REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI PETITION NO. 164 OF 2012 JOHN KAVOSA ILIONA JAMES SINGU OGUTU PETER ANDAI LINGALINGA ONESMUS PHANUEL AMAKHALE ERUSTUS ANDAI AMBUNDO PETER MUKABI MATAKWA ALFRED OMUKHOBERO AKWANYI MIKE POUS ANDAYI HOSBORN AMBIYA OGUTU WILLIAM MUHURA GITAU AMBROSE NICHOLAS AWIDH GILBERT NJUKI GAUMU HARUN KIMEU MWAU SAMUEL NG’ANG’A GITAU ANCENT KITUVA KITETU BARACK MICHAIAH OYWAYA PETER MUTUKI NTHUKU NZENGYA MUTHOKA JULIUS NGALA OPATI CHARLES PERTER MAINA ROBERT OBED ATSULU
page 1 of 8
WILLIAM OTIENO OLUOCH JOSEPH OTIU WACHARA RICHARD MWANZIA MUSIKALI DAVID OTWOMA MBATI HESBORN KHABALA LWANGU MUTHUKI KARIMI ERICK ODIGA SAMSON OKETCH WMARI BEATRICE NGARIZU INGIMBA JOHN ALFRED ODUOR FRANCIS WANJAU GITHAIGA FRANCIS ADISA AGUTA CONSOLATA ADHIAMBO JUMA FRANCIS OMOMU NYANGURE SARAH AYEKHA IMBUYE LUKA OKANDI AMULI ALEX OUMA NYASITA LEONARD MAINA MWANGI SELINA WANJIRU NJENGE NICHOLAS MUTUGU NGURE RUTH MIDEVA MUHADI BEATRICE OMBINA OLUOCH APPOLO ADRIANS DIANGA TABITHA ANDESO ALICE ENEYIA KHARUNDA SEPHIRAN KIBIDI DANIEL VITONYE ILLIONA EDMUND MUOKI MWANGANGI
page 2 of 8
JAMES MURIITHI NGUNG’U MARY ATIENO ANDAI MARTIN MURIU GITONGA PETER OMONDI CHWERO RUTH MUTSAMI JAMES MEJA MWANGI MARY ANDIKA KEFA O. ONYURO ATENAS TETE ONDORI ESTHER WAMBUI BENSON MUTEMI KATHOKA IBRAHIM, AURA ATITI ANDREW KHAYO OGUTU LORNA ONZELE MARIAMU NDAKA;A LILIAN AMBIYO SIMON KIHUMBA KAMOR CHARITY MBUCU NYAGA ARTHUR M O OBAKHA ALICE MMBONE WILSON CHRISTOPHER NG’AMBWA ALICE NJERI MAINA JOSEPH MUCHINA CHEGE JUDITH ASSSENDI AKALICHE TERESA NYAMBURA NJAMB DAVID MUTURI MWANGI ZACCHAEUS KAMBERE NANCY WANJIKU NJENGA
page 3 of 8
BEATRICE OYIELE AMBUKA JERIDAH AMBOKA CLEOPHAS WAEMA MWANANGI ENOCK ANDALE TOM OBULIFWA ETEJELA AGGREY LUKWENDE OCHIENG EBRAHIM NGAIRA MUCHERA DANIEL KATHURIMA KATHOKA MIRIAM IMIRI TETE STEPHEN MWAURA KARITA FRANCIS LAVUNA AMBUZI ANJELINE AKOTH OCHIENG GLADYS MUHONJA DANIEL KIPRONO ARITEI JOSHUA KEGODE SHIKOTE EMILY AMOLO WASWA RICHARD EDWARD TOSTSI LINET B ACHAYO ELIZABETH HOKA RICHARD ODHIAMBO OBONDI STEPHEN AUCHI JOHN MUZIOMBO PETER MBONE ODERA SOLOMON MWANGI MOSES OKONDA TETE PHANUEL OTIENO OTIENDE PENINA NAOMI ODIYO JAMES AYOTI WABONDA
page 4 of 8
JOSEPHINE AYIEKO ANDAYI ERIC OTIENO ADUDA ELIZABETH WANJIRU MWANGI PETER MUTURI GACUGU GIDEON MUTIEMULI PHILIP ASIKOYE MUKHOBI FLORAH ACHANDO CATHERINE WANJIRU NJERI ANTHONY KUNGU KARANJA ZEPHANIAH MWANGI GITAHI PETER KANYAGIA KARIUKI ZEDEKIAH MELCHZEDEK ANUNA COSMAS NDINYA ATSULO COSMOS GABRIEL ANYANGO MOSES NDINYA ATSULO DINAH AYAKO COSMOAS LONIC JABUYA MILTON SHIKOLIKI NGOMARA DORCAS ANDAYI AGNES WAMBUI MUGO ELISHAMO OKENO OMUHEL SAMSON OSAMBO JOHN KITUZI MAKAU MARGARET A HORE JAMES NJOROGE GICHUKI MARGARET W KARUNGU MUTOFUNDI KATHENYA JOHN NJOROGE KARANJA
