I. Preliminaries
1. The Judgment of this Court pertains to the filed Constitution Petition dated 9th July, 2022 by Julius Murizi Boma and Gideon Chimoni Murizi (Both suing as the Administrators of the Estate of the late Lawrence Mulisho Ndurya), the Petitioners herein and the Mwavumbo Group Ranch, Kaema Jawa, Daniel Mwachiro Diyo, Kaingu Karisa, Abdalla Nyondo, Mambo Dalu, National Land Commission and the Attorney General, the Respondents herein. This Petition was commenced by the late Lawrence Mulisho Ndurya and subsequently amended to substitute the administrators of his estate, Julius Murizi Boma and Gideon Chimoni Murizi, following his demise. The Constitution Petition was brought under the dint of the provisions of Articles 10, 20, 21, 22, 23, 28, 40, 47, 60, 62, 63 and 64 of the Constitution of Kenya, 2010. The Petition was accompanied by an affidavit in support.
2. Upon service of the Petition, the Petition was opposed by the Attorney General (the 8th Respondent) who filed Grounds of Opposition dated 11th June 2025.
I. Description of the parties in the Petition
3. The Petitioners, were described as male adult persons of sound mind and were the Administrators of the Estate of the late Lawrence Mulisho Ndurya hereinafter referred to as ‘the said Ndurya’. working for gain and residing in Kwale County in the Republic of Kenya.
4. The 1st Respondent, was described as the registered community group ranch under Land (Group Representatives) Act Cap. 287 Laws of Kenya.
5. The 2nd, 3rd, 4th and 5th Respondents were described as adult male persons who were nominated by the 1st Respondent to hear and determine a dispute of ownership and land situated in Maweni Location, Kwale County whereby the boundaries of the said parcel of land is per the sketch plan marked as “A”.
6. The 6th Respondent was described as an adult male person of sound mind who resides in Kwale County.
7. The 7th Respondent was described as a state organ created under the relevant provisions in the Constitution of Kenya, 2010 as read with the National Land Commission Act and has the duty of managing the registration of all land.
8. The 8th Respondent was described as the Attorney General sued in his capacity as the Chief Legal Adviser to the Government of Kenya under the provision of Article 156 of the Constitution of Kenya, 2010 and which office was tasked with ensuring that the laws of Kenya are followed and in particular, that the Constitution is upheld at all times.
II. Direction of the Court before the hearing
9. Nonetheless, all the parties having fully complied on the Provisions of Order 11 of the Civil Procedure Rules 2010 and the matter proceed by way of documentation and the matter was put down for delivery of its Judgment.
III. The Petitioners’ case
10. The Petition was founded on the following legal parameters from paragraph 20 of the Petition: -
a. Under Article 40 of the Constitution of Kenya, 2010, the Petitioner had a fundamental right to own property. This right had been cut short by the aforesaid acts and decisions of the Respondents.
b. Under Article 10, read together with Articles 27 and 28 of the Constitution of Kenya, 2010, the Petitioner had been entitled to his fundamental right to human dignity and the right to have his property protected by the Government, particularly by the 1st, 2nd, and 3rd Respondents, who were bound by constitutional and statutory provisions as well as the social contract theory. This right had been violated when the 6th Respondent and his collaborators had deprived and overthrown the Petitioner from his property.
c. Under Articles 60, 64, and 68 of the Constitution of Kenya, 2010, the 1st and 7th Respondents had a constitutional mandate to uphold principles of land policy promoting land security, including mapping, demarcation, and registration of titles. The Respondents had failed to discharge this duty.
d. The Respondents had jointly violated Article 10 of the Constitution of Kenya, 2010, by failing to act in an accountable and transparent manner. They had abdicated their duties to survey, demarcate, and register the suit property to individual titles, thereby creating unnecessary disputes.
e. The Respondents had violated the Petitioner’s right to property as enshrined under Article 40 of the Constitution of Kenya, 2010, and the provisions of the Land Act, No. 6 of 2012, Land Adjudication Act, 284 and Survey Act, Cap. 299 by failing to carry out proper mapping, survey, demarcation, and registration of the suit property.
f. The 1st, 2nd, 3rd, 4th, and 5th Respondents had no power or capacity in law to determine the issue of ownership of the suit property. Therefore, the decision they had arrived at was null and void for want of jurisdiction. In the process, they had violated the Petitioner’s fundamental rights by dispossessing him of ownership when they lacked jurisdiction to entertain such a dispute.
11. The brief facts of the case were that:
i) The Petitioners stated that sometime back in the year 1941, the deceased Petitioner’s late father, Mzee Mulisho Ndurya, had bought a piece of land from their neighbour, Mzee Mgandi Dumbo, for cultivation purposes. The consideration given to Mzee Mgandi had been one (1) goat, one (1) debe of mnazi, and Kshs. 600/-, under an agreement that was witnessed by village elders. The said piece of land was situated in Maweni “A” village, Mwatate Location, Kwale County. The boundaries of the said piece of land were as per the annexed sketch plan marked “A”. The said property was thereafter referred to as “the suit property.”
ii) The Petitioners stated that sometime back in 1941, the late father, Mzee Mulisho Ndurya, had bought a piece of land from their neighbour, Mzee Mgandi Dumbo, for cultivation purposes. The consideration given to Mzee Mgandi had been one (1) goat, one (1) debe of mnazi, and Kshs. 600/-, under an agreement witnessed by village elders.
iii) The Petitioners stated that after the demise of his father, Mzee Mulisho Ndurya, Lawrence Mulisho Ndurya had taken over and had continued cultivation on the suit land, where, among other things, he had invested in extensive farming of cash crops including exotic breeds.
iv) The Petitioners further stated that although the suit land had not been mapped, surveyed, or demarcated for registration and issuance of individual titles, the said Ndurya had enjoyed quiet, peaceful, and unlimited cultivation of the suit land since he had taken charge from his late father, Mzee Mulisho Ndurya.
v) The Petitioners stated that sometime in 1997, the 6th Respondent, in the company of his father, Mr. Dalu Chinyama, and his brother, Mr. Karisa Dalu, had invaded the Petitioner’s land (the suit property), claiming ownership and cultivation rights with hostility against the said Ndurya’s rights.
