his office and administrative powers which were
quasi-judicial.
19. THAT being an appellate forum in the adjudication process, the said officer was bound to
grant the Petitioner herein a fair hearing to ventilate its appeal without hindrance of bias.
20. THAT even the proceedings do not depict the real and true evidence adduced by the parties.
21. THAT part of his decision was that the parcel of land known as 1525 is wholly separate from
the disputed parcels when in fact there were 2 Appeals culminating on the appeal before
him. One by the Petitioner herein number ARD/7/98 over parcel number 1525 and the
other by the Respondent herein number KND/66/98 over parcel number 1522.
22. THAT subsequently, the Respondent herein filed a Judicial review case number 112 of 2017
to quash the decision of the minister regarding parcels number 2330, 2331, and 2441.
23. THAT this petition seeks thus to quash the said decision under appeal number ARD/7/98
concerning parcel number 1525.
CONSTITUTIONAL FOUNDATIONS OF THE PETITION:
24. Article 19 of the Constitution provides that the Bill of rights is an integral part of Kenya’s
Democratic State and the framework for social, economic and cultural policies. It further
provides that the rights and fundamental freedoms belong to each individual and are not
granted by state.
25. Article 20 of the Constitution states that the Bill of rights applies to all law and binds all state
Organs and all persons. As such, the Respondents are bound by it. The Article enjoins the
Court to adopt an interpretation that most favours the enforcement of rights or fundamental
freedom to an extent of giving effect to the right.
26. Article 21 of the Constitution states that it is a fundamental duty of the State and every State
organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms
in the Bill of Rights. As such the Respondents have a duty to observe, respect and promote
the Petitioners’ right to be heard and to have the appeal heard before an impartial
representative of the 2nd Respondent.
27. Article 22(1) states that 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. The Petitioner herein thus brings these proceedings as a matter
of right on behalf of the Estate
28. Article 23(1) as read together with Article 162(2)(b) of the constitution grants this Court
jurisdiction to hear and determine applications for redress of a denial, violation or
infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. As such,
the Court has the requisite powers and jurisdiction to hear and grant Orders.
29. Article 23(3) of the Constitution gives this Court powers to grant reliefs in any proceedings
brought under Article 22, the same being;
a. A declaration of rights
b. An injunction
c. Conservatory order
d. …
e. An order of compensation
f. An order of judicial review
30. Article 25 of the constitution provides that despite any other provision in this Constitution,
the following rights and fundamental freedoms shall not be limited;
(c) the right to fair trial.
31. Article 27 of the Constitution provides that every person is equal before the law and has the
right to equal protection and equal benefit of the law. It further expounds by stating that
Equality includes the full and equal enjoyment of all rights and fundamental freedoms
whereof the State shall not discriminate directly or indirectly against any person on any
ground.
32. Article 28 of the Constitution provides that Every person has inherent dignity and the right
to have that dignity respected and protected. The Respondents cannot thus deny the
Petitioner the expectation to be treated in a dignified manner by having the dispute heard
without bias and selective recording of evidence.
33. Article 40 of the Constitution provides that every person has the right, either individually
or in association with others, to acquire and own property of any description in any part of
Kenya. It further states that the State shall not deprive a person of property of any
description, or of any interest in, or right over, property of any description, unless the
deprivation is in accordance with the Law.
34. Article 47 of the Constitution provides that every person has the right to administrative
action that is expeditious, efficient, lawful, reasonable and procedurally fair. It further
requires that if a right or fundamental freedom of a person has been or is likely to be
adversely affected by administrative action, the person has the right to be given written
reasons for the action.
35. Article 48 of the Constitution states that the state shall ensure access to justice for all persons
and if any fee is required, it shall be reasonable and shall not impede access to justice.
36. Article 50 (1) of the Constitution gives every person the right to have any dispute that can
be resolved by the application of law decided in a fair and public hearing before a court, or
if, appropriate another independent or impartial tribunal or body.
37. Article 159 states as follows
(1) Judicial authority is derived from the people and vests in, and shall be exercised by,
the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the
following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution mechanisms
shall be promoted, subject to clause (3);
(d) shall be administered without undue regard to procedural
technicalities; and
(e) the purpose and principles of this Constitution shall be protected and
promoted.