page 5 of 8
GEOFFREY AMANYA PETER MBURU MWANGI ………..………..……………. PETITIONERS AND COMMISSIONER OF LANDS ……..………….……... 1ST RESPONDENT THE HON. ATTORNEY GENERAL………………….2ND RESPONDENT AND AVITON ENTERPRISES LTD ……….……..... 1ST INTERESTED PARTY THE TOWN CLERK, CITY COUNCIL OF NAIROBI …………..….. 2ND INTERESTED PARTY RULING Petitioners’ Case 1. By way of Petition dated 18th April, 2012, the petitioners moved this court seeking the following reliefs: a) A declaration that the Respondents’ conduct and action amount to denial, violation, infringement and/or threat to the fundamental rights and freedoms of the Petitioner as provided under Articles 19, 20, 21, 22, 23, 27, 28, 29, 31, 39, 40, 43, 47, 48, 50 of the Constitution of Kenya, 2010; b) An award of Kshs 3 billion being damages; c) A declaration that the Petitioners have a constitutional right to be allocated L.R Number NAIROBI BLOCK 83/530 d) Costs of the Petition; e) Any other or further orders, writs and directions the Honourable court considers appropriate and just to grant for the purpose of the enforcement of the Petitioner’s fundamental rights and freedoms. 2. The petitioners are aggrieved by the action of the City Council, the 2nd interested party of allegedly demolishing their houses on L.R Number NAIROBI/BLOCK 83/530(“the suit property”) and the 1st interested party’s action in taking possession of the suit property. 3. The petitioners complain that they had established themselves in the suit property for over 20 years wherein they constructed their houses and settled with their families, all this with full knowledge of the Interested Parties. 4. It is the petitioners’ contention that their rights under the Constitution have been infringed and they seek a declaration that they have a constitutional right to be allocated the property. They further contend that the interested parties’ actions of violently evicting them from the suit premises thereby rendering them destitute subjected them to inhuman and degrading treatment. They further contend that due to the respondents’ actions, their right to housing has been infringed and that the allocation to the 1st interested party was done in an illegal and discriminatory manner.
