1. This suit was instituted through a petition dated 15th September 2025. In part A of the petition, the petitioners have described themselves as adults of sound mind and families residing for gain in Loboi, Marigat Sub-County, Baringo County in the Republic of Kenya. The specific individuals behind the petition are identified in the body of the petition as Kibon Mardona, Joseph Kibet, Samuel Kaptanui, Laban Ngetich, Albert Cheboiwo and Samuel Kiptek. The specific families represented by the individuals behind the petition are also indicated in the body of the petition.
2. As can be discerned from the averments/contentions in the petition and affidavit sworn in support thereof, the suit is premised on the ground that the petitioners and their families were deprived of their right to land when the late Daniel Toroitich Arap Moi was adjudicated as the owner of land parcel No. 1168 Maji Ndege “B” which traditionally was their ancestral land. The petitioners acknowledge that the suit land was subjected to the process of land adjudication provided for in the Land Adjudication Act, Cap 284 Laws of Kenya but claim that they ceded their rights or interests to the suit land to the 1st respondent on understanding/promise that they would be compensated by the late President by being given land elsewhere or compensated for loss of their ancestral land, in particular, the petitioners allege that they were to be compensated with land in Kitale, which promise the late President failed to honour.
3. It is the petitioners’ case that they had legitimate expectation that the promise of compensation would be honoured by the late President and/or his Estate.
4. Terming the actions/conduct of the respondents complained of a breach of their constitutional and statutory rights to property, the petitioners instituted this petition/suit seeking judgment against the respondents, jointly and severally for:-
a) A declaration that the respondents’ acts and in particular arbitrary deprivation of the parcel of land No. 1168-Maji Ndege “B” without any compensation amounts to violation of their constitutional rights hence unconstitutional, null and void ab initio;
b) A declaration that the actions of the Deputy Commissioner, Marigat Sub County, the Land Adjudication Officer Baringo County and the other respondents of carrying out parcelling, titling of the suit land, 1168 Maji Ndege “B” in favour of the retired President, Daniel Toroitich Arap Moi, without compensation to them and/or their families was arbitrary, unfair and violated their families’ constitutional rights under the Constitution of Kenya, 2010 and the provisions of retired (Old Kenyan Constitution);
c) An order of compensation directing the 1st respondent to compensate their families for loss of their ancestral land or equivalent relief in such sum as are equal to the current market value of the suit parcel 1168 Maji Ndege “B” measuring 271 acres (approx) or such other sum as shall be assessed by the Honourable Court;
d) Costs of the petition and interest thereof;
e) Any other or further orders and/or appropriate remedy as the Honourable Court may deem just in furtherance of justice.
5. Upon being served with the suit papers, the 1st respondent filed a Notice of Preliminary Objection, dated 7th October 2025 seeking to strike the suit, in limine, on the grounds that:-
i) The named petitioners are not legal persons and/or entities known in law and therefore lack capacity and/or locus standi to institute these proceedings;
ii) This honourable court has no jurisdiction to entertain the petition as no proper constitutional issues arise for determination;
iii) That the petitioners’ claim is time barred;
iv) That the petition is otherwise an abuse of the process of the court.
6. The petitioners filed grounds of opposition to the preliminary objection dated 25th November 2025, in which they contend that the preliminary objection does not raise a pure point of law; that the grounds advanced are matters for contestation and ascertainment; that the contention by the 1st respondent that the petition has no proper constitutional issues for determination by this court is nebulous and speculative and that the issue of time bar does not apply in constitutional petitions. Further, that the question of the alleged time bar would require evidence hence not a good ground for preliminary objection.
7. Terming the preliminary objection an abuse of the process of the court, the petitioners urge the court to dismiss it with costs to them.
8. Pursuant to directions given on 20th November 2025, the notice of preliminary objection was disposed of by way of written submissions.
9. In his submissions dated 27th November 2025 the 1st respondent has inter alia submitted as follows:-
“...The petitioners are not legal persons and/or entities known in law and therefore lack capacity and/or locus standi to institute these proceedings... Since these proceedings have been instituted by ‘families’, the point of call logically would be to interrogate whether a family as a single unit has legal capacity...We are cautious to emphasize that a family is not a person within the meaning of Article 260 of the Constitution. Enlargement of locus standi in a manner that is permitted under Articles 22 and 258 to allow every person, including associations whether incorporated or not, to institute proceedings before court is only permitted in public interest litigation challenging contravention of the constitution. This enlargement does not extend to litigation for enforcement of private and individual interests and rights.....as the matter before this court concerns alleged private and personal interests of the petitioners over alleged vast but unidentifiable parcels of land, it is not a matter where Article 22 and 258 would apply to enlarge locus standi...the petitioners herein as named are not legal persons capable of bringing this petition. The naming of the said families as petitioners while designating certain individuals as representatives of those families besides each named family does not vest the said families with requisite legal standing to bring this petition. The same is but a misguided attempt to bypass locus standi.”
