1. JOHANA CHEPCHIENG KIPROP, MICHAEL KIPRUTO SANG, FRANCIS TOINGOT CHEPTUM, RICHARD CHONGWO CHEPSOM and DR. JAMES KANDAGOR T/A BORDERS COMMUNITY (the 1st to 5th Petitioners respectively and suing in their own capacity and also on behalf of other internally displaced members of the KAMOSHO CLAN) have approached this court vide this Petition dated 4th September 2025. They have sued the LAND ADJUDICATION OFFICER BARINGO, DISTRICT LAND ADJUDICATION & SETTLEMENT OFFICER BARINGO, COUNTY GOVERNMENT BARINGO, MINISTRY OF INTERIOR & CORDINATION OF NATIONAL GOVERNMENT, ATTORNEY GENERAL and KABARION COMMUNITY CONSERVANCY (the 1st to 6th Respondents respectively).
2. The Petitioners seek the following reliefs from the Respondents:
1. A declaration that the land in Kesumet Adjudication Section is un-registered community land within the meaning of Article 163 of the Constitution.
2. A declaration that the rights of internally displaced persons under the Constitution, the IDP Act and International Instruments have been violated.
3. A declaration that the Petitions rights under Articles 10, 40, 47 and 63 of the Constitution have been violated.
4. An order of certiorari quashing the Adjudication proceedings undertaken in Kesumet Adjudication Section.
5. An order of prohibition restraining the Respondents from proceeding with the Adjudication exercise until all displaced members and communities have been re-settled and meaningfully involved.
6. An order directing the Respondents to conduct fresh Adjudication process in Kesumet Adjudication Section that ensures participation and protection of all members including internally displaced person.
7. An order for compensation by the National and County Government for the loss resulting from forceful displacement.
8. An order for costs of this Petition.
9. Any other relief this Honourable Court deems fit.
3. It is the Petitioners’ case that this court has jurisdiction under Articles 22, 23 and 162(2) (b) of the Constitution and the Environment and Land Act. Further, that the Petition raises Constitutional issues and is therefore not subject to the Consent under Section 39 of the Land Adjudication Act (Counsel must have meet Section 30 of the Land Adjudication Act).
4. The Petition is supported by the supporting affidavit of the 1st Respondent dated 4th September 2025 together with his statement of even date and those of other witnesses. I shall not delve into the said statements for purposes of this ruling.
5. Suffice it to state that the gist of the Petitioners’ case is that the 6th Respondent in collaboration with the 1st and 3rd Respondents appropriated un-adjudicated land at Kaborion Community Conservancy belonging to persons adversely affected by rampant acts of banditry without their participation as required under Section 47 of the Constitution as required. The exercise was carried out in 2013 or thereabout when the area had not yet been declared an Adjudication Section. And if it was, the said area had not yet be declared an Adjudication Section and it it was, then the Land owners had been displaced and so the appropriation did not consider their views. The decision should be declared un-procedural, null and void and the displaced persons be allowed to first demarcate their land. The Petitioners therefore bring this Petition on their own capacities and also on behalf of their other relatives the KAMOSHO CLAN and other neighbouring clans who have been rendered internally displaced persons under Articles 1(2), 10, 22, 27(3) and (4), 28, 29, 33, 35, 47 and 258 of the Constitution, Section 9,10 and 11 of the Internally Displaced Persons Act, Articles 5, 6,7, 8 and 9 of the Kenpete Convention 2009 and Principles 28, 29 and 30 of the United Nations Guiding Principles on Internally Displacement 1998 to challenge the unlawful commencement and on-going process of land Adjudication over ancestral land and unregistered community land in Bartabwa Ward Kesumet Adjudication Section without due process to wit, consultation or participation of the Internally displaced persons in violation of their Constitutional rights.
6. It is also the Petitioners’ case that on diverse dates during the colonial era, 199 persons of the Kamosho clan were dupped into what was expected to have been a deal to strike peace in the area of Kesumet. Instead, however, they were killed by bandits forcing their children and survivors to flee the area.
7. The 5th Petitioner is the founder of a community based organization aimed at promoting peace in Baringo and the 4th Respondent is well aware of the forceful displacement of people within the area. The intention of the 5th Petitioner is that once peace is sustained, the displaced persons would be assisted to return to their homes but that has not happened. Immediately after independence, the majority of the members of Kamosho and the neighbouring clans returned to their ancestral land in the Kesumet sub-location. Following rampant insecurity in the area, and which resulted in loss of lives and livestock, the members were again forced to flee and became internally displaced person in Baringo, Elgeyo Marakwet, Uasin Gishu and Nakuru Counties leaving most parts of Kesumet deserted. The Petitioners assert that at the time they were fleeing from their homes, it was the sole mandate of the National and County Government to ensure adherence to durable solutions regarding internally displaced persons before commencing any Adjudication process which has not been done. It is their case that if the Adjudication process is allowed to proceed in the Kesumet Adjudication Section, it will result in a violation of the rights of the Internally displaced person who will permanently lose their land.
