Okiya Omtatah Okoiti & another v Afrison Export Limited & 11 others

[1] Presented to the High Court in Civil Suit No. 617 of 2012(O.S), through an Originating Summons dated 24th September 2012, was Page 2 of 20

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a joint claim by Afrison Export Limited (Afrison) and Huelands Limited (Huelands) (the 1st and 2nd respondents respectively or jointly the Claimants) for the sale price and “assessed rental loss/loss of use” arising out of illegal occupation of L.R No. 7879/24 (the suit land) belonging to them by the Office of the President (OP) since September 1988. [2] It was their assertion that notwithstanding negotiations subsequently entered between them and the Government to sell the land to the Government, nothing had come of it. The two, as vendors, had agreed that a valuation be undertaken to set the purchase price and the rental loss/loss of use. Camp Valuers Property Consultants and Valuers (Camp Valuers) retained by them returned an opinion in a report dated 11 th May 2012 valuing the land at Ksh 6,450,000,000 and the loss at Ksh 1.670.270.000. While OP had agreed to pay those sums, it had not fixed a specific time frame and the sale was thus not concluded. [3] In the O.S., Afrison and Huelands disclosed that the suit land was part of a larger piece of land being LR No. 7879/4 (the mother title) charged to Continental Credit Finance Limited (In Liquidation) (Continental) who were willing to discharge the mother title upon Page 3 of 20

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receipt of Ksh 100,000,000 and an additional sum of Ksh 50,000,000 in legal fees to D.N. Njogu & Co Advocates. [4] The claimants asked the High Court to make the following determinations; 1. That the office of the president is truly indebted to the plaintiffs in the sum of Kenya Shillings Six Billion Four Hundred and Fifty Million (Kshs. 6,450,000,000/-) being the assessed uncontested full value of the purchase price in respect of the plaintiffs’ land Deed Plan L.R. No. 7879/24 the subject matter of this originating summons. 2. That the office of the president is further truly indebted to the plaintiffs in the sum of Kenya Shillings One Billion Six Hundred and Seventy Million Two Hundred and Seventy Thousand (Kshs. 1,670,270,000/-) being the rental loss/loss of use of the plaintiffs’ deed Plan L.R. No. 7879/24 the subject matter of this originating summons, loss occasioned the Plaintiffs by the Office of the President’s trespass and illegal occupation of Deed Plan L.R. No. 7478/24 from September 1988 to date. 3. That the office of the President do pay to the plaintiff the sums stated in 1 and 2 hereinabove forthwith. 4. That upon payment and receipt of the sum of Kenya Shillings One Hundred Million (Kshs. 100,000,000/-) being the amount capped on the charge held by Continental Credit Finance Limited (In Liquidation) over the Plaintiff’s land L.R. No. 7478/4 inclusive of Deed Plan L.R. No. 7879/24 plus a further Kenya Shillings Fifty Million (Kshs. 50,000,000/-) in legal fees due to D.N. Njogu & Co. Advocates, the chargors Continental Credit Finance Limited (In Liquidation) forthwith discharge the charge they held over the Plaintiff’s land L.R. No. 7879/4, Deed Plan 7879/24 inclusive.” Page 4 of 20

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[5] Although the OS was initially taken out against three defendants; Continental, The Official Receiver & Interim Liquidator and The Hon Attorney General (sued on behalf of the OP) (The AG), the suit against the first two was withdrawn through a notice of withdrawal dated 23rd January 2013 and filed on the next day. [6] In a notice of withdrawal dated 13 th December 2012 and filed on 17th December 2012 the two Claimants alongside Drive-in Estate Developers Limited wholly withdrew a suit (NAI HCC No.977 of 2025(O.S)) brought against the AG and the Commissioner of Lands. Through another notice of withdrawal dated 10 th December 2012 and filed on 13th December 2012 the two Claimants withdrew their suit against the AG as the 2 nd defendant in proceedings (NAI ELC HCC No. 819 of 2012) in which The City Council of Nairobi was sued as the 1 st Defendant. This paved the way for the hearing of the O.S. which is the subject of this appeal. [7] The proceedings in the O.S. moved swiftly. On 5th February 2013, the parties entered the following consent before Mabeya J; “By consent: (a) The court does take the mean of average of the valuation of Camp valuers, Claytown valuers and Llyod Masika valuers on record. Page 5 of 20