10. On whether the petition raises proper constitutional issues for determination, the 1st respondent has submitted as follows:-
“...this Honourable court has a duty to reject any invitation to consider a petition that fails to meet the established criteria for constitutional petitions...the matter... fails to meet the required threshold...the petitioners have...invoked this Honourable Court’s attention to adjudicate a constitutional petition while neglecting to specify any of their rights or fundamental freedoms that have been breached or threatened. This lack of specificity undermines the integrity of the petition. ...the petitioners’ claims are...ordinary land claims which ought to be ventilated as a civil claim as prescribed by the relevant legislation to enforce a contract concerning land such as section 38 and 40 of the Land Act which provides for remedies for breach of contract over land. The present petition forces this court to look at the alleged contractual arrangements between the parties herein so as to determine whether the rights and liabilities arising from the said arrangements were fully discharged. Those are not constitutional questions... in so far that the instant petition raises only civil claims that does not raise a constitutional question which would force this court to consider constitutional values, the instant suit invokes the doctrine of constitutional avoidance...the upshot of the above is that the instant petition is for striking out with costs. However, we must point out that the baptism of the petitioners’ claims as constitutional issues is not an accident but is rather choreographed scheme by the petitioners to evade the statute of limitation as they are aware that their claim is stale, the same having arisen more than forty (40) years ago.”
11. As to whether the petition is time barred, the 1st respondent acknowledges that the constitution does not explicitly provide a limitation for filing of constitutional petitions but submits that the principle that petitions founded on claims of violation of fundamental rights and freedoms are not subject to limitation of actions is not absolute. The respondent submits that the principle is to be applied by a court of law on a case by case basis taking into account factors such as the nature of the right, the time taken to ventilate the alleged violation and whether the claimant may be riding on a mischief.
12. It is pointed out that the petitioners’ cause of action accrued more than 40 years ago, specifically in 1981, and submitted that the reason given for failure to ventilate the petitioner’s claim in time do not add up. According to the 1st respondent, the delay in filing the instant petition is not only inordinate but also unexplained.
13. The 1st respondent has further submitted that the petitioners have not demonstrated that they attempted to seek audience with the late President Daniel Toroitich Arap Moi before his demise and/or his estate after his demise.
14. On whether the petition is an abuse of the court process, the 1st respondent points out that there was another suit between them and the petitioners to wit Kabarnet ELC Judicial review Case No. 3 of 2023 which was dismissed by this court and claiming that the instant petition was filed to circumvent the outcome of the dismissed suit, the 1st respondent terms filing of the instant suit an abuse of the process of the court and urges this court to dismiss it with costs.
15. In their submissions dated 2nd March 2026, the petitioners have restated the grounds taken up in opposition to the petition. In that regard, the petitioners have inter alia submitted as follows:-
“Ground one is not pure point of law because the petitioners are explicitly identifiable natural persons, each named together with their natural identification numbers; the petitioners authority to represent their respective families is expressly documented in the minutes dated 10th June 2024 and filed with the petition and marked as annexture JKA. John Kandie was also authorized in the minutes held on 13th April 2021; annexture JKB.”
16. On ground 2, whether the petition raises constitutional issue(s), it is submitted;
“The petition herein raises constitutional grievances arising from alleged violation of articles 2, 10, 19, 20, 21, 22, 23, 27, 28, 40, 47, 162(2)(b), 258 and 259 of the constitution. These claims include right to property, right to fair administrative action, to equality, to human dignity all of which fall within the jurisdiction of the Environment and Land Court under Article 162(2)(b) and section 3 and 13 of the Environment and Land Court Act. No party should be left unheard in any litigation and in the petition, the petitioners have succinctly set out the various Articles of the constitution which were violated and how the petitioners were deprived of their ancestral land in a process that was not only unconstitutional but invalid...the petitioners were deprived of their land without any compensation and also in violation of Article 27 of the constitution on equal treatment and benefit of the law and to be treated with dignity in a matter touching on their right to the protection of the right to property...”
17. It is the petitioners case that they have accounted for the delay in filing the suit. In that regard, it is the petitioners case that the 1st respondent had created equitable expectation/trust that they would be compensated and that it became clear in 2021 that the 1st respondent was not ready to honour his promise to compensate them.
18. Regarding the contention that the petition is time barred, the petitioners have submitted that, that ground, cannot hold because of the following reasons:-
i) Limitation of actions does not bar claims for enforcement of fundamental rights unless expressly stated;
ii) The argument that the cause of action arose 44 years ago has not been demonstrated/proven and/or requires evidence to proof;
iii) Violation of the petitioners rights has been on going and is on going;
iv) That the violation of the petitioners’ rights became very clear in 2021.
