Basil Criticos v Attorney General & 13 others [2013] eKLR

Kenya Law

Automated Summary

Key Facts

Basil Criticos, a landowner in Taveta District, filed a constitutional petition seeking a mandamus order to compel the Taveta Land Control Board to grant consent for the sub-division of his land (LR Nos. 6731 and 6732) and to stay proceedings in multiple civil and bankruptcy cases pending the sale of the land. The petitioner alleged that government officials, including the 9th Respondent (District Commissioner), had violated his constitutional rights by failing to remove squatters, delaying sub-division approvals, and obstructing enforcement of court orders. The respondents and interested parties contested his locus standi and argued that constitutional remedies were inapplicable, citing procedural and jurisdictional grounds. The court granted the mandamus for sub-division consent but dismissed other prayers, including stay requests, deeming them jurisdictionally misplaced.

Issues

  • The Petitioner alleged that the Land Control Board's delay in granting consent to subdivide his land (LR Nos. 6731 and 6732) violated his constitutional right to own and use property under Article 40 of the Constitution. The court examined whether this administrative delay constituted an unlawful infringement of his rights.
  • The Petitioner claimed violations of multiple constitutional rights: Article 27 (equality), Article 40 (property rights), Article 25(c) (fair trial), Article 47 (fair administrative action), and Article 48 (access to justice). The court assessed whether these claims were substantiated with sufficient evidence of specific violations.
  • The Petitioner sought a stay of proceedings in six separate cases (e.g., HCCC No. 288 of 2006, Water Appeals) to allow subdivision and sale of his land. The court evaluated whether this relief was legally permissible under civil procedure rules and the Constitution.
  • The Petitioner alleged the District Commissioner (9th Respondent) incited land invasions and failed to uphold constitutional duties under Chapter 6. The court considered whether judicial intervention was appropriate or if disciplinary bodies like the Ethics and Anti-Corruption Commission should handle such claims.
  • The Petitioner argued that the Settlement Fund Trustees' operations violated Article 60 of the Constitution due to lack of published land distribution rules. The court reviewed whether this failure rendered the statute unconstitutional.

Holdings

  • The court declined to issue orders for prayers (b) and (f) of the Petition, which sought disciplinary action against the 9th Respondent and his transfer, as these matters fall under the jurisdiction of the Public Service Commission and Police Service Commission, not the Judiciary.
  • Prayers (d) and (e) seeking to declare Part II of the Agriculture Act unconstitutional and address alleged violations of Chapter 6 of the Constitution were dismissed for failing to meet the threshold for unconstitutionality and lack of sufficient evidence.
  • The court granted an order of mandamus to the Taveta Land Control Board to expedite subdivision consents for Land Reference Nos. 6731 and 6732, while dismissing all other prayers and awarding no costs to either party.
  • The court dismissed the prayer to stay proceedings in multiple civil and appellate matters, emphasizing that such applications must follow prescribed legal procedures and that the Petitioner's requests were misplaced.

Remedies

An order of Mandamus was directed to the Chairman and Members of the Taveta Land Control Board (or 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.

Legal Principles

  • The judgment reiterated that the Constitution is not a substitute for normal legal procedures. It cited Kemrajih Harrikissoon v. Attorney General (1973) to affirm that where substantive legal claims exist, they must be pursued under applicable laws rather than constitutional petitions. The court highlighted the importance of adhering to procedural laws like the Civil Procedure Act and Water Act for resolving disputes.
  • The court emphasized the constitutional doctrine of separation of powers, stating that judicial authority cannot usurp functions reserved for constitutional commissions or the executive branch. This was based on Montesquieu's principles and the Kenyan Constitution's design to prevent concentration of power. The court declined to issue orders related to disciplinary actions or transfers of public officers, deferring to the Public Service Commission and Police Service Commission as per Article 234 and Article 243 of the Constitution.

Precedent Name

  • Cradle vs. The Attorney General
  • Speaker of the National Assembly v Karume
  • Rose Moraa and Another vs. Attorney General
  • Hunker Trading Company Limited vs. Elf Oil Kenya Ltd
  • Merson vs. Cartwright & Another
  • Yagnesh Devani & 4 Others vs. Joseph Ngindari & 3 Others
  • Law Society of Kenya vs. The Commissioner of Lands
  • Matiba vs. The Attorney General
  • Samuel Momanyi vs. The Attorney General & Another
  • Church Road Development Limited vs. Barclays Bank of Kenya Ltd
  • Anarita Karimi Njeru vs. The Republic
  • Leach Mokeli Mohlomi vs. Minister of Defence
  • Kemrajih Harrikissoon vs. The Attorney General of Trinidad and Tobago
  • President of the Republic of South Africa & Anor vs. Modderklip Boerdery (Pty) Ltd
  • ICPC & 5 Others vs AG & 4 Others
  • Trusted Society of Human Rights Alliance vs. The Attorney General & Others
  • Bank of Baroda (K) Ltd vs. Timwood Products Ltd
  • Janata Dal vs. H S Chowdhry

Cited Statute

  • Public Officers & Ethics Act
  • Bankruptcy Act Cap 53
  • Constitution of Kenya 2010
  • Land Act 2012
  • Civil Procedure Act and Rules 2010
  • Water Act 2002
  • Land Control Act (Cap 302)
  • Agriculture Act

Judge Name

Isaac Lenaola

Passage Text

  • 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.
  • 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.
  • 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.