vi) The Petitioners stated that the 6th Respondent, together with his father, Mzee Dalu Chinyama, had fought tooth and nail with malice and hostility to disinherit and forcefully evict the said Ndurya from the suit land, a fact that they had greatly achieved and which had caused damage and irreparable loss to the Ndurya family.
vii) The Petitioners stated that on or about 3rd April 1997, in a turn of events, the 4th Respondent, acting in cohort with his father, Mzee Dalu Chinyama, and his brother, Mr. Karisa Dalu, had reported the dispute to the Mwavumbo Group Ranch for a declaration that the suit land belonged to their family and that the said Ndurya ought to be evicted instantly.
viii) The Petitioners further stated that the aforesaid dispute resolution and ownership declaration had been scheduled to be heard by the Mwavumbo Group Ranch Committee on 22nd December, 2000. However, the same had failed to take off since the 6th Respondent and his family members had dilly-dallied until the demise of his father, Mzee Dalu Chinyama. The Petitioners stated that on 11th April 2003, the said Ndurya had learnt that the 6th Respondent and his late father had secretly divided and created imaginary boundaries on the suit property, thereby blocking and disfranchising Ndurya’s cultivation activities and access to the suit property.
ix) The Petitioners stated that even though the 6th Respondent had created imaginary boundaries and divisions on the suit property, the said Ndurya had continued to gain limited access for cultivation purposes. The Petitioners maintained that the aforesaid purported dispute referral to the Ranch Committee had later been referred to the now defunct District Officer of Samburu (D.O.), who in turn had referred the matter to the Group Ranch Chairman for resolution.
x) The Petitioners stated that the matter had remained muted and unresolved until 4th April 2018, when the said Ndurya’s crops had been extensively destroyed by the 6th Respondent acting in collaboration with his brothers. The 4th Respondent had become violent and hostile and had forcefully driven Ndurya from the suit land. The said Ndurya later had reported the matter to the Assistant County Commissioner after facing extreme threats regarding ownership of the suit land from the 6th Respondent.
xi) The Assistant County Commissioner had evaluated Ndurya’s complaint and had carried out an inventory of the damages occasioned by the 6th Respondent and his accomplices on Ndurya’s property, and had forwarded the said inventory report to the Ministry of Agriculture on 4th July 2019.
xii) The Petitioners further stated that on or about 9th September 2018, the Assistant County Commissioner had ordered the Group Ranch Conflict Resolution Committee to hear and determine the aforesaid land dispute and related damages between Ndurya and the 6th Respondent. The Petitioners stated that on 29th September 2018, summons had been issued to Ndurya to attend a dispute resolution meeting on 14th October 2018. The said committee had been comprised of the 2nd, 3rd, 4th, and 5th Respondents.
xiii) The Petitioners stated that on 14th October 2018, a kangaroo court - like session had been constituted by the committee, with an almost predetermined outcome, in total breach of the right to fair hearing and rules of natural justice. The dispute had been “heard” and a verdict had been issued on 9th November 2018 in favour of the 6th Respondent.
xiv) The Petitioners further maintained that the Mwavumbo Ranch Committee had failed to adjudicate fairly in order to resolve the stalemate on the suit property between Ndurya and the 6th Respondent. Their purported decision was a mockery of justice, as it had failed to consider historical records, material evidence placed by Ndurya, and the previous conduct of the parties pertaining to access, cultivation, and tillage of the suit land.
12. The Petitioners stated that the 1st, 2nd and 3rd Respondents were enjoined in law to act within the confines of law so as to protect the Petitioner’s right to property thus making the Petitioner's property prone to scavengers and trespassers more particularly the 4th Respondent’s actions which had greatly caused damages, suffering and deprivation of livelihood to the Petitioner and as such amounts to a violation of the Petitioner’s fundamental rights as stated above. Thus, the Petitioner seeks a declaration that the Respondents aforesaid actions and in actions was violation of the Petitioner’s rights and affront to justice and morality as provided for under Articles 10, 20, 23, 28, 29, 40, 47, 60, 64 and 68 of the Constitution of Kenya, 2010.
13. The Petitioners stated that the 6th Respondent, by exploiting the laxity and non-execution of constitutional duties to survey and register the title of the suit land by the 1st to 5th Respondents, had violated the Petitioner’s rights to economic well-being, livelihood, human dignity, freedom, and security. The said Ndurya had suffered massive losses and had been totally disfranchised. The Petitioners stated that the said Ndurya and his family had suffered great mental anguish as a result of the huge losses occasioned by the Respondents’ actions and inactions. These losses had been compounded by the fact that the 6th Respondent had conspired to deny, destroy, and evict Ndurya from his land.
14. The Petitioners maintained that, considering the 2nd to 5th Respondents were elected officials of the 1st Respondent charged with statutory and administrative duties, they had been legally bound to act within their jurisdiction. Their decision to award ownership of the suit premises to the 6th Respondent was an affront to justice, as it had been clearly outside their mandate. Their conspicuous actions and negligence against the Petitioner’s interests warranted redress from this Honourable Court.
15. The Petitioners stated that the occupation of the suit property by Ndurya’s family had been for a long period of time. For all intents and purposes, the said family were the genuine and bona fide owners, having purchased and continuously occupied the property. Accordingly, when the dispute had occurred between the Petitioner’s family and the 6th Respondent, it had been irregular for the Government to refer the matter to the 1st Respondent’s committee, which lacked jurisdiction.
16. The Petitioners stated that instead of the 7th Respondent referring the dispute to the 1st to 5th Respondents (a process that had been a nullity ab initio), the 8th Respondent should have referred the matter to the 7th Respondent, the body legally mandated to investigate such disputes and make recommendations.
17. The Petitioners therefore prayed that the 7th Respondent be directed to discharge its legal mandate by registering the Petitioners as the owners of the suit property.