19. As to whether the instant suit is an abuse of the court process because the petitioners had filed another suit, Kabarnet judicial review case No. 3 of 2023, the petitioners submit that judicial review proceedings are distinct from constitutional proceedings hence the claim has no basis in law.
Analysis and determination
19. I have read and considered the grounds taken up by the 1st respondent in support of his objection to the petition, the opposition thereto and the submissions by the 1st respondent and the petitioners. I find te issues arising from the preliminary objection and the grounds of opposition filed in respect thereof to be as follows:-
i) Whether the issues raised in the preliminary objection are pure points of law on which the preliminary objection can hinge;
ii) Whether the 1st respondent has made up a case for striking out of the petitioners’ suit;
iii) What orders should the court make?
20. On whether the issues raised in the preliminary objection are pure points of law on which the preliminary objection can hinge, I having read and considered the grounds taken up by the 1st respondent, particularly grounds 1, 2 and 3 and taken the view that the grounds raise issues which may in appropriate circumstances, lead to striking out of the suit preliminarily. For instance, the question as to whether the petition has been filed by none legal entities is a matter that the court can determine on the basis of the pleadings filed and without taking evidence to determine the issue. The question as to whether the petition raises a constitutional issue or issues is equally a question that the Court can determine without taking evidence to determine hence capable of formimg a basis of determining the petition preliminarily on account of the doctrine of constitutional avoidance. The same thing applies to the question of time bar or delay in filing of the petition. For the foregoing reasons, I do find that the preliminary objection raises questions of law which, in appropriate circumstances, may lead to striking of the petition without going into its merits.
21. On whether the petition has being filed by none legal entities, a review of the pleadings filed indicates that the petition has been filed by families but there are specific individuals said to be representing the families. Whereas its true that families are none legal persons incapable of filing suits on their own, in the circumstances of this case, where there are named persons who have brought the suit on behalf of their families, I consider the defect in the pleadings to be one of form as opposed to substance hence capable of being cured by amendment of the pleadings and/or by invoking Article 159 of the Constitution.
22. The mischief sought to be cured or addressed by requiring that a suit be filed by known or identifiable persons is to help the court to know the persons who may benefit from the rights or obligations arising from the judgment or any orders issued by it. In the circumstances of this case, the persons to benefit or bear responsibility from the judgment or any orders of the court are identifiable. It will therefore not be in the interest of justice to strike the suit based on the mere fact that it is expressed to be brought by families when there are individuals named as the ones prosecuting the suit on behalf of their families.
23. As to whether the petition raises constitutional issues, I have carefully read and considered the circumstances leadings to the filing of the petition, the petitioner’s cause of action and the reliefs. I have also taken into account the submissions by the parties on the question as to whether the petition raises constitutional issues. My reading of ground 2 is that the 1st respondent has invoked the doctrine of constitutional avoidance, which as pointed out herein, above may lead to termination of the petition without going into its merits.
24. In Brookside Dairy Limited v. Mohamed & another (Constitutional Petition E339 of 2022) (2022) KEHC 13627 (KLR) (Commercial and Tax) (13 October 2022) (Ruling) the court stated as follows concerning the doctrine of constitutional avoidance:-
“31. The doctrine of constitutional avoidance does not divest this court of the jurisdiction to hear and determine this matter. What the doctrine means is that while this court can indeed hear and determine this matter, it restrains itself to hear the same because there is another appropriate forum that can hear and determine the matter effectively.
32. The question as to what constitutes a constitutional question was determined in the case CNM V WMG [2018] eKLR where J Mativo stated:'20.In my view, this Petition does not raise constitutional questions at all. When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values. The issues raised here will only require the Court to examine defamation law. 21.The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others in which Justice O’Regan recalling the Constitutional Court’s observations in S vs Boesak notes that:-'The Constitution provides no definition of 'constitutional matter.' What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State, the interpretation, application and upholding of the Constitution are also constitutional matters. So too, is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.'
33. He further states, 'Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation. At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched fundamental rights. Therefore the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organize an analysis of the nature of constitutional matters arising from the cases before the Court.'
34. It is evident that for one to determine whether the argument raises a constitutional issue, the court should consider whether the argument forces the court to consider constitutional rights or values. The petitioner has brought this suit against the respondents for utterances that were made in a public rally by the 1st respondent. As to whether it raises a constitutional question, it would be necessary to examine the provisions alleged to be contravened and how they have been contravened and whether the petitioner has suffered any damage / loss as a result of the said contravention or violation.
35. It is also important to consider the nature of the orders sought in the petition, as to whether they fall under the ambit of those provided for under Article 23 (3) of the Constitution. If both aspects are in the negative, then the petition does not raise a constitutional question.
25. The court further stated:-
“The doctrine of constitutional avoidance has been addressed in quite a number of decisions by our courts. It was expounded by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where the court held as follows:- '(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. In South Africa, in S v Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:'I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.'(258) From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.'