8. The adjudication process commenced on a before November 2024 by the 1st and 2nd Respondents without:
(a) Conducting proper and adequate public participation with the internally displaced persons,
(b) Issuing proper Gazette Notice or conducting barazas,
(c) Involving internally displaced persons,
(d) Recognizing the rights of the internally displaced persons and the Community Land Act 2016.
9. The process has led to confusion, exclusion, tension and fear of illegal land alienation to third parties without the community’s knowledge and consent. The Petitioners have frequently approached the offices of the Land Adjudication Offices to raise their concerns and the process was suspended for two weeks to allow them reach a solution with the Local Administration. They also sought audience with the Local Administration and the committee of Kesumet Adjudication Section which was declined. The Petitioners plead that the following provision of the various statutes have been violated by the Respondents:
1. CONSTITUTION
- Article 10(2) a to c – violation of National values and principles of Governance including Public Participation and inclusiveness.
- Article 27 – equity and non-discrimination.
- Article 40(I) – violation right to property without arbitrary deprivation.
- Article 43 – Social and Economic rights.
- Article 47(1) – violation of the right to fair Administrative Action that is lawful, reasonable and procedurally fair.
- Article 60(i) (f) – failure to protect the rights of communities to access and benefit from land.
- Article 63(1) – (3) – Failure to recognize the land as un-registered community land held in trust by the County Government and to follow procedures under the law.
- Article 69(i) (a) – (d) – failure to ensure sustainable and equitable use and benefit – sharing of land resources.
2. KAMPALA CONVENTION (AFRICAN UNION CONVENTION FOR THE PROTECTION AND ASSISTANCE OF INTERNALLY DISPLACED PERSONS IN AFRICA 2019.
- Article 3(i) (a) – Duty of state to prevent arbitrary displacement.
- Article 3(i) (h) – Duty to consult Internally Displaced Persons in decisions affecting them.
- Article 11 – Rights of Internally persons to restitution.
3. UNITED NATIONS GUIDING PRINCIPLES ON INTERNALLY DISPLACEMENT, 1998.
Principle 7 – Right against arbitrary displacement.
Principle 21 – Protection of property left behind by Internally Displaced Persons.
Principles 28 and 29 – Right to voluntary return, resettlement and restitution.
4. UNIVERSAL DECLARATIONS OF HUMAN RIGHTS;
Article 17 (1) and (2) – Right to property and protection from arbitrary deprivation.
5. FAIR ADMINISTRATIVE ACTION ACT:
Section 4(1) and (3) – Denying the Petitioners notice, reasons and opportunity to participate
10. The Petitioners identified the following issues for determination by this court:
1. Whether the land in question is un-registered land under Article 63 of the Constitution.
2. Whether the County Government of Baringo under the Community Land Act 2016 is responsible for holding un-registered land in trust for the people.
3. Whether the Petitioners are Baringo residents who were forced to flee their homes owing to insecurity
4. Whether Kesumet Adjudication Section was independently declared as an Adjudication Section as required by law.
5. Whether the Respondents violated the Petitioners right to public participation, fair administrative action and property for commencing Adjudication of land without first ensuring peaceful return of internally displaced persons.
6. Whether the Adjudication process was illegal, unfair and un-constitutional.
7. Whether the Petitioners are entitled to the reliefs sought.
11. Simultaneously with the Petition, the Petitioners filed a Notice of Motion at every date under certificate of urgency. The same is anchored on Articles 22, 23, 47 and 63 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act, Sections 3, 12, 15, 16 and 22 of the prevention and protection and Assistance to Internally displaced persons and affected communities Act 2021 and all other enabling provisions of the law. The same is supported by the 1st Petitioner’s affidavit and the grounds set out therein. For purposes of this ruling, I shall not rehash the basis of the motion.
12. Suffice it to state that by the said Motion, the Petitioners seek the following orders;
1. Spent
2. Spent
3. That pending the hearing and determination of the Petition, this Honourable court be pleased to issue a conservatory order suspending or halting any further steps in the Adjudication, Demarcation, sub-division or Allocation of land situated at Kesumet Adjudication Section.
4. That the costs of the application be in the cause.
13. The gist of the application is basically that the Respondents have commenced the Adjudication process without conducting public participation yet the Petitioners form part of the many people who fled the area and stand to lose their community land. They will therefore suffer irreparable harm including permanent dispossession of their land if the conservatory orders are not granted.
14. The 1st, 2nd, 4th and 5th Respondent filed grounds of opposition to the Petition. The same are dated 18th November 2025 and raised the following grounds;
1. The nature of the case demands that the Petitioners approach the court by way of an ordinary litigation i.e suit and not by a Constitutional Petition.
2. The Petitioners have already been advised by the 1st and 2nd Respondents to move their claims to the recording officers and show the boundaries of their claim to the determination offices as required by Section 13(1) of the Land Adjudication Act. The Petitioners have however failed and/or refused to do so.
