Introduction
1. The notice of motion dated 27th April 2025 seeks the following orders;
a) A conservatory order restraining the 1st, 2nd and 3rd respondents either acting by themselves, agents, representatives and servants from processing documents, affecting transfers, issuing title deeds or in any manner whatsoever interfering with the status quo in land ownership of parcel No. 9 in Borenin Adjudication Section (suit property) pending hearing and determination of the application and the suit.
b) An order restraining the 3rd and 4th respondents individually, collectively by themselves, their agents, employees or servants from trespassing, harassing, detaining, prosecuting or in any manner whatsoever, interfering with the ppetitioner’s right of possession, quiet enjoyment, possession/or use of the suit property pending hearing and determination of the application and the suit.
c) A declaration that the decision of the respondents to derive the petitioners of his property and register the same in the names of the 5th and 6th respondents was unconstitutional, illegal null and void and be set aside.
d) An order compelling the 4th respondent to stop the issuance of title deed for Land parcel 9 in Borenin Adjudication Section pending hearing and determination of the application and the suit.
e) Costs of the application be in the cause.
2. The application is premised on the grounds predicated on the face of the application and supported by the affidavit of the petitioner sworn on 27th April, 2025. He avers that his grandfather Kipruluswo settled on parcel No. 9 (suit property) in Borenin adjudication Section in the 1940’s and had been cultivating the land; that his family has buried their kin thereat; that his father was born in the suit property and in the year 2000 passed the land over to the him; that in 2019, adjudication was conducted but the 5th & 6th respondents filed objection proceedings against him on grounds that the land belonged to them by extension of their clan; that his father attended the hearing before the adjudication committee who made a decision in favour of the objectors; that his father and him were not served with the decision of the committee and were therefore not able to appeal the decision; that he was arrested in 2024 for trespass and upon visiting the adjudication office, John Laku, the ADLAS undertook to investigate the matter regarding the suit property; that he has continued to be harassed by the area chief and the 5th & 6th respondents and most of the occupants in the area. He attached the following documents to his application;
i) Photographs of the grave site marked JA
ii) Copies of adjudication proceedings marked JA2
iii) Letter dated 17th April 2024, marked JE
3. The application is opposed by the 1st to 4th respondents vide grounds of opposition dated 11th September, 2025 where they state as follows:
1. That the nature of this case demands that the petitioner approaches the court by way of ordinary litigation i.e. suit and not by a constitutional petition.
2. That the land parcel in question was subjected to the full adjudication process in which the petitioner was present and was accorded every opportunity to raise an objection. The objection was heard and determined in favour of the 5th & 6th respondents.
3. The petitioner failed to appeal the decision within sixty days as set out under section 29 of the Land Adjudication Act (LAA) (Cap 284) Laws of Kenya.
4. The petitioner does not have any claim or any registered interest in the land in question.
5. That the orders sought cannot be granted as they seek to deprive the presumptive owners of their land without due process which is a violation of their constitutional rights.
6. The petition is frivolous, vexatious and otherwise an abuse of the court process. The respondent prays that the petition be dismissed.
SUBMISSIONS
4. Pursuant to directions given on 16th September, 2025 that the application would be disposed of by written submissions, the petitioners and 1st to 4th respondents filed submissions.
Applicant’s submissions
5. In his submissions dated 8th October, 2025 the petitioner identified the following as the issues for the court’s determination: -
i) Whether the applicant has established a prima facie case with a probability of success;
ii) Whether the applicant stands to suffer irreparable harm if the orders sought are not granted;
iii) Where the balance of convenience lies;
iv) Whether the public interest warrants the grant of injunctive relief.
6. The applicant submits that he was initially lawfully included in the adjudication register for Borenin adjudication section but was later removed without notice, hearing or justification which actions by the respondents are contrary to Article 47 of the constitution which guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. He relied on the cases of Giella v Cassman Brown & Co. Ltd [1973]EA 358, Nguruman Limited v Jan Bonde Nielsen & 2 others [2014]eKLR and Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 24 (KLR) and submitted that in the case of Dina Management Limited v County Government of Mombasa & 5 others, the supreme court underscored that title is merely the end product of a process and where the process leading to the issuance of title is flawed, such title cannot be protected under Article 40 of the Constitution.
7. He submitted that his family having occupied and developed the suit property for decades, issuance of a certificate of title to the 5th and 6th respondents will deprive his family and himself their ancestral land, a loss that cannot be adequately compensated by damages. He stated that the balance of convenience titled in favour of maintaining status quo and relied on the decisions in Ndungu v Chief Land Registrar, Nairobi & Another, Env’t & Land Case 249 of 2016, [2025] KEELC 569 (KLR) (12 February 2025) and Ole Pere & another v District Land Adjudication and settlement Officer, Narok South & 24 others, Civil Appeal 79 of 2019, [2025] KECA 113 (KLR) (24 January 2025).