37. In Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others [2021] eKLR, the court stated; '30.So as to ensure that constitutional jurisdiction of the court is not misused, the doctrine of constitutional avoidance comes in handy. It frowns upon the practice of bringing ordinary disputes to the constitutional court. In that regard, the Supreme Court observed as follows in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. 'Also see Council of County Governors v Attorney General & 12 others [2018] eKLR.
38. Justice J M Mutungi in Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR observed that: -'Parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional petitions which is not proper where there is an alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitution court.'
39. In the case of Bernard Murage -vs- Fine Serve Africa Ltd & others (2015) eKLR the Court stated:-'Not each and every violation of the Law must be raised before the High Court as a constitutional issue. Where there exist an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.'
40. In the case of Godfrey Paul Okutoyi & others –vs- Habil Olaka & Another (2018) eKLR Chacha J on the issue of there being an alternative remedy in lieu of constitutional remedies at paragraph 65 stated:-'It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in the manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a Constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.'
41. In the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) Mativo J set out the exceptions to the doctrine of constitutional avoidance as hereunder: -Where the constitutional violation is so clear and of direct relevance to the matter, ii. In the absence of an apparent alternative form of ordinary relief and iii. Where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.2
42. ...... This court will have to look into issues like whether the utterances meant that the petitioner exploits the dairy farmers who sell and supply milk to the petitioner as raw material for its business, whether it also means that the petitioner subjects the said farmers of suppliers to unfair treatment, whether the utterances are false, etc. In my humble view this petition does not raise a constitutional question.
43. This question will be better and effectively
determined in a civil court on what the alleged utterances meant and whether they were false or not. In as much as the petitioner makes reference to Article 33(2) (d) and 27 of the Constitution, this court will have to determine the issues aforesaid before it can eventually determine the issue of breach of the said Articles. The key grievance here is whether the utterances were in the first instance made and whether they mean what the petitioner is alleging. The court will also have to determine whether the utterances are false and consequently whether the petitioner should be compensated or not. If that other court agrees with the petitioner then it will grant the effective remedies. It is therefore not the only course that will give the petitioner the remedy it seeks. I am guided by the case of KKB v SCM & 5 others (supra) wherein it was stated,36.In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant‘s cause….”
26. I have gauged the issues raised in the instant petition against the principles espoused in the above cited cases and the cases cited by the 1st respondent and the petitioners. Whereas the petitioners contend that the petition raises constitutional issues and have cited several articles of the Constitution said to have been infringed by the respondents in carrying out the activities complained of namely, parcelling and titling of the suit land, parcel number 1168 Maji Ndege “B” in favour of the late president Daniel Toroitich Arap Moi, I do find the said actions and omissions to be matters that ought to have been determined in accordance with the applicable law namely the Land Adjudication Act and/or through a civil suit to enforce any promises that may have been made but not fulfilled by the 1st respondent. There is nothing constitutional in the claim by the petitioners that they were promised compensation which promise was not honoured by the promisor, the late president Daniel Toroitich Arap Moi. The petitioners have not satisfied this court that they could not pursue their alleged rights in the suit property using the dispute resolution mechanism provided for under the Land Adjudication Act and/or that they were prevented from pursuing their rights under the applicable statutes. For the foregoing reasons, I find and hold that the instant suit is a civil dispute clothed as a constitutional petition and l refuse to accept the invitation to treat it as a constitutional petition.
27. With regard to the delay in filing the petition or the contention that the suit is time barred, upon considering the principles that undergird preliminary objections espoused in Mukisa Biscuits Manufacturing Ltd v. Westend Distributors Ltd (1969) EA 696 among other decided cases, I find and hold that the alleged time bar or delay in filing the petition cannot form a good ground for hinging the 1st respondent’s preliminary objection. This is so because the constitution does not expressly provide timelines for filing constitutional petitions. What would form the basis for striking out a petition on alleged time bar is not the alleged time bar per se but proof that there was inordinate and unexplained delay in bringing the constitutional petition.
28. In determining whether the delay is indeed inordinate and unexplained, the court would need to consider the explanations and/or arguments and counterarguments by the parties and ultimately exercise its discretion thereupon. Such considerations bring alleged inordinate and unexplained delay in filing a suit outside the purview of a preliminary objection. In that regard, see the case of Ngari & Another v Muia & another (Environment and Land Case E004 of 2024) KEELC 5713 (KLR) where it was held that the issue of limitation, which includes arguments about inordinate delay, should be raised through a formal application supported by evidence and not through a preliminary objection.
29. The upshot of the foregoing is that the 1st respondent’s notice of preliminary objection dated 7th October 2025 has merit in that no proper constitutional issues arise from the petition for the Court’s determination. Consequently, I uphold it by striking out the the petition. I award costs of the suit to the 1st respondent to be borne by the individuals named in the petition as the ones who filed it on behalf of the named families.
