MUTUA MBATHA VS THE DIRECTOR OF LAND ADJUDICATION AND THE LAND ADJUDICATION & SETTLEMENT OFFICER, KITUI AND 3 Others

1. The Petitioner claims he acquired ownership of a tract of land (then unadjudicated) in Ikanga, Kitui County, adjacent to the 5th Respondent’s land. He extended his boundaries between 1996 and 2006 by buying more land from the 5th Respondent (18 Ha) and other neighbours in particular, the families of Kithuka Ngemu and Kyangangu Ngemu (15 Ha), Kimuli Makau (10 Ha) and Jumaa Mukuma (10 Ha) in total he acquired approximately 53 hectares.
2. The area was then declared an Adjudication Section named Ikanga/Ithumula Adjudication Section around 2007-2008. During the adjudication process, the Petitioner stated that he produced and supplied all documents and information required to establish his rights and interests in the suit land. He further retained (at a fee) the 5th Respondent, who agreed to take care of his property and to follow up on the registration and issuance of a title deed to the land.
3. In October 2009, the Petitioner learned that the title deeds for the area had been processed and visited the offices of the 4th Respondent to collect his. To his utter shock, the Petitioner discovered that no land in the area was registered to him. He found that the 5th Respondent had conspired with the 1st and 2nd Respondent's officers and had the Petitioner's land merged into his land, and the same was registered as one parcel. The Petitioner was also omitted from the list of landowners in the area.
4. The Petitioner accuses the defendants of fraud for preparing a record which did not reflect the actual position on the ground, ignoring his open, active and visible presence. He particularized the fraud claiming that the 5th Respondent deliberately misled the Petitioner that his rights and interests had been taken care of and duly registered, merging two distinct portions of land without involving the petitioner who had legitimate interest in one and falsifying documents and information to defraud the petitioner of his rights to the portion that he owned.
5. Upon discovery of the aforementioned, the Petitioner confronted the Respondents, who owned up to their mistakes. However, since the adjudication process was complete, he was advised by the 1st -4th respondents to wait for the 5th respondent to subdivide Land Parcel Number Ikanga/Ithumula/1554 into two portions proportionate to what the petitioner and the 5th Respondent owned and transfer the rightful portion to the Petitioner.
6. The Petitioner and the 5th Respondent, therefore, applied to the Mutomo Land Control Board for consent to subdivide the suit land. Upon grant of the consent, the Petitioner and the 5th respondent retained the services of a surveyor, who in October 2009 proceeded to subdivide the suit land into two portions of 24.40 Ha and allocated land parcel number Ikanga/Ithumula/1695 to the 5th Respondent, parcel number Ikanga/Ithumula/1696 measuring 52.43 Ha was allocated to the Petitioner.
7. The 5th Respondent executed the transfer of the suit property to the Petitioner after a long delay, but before the Petitioner could lodge the aforementioned transfer, the 5th Respondent lodged a false complaint with the 4th Respondent alleging that the entire process was fraudulent and made against his will. Due to this complaint, the 4th Respondent confiscated the transfer and declined to act.
8. The Petitioner states that this sequence of events amounts to a violation of his constitutional right to property under Article 40(1) of the Constitution through the acquisition of his property without due compensation. He also stated that the 1st and 2nd Respondents acted in breach of Article 10 of the Constitution, and he had the legitimate expectation that his portion of the suit land would be transferred to him.
9. The Petitioner prays for the following orders:
a. A declaration that the respondents have by declining and stopping the completion, execution and registration of the transfer of Ikanga/Ithumula/1696 from the 5th respondent to the petitioner breached and violated the petitioner’s right to protection of property as enshrined in Article 40(1) of the Constitution.
b. A declaration that the petitioner had a legitimate expectation that land parcel number Ikanga/Ithumula/1696 had and would be registered to him and as such has a right to be registered proprietor of the said land.
c. A declaration that registration of the 5th respondent as the owner and proprietor of land parcel number Ikanga/Ithumula/1696 was fraudulent, unlawful and in breach of the petitioner’s proprietary rights and, as a consequence, the 5th respondent holds title to the said land in trust of the petitioner.