PARTICULARS OF RESPONDENTS’ INFRINGMENT/VIOLATION OF THE
PETITIONERS’ FUNDAMENTAL RIGHTS AND FREEDOMS.
38. The Respondent violated the Petitioner’s right to acquire, own, access and use land and the
developments thereof by failing to accord the Estate a chance to be represented and heard
as required by law.
39. The respondents did not accord the Petitioners fair trial before an impartial tribunal or Court
[2nd Respondent] before delivering the said decision. Even the impugned decision clearly
show that the Petitioner herein was deceased as at the time of the hearing and the 2 nd
Respondent herein did not require attendance of a legal administrator.
40. That the Respondents’ actions violated the Petitioners’ inherent dignity and the right to
have that dignity respected and protected by according them equal rights with the 1 st
Respondent herein who was alive as at that time. There was clear bias on the part of the 2 nd
Respondent.
41. By denying Estate a chance to be heard and more specifically on the judgment of Yatta Law
Courts, the Respondents have infringed on the Petitioners’ right to individually own
property as awarded by the Court.
42. THA the 2nd Respondent did not have powers to disregard a lawful Court judgment which
had awarded the Petitioner the suit Land and proceeding to state that the same was different
from the land on the appeal when in fact it was one of the parcels of land in question in the
appeal.
43. That the administrative actions of the Respondents to decline hearing the Appeal when the
Petitioner was alive and proceeding to hear it after he had passed on without giving written
reasons did not afford him fair and impartial hearing. as a result, it infringes on the
Petitioner’ right to administrative action that is expeditious, efficient, lawful, reasonable and
procedurally fair.
44. THAT in Judicial review case number 112 of 2017 which had been filed by the 1 st
Respondent as against other parties, the Court proceeded to quash the impugned decision
herein. The Estate herein was not made a party to those proceedings.
THE PETITIONER THEREFORE HUMBLY SEEKS THE FOLLOWING PRAYERS AS
AGAINST THE RESPONDENTS JOINTLY AND SEVERALLY: -
1. That an order of Certiorari do issue to bring into this Court and quash the decision of the
2nd Respondent contained in a judgment issued on the 28th June 2017 in Land Adjudication
appeal number 228 of 2007 over land Parcel number 1525 Kangonde / Masinga
Adjudication section
2. THAT an order of prohibition do issue prohibiting the 3 rd Respondent from registering the
1st Respondent as the proprietor of the land Parcel number 1525 Kangonde / Masinga
Adjudication section
3. THAT an order of mandamus do issue directing the 3rd Respondent to excise the portion in
dispute awarded to the Petitioner by the District Magistrates Court at Yatta in Civil case
number L48 of 1973 and issued a new number from 1525 and the same registered in the
name of the petitioner.
4. THAT an order of mandamus do issue directing the 3 rd Respondent or any other person
under him or the registrar of Lands in charge of Kangonde / Masinga Adjudication section
to register the Petitioner as the proprietor of land Parcel number 1525 Kangonde / Masinga
Adjudication section
5. THAT in the alternative to prayer 3 above, the 2 nd Respondent do appoint another Deputy
County Commissioner to hear and determine the appeal number 228 of 2007 in respect of
land Parcel number 1525 Kangonde / Masinga Adjudication section.