30. Orders accordingly.
Ruling dated, signed and delivered virtually at Busia this 15th day of April, 2026
In the presence of;
Ms Kipkemoi h/b for Mr Arusei for the Petitioners
Mr Kere for the 1st Respondent
N/A for the 2nd to 5th Respondents
Court Assistant; Tracy
2. As can be discerned from the averments/contentions in the petition and affidavit sworn in support thereof, the suit is premised on the ground that the petitioners and their families were deprived of their right to land when the late Daniel Toroitich Arap Moi was adjudicated as the owner of land parcel No. 1168 Maji Ndege “B” which traditionally was their ancestral land. The petitioners acknowledge that the suit land was subjected to the process of land adjudication provided for in the Land Adjudication Act, Cap 284 Laws of Kenya but claim that they ceded their rights or interests to the suit land to the 1st respondent on understanding/promise that they would be compensated by the late President by being given land elsewhere or compensated for loss of their ancestral land, in particular, the petitioners allege that they were to be compensated with land in Kitale, which promise the late President failed to honour.
3. It is the petitioners’ case that they had legitimate expectation that the promise of compensation would be honoured by the late President and/or his Estate.
4. Terming the actions/conduct of the respondents complained of a breach of their constitutional and statutory rights to property, the petitioners instituted this petition/suit seeking judgment against the respondents, jointly and severally for:-
a) A declaration that the respondents’ acts and in particular arbitrary deprivation of the parcel of land No. 1168-Maji Ndege “B” without any compensation amounts to violation of their constitutional rights hence unconstitutional, null and void ab initio;
b) A declaration that the actions of the Deputy Commissioner, Marigat Sub County, the Land Adjudication Officer Baringo County and the other respondents of carrying out parcelling, titling of the suit land, 1168 Maji Ndege “B” in favour of the retired President, Daniel Toroitich Arap Moi, without compensation to them and/or their families was arbitrary, unfair and violated their families’ constitutional rights under the Constitution of Kenya, 2010 and the provisions of retired (Old Kenyan Constitution);
c) An order of compensation directing the 1st respondent to compensate their families for loss of their ancestral land or equivalent relief in such sum as are equal to the current market value of the suit parcel 1168 Maji Ndege “B” measuring 271 acres (approx) or such other sum as shall be assessed by the Honourable Court;
d) Costs of the petition and interest thereof;
e) Any other or further orders and/or appropriate remedy as the Honourable Court may deem just in furtherance of justice.
5. Upon being served with the suit papers, the 1st respondent filed a Notice of Preliminary Objection, dated 7th October 2025 seeking to strike the suit, in limine, on the grounds that:-
i) The named petitioners are not legal persons and/or entities known in law and therefore lack capacity and/or locus standi to institute these proceedings;
ii) This honourable court has no jurisdiction to entertain the petition as no proper constitutional issues arise for determination;
iii) That the petitioners’ claim is time barred;
iv) That the petition is otherwise an abuse of the process of the court.
6. The petitioners filed grounds of opposition to the preliminary objection dated 25th November 2025, in which they contend that the preliminary objection does not raise a pure point of law; that the grounds advanced are matters for contestation and ascertainment; that the contention by the 1st respondent that the petition has no proper constitutional issues for determination by this court is nebulous and speculative and that the issue of time bar does not apply in constitutional petitions. Further, that the question of the alleged time bar would require evidence hence not a good ground for preliminary objection.
7. Terming the preliminary objection an abuse of the process of the court, the petitioners urge the court to dismiss it with costs to them.
8. Pursuant to directions given on 20th November 2025, the notice of preliminary objection was disposed of by way of written submissions.
9. In his submissions dated 27th November 2025 the 1st respondent has inter alia submitted as follows:-
“...The petitioners are not legal persons and/or entities known in law and therefore lack capacity and/or locus standi to institute these proceedings... Since these proceedings have been instituted by ‘families’, the point of call logically would be to interrogate whether a family as a single unit has legal capacity...We are cautious to emphasize that a family is not a person within the meaning of Article 260 of the Constitution. Enlargement of locus standi in a manner that is permitted under Articles 22 and 258 to allow every person, including associations whether incorporated or not, to institute proceedings before court is only permitted in public interest litigation challenging contravention of the constitution. This enlargement does not extend to litigation for enforcement of private and individual interests and rights.....as the matter before this court concerns alleged private and personal interests of the petitioners over alleged vast but unidentifiable parcels of land, it is not a matter where Article 22 and 258 would apply to enlarge locus standi...the petitioners herein as named are not legal persons capable of bringing this petition. The naming of the said families as petitioners while designating certain individuals as representatives of those families besides each named family does not vest the said families with requisite legal standing to bring this petition. The same is but a misguided attempt to bypass locus standi.”