3. The Petitioners have also been advised to make use of the dispute resolution mechanism as laid out in the Land Adjudication Act to obtain redress but heave instead chosen to bypass and/or avoid the process via a Petition.
4. That these proceedings were filed without the necessary consent of the Land Adjudication Officer as required by Section 30(1) of the Land Adjudication Act Cap 284 Law of Kenya.
5. The Petitioners have not demonstrated any claim of any registerable interest in the land in question.
6. The Petition is frivolous, vexatious and is otherwise an abuse of the court process. It should be dismissed.
15. When the parties appeared before me for directions on 19th January 2026, I was informed by MS. ADONGO then holding brief for MR. BETT for the Petitioners that the parties were trying to negotiate. MR. KAMAU counsel for the 1st, 2nd, 4th and 5th Respondents agreed and the matter was listed for a further mention on 16th February 2026.
16. On that day, however, the court was informed that the parties had been unable to agree. I therefore directed that the Motion be canvased by way of written submissions.
17. The submissions were filed by MR. BETT instructed by the firm of BETT K. & COMPANY ADVOCATES for the Petitioners and by MR. KAMAU DEPUTY CHIEF STATE COUNSEL instructed by the HON. ATTORNEY GENERAL for the 1st, 2nd, 4th and 5th Respondents. There was no appearance for the 3rd and 6th Respondents and neither did they file any pleadings.
18. I have considered the Motion, the Petition upon which it is founded, the supporting affidavit, the grounds of opposition and the submissions by Counsel.
19. In paragraph 2 and 4 of the grounds of opposition, the 1st, 2nd, 4th and 5th Respondents have pleaded that the Petitioners have been advised to make their claims to the recording officer as provided under Section 13(1) of the Land Adjudication Act and further, that these proceedings have been filed without the consent of the Land Adjudication Offices as required by Section 30(1) of the Land Adjudication Act Cap 284 Laws of Kenya.
20. On the other hand, the Petitioners have pleaded in the last paragraph of their petition under Jurisdiction and ……….. that this court has jurisdiction under Article 22, 23 and 162(2) (b) of the Constitution as well as under the Environment and Land Court Act. Further, that this Petition raises Constitutional issues and is therefore “not subject to the consent requirement under Section 39 of the Law Adjudication Act”. The Petitioners must have meant Section 30 of the said Act.
21. It is therefore obvious at this early stage that the issue of the jurisdiction of this court is in play. It must therefore be determined at before proceeding any further. If I find that I have no jurisdiction to determine this dispute, then I must down my tools – OWNERS OR MOTOR VESSEL ‘LILLIAN S’ V. CALTEX OIL (KENYA) LIMITED 1989 KLR 2.
22. From the reliefs sought by the Petitioners taken together with the grounds of opposition, there is no doubt in my mind that what the Petitioners are aggrieved about is the land Adjudication process which is underway at Kesumet Adjudication Section. This is clear from the averment in paragraph 11 of the petition. Therein, the Petitioners have pleaded thus;
11: “The Petitioners bring this Petition on their own capacities and on behalf of their other relatives (Kemosho clan) and other neighbouring clans rendered internally displaced persons under Article 1(2), 10, 22, 27(3) and 4, 28, 29, 33, 35, 47 and 258 of the Constitution at Kenya, Section 9, 10 and 11 of the IDP Act 2012, Article 5, 6, 7, 8 and 9 of the Kampala Convention 2009 and Principle 28, 29 and 30 of the United Nations guiding principles on internally displacement 1998 to challenge the unlawful commencement and ongoing process of land adjudication over ancestral and un-registered community land in BARTABWA WARD, KESUMET SUB LOCATION specifically KESUMET ADJUDICATION SECTION without due process, to wit, consultation or participation of the Internally displaced persons in violation of their constitutional rights.” Emphasis mine
23. There is no doubt that this Constitutional Petition is crafted in the manner set out in the case of ANARITA KARIMI NJERU .V. R 1976 – 1980 KLR 1272 and re-affirmed in MUMO MATEMU V. TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS 2003 eKLR. The Constitutional provisions alleged to be violated together with other statutory provisions have been clearly set out including the manner in which the violation have been done. There is also no doubt that this court, under Article 162(2) (b) of the Constitution as read with Section 13(3) of the Environment and Land Court Act has the jurisdiction to hear and determine Constitutional Petition. On the other hand, however, Section 30(1) of the Land Adjudication Act provides that;
“Except with the consent in writing of the adjudication officer. no person shall institute and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act.”
24. Section 26 of the same Act provides for the objection to any adjudication register within 60 days of the date of completion of the register. Section 29 states that any person aggrieved by the determination of an objection under Section 26 may within 60 days after that determination appeal to the Minister whose decision shall be final.
25. In his submissions, Counsel for the Petitioner having cited Section 30 of the Act goes on to add that:
2: “The purpose of this provision is to prevent parallel civil suits that may interfere with the statutory adjudication process. It is intended to regulate ordinary civil claims relating to interests in land”
3; “This is a constitutional Petition. Not an ordinary Civil claim”.