d. An order of permanent injunction restraining the respondents either by themselves or through their agents, servants, proxies, officers or anyone acting on their behalf from transferring, selling, disposing, or in any other way dealing with land parcel number Ikanga/Ithumula/1696 without consent, authority or approval of the petitioner.
e. An order directing the 5th respondent to within a specified period execute transfer instruments and provide all necessary documents for the transfer of land parcel number Ikanga/Ithumula/1696 in favour of the petitioner, failure to which the Deputy Registrar of this court shall execute the same on behalf of the 5th respondent.
f. An order directing the 3rd and 4th respondents to register and effect transfer of land parcel number Ikanga/Ithumula/1696 from the 5th respondent to the petitioner and issue the petitioner with title deed and other ownership documents to that effect.
g. The respondents do pay the costs of this petition.
h. Any other relief that this court may deem fit to grant.
10. The petition was supported by the affidavit of the Petitioner.

The 1st-4th Respondents’ Replying Affidavit
11. Julius Njeru, the Land Adjudication Officer for the Mutomo area, swore an affidavit in response to the Petition on behalf of the 1st- 4th Respondents. He confirmed that land adjudication around the Ikanga area took place and that the 5th Respondent was identified as the owner of land parcel number Ikanga/Ithumula/1554, measuring approximately 76.83Ha and was recorded as such.
12. The adjudication record was forwarded to the 1st Respondent after the adjudication exercise for transmission to the 3rd and 4th respondents for registration and issuance of ownership documents as required by the law.
13. No complaint or objection was raised to the Land Adjudication Officer's office regarding the suit property during or after the adjudication process. The 1st-4th Respondents are not privy to the alleged agreement between the Petitioner and the 5th defendant. They denied that they advised the Petitioner to proceed with the subdivision as alleged in paragraph 12 of the supporting affidavit.
14. Further, the 1st -4th respondents depose that the Petition herein has failed the test of specificity established in the celebrated case of Anarita Karimi vs R(No.1)(1979)KLR 154 and that it lacks merit and should be struck out.


The 5th Respondent’s Replying Affidavit.
15. The 5th Respondent swore an affidavit in response to the Petition, deposing that when the area the suit land is located was duly adjudicated, he was registered as proprietor as a first registration with absolute title over land parcel number Ikanga/Ithumula/1554. He then subdivided the land into two, resulting in land parcel Number Ikanga/Ithumula/1695 and land parcel number Ikanga/Ithumula/1696. He deposed that the whole process was carried out in an open, transparent, legal, lawful and procedural manner.
16. The 5th Respondent denied applying to the Land Control Board seeking consent to subdivide and transfer his parcel of land Ikanga/Ithumula/1696 to the Petitioner as alleged and that the alleged application for consent dated 14.3.2021 and letter of consent dated 25.3.2021 were forgeries and he filed a complaint in respect thereof.
17. He states that the Petitioner is attempting to defraud him of his property and urges the Court not to aid this.

The Hearing of the Suit
18. The Petition was heard by way of viva voce evidence. The Petitioner adopted his supporting affidavit with the attached documents as evidence in chief. He denied that he forced the 5th respondent to sign the subdivision documents as alleged. He stated that they mutually went to the survey office and signed the documents in the presence of the surveyor, whose name he could not remember.
19. On cross-examination, the Petitioner stated that he gave the 5th Respondent consent to represent him during the adjudication process because he was sick in the hospital. He gave the 5th respondent all his documents, including his identification card and the book where they had recorded the purchase of the land. He stated that when he got well, he went to the land office and found that the 5th Respondent had surveyed all the land to himself. He therefore wrote a letter to the Land Adjudication Office, and the Surveyor advised them to subdivide the land, but he did not produce the letters.
20. He also stated that the 5th respondent used to graze his cows for him for pay. He stated that the 5th respondent had the book where they wrote the agreement for the sale of the land.  He could not remember when he found out the 5th respondent had recorded the land in his name. For his other parcel of land in Matulani, he stated that he was issued with a title deed and that he had sent his children to attend to the adjudication process and follow up on the title.
21. He further stated that he left the 5th Respondent to follow up on the title and paid for the land in full. That the 5th Respondent gave him a portion of the land Ikanga/Ithumula/1554 after he complained. He denied that he was trying to steal from the 5th Respondent.