10. On whether the petition raises proper constitutional issues for determination, the 1st respondent has submitted as follows:-
“...this Honourable court has a duty to reject any invitation to consider a petition that fails to meet the established criteria for constitutional petitions...the matter... fails to meet the required threshold...the petitioners have...invoked this Honourable Court’s attention to adjudicate a constitutional petition while neglecting to specify any of their rights or fundamental freedoms that have been breached or threatened. This lack of specificity undermines the integrity of the petition. ...the petitioners’ claims are...ordinary land claims which ought to be ventilated as a civil claim as prescribed by the relevant legislation to enforce a contract concerning land such as section 38 and 40 of the Land Act which provides for remedies for breach of contract over land. The present petition forces this court to look at the alleged contractual arrangements between the parties herein so as to determine whether the rights and liabilities arising from the said arrangements were fully discharged. Those are not constitutional questions... in so far that the instant petition raises only civil claims that does not raise a constitutional question which would force this court to consider constitutional values, the instant suit invokes the doctrine of constitutional avoidance...the upshot of the above is that the instant petition is for striking out with costs. However, we must point out that the baptism of the petitioners’ claims as constitutional issues is not an accident but is rather choreographed scheme by the petitioners to evade the statute of limitation as they are aware that their claim is stale, the same having arisen more than forty (40) years ago.”
11. As to whether the petition is time barred, the 1st respondent acknowledges that the constitution does not explicitly provide a limitation for filing of constitutional petitions but submits that the principle that petitions founded on claims of violation of fundamental rights and freedoms are not subject to limitation of actions is not absolute. The respondent submits that the principle is to be applied by a court of law on a case by case basis taking into account factors such as the nature of the right, the time taken to ventilate the alleged violation and whether the claimant may be riding on a mischief.
12. It is pointed out that the petitioners’ cause of action accrued more than 40 years ago, specifically in 1981, and submitted that the reason given for failure to ventilate the petitioner’s claim in time do not add up. According to the 1st respondent, the delay in filing the instant petition is not only inordinate but also unexplained.
13. The 1st respondent has further submitted that the petitioners have not demonstrated that they attempted to seek audience with the late President Daniel Toroitich Arap Moi before his demise and/or his estate after his demise.
14. On whether the petition is an abuse of the court process, the 1st respondent points out that there was another suit between them and the petitioners to wit Kabarnet ELC Judicial review Case No. 3 of 2023 which was dismissed by this court and claiming that the instant petition was filed to circumvent the outcome of the dismissed suit, the 1st respondent terms filing of the instant suit an abuse of the process of the court and urges this court to dismiss it with costs.
15. In their submissions dated 2nd March 2026, the petitioners have restated the grounds taken up in opposition to the petition. In that regard, the petitioners have inter alia submitted as follows:-
“Ground one is not pure point of law because the petitioners are explicitly identifiable natural persons, each named together with their natural identification numbers; the petitioners authority to represent their respective families is expressly documented in the minutes dated 10th June 2024 and filed with the petition and marked as annexture JKA. John Kandie was also authorized in the minutes held on 13th April 2021; annexture JKB.”
16. On ground 2, whether the petition raises constitutional issue(s), it is submitted;
“The petition herein raises constitutional grievances arising from alleged violation of articles 2, 10, 19, 20, 21, 22, 23, 27, 28, 40, 47, 162(2)(b), 258 and 259 of the constitution. These claims include right to property, right to fair administrative action, to equality, to human dignity all of which fall within the jurisdiction of the Environment and Land Court under Article 162(2)(b) and section 3 and 13 of the Environment and Land Court Act. No party should be left unheard in any litigation and in the petition, the petitioners have succinctly set out the various Articles of the constitution which were violated and how the petitioners were deprived of their ancestral land in a process that was not only unconstitutional but invalid...the petitioners were deprived of their land without any compensation and also in violation of Article 27 of the constitution on equal treatment and benefit of the law and to be treated with dignity in a matter touching on their right to the protection of the right to property...”
17. It is the petitioners case that they have accounted for the delay in filing the suit. In that regard, it is the petitioners case that the 1st respondent had created equitable expectation/trust that they would be compensated and that it became clear in 2021 that the 1st respondent was not ready to honour his promise to compensate them.
18. Regarding the contention that the petition is time barred, the petitioners have submitted that, that ground, cannot hold because of the following reasons:-
i) Limitation of actions does not bar claims for enforcement of fundamental rights unless expressly stated;
ii) The argument that the cause of action arose 44 years ago has not been demonstrated/proven and/or requires evidence to proof;
iii) Violation of the petitioners rights has been on going and is on going;
iv) That the violation of the petitioners’ rights became very clear in 2021.
19. As to whether the instant suit is an abuse of the court process because the petitioners had filed another suit, Kabarnet judicial review case No. 3 of 2023, the petitioners submit that judicial review proceedings are distinct from constitutional proceedings hence the claim has no basis in law.