26. What I understand Section 30 of the Land Adjudication Act to be referring to is the doctrine of Constitutional Avoidance. That doctrine was discussed in the case of GABRIEL MUTAVA & 2 OTHERS V. MANAGING DIRECTOR KENYA PORTS AUTHORITY & ANOTHER 2016 KECA 411 KLR [CIVIL APPEAL NO. 67 OF 2015], the court of Appeal stated the following:
“Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional court by bringing actions that could very well and effectively be dealt with in that other forum. Such a party ought to seek redress under such other legal regime rather than trivialize Constitutional litigation ………….
A ………. To the foregoing is the principle of Constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a Constitutional issue, that should be done.”
27. In this case, Section 26 of the Land Adjudication Act provides for a clear remedy available to a party who is affected by the register or who considers it to be incorrect to object in writing to the adjudication officer within 60 days. That Officer shall consider the objection and make a determination. Once that process is complete, a No objection register shall be prepared and delivered to the director of Land Adjudication who shall, after certifying it, forward it to the Chief Land Registrar. Section 29 of the Act provides that any person aggrieved by the determination shall appeal to the Minister whose decision shall be final. It appears to me that the Petitioner’s remedy is to be found in the relevant provisions in the Land Adjudication Act.
28. The Constitutional Avoidance Doctrine is also referred to as the Constitutional Avoidance Rule. It is defined in BLACK’S LAW DICTIONARY 10TH EDITION as;
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”
29. The Supreme Court in the case of COMMUNICATIONS COMMISSION OF KENYA & 5 OTHERS V. ROYAL MEDIA SERVICES LTD & 5 OTHERS PETITION NO. 14A, 14B & 14C OF 2014 [2014eKLR] stated thus; in paragraph 256:
“The appellants in this case are seeking to invoke the ‘principle of avoidance’ also known as ‘Constitutional avoidance’. The principle of avoidance entails that a court will not determine a Constitutional issue when a matter may properly be decided on another basis.”
30. The court then went on to cite KENTRIDGE A. J in his minority judgment in the South African Constitutional Court Case of S. V. MHLUNGU 1995 (3) 5A 867 (CC) as follows:
“I would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a Constitutional issue, that that is the cause which should be followed.”
31. And at paragraph 257, our Constitutional Court adopted the decision of the U.S Supreme Court in the case of ASHWANDER V. TENNESSE VALLEY AUTHORITY 297 V.S 288, 347 (1936) where that court held that it would not decide a Constitutional question which was property before it if there was also some other basis upon which the case could have been disposed off.
32. In view of the above precedents, there can be no merit in the submission by the Petitioners’ Counsel that Section 30 (1) of the Land Adjudication Act or indeed any other provision under that Act can only apply in ordinary civil suits. The doctrine of Constitutional avoidance applies in such a Petition. The Petitioners grievance in the circumstances of this case, can be addressed under the provisions of the Land Adjudication Act. I am guided by the decision of the Court of Appeal in the case of SPEAKER OF THE NATIONAL ASSEMBLY V. KARUME CIVIL APPLICATION NO. 92 OF 1992 [1992 KECA 42 KLR] where the court stated as follows in paragraph 15:
“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress at any particular grievance prescribed by the Constitution or any Act of Parliament, that procedure should be strictly followed.”
33. I therefore agree with the submissions by Counsel for the 1st, 2nd, 4th and 5th Respondents at page 2 that:
“It is the respondents’ contention that there do exist an alternative remedy that should have been pursued by the Petitioners instead of resorting to a Constitutional Petition.”
34. Counsel then adds at page 3 that;
“In addition to failing to avail themselves at the dispute resolution mechanism provided by the land adjudication act, the Petitioners have filed these proceedings without the consent of the Land adjudication officer as required by section 30 (1) & (2) of the land adjudication act Cap 284 Laws of Kenya which states …………………”
35. Aid in the penultimate paragraph of his submissions, counsel for the 1st, 2nd, 4th and 5th Respondents observes that:
“Yet, if the prayers sought in their application are granted they would in effect violate the rights other faith participants in the adjudication process by voiding an ongoing land adjudication to give the Petitioners preferential treatment instead of the process being open to all persons residing on/in Kesumet Adjudication Section.”
36. There is merit in that submission. As already stated earlier in this ruling, the Petitioners have pleaded in paragraph 11 of their Petition that the land adjudication process is “on-going”. The same averment is repeated in paragraph 26 as follows:
26: “owing to the above, the ongoing adjudication is being conducted in violations of the principle of public participation, right to property and protection of internally displaced person.” Emphasis mine.
37. To grant the orders sought in the Motion would stall the adjudication process thereby prejudicing other parties with interests in the Kesumet Adjudication Section and yet the Petitioners and any other interested parties have recourse to the relevant provisions of the Land Adjudication Act to remedy any grievances that may arise in the on-going exercise. In my view, both the Motion and the Petition on which it is anchored must give deference to the doctrine of Constitutional Avoidance which is applicable in the circumstances of this case. Both are for striking out.