18. For these reasons, the Petitioner’s claim as against the Respondents were as follows: -
a. A declaration be issued to the effect that the decision made by the 1st, 2nd, 3rd, 4th and 5th Respondents on 13th June, 2019 declaring that the suit property herein namely all that plot of land situated in Maweni “A” village, Mwatate Location, Kwale County as more particularly earmarked on the sketch plan annexed to this Petition as annexture “A” belongs to the 6th Respondent be declared as null and void for want of legal capacity on the part of the 1st, 2nd, 3rd, 4th and 5th Respondents to entertain the said dispute.
b. A declaration be made to the effect that the suit property herein namely all that plot of land situated in Maweni “A” village, Mwatate Location, Kwale County as more particularly earmarked on the sketch plan annexed to this Petition as annexture “A” belongs to Lawrence Mulisho Ndurya absolutely and the 7th and 8th Respondents be directed to register Lawrence Mulisho Ndurya as the owner of the said suit property.
c. An order of certiorari to quash the 1st, 2nd and 3rd, 4th and 5th Respondents’ impugned decision dated 13th June, 2019 and consequently declaring it a nullity.
d. Compensation by way of an award of general damages on exemplary and aggravated basis against the Respondents for the violation of the Petitioner’s rights.
e. The Costs of this petition be provided for by the Respondents.
f. The Honourable Court do issue such orders and give such directions as it may deem fit to meet the ends of justice.
19. The Petition was supported by a 17 paragraphed affidavit sworn by GIDEON CHIMONI MURIZI, an adult male of sound mind and nephew to Lawrence Mulisho Ndurya (the deceased) who was the initial Petitioner herein on the same date as the petition where he averred that: -
a) Following the demise of the said Lawrence Mulisho Ndurya, Julius Murizi Boma and the Affiant had been granted the power in law to step into the shoes of the deceased. The Affiant annexed a copy of the Letters of Administration Ad Litem and marked as annexure “GCM - 1.”.
b) Sometime in the year 1941, the late Mzee Mulisho Ndurya, father of Lawrence Ndurya Mulisho, had bought a parcel of land from their neighbour, Mzee Mgandi Dumbo, for cultivation purposes. The consideration given to Mzee Mgandi had been one (1) goat, one (1) debe of mnazi, and Kshs. 600/-, under an agreement witnessed by village elders. The said piece of land was situated in Maweni “A” village, Mwatate Location, Kwale County. The boundaries of the said piece of land were as per the annexed sketch plan marked “A.” The said property was thereafter referred to as “The Suit Property.”
c) After the demise of Mzee Mulisho Ndurya, Lawrence Ndurya Mulisho had taken over and had continued cultivation on the suit land, where, among other things, he had invested in extensive farming of cash crops including exotic breeds. The Affiant annexed copies of photographs and marked the same as annexure “GCM-2.”
d) The said Lawrence Ndurya Mulisho was the owner with sole beneficial interests in the suit property, and he had enjoyed exclusive and unlimited cultivation rights from the year 1996, following the demise of his father, Mzee Mulisho Ndurya.
e) Although the suit land had not been mapped, surveyed, or demarcated for registration and issuance of individual titles, Lawrence Ndurya Mulisho had enjoyed quiet, peaceful, and unlimited cultivation of the suit land since he had taken charge from his late father.
f) Sometime in the year 1997, the 6th Respondent, in the company of his father, Mr. Dalu Chinyama, and his brother, Mr. Karisa Dalu, had invaded the suit property, claiming ownership and cultivation rights with hostility against Lawrence Ndurya Mulisho’s exclusive rights.
g) The 6th Respondent, together with his father, Mzee Dalu Chinyama, had fought tooth and nail, laced with malice and hostility, to disinherit and forcefully evict Lawrence Ndurya Mulisho and his family from the suit land—a fact they had greatly achieved and which had caused damage and irreparable loss to the Petitioners’ family. The Affiant annexed a copy of the inventory of damaged crops and marked the same as annexure “GCM - 3.”
h) The 6th Respondent, acting in cohort with his father, Mzee Dalu Chinyama, and his brother, Mr. Karisa Dalu, had reported the dispute to the 1st Respondent for a declaration that the suit land belonged to their family and that Lawrence Ndurya Mulisho ought to be evicted instantly. Consequently, the 2nd, 3rd, 4th, and 5th Respondents had been appointed to hear the dispute, and they had convened a meeting on 26th May 2019 to deliberate on ownership of the suit property. The Affiant annexed a copy of the proceedings of the committee and marked the same as annexure “GCM - 4.”
i) Despite the 1st Respondent lacking proper locus standi to entertain the 6th Respondent’s claim of ownership of the suit land, a meeting had been constituted by the committee with a predetermined outcome, in total breach of the right to fair hearing and rules of natural justice. The dispute had been “heard” and a verdict had been issued on 13th June 2019 in favour of the 6th Respondent as the sole beneficial owner of the suit property. The Affiant annexed a copy of the said decision of the committee and marked the same as annexure “GCM-5.”
j) The dispute between the 6th Respondent and the Petitioners regarding ownership of the suit property had initially been reported to the Office of the President, namely the Assistant County Commissioner, Kasemeni Division, Kwale County, who then had directed the 1st Respondent to arbitrate. The 1st Respondent had appointed the 2nd, 3rd, 4th, and 5th Respondents to determine the dispute. Thereafter, they had made a decision in favour of the 6th Respondent against the Petitioners’ interests.
k) The Petitioners stated that the actions of the 8th Respondent, together with those of the 1st to 5th Respondents, had been irregular, as they had lacked power in law to determine disputes regarding ownership of the suit property.
l) The 1st Respondent had failed miserably to adjudicate fairly in order to resolve the stalemate on the suit property between Lawrence Ndurya Mulisho and the 4th Respondent. Their purported decision was a mockery of justice, as it had failed to consider historical records, the nature of the suit land, material evidence placed before them, and the previous conduct of the parties regarding access, cultivation, and tillage.
m) The 1st to 5th Respondents had been enjoined in law to act within the confines of the law to protect the Petitioner’s right to property. Their failure had rendered the property prone to scavengers and trespassers, particularly the 6th Respondent’s actions, which had caused damages, suffering, deprivation of livelihood, and violation of property and security rights. Thus, the Petitioners sought a declaration that the Respondents’ actions and inactions were violations of Lawrence Ndurya Mulisho’s rights and affronts to justice and morality under Articles 10, 20, 23, 28, 29, 40, 50, 64, and 68 of the Constitution of Kenya, 2010.
n) The Petitioners’ rights over the suit property had been trampled upon by reason of the failure of the 7th and 8th Respondents to have the suit property registered. The Affiant therefore prayed that appropriate orders be made for the suit property to be registered in the name of Lawrence Ndurya Mulisho, who was indeed the genuine owner.
o) In the circumstances, it had been in the interest of justice that the Petition be allowed with costs to the Respondents.