22. The Petitioner recalled that he went before the Land Control Board with his son, Mulinge Mutua but did not recall the document he signed when he was referred to the application for Land Control Board Consent dated 14th March 2021 and he stated that thereafter, the 5th respondent refused to transfer the land to him.
23. He also clarified that they went to the Land Control Board voluntarily and that they were both present during the survey, where the 5th Respondent went around with the surveyor and that he had agreed to give the Petitioner the land. He found out that the 5th Respondent had registered himself as the owner of the land in 2009.
24. PW 2, Peter Mutua Mbatha, adopted his witness statement that he recorded on 16th January 2023 as his evidence in chief. He stated that the Petitioner acquired several blocks of land from his neighbours through purchasing. On 15th December 1996, he witnessed the Petitioner pay a sum of Ksh.6,000.00 the balance to complete payment of the land that the Petitioner bought from Jumaa Mukuma and his mother Mbithe.
25. PW 2 stated that he was also a witness when Matuku Kyalo sold the Petitioner's land after he paid 26 goats valued at Ksh.1,600 each, translating to Ksh.41,600 and cash of Ksh.10,000, totalling Ksh.51,600, against the entire agreed purchase price of Ksh.65,500.  He further testified that the Petitioner kept herds of livestock on his land and farmed in the suit property, having hired the 5th respondent as his caretaker. This was mainly because the Petitioner's matrimonial home was far from the suit property.
26. Later, when adjudication of land was carried out, the Petitioner’s parcel of land was registered as part of Ikanga/Ithumula/1554. The parcel was later subdivided, and the portion belonging to the Petitioner was registered as Ikanga/Ithumula/1696.
27. On cross-examination, PW 2 stated that he did not participate in the adjudication process and had no case against the 5th respondent.
28. PW 3 Mutia Mutua adopted his witness statement dated 16th January 2023. He stated that the Petitioner and the 5th Respondent are well known to him and that he witnessed the agreements for the purchase of the suit property between the Petitioner and the 5th Respondent, where the Petitioner paid the equivalent of Ksh.51,600 out of the agreed purchase price of Ksh.65,000. PW 3 was also a witness to the agreement between the Petitioner and one Jumaa Mukuma with his mother, one Mbithe. According to the witness, the Petitioner paid Ksh.6,000 to complete the purchase of that particular piece of land that forms part of the Petitioner’s land.
29. PW 3 stated that he was aware that when adjudication of land was carried out in the area, the Petitioner’s parcel of land was registered as part of Ikanga/Ithumula/1554. The parcel was later subdivided, and the portion belonging to the Petitioner was registered as Ikanga/Ithumula/1696.
30. On cross-examination, PW 3 confirmed that he is the Petitioner's brother but does not live on the suit land, which is in Kitui South. He lives in Kitui Rural in Lower Yatta. When land adjudication in the area began, he was not around.
31. PW 4 Jumaa Mukuma testified and adopted his witness statement dated 16th January 2023. He stated that the Petitioner is well known to him as his neighbour. He sold the parcel of land of about 10 Hectares to the Petitioner in 1996, and the Petitioner completed payment of the purchase price.
32. The witness stated that he was aware that after the area was adjudicated, the land bought from them was registered as part of Ikanga/Ithumula/1554 and the portion the Petitioner bought was subdivided into Ikanga/Ithumula/1696.
33. He further stated that he was there when adjudication began and the Petitioner came to the land after adjudication. After he sold him the land, the Petitioner started using the land for grazing, the 5th Respondent was given the work to fence the land.
34. Upon cross-examination, PW 3 stated that he sold his land together with his mother, Mbithe, but at that time, there were no land parcel numbers. He stated that his home to the Petitioner's house is about 4km apart.
35. PW 5 Kamau Nyamai testified adopting his witness statement dated 30th September 2023. He stated that the Petitioner and the 5th Respondent are well known to him and that he witnessed their agreement for the sale of land dated 18th October 2006 between the Petitioner and the 5th Respondent.