38. With regard to costs, they follow the event. I see no reasons why I should not grant costs to the 1st, 2nd, 4th and 5th Respondents.
39. Ultimately therefore, this court makes the following dispositive orders:
1. The Petition and Motion dated 4th September 2025 are struck out.
2. Costs to the 1st, 2nd, 4th and 5th Respondents.
2. The Petitioners seek the following reliefs from the Respondents:
1. A declaration that the land in Kesumet Adjudication Section is un-registered community land within the meaning of Article 163 of the Constitution.
2. A declaration that the rights of internally displaced persons under the Constitution, the IDP Act and International Instruments have been violated.
3. A declaration that the Petitions rights under Articles 10, 40, 47 and 63 of the Constitution have been violated.
4. An order of certiorari quashing the Adjudication proceedings undertaken in Kesumet Adjudication Section.
5. An order of prohibition restraining the Respondents from proceeding with the Adjudication exercise until all displaced members and communities have been re-settled and meaningfully involved.
6. An order directing the Respondents to conduct fresh Adjudication process in Kesumet Adjudication Section that ensures participation and protection of all members including internally displaced person.
7. An order for compensation by the National and County Government for the loss resulting from forceful displacement.
8. An order for costs of this Petition.
9. Any other relief this Honourable Court deems fit.
3. It is the Petitioners’ case that this court has jurisdiction under Articles 22, 23 and 162(2) (b) of the Constitution and the Environment and Land Act. Further, that the Petition raises Constitutional issues and is therefore not subject to the Consent under Section 39 of the Land Adjudication Act (Counsel must have meet Section 30 of the Land Adjudication Act).
4. The Petition is supported by the supporting affidavit of the 1st Respondent dated 4th September 2025 together with his statement of even date and those of other witnesses. I shall not delve into the said statements for purposes of this ruling.
5. Suffice it to state that the gist of the Petitioners’ case is that the 6th Respondent in collaboration with the 1st and 3rd Respondents appropriated un-adjudicated land at Kaborion Community Conservancy belonging to persons adversely affected by rampant acts of banditry without their participation as required under Section 47 of the Constitution as required. The exercise was carried out in 2013 or thereabout when the area had not yet been declared an Adjudication Section. And if it was, the said area had not yet be declared an Adjudication Section and it it was, then the Land owners had been displaced and so the appropriation did not consider their views. The decision should be declared un-procedural, null and void and the displaced persons be allowed to first demarcate their land. The Petitioners therefore bring this Petition on their own capacities and also on behalf of their other relatives the KAMOSHO CLAN and other neighbouring clans who have been rendered internally displaced persons under Articles 1(2), 10, 22, 27(3) and (4), 28, 29, 33, 35, 47 and 258 of the Constitution, Section 9,10 and 11 of the Internally Displaced Persons Act, Articles 5, 6,7, 8 and 9 of the Kenpete Convention 2009 and Principles 28, 29 and 30 of the United Nations Guiding Principles on Internally Displacement 1998 to challenge the unlawful commencement and on-going process of land Adjudication over ancestral land and unregistered community land in Bartabwa Ward Kesumet Adjudication Section without due process to wit, consultation or participation of the Internally displaced persons in violation of their Constitutional rights.
6. It is also the Petitioners’ case that on diverse dates during the colonial era, 199 persons of the Kamosho clan were dupped into what was expected to have been a deal to strike peace in the area of Kesumet. Instead, however, they were killed by bandits forcing their children and survivors to flee the area.
7. The 5th Petitioner is the founder of a community based organization aimed at promoting peace in Baringo and the 4th Respondent is well aware of the forceful displacement of people within the area. The intention of the 5th Petitioner is that once peace is sustained, the displaced persons would be assisted to return to their homes but that has not happened. Immediately after independence, the majority of the members of Kamosho and the neighbouring clans returned to their ancestral land in the Kesumet sub-location. Following rampant insecurity in the area, and which resulted in loss of lives and livestock, the members were again forced to flee and became internally displaced person in Baringo, Elgeyo Marakwet, Uasin Gishu and Nakuru Counties leaving most parts of Kesumet deserted. The Petitioners assert that at the time they were fleeing from their homes, it was the sole mandate of the National and County Government to ensure adherence to durable solutions regarding internally displaced persons before commencing any Adjudication process which has not been done. It is their case that if the Adjudication process is allowed to proceed in the Kesumet Adjudication Section, it will result in a violation of the rights of the Internally displaced person who will permanently lose their land.
8. The adjudication process commenced on a before November 2024 by the 1st and 2nd Respondents without:
(a) Conducting proper and adequate public participation with the internally displaced persons,
(b) Issuing proper Gazette Notice or conducting barazas,
(c) Involving internally displaced persons,
(d) Recognizing the rights of the internally displaced persons and the Community Land Act 2016.