Respondent’s submissions
8. In their submissions dated 7th October 2025, the 1st to 4th respondents submitted that the petitioner should have filed a civil suit instead of a constitutional petition and that the petitioner had not demonstrated what exceptional circumstances warranted the invocation of the special jurisdiction of a constitutional petition.
9. They submitted that under Section 29(1) of the LAA, if a party is dissatisfied with the adjudication process, he/she can appeal to the minister by delivering to the minister an appeal in writing specifying the grounds of appeal. They further submitted that the suit property having been subjected to the full adjudication process which the petitioner participated in and having failed to appeal the decision within sixty days as provided for in section 29 of the LAA, he should not be granted the orders sought.
10. They urged the court to dismiss the application and petition which are devoid of merit, misconceived and bad in law.
Analysis and determination
11. I have considered the application, the affidavit in support, the grounds of opposition and submissions on record as well as the law and case law cited. I find the issues for determination to be;
i) Whether the petition is incompetent?
ii) If the answer to 1 is negative, whether the applicant
has made up a case for being granted the orders sought?
iii) What orders should the court issue?
12. The dispute in this petition arose within the context of land adjudication under the LAA, whose purpose is provided in the preamble as follows:-
“An act of Parliament to provide for the ascertainment and recording of rights and interests in trust Land, and for purposes connected therewith and purposes incidental thereto.
13. The LAA deals with the process of ascertaining rights and interests belonging to different claimants during adjudication of Trust Land (now referred to as Community Land).
14. The record before the court confirms that the petitioner’s father, Julius Aengwo, Chepchieng Chepkok, the 5th and 6th respondents presented themselves before the Land Committee on 9th August, 2019. Upon hearing both parties, the committee delivered its findings on the same date in favour of Chepchieng Chepkok and the 5th and 6th respondents and directed the aggrieved party to file an appeal in 14 days. No evidence has been availed showing that the petitioner’s father complained to the executive officer of the committee within 14 days as provided for under section 21 (3) of the LAA although he was aware of the decision because it was made in his presence.
15. The LAA provides a clear appellate mechanism from the committee stage up to the Minister under section 21,22, 26 and 29 of the LAA. On the procedure to be followed by an aggrieved party after the committee has made a decision, Section 21 and 22 of the LAA provide;
“21. (1) ……………………………………………………………..
(2) …… …………………………………………………………..
(3) Any person named in or affected by a decision of the committee who considers the decision to be incorrect may, within fourteen days after the decision, complain to the executive officer of the committee, saying in what respect he considers the decision to be incorrect.
(4) Upon receipt of a complaint under subsection (3) of this section, the executive officer of the committee shall refer it with all the particulars of the case to the executive officer of the board, who shall submit it to the board.”
22.The board shall hear and determine any matter referred to it or complaint made to it under section 21 of this Act.
18. In my considered view, the petitioner’s father had a right to complain to the executive officer of the committee, saying in what respect he considered the decision to be incorrect. He did not do so. Instead, the petitioner is now seeking an escape route through this constitutional petition to contest the legality and fairness of the process leading to the decision by the committee.
19. The threshold for a constitutional petition was clearly enunciated in the case of Anarita Karimi Njeru v Republic [1979] eKLR as follows-;
“We would, however, again stress that if a person is seeking redress from the High court on a matter which involves a reference to the constitution, it is important (if any to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
19. There is an appropriate legal procedure established under the LAA for addressing grievances over land that is within an adjudication section. A number of entities are established by the LAA to determine the rights and interests in land within an adjudication section which hold quasi-judicial authority. The court may only contest the decisions of these bodies under its supervisory jurisdiction, specifically through judicial review proceedings.
19. It is also clear that the issues raised in this petition of ownership over the suit property do not raise any constitutional issues. These issues can adequately be addressed by statute. Courts should discourage invocation of the constitutional process where there exist alternative statutory remedies as stated in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) thus;
“where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
29. For the above reasons, l find that the petition submitted to this court against the respondents is incompetent and is therefore struck out in its entirety with costs to the respondents.
30. Since l have downed my judicial tools, discussing the application dated 27th April, 2025 will be an academic exercise.
31. Orders accordingly.
Dated, signed and delivered virtually at Iten this 3rd day of December, 2025 in the absence of the parties.
Court Assistant: Christine