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(b) Upon ascertaining the said mean average judgment for the same be entered for the plaintiff against the 3rd defendant only. (c) Each party to bear its own costs of the suit. (d) The consent defendants.” [8] does not bind the 1st and 2nd It was on the strength of this consent that the learned Judge prepared and delivered the impugned judgment. In the short eight page judgment are three key findings; that the Government appropriated 37.4 acres and not 19.7; the Claimants had failed to prove rental loss claimed; and on the basis of the mean of 3 valuations, the fair value of the suit property was Ksh 4,086,683,330/=. Judgment was entered for this sum together with costs for the Claimants against the AG. [9] Hardly two months later, on 8th April 2013, Counsel for the parties at the High Court appeared before Mabeya, J upon which the following consent was recorded; “Upon reading the consent dated 2nd April 2013 and signed by counsels for the respective parties, the same is hereby adopted by the court and by consent, the judgment made herein on 12 th March(sic), 2013 for Ksh 4,086,683,330/=is hereby varied and reduced to Ksh 2,400,000,000/= as the agreed purchase price”. [10] Okiya Omtatah Okoiti and Nyakina Wycliffe Gisebe (the 1st and Page 6 of 20

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2nd appellants respectively) were not parties to the O.S. proceedings. In Page 7 of 20

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a Ruling dated 30th September 2016 in Civil Application NAI 115 of 2016 (UR 92/2016) this Court held that the two qualified as persons who, in public interest, desire to appeal to this Court under Rule 75(1) of the now repealed Court of Appeal Rules, 2010 and consequently allowed them to seek extension of time to file a notice of appeal against the High Court judgment of 12th February 2013. The duo took the cue and sought and obtained leave of a single Judge of the Court (Nambuye J.) in a Ruling dated 2nd December 2016 in Nai Civil Application No 225 of 2016 (UR 177 of 2016) to file and serve a notice of appeal within 14 days of the date of delivery of the said Ruling. Whether the current appeal was filed on time is one of the preliminary issues we are asked to determine by the parties. [11] The appeal before us raises 29 grounds which, thankfully, have been condensed into the following issues; 1) Whether the proceedings before the High Court were a nullity ab initio for want of jurisdiction, 2) Who owned the 96 acres suit property at the time of the purported sale, 3) Whether the purported procurement of the suit property was constitutionally and legally valid, 4) Did the sale violate the Banking Act and the Bankruptcy Act, Page 8 of 20

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5) Was the judgment faulty, bad in law and without consideration for public interest. [12] At the plenary hearing of the appeal the appellants continued to act in person, learned Counsel Mr Macharia appeared for the 1st respondent, learned Counsel Mr Nyamai acted for the 2nd respondent, learned State Counsel Mr Bett represented the 3rd, 4th, 5th and 7th respondents, learned Counsel Mr Njenga appeared for the 9th and 10th respondents and learned Counsel Ms Misiati represented the 11th respondent. Counsel made highlights of the written submissions they had filed on behalf of their clients and those who had not filed written submissions addressed us briefly. [13] Some preliminary matters call for an early resolution. Counsel Nyamai contended that while the notice of appeal was signed and filed by two persons only Mr Gisebe (the 2 nd appellant) filed the record of appeal. Looking at that record, the memorandum of appeal and certificate it is indeed signed by Mr Gisebe only although the Memorandum is jointly in his name and that of Mr Omtatah (the1st appellant). That, however, makes no difference to the substance of the appeal as the appeal is joint and both take a common position. Page 9 of 20

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[14] A second issue, again raised by counsel Nyamai, is that the record of appeal was filed outside the time granted by this Court in the Page 10 of

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order for extension for time. The short answer to this contention, and we agree with the appellants, is that the respondents lost the opportunity of taking up that challenge because they did not do so within the time prescribed by Rule 84 of the repealed Court of Rules, 2010 (now Rule 86 of The Court of Appeal, 2022) for making such objection and is now too late. Rule 84 read; “A person affected by an appeal may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has been taken within the prescribed time. Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.” [15] In addition, and this is not without significance, the 1 st and 2nd respondents had, through a notice of motion dated 31 st October 2017, sought the dismissal and or striking out of the notice of appeal and memorandum of appeal on grounds, inter alia, that the record of appeal had been filed outside time, a similar argument taken up here. Upon considering the application this Court (Musinga (P), Asike-Makhandia & Mumbi Ngugi, JJ.A), Page 11 of

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held that, although the appellants had breached the timelines prescribed by our Rules, the application by the 1st and 2nd respondent itself was in breach of the Page 12 of