6. Any further relief or orders that this Honorable court shall deem fit to grant.
DATED at MACHAKOS this……………..……….day of …………………………………….2020
FOR: B.M MUNG’ATA & COMPANY
ADVOCATES FOR THE PETITIONER
DRAWN & FILED BY:
B.M MUNG’ATA & COMPANY
ADVOCATES
THE SARTAJ BUILDING, 4th FLOOR
P.O BOX 1064-90100
MACHAKOS
ADM NO: P.105/2563/93
E-MAIL:
[email protected]Mobile Phone: 0775974148
TO BE SERVED UPON:
1. GODFREY KISWII MUSYIMI (Suing as the administrator of the
Estate of Musyimi Kilonzo
2. THE CABINET SECRETARY, MINISTRY OF LANDS AND HOUSING
3. THE REGISTRAR OF LANDS, MINISTRY OF LANDS AND HOUSING
4. THE ATTORNEY GENERAL
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
CONSTITUTIONAL PETITION NO. OF 2020
IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23,27, 28, 29(d), 40, 47, 48, 50(1), 52, 64, 162(2)(b)
AND 159 OF THE CONSTITUTION
=AND=
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS UNDER ARTICLES
AND 159 OF THE CONSTITUTION AND OTHER FUNDAMENTAL FREEDOMS
AND
IN THE MATTER OF CONTRAVENTION OF RIGHT TO ACQUIRE, OWN AND ACCESS
PROPERTY
AND
IN THE MATTER OF LAND ACT AND LAND REGISTRATION ACT
AND
IN THE MATTER OF FAIR ADMINISTRATIVE ACT
AND
ANDREW MUTHAISU MUTHOKA (suing as the Administrator of the
Estate of Mwangangi Muthoka)………………………………...…………..…………..PETITIONER
=VERSUS=
1. GODFREY KISWII MUSYIMI (Suing as the administrator of the
Estate of Musyimi Kilonzo)………………….…………………………………...…RESPONDENT
2. THE CABINET SECRETARY, MINISTRY OF LANDS AND HOUSING……RESPONDENT
3. THE REGISTRAR OF LANDS, MINISTRY OF LANDS AND HOUSING…..RESPONDENT
4. THE ATTORNEY GENERAL………………………………………………………RESPONDENT
SUPPORTING AFFIDAVIT
I, ANDREW MUTHAISU MUTHOKA of Post Office Box …………………….. do hereby make
oath and state as follows:-
1. THAT I am the Petitioner herein bringing this petition on behalf of the Estate herein and
well conversant with the matters pertaining this petition hence competent to swear this
affidavit in support of the Petition and the Application herein (annexed is a copy of the grant
Ad Litem marked AM1))
2. THAT we fully adopt the contents of the Petition herein and further state as follows;
3. THAT the Petitioner acquired the land at kwakatuta area of then Masinga Division of the
then Machakos District in 1943.
4. That the area was at that time a wild land and the Petitioner was one of the pioneers who
risked limb and life to tame the then wild area for agricultural and pastoral purposes.
5. That by that time the whole of the Masinga area was a crown land.
6. That in 1972 the the government gave the above mentioned land to people for settlement.
7. That in 1973, the Petitioner and Respondent called their clan to settle the boundary despute
and the established a common boundary. The 1st Respondent felt aggrieved by the clan
decision.
8. That, the 1st Respondent sued the Petitioner at District Magistrates Court at Yatta in Civil
case number L48 of 1973 on Land ownership and boundary dispute. During the
proceedings, the Court took evidence of several witnesses and even visited the Suit Land.
9. On delivering its judgment, the Court made a finding that the boundary between the parties
herein was Kwakatuta river which ran from the road through Katuta pod. The Court thus
declared that as the boundary save that it was to deviate a bit and incorporate a portion
occupied by the Petitioner herein together with his garden. it thus awarded the Petitioner
herein (the Defendant in that suit) a portion of that land on the other side of the river where
he had a homestead and a garden (annexed is a copy of the judgment marked AM2)
10. The Court even drew a map of the area pursuant to its judgment and the parties continued
staying peacefully thereafter. The 1st Respondent never appealed against the said judgment
to date (annexed is a copy of the court’s map marked AM 3)
11. THAT later, the area was declared an adjudication section during which process
demarcation officer gave the portion which had been awarded by Court to the Petitioner
herein to the 1st Respondent. In effect, the demarcation officers disregarded to the Court
Judgment.
12. That the said Portion was incorporated to the land belonging to the 1 st Respondent herein
and assigned number 1525.
13. THAT the 1st Responded filed committee case number 21 dated 28 th June 1994. In its
decision, the Committee acknowledged that the Petitioner had a portion awarded to him by
Court at Yatta and he should ask for it. They however, did not give Orders awarding the
same to the Petitioner herein (annexed is a copy of the proceedings and decision marked
AM4).
14. THAT the Petitioner herein appealed to Arbitration Board under Case number ARD/7/998
dated 27.2.2001 which was heard but dismissed again disregarding the Yatta case number
and proceedings. annexed is a copy of the proceedings and decision marked AM5)
15. Dissatisfied with the judgment, the Petitioner herein appealed to the minister, the 2 nd
Respondent herein and set out several grounds (annexed is a copy of the Appeal marked
AM6)
16. THAT before the appeal could be heard, the Petitioner herein passed on, on 31st October
2008 (annexed is a copy of the death Certificate marked AM7)
17. That consequently, the appeal was heard in absence of an Administrator of the Estate of the
Petitioner and the same was dismissed with costs (annexed is a copy of the Proceedings and
decision marked AM8).