IV. The 8th Respondent’s case
20. The 8th Respondent, responded to the Amended Petition through a 7 Paragraphed Grounds of Opposition on the following grounds: -
(i) The Petition had been an abuse of the court process.
(ii) The Petition had not disclosed any documentation on title or allotment to ascertain ownership and, therefore, had been incapable of constituting a proper claim for land before the Environment and Land Court.
(iii) The Petition had failed to factor in the role of National Government Administrators in settling disputes among parties, yet such intervention had been proper and constitutional, Article 159(2)(c) supporting alternative dispute resolution such as mediation and arbitration.
(iv) The Petition had sought to punish National Government Offices for actions done in good faith for all parties involved in attempts to settle disputes.
(v) The Petition had defied “the Doctrine of Constitutional Avoidance” and ought to have been filed as a pure claim for ownership of land by way of a Plaint.
(vi) The Petition had defied “the doctrine of exhaustion”, including dispute resolution within the group ranch ownership framework.
(vii) The role of the 8th Respondent had been to advise Government as provided under the Office of Attorney General Act, Cap. 6A. To this end, the Petition had not demonstrated or specified any cause of action against the 8th Respondent.
V. Submissions
21. The parties while all in court, consented to canvassing the Amended Petition dated 9th July, 2022 be dispensed off by way of written submissions. Unfortunately, by the time of penning down this Judgement, the Honourable Court was only able access the written Submissions by the Petitioners. Those by the Respondents were neither available from the Judiciary, CTS Portal nor the Environment & Land Court Registry.
22. Pursuant to that the Honourable Court proceeded to reserve a Judgment date on its own merit whatsoever on notice.
A. The Written Submissions by the Petitioners.
23. On behalf of the Petitioners, the Law Firm of Messrs. Gikandi & Company Advocates filed their written Submissions dated 4th October, 2024. Mr. Gikandi Advocate commenced his submissions by providing a brief background of the matter. He stated that the Petitioners' Amended Petition dated 9th July, 2024 was supported by an affidavit sworn by Gideon Chimoni Murizi. Additionally, the Petitioner also relies on the witness statements of Julius Murizi Boma and Stanley Karenge Mwangolo both signed on 15th August, 2020.
24. At the very outset, it should be noted that none of the Respondents had controverted any part of the evidence tendered by the Petitioners. As such, unless there were any overwhelming reasons, the Petition should be deemed as proved on the basis of the uncontested evidence tendered by the Petitioners herein. According to the Learned Counsel, the subject matter of the Petition related to a decision that was made by the 1st to Respondents on 13th June,2019. The decision declared that the suit property herein, namely all that plot of land situated in Maweni Location, Kwale County as more particularly earmarked on a sketch plan annexed to the petition as annexure 'A', belonged to Mambo Dalu. The Petitioners further prayed that the said suit property be declared to belong to the Petitioners' father, Lawrence Mulisho Ndurya, whereby the 7th and 8th Respondents be directed to register the said Lawrence Mulisho Ndurya as the owner of the said property.
25. The Petitioners had given cogent evidence particularly in Paragraphs 3 -10 of the affidavit in support of the Petition as to how the Petitioners' family acquired the said property. The said evidence is further corroborated by annexure marked as 'GCM - 1', 'GCM - 2' and 'GCM - 3'. The Petitioners' evidence further confirmed the fact that as from the year 1987, the 6th Respondent together with his father, Dalu Chinyama and his brother, Karisa Dalu, started invading the Petitioners' aforesaid property which the Petitioners had quiet and uninterrupted occupation of for very many years. Hence, the existence of annexure 'GCM - 3' which confirmed the damage that was done to the Petitioners' crops by the said three (3) persons in or about the year 1987. As a result of that damage and as testified by Stanley Karenge Mwangolo in his witness statement, who was a former Chief of Mwatate location in Kwale County where the suit property is situated, the Petitioners' complained to the said Chief's office of the said damage whereupon the said Stanley Karenge Mwangolo issued summons to the 6th Respondent (Mambo Dalu) to hear and determine the said dispute. However, the said Mambo Dalu avoided the said meeting on three occasions. The said former chief further testified that the suit property has always at all material times belonged to the Petitioner.
26. Considering that the matter had already been reported to the authorities, it came as a surprise when in 2018, the Assistant County Commissioner, Kasemeni hand picked the 1st to the 5th Respondents to sit as the committee that was to hear and determine the ownership dispute with regard to the said property. The said committee thereafter rendered its report which was annexed as 'GCM-5' whereby the said suit property was awarded to the 6th Respondent. The Learned Counsel submitted that both the office of the Chief of any ward and the office of the Assistant County Commissioner of any constituency were offices that served in the office of the President. Therefore, it was surprising that the Assistant County Commissioner, Kasemeni appointed the said 1st to 5th Respondents to hear the said dispute while the office of the Chief of Mwatate location had on three occasions summoned the 6th Respondent to participate in the resolution of the said dispute. With due respect to the said Assistant County Commissioner, Kasemeni, it appeared that he over - reached himself and thereby showed contempt to the office of the said chief.
27. By the Petition filed herein, the constitutional question posed was three ( 3 ) questions. Firstly, was the appointment of the 1st to 5th Respondents to hear and determine the ownership dispute of the suit property herein valid in law and/or not? The Learned Counsel averred that, jurisdiction in anything is everything. Without it, the resultant action is null and void for all purposes. In this regard, the Court of Appeal expressly so held in the well-known decision of:- “Owners of the Motor Vessel “Lillian – Versus - Caltex Oil (Kenya) Ltd [1989] eKLR where the Court of Appeal put it this way.