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timeline set by the proviso to Rule 84. With that the Court dismissed the notice of motion. It is, therefore, unclear to us why the two respondents would seek to remount the same challenge when they are in worse breach of Rule 84 than on the first occasion. [16] Another demurrer was that the appeal is invalid for impugning the Ruling and Decree of 12th February 2013 when it had been varied by the consent of 8th April 2013. In retort, the appellants maintained that the notice of appeal was not voided simply because the first decree was varied by the parties and that the appeal was against both the original decree and the decree as varied for implementation. We do not perceive an issue of invalidity arising. A notice of appeal which commences an appeal before this Court is an important document. For instance, it confers jurisdiction upon this Court to hear and determine an application for stay or injunction under Rule (5)2(b). Regarding the specific objection taken up by the respondents, it serves to alert all affected parties of the decision sought to be appealed, in this case the decision of 12th February 2013. A notice evincing a desire to appeal one decision cannot be used to mount an appeal against another. In this matter, the recital to the memorandum of Page 13 of

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appeal makes it all the clearer that it is the decision of 12th February 2013 that is the subject of the appeal. Page 14 of

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What appears impermissible is the attempt by the appellants to attack the consent order of 8th April 2013 when it was not cited in the notice of appeal. There would be merit, not in an argument that the appeal is invalid, but in a contention that it should be limited to an examination of the decision of 12 th February 2013. Yet as will turn out, in due course, the outcome is not any different even if we were to include the latter order as being properly the subject of this appeal. [17] A further preliminary matter raised by counsel Macharia was that, after filing this appeal, the two appellants filed ELC Petition No.1488 of 2016 Okiya Omtatah Okoiti & another vs Afrison Export Import Limited & 5 others before the ELC in which they rehashed all the arguments taken up in this appeal but which the ELC dismissed holding that the two Claimants were entitled to compensation. In response the appellants assert that the issues arising in the petition were distinguishable, touching on land that had already been hived off on the strength of the consent here been resold to Government for purposes of construction of a road. [18] We have read the judgment in ELC Petition 1488 of 2016 to appreciate an overlap, if any, with the issues raised in this Page 15 of

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appeal Page 16 of

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and how the ELC dealt with them. At the urging of the Claimants here, the ELC held; “143. Considering that the Attorney General participated in the proceedings that determined the issue of ownership of the suit, and in the absence of a prayer seeking to set aside or vary the Judgment of the court in HCCC No. 617 of 2012, on the ground that the High Court did not have jurisdiction to entertain the claim, or on any other ground, prayer (a) of the Petition cannot be granted. 144. Indeed, any contestation as to the ownership of L.R. No 7879/4 and L.R. No 7879/24 to the extent of the same having been adjudged as belonging to the 1st and 2nd Respondents and L.R. No 7879/24 measuring 37.4 acres having been compulsorily acquired by the Government for GSU cannot be entertained. 145. In fact, there is in existence a duly authenticated survey plan and a Deed Plan in respect of the acquired L.R. No 7879/24 measuring 37.4 acres, together with a draft Indenture of Conveyance duly signed by the Directors of the 1st and 2nd Respondents, conveying the property to the government. All these documents were prepared pursuant to the order of the court alluded to above. 146. That being the case, and considering that the order of the court in HCCC No. 617 of 2012 has never been set aside, prayers (b), (f) and (g) of the Petition should be disregarded as they amount to a re-litigation of ownership of the two parcels of land.” [19] With those observations and holdings, the ELC proceeded to determine the only issue that escaped the plea of res judicata. Page 17 of

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The effect of the approach taken by the ELC is that it did not, and could Page 18 of

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not, purport to re-determine the issues raised before the High Court in this matter or those raised in this appeal. In a word, the decision in the ELC Petition did not render this appeal moot. [20] Finally, on preliminary issues raised is the contention taken up by Mr. Nyamai that this appeal raises matters and arguments that were not before the trial court and needed to first be initiated at trial. A submission that this appeal is in fact a new suit with new parties and is an impermissible deployment of the appellate process. [21] In Civil Application NAI 115 of 2016 (UR 92/2016) in which this Court permitted the appellants to appeal against the impugned decision even though they were not parties before the trial court, the appellants had made it clear that the intended appeal would advance arguments ,inter alia, that; the two claimants together with officers in the OP and the AG’s office were executing a scheme to steal money using the court system; the High Court was implicated “because the subject matter fell within the jurisdiction of the Environment and Land Court yet the matter was determined by a Judge of the Commercial Division of the High Court”; part of the suit property had been sold to KPTC and could not once more be sold to the Government; and there Page 19 of