Analysis and determination
19. I have read and considered the grounds taken up by the 1st respondent in support of his objection to the petition, the opposition thereto and the submissions by the 1st respondent and the petitioners. I find te issues arising from the preliminary objection and the grounds of opposition filed in respect thereof to be as follows:-
i) Whether the issues raised in the preliminary objection are pure points of law on which the preliminary objection can hinge;
ii) Whether the 1st respondent has made up a case for striking out of the petitioners’ suit;
iii) What orders should the court make?
20. On whether the issues raised in the preliminary objection are pure points of law on which the preliminary objection can hinge, I having read and considered the grounds taken up by the 1st respondent, particularly grounds 1, 2 and 3 and taken the view that the grounds raise issues which may in appropriate circumstances, lead to striking out of the suit preliminarily. For instance, the question as to whether the petition has been filed by none legal entities is a matter that the court can determine on the basis of the pleadings filed and without taking evidence to determine the issue. The question as to whether the petition raises a constitutional issue or issues is equally a question that the Court can determine without taking evidence to determine hence capable of formimg a basis of determining the petition preliminarily on account of the doctrine of constitutional avoidance. The same thing applies to the question of time bar or delay in filing of the petition. For the foregoing reasons, I do find that the preliminary objection raises questions of law which, in appropriate circumstances, may lead to striking of the petition without going into its merits.
21. On whether the petition has being filed by none legal entities, a review of the pleadings filed indicates that the petition has been filed by families but there are specific individuals said to be representing the families. Whereas its true that families are none legal persons incapable of filing suits on their own, in the circumstances of this case, where there are named persons who have brought the suit on behalf of their families, I consider the defect in the pleadings to be one of form as opposed to substance hence capable of being cured by amendment of the pleadings and/or by invoking Article 159 of the Constitution.
22. The mischief sought to be cured or addressed by requiring that a suit be filed by known or identifiable persons is to help the court to know the persons who may benefit from the rights or obligations arising from the judgment or any orders issued by it. In the circumstances of this case, the persons to benefit or bear responsibility from the judgment or any orders of the court are identifiable. It will therefore not be in the interest of justice to strike the suit based on the mere fact that it is expressed to be brought by families when there are individuals named as the ones prosecuting the suit on behalf of their families.
23. As to whether the petition raises constitutional issues, I have carefully read and considered the circumstances leadings to the filing of the petition, the petitioner’s cause of action and the reliefs. I have also taken into account the submissions by the parties on the question as to whether the petition raises constitutional issues. My reading of ground 2 is that the 1st respondent has invoked the doctrine of constitutional avoidance, which as pointed out herein, above may lead to termination of the petition without going into its merits.
24. In Brookside Dairy Limited v. Mohamed & another (Constitutional Petition E339 of 2022) (2022) KEHC 13627 (KLR) (Commercial and Tax) (13 October 2022) (Ruling) the court stated as follows concerning the doctrine of constitutional avoidance:-
“31. The doctrine of constitutional avoidance does not divest this court of the jurisdiction to hear and determine this matter. What the doctrine means is that while this court can indeed hear and determine this matter, it restrains itself to hear the same because there is another appropriate forum that can hear and determine the matter effectively.
32. The question as to what constitutes a constitutional question was determined in the case CNM V WMG [2018] eKLR where J Mativo stated:'20.In my view, this Petition does not raise constitutional questions at all. When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values. The issues raised here will only require the Court to examine defamation law. 21.The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others in which Justice O’Regan recalling the Constitutional Court’s observations in S vs Boesak notes that:-'The Constitution provides no definition of 'constitutional matter.' What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State, the interpretation, application and upholding of the Constitution are also constitutional matters. So too, is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.'
33. He further states, 'Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation. At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched fundamental rights. Therefore the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organize an analysis of the nature of constitutional matters arising from the cases before the Court.'
34. It is evident that for one to determine whether the argument raises a constitutional issue, the court should consider whether the argument forces the court to consider constitutional rights or values. The petitioner has brought this suit against the respondents for utterances that were made in a public rally by the 1st respondent. As to whether it raises a constitutional question, it would be necessary to examine the provisions alleged to be contravened and how they have been contravened and whether the petitioner has suffered any damage / loss as a result of the said contravention or violation.
35. It is also important to consider the nature of the orders sought in the petition, as to whether they fall under the ambit of those provided for under Article 23 (3) of the Constitution. If both aspects are in the negative, then the petition does not raise a constitutional question.
25. The court further stated:-
“The doctrine of constitutional avoidance has been addressed in quite a number of decisions by our courts. It was expounded by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where the court held as follows:- '(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. In South Africa, in S v Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:'I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.'(258) From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.'
37. In Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others [2021] eKLR, the court stated; '30.So as to ensure that constitutional jurisdiction of the court is not misused, the doctrine of constitutional avoidance comes in handy. It frowns upon the practice of bringing ordinary disputes to the constitutional court. In that regard, the Supreme Court observed as follows in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. 'Also see Council of County Governors v Attorney General & 12 others [2018] eKLR.