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction....Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
28. The Petition herein was filed in the court in the year 2020 and all the Respondents were served with the Petition immediately upon such filing. However, it was instructive to note that the none of the Respondents filed any response whatsoever in an attempt to justify the validity of the appointment of the said 1st to 5th Respondents to hear and determine the said dispute. In fact, the office of the Attorney General who is the Chief Legal Advisor to the Government owed and still owes a duty to the Honourable Court to assist the court with informnation that would explain the legal instrument that the Office of the Assistant County Commissioner of Kasemeni, Kwale County, utilized in appointing the 1st – 5th Respondents as committee members to determine the land ownership dispute between the Petitioner and the said Mambo Dalu. To buttress on this point, the Learned Counsel relied on the decision of “Timsales – Versus - Harry Thuo Ndung'u [2010] eKLR” for the proposition that when a party failed to tender evidence that was relevant. And in an issue that was before the court and which evidence such a party held. The law presumes that the holder thereof was aware that the production of such evidence would be prejudicial to such a party. Alternatively, that such a party was aware that such evidence never existed.
29. As officers of the court, we take the opportunity to inform the court that despite of their researching, they had not come across any law that conferred on the Office of the President power to any public servant in that office (including the President) to determine disputes relating to ownership of land. In the case of “Benjamin Leonard Mcfoy United African Company Limited (UK) [1962]AC 152” as cited in “Edward Muturi Mbaye – Versus - Simon Mukindia Mbaye [2017]eKLR” it was learnt that actions made by a body that was not properly vested with authority amounts to a nullity and that a nullity is void ab initio.
30. It should also be remembered that by the time the said 1st – 5th Respondents were being appointed to sit as a judicial body to determine the said dispute in the year 2018/19. By then, the provision of Article 162(2)(b) of the Constitution of Kenya, 2010 was already in existence which created the Environment and Land Court as the primary judicial organ vested with powers to establish the Environment & Land Court.
31. Secondly, whether it was proper in law for the 7th and 8th Respondents to have kept quiet for so long with regard to the determination of who was the owner of the suit property herein when it was remembered that that was an issue that had been raised by the Petitioners when the Petitioners made their complaint in law to the then Chief, the said Stanley Karenge Mwangolo.
32. Lastly, what was the remedies available to the Petitioners. The Learned Counsel in the circumstances, urged that the court should consider awarding the sum of Kenya Shillings Ten Million (Kes. 10,000,000/=)as damages.
“There is no mathematical or scientific formula in these types of cases and that the guiding factors are the circumstances in each case. It is my considered view that Kshs. 10 000 000 is a reasonable award for general damages".
33. In this regard, assuming that Mambo Dalu was the owner of the suit property which was clearly under the occupation of the Petitioners' family, why did Mambo Dalu not follow the laid down method of reporting the Petitioners to the police, file a case in court and obtain the orders to evict the Petitioners' family properly. For the jungle justice behaviour by Mambo Dalu,including destruction of crops, eviction of the Petitioners' family who had been in occupation of the said property for a long time and considering the mental anguish that the Petitioners' family went through, the Counsel submitted the award of Kenya Shillings Ten Million (Kes.10,000,000/=) was justified.
34. Assuming that the Honourable Court allowed prayers 26 (a) and (c) of the Petition, then it would mean that the suit property would revert in the status that it was in before the violent takeover of the same by the 6th Respondent, Mambo Dalu. Therefore, for the avoidance of any doubt and in furtherance to prayer 26(f), the court ought in fairness to confirm that the said suit property, namely all that plot of land situated in Maweni Location, Kwale County as more particularly earmarked on a sketch plan annexed to the petition as annexure 'A' be reinstated back to the Petitioners.
35. In conclusion, the Learned Counsel averred that the primary duty of any court of law was to assist parties to fully and finally resolve the dispute that they have. As the 7th and 8th Respondents had not taken any action, including not filing any responses in this Petition, with regard to the resolution of the said dispute, it was in their view that in exercise of its inherent jurisdiction to do justice to the parties and with a view to resolving the dispute herein fully and finally, the court has the power to direct the 7th and 8th Respondents to determine who was the genuine owner of the suit property.
36. However, what should be done with regard to the ascertainment of the ownership of the said property? They submitted as follows;
i. The Petitioners' complaint is that the Government, which is represented by the Ministry of Lands, Public Works, Housing and Urban Planning (Attorney General herein) and the National Lands Commission, with regard to land related matters has completely failed to actualize the process for the ascertainment of who is the true owner of the suit property herein. It is the Petitioners' prayer therefore that the court should direct the said two offices, that is the Ministry of Lands, Public Works, Housing and Urban Planning (Attorney General herein) and the National Lands Commission to immediately embark on the determination of the owner of the said property so that such party be registered as the owner thereof. In other words, the Petitioners urged the Honourable Court to moderate the prayer made in 26(b) by invoking also prayer 26(f) and thereby issue a remedy as would further assist the disputing parties herein to resolve the matter herein once and for all.
ii. They suggested that the provision of Article 159 of the Constitution of Kenya, 2010 as read with Sections 1A. 1B and 3A of the Civil Procedure Act, Cap 21 and also taking account of the court's inherent power to ensure that justice was done at all times, vested the court with appropriate jurisdiction to grant the remedy prayed for in (i) above.
37. In this regard, the Petitioners' prayer under paragraph 26(b) was hereby moderated as they appreciated that in the absence of the suit property having been adjudicated upon by the 8th Respondent. It was not possible in law for the court to declare either of the disputants as the 7th Respondent and owner of the suit land.
VI. Analysis and Determination
38. I have carefully considered all the filed pleadings pertaining to the Amended Petition dated 9th July, 2022, the Affidavit by the Petitioners and the Respondents, the articulate written submissions and the several cited authorities by the Petitioner, the appropriate provisions of the Constitution of Kenya, 2010 and the statures.
39. For the Honorable Court to reach an informed, just, fair and reasonable decision, it has condensed the Subject matter into the following six (6) salient issues for its determination. These are: -
a) Whether the Petition by the Petitioner meets the threshold for Constitution Petitions.
b) Whether the Petitioners have established ownership rights over the suit property?
c) Whether the Respondents violated the Petitioners’ constitutional rights under Articles 40, 47, and 60 of the Constitution?
d) Whether the Mwavumbo Group Ranch Committee had jurisdiction to determine the dispute?
e) Appropriate reliefs, if any.
f) Who will bear the Cost of the Petition?
ISSUE No. a). Whether the Petition by the Petitioners meets the threshold for Constitution Petitions.