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was a valuation of the suit property made Page 20 of

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by a Government Valuer which valuation was far below any of the valuations applied by the parties and the High Court. [22] In granting that leave the Court would, no doubt, be aware that the appellants intended to raise some issues in the appeal that were not raised at trial. As the said Ruling has not been set aside or varied then the respondents cannot be heard to complain on the scope of the appeal. Yet even if we are wrong in making such a holding, we are confident that the ground that questions the jurisdiction of the High Court is so important that it can be raised for the first time on appeal (See Adero & another vs Ulinzi Sacco Society Limited [2002] 1 KLR 577.) [23] We now turn to the substance of the appeal. Regarding the jurisdiction of the trial court, the appellants assert that Article 162(2) of the Constitution and Section 13 of the Environment and Land Act (ELC Act) were violated, as a consequence of which the High Court proceedings were a nullity ab initio for want of jurisdiction. They argued that once a judge is appointed to a specific court, they lack the power to exercise jurisdiction reserved by the Constitution for another superior court, citing the cases of Chengo & 2 others v Republic (Criminal Appeal 44, 45 & 76 of 2014 Page 21 of

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(Consolidated)) [2015] KECA 756 (KLR) and Republic v Chengo Page 22 of

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& 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR). They contended that while the High Court might exercise limited jurisdiction in land matters when land is a commodity sold to recover a loan, this matter involved use, occupation and title of land once trespass was alleged, falling exclusively under the Environment and Land Court (ELC). They assert that the trial court ignored clear instructions from the Chief Justice that all new land matters be transferred to the ELC. [24] The respondents’ response was that the High Court had jurisdiction because the ELC was not operational at the time the suit was filed. They relied on Section 30 of the ELC Act and the Chief Justice’s Practice Directions of 9 th November 2012, contending that the suit was part-heard when the directions were issued. [25] Although counsel Mr Misiati for the 11 th respondent sought to persuade us that the dominant issue before the High Court was the settlement of amounts owed to the 1 st and 2nd respondents and, therefore, in the exclusive jurisdiction of the High Court, the pleadings tell a different story. In the O.S., the two pleaded that the Government of Kenya, specifically the OP, had trespassed on the suit property and on that Page 23 of basis were entitled to

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compensation not just for the tort of trespass but for the value of the property. It is little Page 24 of

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wonder that the other respondents simply took the position that the High Court was properly seized of the matter because the ELC was not “operational” when the matter commenced, backed with the Practice Directions. A tacit acknowledgment that in other times the dispute would be a matter in exclusive remit of the ELC. [26] In deference to the command in Article 162(2)(b) of the Constitution, Parliament established a court to hear and determine disputes relating to the environment and use and occupation of, and title to, land. That court, the Environment and Land Court, was established by the ELC Act which commenced on 30th August 2011. It is a matter of public notoriety that the first cohort of Judges to that Court were appointed on 3rd October 2012. [27] Following the establishment of the ELC, the Chief Justice issued Practice Directions, published as Gazette Notice No.16268 on 9 th November 2012, to guide the hearing of environment and land matters in the transitional period. Of relevance to this matter would be Directions 3 and 4 which read; “3. All part heard cases relating to the environment and the use and occupation of, and title to land pending before the High Court shall continue to be heard and determined before the same Court. Page 25 of

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4. All cases relating to environment and the use and occupation of, and title to land which have hitherto been Page 26 of

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filed at the High Court and where hearing in relation thereto are yet to commence shall be transferred to the Environment and Land Court as directed by the Chief Registrar.” [28] The O.S. had been filed prior to the actual establishment of the ELC through appointment of judges to that Court. Whether or not the High Court was seized of jurisdiction at the time it rendered the impugned judgment is answered by the simple question whether hearing had commenced at the time of publication of the practice directions, making it a part heard matter on that date. The record of the trial proceedings reveals as follows. [29] On 18th December 2012, learned Counsel Nzioka, acting for the claimants (the 1st and 2nd respondents here), informed the trial court that the matter was for mention for purposes of fixing a hearing date for the O.S. In response, learned State counsel Ms Wandia for the 3rd Defendant (the 3rd respondent here), asked for time to file her client’s documents. Mutava, J then fixed the hearing for 5th February 2013 and directed the parties to file replies and submissions before then. Undoubtedly hearing of the O.S. had not commenced by 18th December 2012, a date later than the Practise Directions. This is even more explicit from what transpired on 5th February 2013. Page 27 of