9. The process has led to confusion, exclusion, tension and fear of illegal land alienation to third parties without the community’s knowledge and consent. The Petitioners have frequently approached the offices of the Land Adjudication Offices to raise their concerns and the process was suspended for two weeks to allow them reach a solution with the Local Administration. They also sought audience with the Local Administration and the committee of Kesumet Adjudication Section which was declined. The Petitioners plead that the following provision of the various statutes have been violated by the Respondents:
1. CONSTITUTION
- Article 10(2) a to c – violation of National values and principles of Governance including Public Participation and inclusiveness.
- Article 27 – equity and non-discrimination.
- Article 40(I) – violation right to property without arbitrary deprivation.
- Article 43 – Social and Economic rights.
- Article 47(1) – violation of the right to fair Administrative Action that is lawful, reasonable and procedurally fair.
- Article 60(i) (f) – failure to protect the rights of communities to access and benefit from land.
- Article 63(1) – (3) – Failure to recognize the land as un-registered community land held in trust by the County Government and to follow procedures under the law.
- Article 69(i) (a) – (d) – failure to ensure sustainable and equitable use and benefit – sharing of land resources.
2. KAMPALA CONVENTION (AFRICAN UNION CONVENTION FOR THE PROTECTION AND ASSISTANCE OF INTERNALLY DISPLACED PERSONS IN AFRICA 2019.
- Article 3(i) (a) – Duty of state to prevent arbitrary displacement.
- Article 3(i) (h) – Duty to consult Internally Displaced Persons in decisions affecting them.
- Article 11 – Rights of Internally persons to restitution.
3. UNITED NATIONS GUIDING PRINCIPLES ON INTERNALLY DISPLACEMENT, 1998.
Principle 7 – Right against arbitrary displacement.
Principle 21 – Protection of property left behind by Internally Displaced Persons.
Principles 28 and 29 – Right to voluntary return, resettlement and restitution.
4. UNIVERSAL DECLARATIONS OF HUMAN RIGHTS;
Article 17 (1) and (2) – Right to property and protection from arbitrary deprivation.
5. FAIR ADMINISTRATIVE ACTION ACT:
Section 4(1) and (3) – Denying the Petitioners notice, reasons and opportunity to participate
10. The Petitioners identified the following issues for determination by this court:
1. Whether the land in question is un-registered land under Article 63 of the Constitution.
2. Whether the County Government of Baringo under the Community Land Act 2016 is responsible for holding un-registered land in trust for the people.
3. Whether the Petitioners are Baringo residents who were forced to flee their homes owing to insecurity
4. Whether Kesumet Adjudication Section was independently declared as an Adjudication Section as required by law.
5. Whether the Respondents violated the Petitioners right to public participation, fair administrative action and property for commencing Adjudication of land without first ensuring peaceful return of internally displaced persons.
6. Whether the Adjudication process was illegal, unfair and un-constitutional.
7. Whether the Petitioners are entitled to the reliefs sought.
11. Simultaneously with the Petition, the Petitioners filed a Notice of Motion at every date under certificate of urgency. The same is anchored on Articles 22, 23, 47 and 63 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act, Sections 3, 12, 15, 16 and 22 of the prevention and protection and Assistance to Internally displaced persons and affected communities Act 2021 and all other enabling provisions of the law. The same is supported by the 1st Petitioner’s affidavit and the grounds set out therein. For purposes of this ruling, I shall not rehash the basis of the motion.
12. Suffice it to state that by the said Motion, the Petitioners seek the following orders;
1. Spent
2. Spent
3. That pending the hearing and determination of the Petition, this Honourable court be pleased to issue a conservatory order suspending or halting any further steps in the Adjudication, Demarcation, sub-division or Allocation of land situated at Kesumet Adjudication Section.
4. That the costs of the application be in the cause.
13. The gist of the application is basically that the Respondents have commenced the Adjudication process without conducting public participation yet the Petitioners form part of the many people who fled the area and stand to lose their community land. They will therefore suffer irreparable harm including permanent dispossession of their land if the conservatory orders are not granted.
14. The 1st, 2nd, 4th and 5th Respondent filed grounds of opposition to the Petition. The same are dated 18th November 2025 and raised the following grounds;
1. The nature of the case demands that the Petitioners approach the court by way of an ordinary litigation i.e suit and not by a Constitutional Petition.
2. The Petitioners have already been advised by the 1st and 2nd Respondents to move their claims to the recording officers and show the boundaries of their claim to the determination offices as required by Section 13(1) of the Land Adjudication Act. The Petitioners have however failed and/or refused to do so.
3. The Petitioners have also been advised to make use of the dispute resolution mechanism as laid out in the Land Adjudication Act to obtain redress but heave instead chosen to bypass and/or avoid the process via a Petition.
4. That these proceedings were filed without the necessary consent of the Land Adjudication Officer as required by Section 30(1) of the Land Adjudication Act Cap 284 Law of Kenya.