38. Justice J M Mutungi in Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR observed that: -'Parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional petitions which is not proper where there is an alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitution court.'
39. In the case of Bernard Murage -vs- Fine Serve Africa Ltd & others (2015) eKLR the Court stated:-'Not each and every violation of the Law must be raised before the High Court as a constitutional issue. Where there exist an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.'
40. In the case of Godfrey Paul Okutoyi & others –vs- Habil Olaka & Another (2018) eKLR Chacha J on the issue of there being an alternative remedy in lieu of constitutional remedies at paragraph 65 stated:-'It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in the manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a Constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.'
41. In the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) Mativo J set out the exceptions to the doctrine of constitutional avoidance as hereunder: -Where the constitutional violation is so clear and of direct relevance to the matter, ii. In the absence of an apparent alternative form of ordinary relief and iii. Where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.2
42. ...... This court will have to look into issues like whether the utterances meant that the petitioner exploits the dairy farmers who sell and supply milk to the petitioner as raw material for its business, whether it also means that the petitioner subjects the said farmers of suppliers to unfair treatment, whether the utterances are false, etc. In my humble view this petition does not raise a constitutional question.
43. This question will be better and effectively
determined in a civil court on what the alleged utterances meant and whether they were false or not. In as much as the petitioner makes reference to Article 33(2) (d) and 27 of the Constitution, this court will have to determine the issues aforesaid before it can eventually determine the issue of breach of the said Articles. The key grievance here is whether the utterances were in the first instance made and whether they mean what the petitioner is alleging. The court will also have to determine whether the utterances are false and consequently whether the petitioner should be compensated or not. If that other court agrees with the petitioner then it will grant the effective remedies. It is therefore not the only course that will give the petitioner the remedy it seeks. I am guided by the case of KKB v SCM & 5 others (supra) wherein it was stated,36.In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant‘s cause….”
26. I have gauged the issues raised in the instant petition against the principles espoused in the above cited cases and the cases cited by the 1st respondent and the petitioners. Whereas the petitioners contend that the petition raises constitutional issues and have cited several articles of the Constitution said to have been infringed by the respondents in carrying out the activities complained of namely, parcelling and titling of the suit land, parcel number 1168 Maji Ndege “B” in favour of the late president Daniel Toroitich Arap Moi, I do find the said actions and omissions to be matters that ought to have been determined in accordance with the applicable law namely the Land Adjudication Act and/or through a civil suit to enforce any promises that may have been made but not fulfilled by the 1st respondent. There is nothing constitutional in the claim by the petitioners that they were promised compensation which promise was not honoured by the promisor, the late president Daniel Toroitich Arap Moi. The petitioners have not satisfied this court that they could not pursue their alleged rights in the suit property using the dispute resolution mechanism provided for under the Land Adjudication Act and/or that they were prevented from pursuing their rights under the applicable statutes. For the foregoing reasons, I find and hold that the instant suit is a civil dispute clothed as a constitutional petition and l refuse to accept the invitation to treat it as a constitutional petition.
27. With regard to the delay in filing the petition or the contention that the suit is time barred, upon considering the principles that undergird preliminary objections espoused in Mukisa Biscuits Manufacturing Ltd v. Westend Distributors Ltd (1969) EA 696 among other decided cases, I find and hold that the alleged time bar or delay in filing the petition cannot form a good ground for hinging the 1st respondent’s preliminary objection. This is so because the constitution does not expressly provide timelines for filing constitutional petitions. What would form the basis for striking out a petition on alleged time bar is not the alleged time bar per se but proof that there was inordinate and unexplained delay in bringing the constitutional petition.
28. In determining whether the delay is indeed inordinate and unexplained, the court would need to consider the explanations and/or arguments and counterarguments by the parties and ultimately exercise its discretion thereupon. Such considerations bring alleged inordinate and unexplained delay in filing a suit outside the purview of a preliminary objection. In that regard, see the case of Ngari & Another v Muia & another (Environment and Land Case E004 of 2024) KEELC 5713 (KLR) where it was held that the issue of limitation, which includes arguments about inordinate delay, should be raised through a formal application supported by evidence and not through a preliminary objection.
29. The upshot of the foregoing is that the 1st respondent’s notice of preliminary objection dated 7th October 2025 has merit in that no proper constitutional issues arise from the petition for the Court’s determination. Consequently, I uphold it by striking out the the petition. I award costs of the suit to the 1st respondent to be borne by the individuals named in the petition as the ones who filed it on behalf of the named families.
30. Orders accordingly.
Ruling dated, signed and delivered virtually at Busia this 15th day of April, 2026
In the presence of;
Ms Kipkemoi h/b for Mr Arusei for the Petitioners
Mr Kere for the 1st Respondent
N/A for the 2nd to 5th Respondents
Court Assistant; Tracy