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[30] On that day, Mabeya, J observes and orders; “It would seem that directions have not been taken. I direct that the matter be listed for mention on 21 st February 2013 for directions as to the hearing of the originating summons. The 3rd defendant to be served with a mention notice by the plaintiff.” [31] Later on, that day, at 10.40 a.m., the matter was called out for recording of the consent on terms that; “By consent: (a) The court does take the mean of average of the valuation of Camp valuers, Claytown valuers and Llyod Masika valuers on record. (b) Upon ascertaining the said mean average judgment for the same be entered for the plaintiff against the 3rd defendant only. (c) Each party to bear its own costs of the suit. (d) The consent does not bind the 1 st and 2nd defendants.” [32] It is upon adopting the consent as an order of the court that the trial Judge proceeded to prepare the impugned decision that was delivered on 15th February 2013. [33] The bright line in the Practice Directions issued by the Chief Justice was that, regarding environment and land matters filed before the date of the directions, only those in which hearing had commenced could the High Court retain jurisdiction to conclude. Page 28 of

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This was not Page 29 of

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one such matter. It should have, in obedience, not just to the Directions, but also the Constitutional and Statutory scheme, been transferred to the ELC for hearing and determination. As a consequence of that failure, the High Court was bereft of jurisdiction in the dispute after 9 th November 2012 and any proceedings after that date, including the impugned judgment and consent entered thereafter, are a nullity. This is the inevitable outcome because “jurisdiction exists or it does not. Neither can it be acquiesced or granted by consent of the parties” (this Court in Jamal Salim v Yusuf Abdulahi Abdi & another [2018] KECA 14 (KLR). [34] And it cannot be said that the trial court was oblivious to the jurisdictional dilemma because as early as 8 th November 2012, Ms Wandia informed the trial court that another matter touching on the same land as the suit property had been transferred by Mumbi, J (as she then was) from the High Court to the ELC, an alert to the trial court and all the parties that they needed to reflect and pay heed to the fundamental question of jurisdiction. The jurisdictional controversy takes on an even greater prominence when an issue raised in this appeal is that a court without jurisdiction may have entered a judgment that is inimical Page 30 of

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to public interest. Page 31 of

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[35] While the decision we reach may seem to be a drawback to the parties at the High Court, as we are told that payments have been made out on the basis of the consent order entered, the difficulty does not answer the important question that all done without jurisdiction is void and in law a nullity. We must add that this is not the first time a court’s pronouncement on jurisdiction would seem to cause difficulties yet such a pronouncement strikes a blow for the Constitution and the proper administration of justice. The courts, on occasion, are required to resolve intractable controversies and must thread the needle! In the Karisa Chengo (supra) case, for example, the Supreme Court lamented; “It therefore follows that, in the light of the terms of article 2(4) of the Constitution, despite the drawback our decision will have on the backlog of cases in our courts, we have no choice but to accede to the respondents’ plea that their appeals at the High Court level be re-heard. Our decision must of necessity have a similar effect on all the appeals that were determined by similarly empaneled High Court Benches.” [36] Owing to the result we reach and the orders we shall be making, we restrain ourselves from discussing the other issues raised in this appeal. There could even be further debate whether the declaration of a nullity can, alone, take away the right of the Page 32 of

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parties at the High Court to enforce the agreement they had reached in the written Page 33 of

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consent of 2nd April 2013 and recorded before that Court, albeit without jurisdiction, as a contract or as compromise of the proceedings. All this will have to await another day. [37] The upshot is that we allow the appeal and declare all the proceedings after the 9th November 2012, including the judgment of 12th February 2013 and the consent order of 8th April 2013, a nullity. The same are set aside. The matter is remitted to the Environment and Land Court for hearing and determination. Due to the public interest element of this matter, each party shall bear its own costs of the appeal. Dated and delivered at Nairobi this 25th day of September 2026. W. KARANJA ……………….. …………. JUDGE OF APPEAL F. TUIYOTT ……………….. …………. JUDGE OF APPEAL W. KORIR I certify that this is a true copy of the …………………….. ……. JUDGE OF APPEAL Page 34 of

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original. Signed DEPUTY REGISTRAR. Page 35 of

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