18. THAT the representative of the minister who heard the Appeal was biased as he considered
extraneous matters and conveniently omitted and failed to consider the materials before
him.
19. THAT for instance, he alleges that prove of the case was supposed to be beyond reasonable
doubt when in fact it was a civil case which we have been informed by our Advocates that
the standard of proof is always on balance of convenience.
20. THAT secondly, he alleges that the allegations by the Petitioner herein were not proved yet
the Judgment of the Yatta Court was presented before him during trial.
21. THAT throughout the proceedings, he does not even mention the exhibits produced by the
Appellant a clear sign that he abused his office and administrative powers which were
quasi-judicial.
22. THAT being an appellate forum in the adjudication process, the said officer was bound to
grant the Petitioner herein a fair hearing to ventilate his appeal without hindrance of bias.
23. THAT even the proceedings do not depict the real and true evidence adduced by the parties.
24. THAT part of his decision was that the parcel of land known as 1525 is wholly separate from
the disputed parcels when in fact the appeal was over parcel number 1525 which should
have been decided on its merits and not on extraneous grounds of not being part of the rest..
25. THAT subsequently, the Respondent herein filed a Judicial review case number 112 of 2017
to quash the decision of the minister regarding parcels number 2330, 2331, and 2441.
26. THAT this petition seeks thus to quash the said decision under appeal number ARD/7/98
concerning parcel number 1525 and for Court to grant the appropriate Orders as pleaded in
the Petition.
27. The Respondents violated the Petitioner’s right to acquire, own, access and use land and the
developments thereof by failing to accord the Estate a chance to be represented and heard
as required by law.
28. The respondents did not accord the Petitioner fair trial before an impartial tribunal or Court
[2nd Respondent] before delivering the said decision. Even the impugned decision clearly
show that the Petitioner herein was deceased as at the time of the hearing and the 2 nd
Respondent herein did not require attendance of a legal administrator.
29. That the Respondents’ actions violated the Petitioners’ inherent dignity and the right to
have that dignity respected and protected by according them equal rights with the 1 st
Respondent herein who was alive as at that time. There was clear bias on the part of the 2 nd
Respondent.
30. By denying Estate a chance to be heard and more specifically on the judgment of Yatta Law
Courts, the Respondents have infringed on the Petitioners’ right to individually own
property as awarded by the Court.
31. THA the 2nd Respondent did not have powers to disregard a lawful Court judgment which
had awarded the Petitioner the suit Land and proceeding to state that the same was different
from the land on the appeal when in fact it was one of the parcels of land in question in the
appeal.
32. That the administrative actions of the Respondents to decline hearing the Appeal when the
Petitioner was alive and proceeding to hear it after he had passed on without giving written
reasons did not afford him fair and impartial hearing. as a result, it infringes on the
Petitioner’ right to administrative action that is expeditious, efficient, lawful, reasonable and
procedurally fair.
33. THAT in Judicial review case number 112 of 2017 which had been filed by the 1 st
Respondent as against other parties, the Court proceeded to quash the impugned decision
herein. The Estate herein was not made a party to those proceedings (annexed is a copy of
the Judgment marked AM9)
34. THAT unless Orders are issued, the Estate shall suffer irreparably as it shall be denied land
it was lawfully awarded in a Court of Law and whose judgment has never been set aside.
35. THAT I swear this Affidavit in support of the Petition and pray that the same be allowed as
prayed in the Petition.
36. THAT what is deponed to herein is true to the best of my knowledge information and belief
save to information, sources whereof have been disclosed.
SWORN at MACHAKOS this…….. )
Day of …………………….2020 )
BY THE SAID: ) ………………………….
ANDREW MUTHAISU MUTHOKA ) DEPONENT
BEFORE ME: )
)
COMMISSIONER FOR OATHS )
DRAWN & FILED BY:
B.M MUNG’ATA & COMPANY
ADVOCATES
THE SARTAJ BUILDING, 4th FLOOR
P.O BOX 1064-90100
MACHAKOS
ADM NO: P.105/2563/93
E-MAIL:
[email protected]Mobile Phone: 0775974148