5. The Petitioners have not demonstrated any claim of any registerable interest in the land in question.
6. The Petition is frivolous, vexatious and is otherwise an abuse of the court process. It should be dismissed.
15. When the parties appeared before me for directions on 19th January 2026, I was informed by MS. ADONGO then holding brief for MR. BETT for the Petitioners that the parties were trying to negotiate. MR. KAMAU counsel for the 1st, 2nd, 4th and 5th Respondents agreed and the matter was listed for a further mention on 16th February 2026.
16. On that day, however, the court was informed that the parties had been unable to agree. I therefore directed that the Motion be canvased by way of written submissions.
17. The submissions were filed by MR. BETT instructed by the firm of BETT K. & COMPANY ADVOCATES for the Petitioners and by MR. KAMAU DEPUTY CHIEF STATE COUNSEL instructed by the HON. ATTORNEY GENERAL for the 1st, 2nd, 4th and 5th Respondents. There was no appearance for the 3rd and 6th Respondents and neither did they file any pleadings.
18. I have considered the Motion, the Petition upon which it is founded, the supporting affidavit, the grounds of opposition and the submissions by Counsel.
19. In paragraph 2 and 4 of the grounds of opposition, the 1st, 2nd, 4th and 5th Respondents have pleaded that the Petitioners have been advised to make their claims to the recording officer as provided under Section 13(1) of the Land Adjudication Act and further, that these proceedings have been filed without the consent of the Land Adjudication Offices as required by Section 30(1) of the Land Adjudication Act Cap 284 Laws of Kenya.
20. On the other hand, the Petitioners have pleaded in the last paragraph of their petition under Jurisdiction and ……….. that this court has jurisdiction under Article 22, 23 and 162(2) (b) of the Constitution as well as under the Environment and Land Court Act. Further, that this Petition raises Constitutional issues and is therefore “not subject to the consent requirement under Section 39 of the Law Adjudication Act”. The Petitioners must have meant Section 30 of the said Act.
21. It is therefore obvious at this early stage that the issue of the jurisdiction of this court is in play. It must therefore be determined at before proceeding any further. If I find that I have no jurisdiction to determine this dispute, then I must down my tools – OWNERS OR MOTOR VESSEL ‘LILLIAN S’ V. CALTEX OIL (KENYA) LIMITED 1989 KLR 2.
22. From the reliefs sought by the Petitioners taken together with the grounds of opposition, there is no doubt in my mind that what the Petitioners are aggrieved about is the land Adjudication process which is underway at Kesumet Adjudication Section. This is clear from the averment in paragraph 11 of the petition. Therein, the Petitioners have pleaded thus;
11: “The Petitioners bring this Petition on their own capacities and on behalf of their other relatives (Kemosho clan) and other neighbouring clans rendered internally displaced persons under Article 1(2), 10, 22, 27(3) and 4, 28, 29, 33, 35, 47 and 258 of the Constitution at Kenya, Section 9, 10 and 11 of the IDP Act 2012, Article 5, 6, 7, 8 and 9 of the Kampala Convention 2009 and Principle 28, 29 and 30 of the United Nations guiding principles on internally displacement 1998 to challenge the unlawful commencement and ongoing process of land adjudication over ancestral and un-registered community land in BARTABWA WARD, KESUMET SUB LOCATION specifically KESUMET ADJUDICATION SECTION without due process, to wit, consultation or participation of the Internally displaced persons in violation of their constitutional rights.” Emphasis mine
23. There is no doubt that this Constitutional Petition is crafted in the manner set out in the case of ANARITA KARIMI NJERU .V. R 1976 – 1980 KLR 1272 and re-affirmed in MUMO MATEMU V. TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS 2003 eKLR. The Constitutional provisions alleged to be violated together with other statutory provisions have been clearly set out including the manner in which the violation have been done. There is also no doubt that this court, under Article 162(2) (b) of the Constitution as read with Section 13(3) of the Environment and Land Court Act has the jurisdiction to hear and determine Constitutional Petition. On the other hand, however, Section 30(1) of the Land Adjudication Act provides that;
“Except with the consent in writing of the adjudication officer. no person shall institute and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act.”
24. Section 26 of the same Act provides for the objection to any adjudication register within 60 days of the date of completion of the register. Section 29 states that any person aggrieved by the determination of an objection under Section 26 may within 60 days after that determination appeal to the Minister whose decision shall be final.
25. In his submissions, Counsel for the Petitioner having cited Section 30 of the Act goes on to add that:
2: “The purpose of this provision is to prevent parallel civil suits that may interfere with the statutory adjudication process. It is intended to regulate ordinary civil claims relating to interests in land”
3; “This is a constitutional Petition. Not an ordinary Civil claim”.
26. What I understand Section 30 of the Land Adjudication Act to be referring to is the doctrine of Constitutional Avoidance. That doctrine was discussed in the case of GABRIEL MUTAVA & 2 OTHERS V. MANAGING DIRECTOR KENYA PORTS AUTHORITY & ANOTHER 2016 KECA 411 KLR [CIVIL APPEAL NO. 67 OF 2015], the court of Appeal stated the following:
“Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional court by bringing actions that could very well and effectively be dealt with in that other forum. Such a party ought to seek redress under such other legal regime rather than trivialize Constitutional litigation ………….