page 6 of 8
5. In their affidavit in support of the petition sworn by John Kavosa Iliona, the 1st petitioner, the petitioners’ case is that their possession of the land has been uninterrupted since they occupied the same. That their mabati houses were demolished under the guise of failure to comply with the Physical Planning Act. 6. They further allege that the suit property was list in the Ndung’u Report as one of the properties that were unlawfully and wrongfully acquired by the interested party and that there was no justification by the respondents to dispose of the same illegally. As a result they claim that the interested party has no valid title to the premises and since it did not acquire the property for value and that they will not suffer any prejudice should this court issue an order of injunction. Interested Party’s Case 7. The 1st interested party has opposed the petition through the replying affidavit sworn by Habib Omar Kongo, its Chief Executive Officer, on 27th July, 2012, on the basis that it is the registered proprietor of the suit property. It also avers that this suit is not only res judicata but also an abuse of the court process in view of other suit filed over the suit property in other courts. The Application 8. The plea of res judicata is also raised in the 1st interested party’s Notice of Motion dated 27th July, 2012. Its position is that the applicants have been filed against various suits against the respondents and interested parties as follows; (1) Nairobi HCCC No. 48 of 2006, John Kavoja Illiona v. Aviton Enterprises Limited. The plaintiffs sought, “A declaration that the applicants are entitled to LR No. NAIROBI/BLOCK 83/530 by way of adverse possession.” The case was heard by Hon. Justice K H Rawal and on 9th October 2007, the suit was struck out. (2) Nairobi HC Misc. No. 621 of 2008(OS), John Kavosa Iliona and 135 others v City Council of Nairobi and Others. In this case the applicants invoked the provisions of sections 74, 75, 77, 82 and 84 of the former Constitution claiming proprietary rights and adverse possession. The suit was heard by Hon. Justice D. K. Maraga and dismissed on 30th November 2010. (3) Apart from the aforesaid suits, the petitioners have also filed other suits against the 1st interested party in respect of the property. These are; (a) Nairobi CMCC No. 7420 of 2002, Umoja Unjuzi Self Help Group v Habib Omar Kongo. The suit was withdrawn. (b) Nairobi HCCC No. 326 of 2005, Umoja II Ujuzi Youth Self Help Group v Nairobi Children’s Care and Rehabilitation Centre and Habib Omar Kongo. The suit was withdrawn. (c) Nairobi CMCC No. 2388 of 2011, John Kavosa Iliona and Others v Amiton Enterprises Limited and Habib Omar Kongo. 9. The applicants’ case is that the present suit being a suit against the same parties and in respect of the same property is res judicata. Mr Thuita, counsel for the applicant, urged the court to strike out the petition. 10. In their replying affidavit to the application, sworn by John Kavosa Iliona on 9th October, 2012, the petitioners position is that matters of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) should not be imported into matters of enforcement of fundamental rights and. Mr Kiplagat, counsel for the petitioners, argued that the matter is one for enforcement of fundamental rights and freedoms and the court should exercise great circumspection in striking out the suit.
page 7 of 8
Determination 11. It is not disputed that the present case involves the same parties and in respect of the same property. The fact that it involves enforcement of fundamental rights and freedoms does not negate the application for the doctrine of res-judicata. Whether the doctrine of res-judicata applies to matter of enforcement of fundamental rights has been settled in several cases. (See Edwin Thuo v Attorney General & Another Nairobi Petition No. 212 of 2011 (Unreported), Richard Nduati Kariuki v Leonard Nduati Kariuki & Another Nairobi Misc Civil Appl. No. 7 of 2006 (Unreported), Booth Irrigation v Mombasa Water Products Ltd (Booth Irrigation No. 1), Nairobi HC Misc. Appl. No. 1052 of 2004 (Unreported). 12. In any event, the judgment of Hon. Justice Maraga dated the 30th November, 2010 in Nairobi HCCC No. 621 of 2008 dealt conclusively with the petitioners’ claim including the issue of adverse possession and in that case the provisions of the former Constitution were invoked. 13. I find that this suit is res-judicata and an abuse of the court process and it is hereby dismissed. There shall be no order as to costs. DATED and DELIVERED at NAIROBI this 18th day of October 2012. D.S. MAJANJA JUDGE Mr Kiplagat instructed by Kwengu & Company Advocates for the petitioner. Mr Thuita instructed by Mwangi & Guandaru Advocates for the interested party/applicant.
page 8 of 8