40. Under this Sub - heading, for the Court to respond to this query, assessing certain aspects of the concept of Constitutional provision are inevitable. To begin with, under the provision of Article 2 (1) & (4) of Constitution of Kenya defines the Constitution as being the Supreme law of the Republic and it bids all persons and all States at all levels. Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency and any act or omission in in contravention of this Constitution is invalid.
41. Additionally, I dare say that a Constitution is a living tissue. Just like all other tissues, it has to be fed and watered. It breathes without oxygen and freshness it will die. I have learnt that these things are not just metaphorical. They are real. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:-
a. Promotes its purposes, values and principles;
b. Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c. Permits the development of the law; and
d. Contributes to good governance……”
42. This Court must give a liberal interpretation and consideration to any provision of the Constitution and have regard to the language and wording of the Constitution and where there is no ambiguity attempt to depart from the straight texts of the Constitution must be avoided. It must always be interpreted and considered as a whole with all the provisions sustaining and coordinating each other and not destroying the other.
43. Based on the principles set out in the edit of the Court of appeal case of the “Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another (2013) eKLR” provided the standards of proof in the Constitutional Petitions as founded in the case of “Anarita Karimi Njeru – Versus - Republic [1980] eKLR 154” where the court is satisfied that the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:-
“Constitutional violations must be pleaded with a reasonable degree of precision…………”
Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR said in the year 1876 and which hold true today:
“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule……was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing.”
44. The provision of Article 23 (3) of the Constitution empowers a court to grant appropriate reliefs in any proceedings brought under Article 22 where there has been violation or threat of a violation of a fundamental right or freedom. The relief may include a conservatory order.
45. Stating the provisions of the Constitution alleged to have been violated is just part of the task a Petitioner faces. Establishing that the right claimed to be denied, violated or threatened exists and the alleged violation is the next step. It starts with identifying individual articles and linking them with the evidence of actions or inaction on the part of the Respondents which led to the alleged violation of the right. I dare say that, I do not find that to be the case in the instant Petition.
46. The core substratum and dispute in the Petition was land ownership and alleged wrongful sub - division/transfer of an unsurveyed parcel. That is an ordinary property dispute which, absent clear constitutional dimensions, is normally pursued by way of an ordinary suit preferably a Plaint seeking for rectification reliefs or cancellation of titles under the provision of Sections 79 ( 1 ) & ( 2 ) and/or 80 of the Land Registration Act, No. 3 of 2012 or lodging of a complaint to the National Land Commission. In a nutshell, the Honourable Court finds that the Petition was “an ordinary civil dispute, clothed and framed in the ‘Bill of Rights language’.” The Petition never produced title documents, adjudication records, or other documentary proof establishing legal ownership of the suit land. Specifically, on the contrary, the Grounds of Opposition noted absence of title/allotment documentation. Without such evidence, the Petition could not show the legal interest necessary to ground a constitutional claim to property.
47. The pleadings set out a narrative of historical occupation and alleged dispossession but failed to link specific acts or omissions of named state organs to the infringement of particular constitutional rights with the required precision. The Court treated that as a substantive shortcoming. The Petition bypassed statutory remedies (rectification, NLC investigation, or a plaint for declaration/possession). The Attorney General’s grounds and the Court’s analysis emphasized that alternative remedies existed and were not exhausted.
48. The kind of specificity required of a Petitioner by the holding in “Anarita Karimi Njeru case” has not been met by the Petitioners in the instant Petition. Therefore, this Petition is utterly defective. As the Court observed in the “Mumo Matemu case” this is a substantive shortcoming.
49. Further, I have read and re - read the Petition herein. Despite of this, the court notes that this Petition does not in fact raise any constitutional issue. It merely violates the principle of constitutional avoidance.
50. In the case of the “Communications Commission of Kenya & 5 others – Versus - Royal Media Services Limited & 5 others [2014] eKLR”, the Supreme court of Kenya stated that:
“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.”
51. In South Africa, in “S – Versus - Mhlungu, 1995 (3) SA 867 (CC)” before 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.”
52. The Petition does not meet the constitutional threshold as required under “Anarita Karimi Njeru (Supra)” and “(Mumo Matemu case (Supra)”. On the record, the Petition did not meet the threshold for a Constitutional Petition and was vulnerable to dismissal for being procedurally and substantively defective.
53. If the Petitioners wish to pursue constitutional relief, they must amend pleadings to: (a) identify precise constitutional provisions allegedly breached; (b) link each alleged act/omission to the specific right infringed with factual particularity; and (c) produce documentary evidence (title searches, historical records, inventories, official correspondence).
54. Alternatively, they should institute an ordinary suit in form of a Plaint or Originating Summon for declaration and possession or an application for rectification under Section 80 of the Land Registration Act and/or a formal complaint to the National Land Commission, after exhausting administrative remedies. If urgent protection is needed, seek conservatory orders (injunctions) supported by affidavit evidence showing imminent or continuing harm, but framed to meet the Court’s pleading standards.
55. The bottom line is that the Petition, as pleaded, fell short of the constitutional Petition threshold having presented an ownership dispute without the required precision, documentary proof, or exhaustion of statutory remedies — a conclusion the Court itself recorded: “Therefore, this Petition is defective.”
ISSUE No. b). Whether the Petitioners have established ownership rights over the suit property?
56. Under this sub – title, notwithstanding the above legal position taken by this Honourable Court, it shall examine whether the Petitioners have established ownership rights over the suit property. The provision of Article 40 of the Constitution of Kenya, 2010 provides that:
“every person has the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya.”
57. The effect and efficacy of the registration of land is well governed under the provisions of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. The provision of Section 24 of the Land Registration Act 2012 No. 3 of 2012 provides as follows:
“The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”
58. While the provisions of Section 25 (1) of the said Act further provides that:
“the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject to any lawful encumbrances, set out in this section.”
59. The starting point is the provision of Section 26(1) of the Land Registration Act, No. 3 of 2012, which provides:
“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon transfer, shall be taken by all courts as prima facie evidence that the person named therein is the absolute and indefeasible owner, subject to encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
60. As already indicated, Article 40(1), Constitution of Kenya, 2010 guarantees the right to acquire and own property of any description in any part of Kenya. Thus, once a party produces a duly registered title, the burden shifts to the challenger to demonstrate fraud, illegality, or procedural impropriety.