A ………. To the foregoing is the principle of Constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a Constitutional issue, that should be done.”
27. In this case, Section 26 of the Land Adjudication Act provides for a clear remedy available to a party who is affected by the register or who considers it to be incorrect to object in writing to the adjudication officer within 60 days. That Officer shall consider the objection and make a determination. Once that process is complete, a No objection register shall be prepared and delivered to the director of Land Adjudication who shall, after certifying it, forward it to the Chief Land Registrar. Section 29 of the Act provides that any person aggrieved by the determination shall appeal to the Minister whose decision shall be final. It appears to me that the Petitioner’s remedy is to be found in the relevant provisions in the Land Adjudication Act.
28. The Constitutional Avoidance Doctrine is also referred to as the Constitutional Avoidance Rule. It is defined in BLACK’S LAW DICTIONARY 10TH EDITION as;
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”
29. The Supreme Court in the case of COMMUNICATIONS COMMISSION OF KENYA & 5 OTHERS V. ROYAL MEDIA SERVICES LTD & 5 OTHERS PETITION NO. 14A, 14B & 14C OF 2014 [2014eKLR] stated thus; in paragraph 256:
“The appellants in this case are seeking to invoke the ‘principle of avoidance’ also known as ‘Constitutional avoidance’. The principle of avoidance entails that a court will not determine a Constitutional issue when a matter may properly be decided on another basis.”
30. The court then went on to cite KENTRIDGE A. J in his minority judgment in the South African Constitutional Court Case of S. V. MHLUNGU 1995 (3) 5A 867 (CC) as follows:
“I would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a Constitutional issue, that that is the cause which should be followed.”
31. And at paragraph 257, our Constitutional Court adopted the decision of the U.S Supreme Court in the case of ASHWANDER V. TENNESSE VALLEY AUTHORITY 297 V.S 288, 347 (1936) where that court held that it would not decide a Constitutional question which was property before it if there was also some other basis upon which the case could have been disposed off.
32. In view of the above precedents, there can be no merit in the submission by the Petitioners’ Counsel that Section 30 (1) of the Land Adjudication Act or indeed any other provision under that Act can only apply in ordinary civil suits. The doctrine of Constitutional avoidance applies in such a Petition. The Petitioners grievance in the circumstances of this case, can be addressed under the provisions of the Land Adjudication Act. I am guided by the decision of the Court of Appeal in the case of SPEAKER OF THE NATIONAL ASSEMBLY V. KARUME CIVIL APPLICATION NO. 92 OF 1992 [1992 KECA 42 KLR] where the court stated as follows in paragraph 15:
“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress at any particular grievance prescribed by the Constitution or any Act of Parliament, that procedure should be strictly followed.”
33. I therefore agree with the submissions by Counsel for the 1st, 2nd, 4th and 5th Respondents at page 2 that:
“It is the respondents’ contention that there do exist an alternative remedy that should have been pursued by the Petitioners instead of resorting to a Constitutional Petition.”
34. Counsel then adds at page 3 that;
“In addition to failing to avail themselves at the dispute resolution mechanism provided by the land adjudication act, the Petitioners have filed these proceedings without the consent of the Land adjudication officer as required by section 30 (1) & (2) of the land adjudication act Cap 284 Laws of Kenya which states …………………”
35. Aid in the penultimate paragraph of his submissions, counsel for the 1st, 2nd, 4th and 5th Respondents observes that:
“Yet, if the prayers sought in their application are granted they would in effect violate the rights other faith participants in the adjudication process by voiding an ongoing land adjudication to give the Petitioners preferential treatment instead of the process being open to all persons residing on/in Kesumet Adjudication Section.”
36. There is merit in that submission. As already stated earlier in this ruling, the Petitioners have pleaded in paragraph 11 of their Petition that the land adjudication process is “on-going”. The same averment is repeated in paragraph 26 as follows:
26: “owing to the above, the ongoing adjudication is being conducted in violations of the principle of public participation, right to property and protection of internally displaced person.” Emphasis mine.
37. To grant the orders sought in the Motion would stall the adjudication process thereby prejudicing other parties with interests in the Kesumet Adjudication Section and yet the Petitioners and any other interested parties have recourse to the relevant provisions of the Land Adjudication Act to remedy any grievances that may arise in the on-going exercise. In my view, both the Motion and the Petition on which it is anchored must give deference to the doctrine of Constitutional Avoidance which is applicable in the circumstances of this case. Both are for striking out.
38. With regard to costs, they follow the event. I see no reasons why I should not grant costs to the 1st, 2nd, 4th and 5th Respondents.
39. Ultimately therefore, this court makes the following dispositive orders:
1. The Petition and Motion dated 4th September 2025 are struck out.
2. Costs to the 1st, 2nd, 4th and 5th Respondents.