61. Further on the provision of Section 5 and 7 of the Community Land Act, recognizes community land rights and requires registration of such land in the name of the community. Occupation or historical use alone does not automatically confer registrable ownership unless formalized under the Act.
62. This Court has already deliberated on the case of “Anarita Karimi Njeru (Supra)”, which established the principle of reasonable precision in constitutional pleadings. Petitioners must set out with clarity the rights violated and the manner of violation. Further, in the case of:- “Mumo Matemu (Supra)”, the Honourable Court reaffirmed that constitutional petitions must demonstrate a clear nexus between alleged violations and constitutional provisions.
63. Similarly, in the case of “Isaac Gathungu Wanjohi – Versus - Attorney General & Another [2012] eKLR”, the Honourable Court held that mere occupation or possession without proof of title cannot ground a constitutional claim to property. In the case of:- “Momanyi – Versus - National Police Service & 4 others [2024] KEHC 1869 (KLR)”, the Honourable Court dismissed a Petition for lack of precision and failure to demonstrate actual infringement of constitutional rights.
64. In this instant case, the Petitioners alleged that their late father purchased the land in the year 1941 for consideration witnessed by village elders. By and large, the Petitioners extensively relied on oral historical expose, photographs, inventories of damaged crops, and affidavits to demonstrate occupation and cultivation. However, no documentary evidence of title, adjudication record, or registration was produced to establish legal ownership. Under the provision Section 24 of the Land Registration Act, ownership rights are conferred upon registration, which the Petitioners did not demonstrate.
65. The dispute was referred to Mwavumbo Group Ranch Committee, which purported to adjudicate ownership. The Committee’s decision was challenged as ultra vires, but even if quashed, the Petitioners still lacked proof of registrable title. The Petition therefore rested on longstanding occupation and ancestral purchase, which, while relevant for equitable consideration, does not meet the statutory threshold for ownership rights enforceable under Article 40.
66. In conclusion, the Petitioners did not establish ownership rights over the suit property to the standard required for constitutional enforcement. Their evidence demonstrated occupation and historical purchase but lacked the statutory or documentary foundation necessary to compel registration or recognition of title.
ISSUE No. c). Whether the Respondents violated the Petitioners’ constitutional rights under Articles 40, 47, and 60 of the Constitution
67. Under this sub – title, the Honourable Court shall critically examine whether the Respondents violated the Petitioners’ constitutional rights under Articles 40, 47, and 60 of the Constitution as alleged. The provision of Article 40 (1) of the Constitution of Kenya, 2010 provides that “every person has the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya.” Article 40 (2) further prohibits arbitrary deprivation of property by the State or any person.
68. In the case of “Miachel Mutuku Mulinge – Versus - Attorney General [2017] eKLR”, the High Court emphasized that for a Petitioner to succeed under Article 40, they must demonstrate a legally recognized proprietary interest in the property and show how that particular right was arbitrarily deprived, threatened or violated.
69. In this instance case, the Petitioners alleged ancestral purchase and continuous occupation of the suit property since the year 1941. However, they did not produce any documentary “prima facie” conclusive evidence of title or adjudication records for that matter to proof its assertion. Without proof of legal ownership, their claim under the provision of Article 40 was weakened. The Respondents’ actions may have interfered with occupation, but the Petitioners failed to establish a registrable proprietary interest that could be protected under the provision of Article 40.
70. The provision of Article 47 (1) of the Constitution guarantees that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. In the case of: “Republic – Versus - National Land Commission Ex - Parte Krystalline Salt Limited [2015] eKLR”, the Court held that administrative bodies must act fairly and within the law, and decisions reached without jurisdiction or fairness offend the provision of Article 47.
71. The Mwavumbo Group Ranch Committee purported to adjudicate ownership of the suit property and issued a decision in favour of the 6th Respondent. The Petitioners argued that this was a “kangaroo court” outcome, predetermined and outside the Committee’s jurisdiction. If proven, the Court here fully concurs with the assertion by the Petitioners that such conduct would amount to a violation of the provision of Article 47, as the Petitioners were denied fair administrative action.
72. The provision of Article 60 (1) of the Constitution sets out principles of land policy, including equitable access to land, security of land rights, sustainable management, and transparent administration. These principles bind all State organs and persons dealing with land.
73. In the case of:- “Isaac Gathungu Wanjohi – Versus - Attorney General & Another [2012] eKLR”, the Court noted that failure by State agencies to uphold principles of land policy, such as proper survey and registration, undermines constitutional guarantees under the provision of Article 60.
74. The Petitioners contended that the Respondents failed to survey, demarcate, and register the suit property, thereby exposing them to disputes and dispossession. This failure, if established, again the Court concurs with the Petitioners, would amount to abdication of constitutional duty under Article 60. However, the Petitioners did not provide evidence that they had pursued formal adjudication or registration processes, which weakens their claim.
75. In conclusion, the Petitioners did not establish legal ownership; hence, violation of property rights was not proved. The Petitioners demonstrated that the Group Ranch Committee acted outside jurisdiction and unfairly, which supports a finding of violation of fair administrative action. The Respondents’ failure to survey and register the land may amount to breach of constitutional land policy principles, but the Petitioners’ lack of evidence of attempts to regularize ownership undermines the claim.
76. The Petitioners partially established violations under the provision of Articles 47 and 60, but failed to meet the threshold under Article 40 due to lack of documentary proof of ownership.
ISSUE No. d). Whether the Mwavumbo Group Ranch Committee had jurisdiction to determine the dispute
77. Under this sub - title, the Honourable Court shall examine whether the Mwavumbo Group Ranch Committee lawfully exercised authority to determine competing claims of ownership over the suit parcel at Maweni “A” village. The Land (Group Representatives) Act, Cap. 287 established group representatives and committees to manage communal ranch affairs—membership, grazing, internal administration—but it did not confer power to finally determine questions of legal title or to extinguish proprietary rights that require formal adjudication or registration.
78. In the celebrated case of “Owners of the Motor Vehicle M.V. Lillians – Versus - Caltex Oil (Kenya) Limited (1989) KLR1”. At page 14 line 29-43 Nyarangi JA (as he then was) had this to say:-
“
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like mean. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the action and matters of which the particular court has cognizance of or as to the area over which the jurisdiction shall extend; or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal ha s been given power to determine conclusively whether the fact exists where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision a merit to nothing. Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Facts constitute the evidence before the court…The moment a court determines that it has no jurisdiction it has to down its tools and proceed no further”
79. The Community Land Act, 2016 requires that community land be registered in the name of the community and contemplates that disputes touching on ownership and registration are to be resolved through statutory mechanisms and, where necessary, by the courts. Therefore, the Act places ultimate responsibility for formal recognition of land rights with statutory bodies and the courts rather than with internal management committees.
80. The provision of Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011 vests the Environment and Land Court with original jurisdiction over disputes relating to the use, occupation of, and title to land. Administrative or community bodies cannot usurp that jurisdiction. It is settled that a decision made by a body acting beyond its statutory powers is ultra vires and void ab initio; jurisdictional excess renders the decision a nullity. The maxim “jurisdiction is everything” remains authoritative in Kenyan jurisprudence.
81. The Petitioners averred that “sometime back in 1941 the deceased Petitioner's his late father, Mzee Mulisho Ndurya bought a piece of land from their neighbour Mzee Mgandi Dumbo for cultivation purposes.” The Petitioners further recorded that “the dispute was ‘heard’ and ‘a verdict’ was issued on 13th June, 2019 in favour of the 6th Respondent.” Those averments show a historical private purchase and a subsequent committee determination that the Petitioners challenge as lacking jurisdiction.
82. The committee purported to determine ownership of the suit parcel. Ownership and title are legal questions that ordinarily require documentary proof, formal adjudication, or registration. Internal management organs of a group ranch are not statutory substitutes for the Land Adjudication Officer, the National Land Commission, or the Environment and Land Court when title is in issue. The repealed Land (Group Representatives) Act and the Community Land Act both envisage committees as administrative organs for governance and dispute resolution within the membership, but they do not empower such committees to make final determinations that alter proprietary rights or to issue decisions that operate as title. Where a committee attempts to do so, its decision exceeds its statutory mandate.
83. As already indicated, Article 162(2)(b) and the Constitution of Kenya allocate to the Environment and Land Court the authority to determine disputes about title, occupation and use of land. Administrative determinations that purport to extinguish or reallocate title circumvent the constitutional allocation of judicial power and are therefore vulnerable to judicial review. Kenyan authorities have consistently held that decisions taken without jurisdiction are nullities and that affected parties are entitled to judicial review. The case of:- “Krystalline Salt (Supra)” line of authorities and subsequent ELC jurisprudence reinforce that administrative bodies must act within their statutory remit. Even if a committee follows fair procedures, procedural regularity cannot confer substantive jurisdiction where none exists. A fair process by a body lacking power cannot produce a valid transfer or extinguishment of title.
84. In conclusion, the Mwavumbo Group Ranch Committee lacked jurisdiction to determine the ownership dispute over the suit property. The question before it—who owned the parcel—was a matter of title and registration that fell outside the committee’s administrative remit and within the statutory and constitutional jurisdiction of the National Land Commission and the Environment and Land Court. The ostensible committee’s decision of 13th June 2019 was therefore ultra vires and void ab initio. As a legal consequence, that decision could not extinguish the Petitioners’ claims or operate as a bar to judicial determination of ownership. The proper remedy for the Petitioners was (and remains) to seek judicial determination or statutory investigation/rectification through the National Land Commission and the Environment and Land Court.
ISSUE No. e). Whether parties are entitled to any appropriate reliefs, if any
85. On the record before the Court the Petitioners had not proved legal title but had shown long occupation and a procedurally defective decision by the Mwavumbo Group Ranch Committee. The Court is however alive to the fact that this Petition having not met the threshold of a Petition is not properly before the Court and directs the parties to file the same in the appropriate forum.
ISSUE No. f). Who bears the costs of the Petition.
86. Under this sub–heading, the Court has considered the conduct of the parties, the nature of the dispute, and the applicable legal principles to determine who should bear the costs of the Petition. It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides: -
“(1) The award of costs is at the discretion of the Court.
(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”
87. In the case of “Reids Heweet & Company – Versus - Joseph AIR 1918 cal. 717” and “Myres – Versus - Defries (1880) 5 Ex. D. 180”, the House of the Lords noted: -
“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it…..”
88. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held: -
“……….the basic rule on attribution of costs is that costs follow the event…..it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”.
89. Therefore, the events in the instant case is that the Petitioners herein have not succeeded in establishing their case on preponderance of probabilities. However, this being a suit involving a community and hence of public interest, it is just fair, reasonable and Equitable that fundamentally each party bears its own costs.
VII. Conclusion and Disposition
90. Consequently, having intensively and thoroughly deliberated on all the framed issues herein, this Honourable Court arrives at the finding that the Petitioners herein have not succeeded in the prayers sought in their filed Petition. For avoidance of doubt, I dismiss the Amended Petition dated 9th July, 2022 specifically under the following terms:-
a) THAT the Amended Petition dated 9th July, 2022 be and is hereby dismissed in its entirety for failure to establish a constitutional cause of action and for want of requisite proof of title.
b) THAT for the avoidance of doubt, this dismissal is without prejudice as the Petition did not meet the threshold for a Constitutional Petition because it primarily raised an ownership dispute without the requisite documentary proof of title or the necessary particularity linking the pleaded facts to specific constitutional infringements.
c) THAT the Petitioners are granted liberty to pursue any appropriate statutory or civil remedies available to them.
d) THAT each party shall bear its own costs of the Amended Petition.
IT IS SO ORDERED ACCORDINGLY.
JUDGMENT DATED, SIGNED AND DELIVERED AT KWALE THROUGH MISCROFT TEAMS VIRTUALLY THIS …………12TH ………… DAY OF ………MARCH…………… 2026.
Judgement delivered in the presence of: -
a) M/s. Daniel Disii – the Court Assistant.
b) M/s. Nyaranda Ayuma Advocate holding brief for Mr. Gikandi Advocate for the Petitioners.
c) No appearance for the Respondents.