36. The parcel of land was unadjudicated land in Ikanga, which the Petitioner purchased from Kyangangu Ngemu and his brother Kithuka Ngemu. He testified that the vendors had previously bought that parcel of land from the 5th respondent. The land measured about 18 Hectares and was sold at an agreed price of Ksh.165,000, which was paid in full in three different instalments: Ksh.25,000 as balance paid on 18-10-2006 to the 5th Respondent which was owed to him by the said Kyangangu Ngemu and Kithuka Ngemu in their initial sale agreement, Ksh.30,000 paid on 18th October 2006 paid to Kithuka Ngemu and Ksh.110,000 paid on 22nd November 2006 paid to Kyangangu Ngemu and Kithuka Ngemu, completing payment of the purchase price.
37. He stated that he was present and witnessed the two parties sign and confirm the said payment. He also signed the agreement which appears on pages 20 and 21 of the Petitioner's bundle, dated 21-02-2022.
38. PW 5 was aware that after the area was adjudicated and the land bought pursuant to the aforesaid agreement, it was registered as part of Ikanga Ithumula/1696.
39. During cross-examination, PW 5 stated that the parties were his friends and he was called to witness payment of Ksh.110,000/= and did not witness any other payment. He also stated that he used to see the 5th Respondent work for the Petitioner.
40. This marked the close of the Petitioner's case. State Counsel for the 1st -4th Respondents did not avail any witness.
41. DW 1 Simon Mutuku Kyalo, the 5th Respondent, stated that the Petitioner is his friend and his daughter is married to the Petitioner’s grandson. He adopted his witness statement dated 15th May 2023 and his list of documents of even date as his evidence in chief. He testified that he first met the Petitioner in the year 1996, at Kavisuni Market in Kitui County, when they were trading livestock and forged a friendship. As the Petitioner was dealing with large stocks which he was holding and later transporting to Mariakani, the 5th Respondent agreed to keep the livestock for him on his land free of charge, which went on up to the year 2022.
42. As a token of appreciation for the services that the 5th Respondent rendered to him, the Petitioner gifted him a parcel of land and put it down in writing on 13th September 2020 and this was witnessed by his son, C. Mulinge Mutua, which is the parcel of land that the Petitioner bought from one Mutindi Mwanzia.
43. In August 1996, the 5th Respondent testified that he sold to the Petitioner a portion of his undermarcated parcel of land, situated at Kyawangu Village, which is about 3 kilometres away from the suit land, and they reduced their agreement in writing, with the purchase price being 21 goats.
44. He further stated that when the area was declared an adjudication section, his parcel of land was demarcated, adjudicated and finally registered as Land Parcel title number Ikanga/Ithumula/1554, first registered on 27.07.2007. He also had the parcel of land that he had sold to the Petitioner demarcated, adjudicated, and finally registered in his name because the Petitioner was not readily available, and the adjudication could not allow for a blank entry. The parcel of land was registered as Land title number Ikanga/Ithumula/1042, and the registration was made on 27.7.2007, but he did not collect the title deed.
45. The 5th Respondent states that all was peaceful until sometime in 2021 when he was summoned to the Mutomo Sub-County Commissioner’s office for a Land Control Board meeting, where he was informed that he had made an application for consent purportedly on 14.3.2021.  He learnt that his land Ikanga/Ithumula/1554 had been subdivided into Ikanga/Ithumula/1695 and Ikanga/Ithumula/1696, and the title was closed. He denied ever making an application for the subdivision or correction of his name, which was done on 29.10.2009.
46. He was asked by the sub-county commissioner to sign the purported application for sub-division dated 14.3.2021 in order to legitimize it, but he declined. He later came to learn that the Deputy Sub-County Commissioner issued a letter of consent to the Petitioner dated 25.3.2021. He was then served with this Petition.
47. The 5th Respondent reiterated the contents of his replying affidavit, stating that he never sold any portion of Ikanga/Ithumula/1696 to the Petitioner. That at no point was his parcel of land Ikanga/Ithumula/1554 subject to any dispute. The land he sold to the Petitioner is Ikanga/Ithumula/1042, which he transferred to the Petitioner and registered him as proprietor on 7.12.2022. He states that he was not involved in the cases involving land that the Petitioner bought from Musembi Mutunga, stating that he was defrauded by them.
48. He therefore stated that the Petitioner violated his rights to quiet enjoyment of his property and he attempted to defraud him by causing subdivision of the land without his knowledge and consent. He prays that the Petition be dismissed with costs.
49. Upon cross-examination, he denied being a witness to the sale agreement in exhibit 2 of the Petitioner’s bundle of documents on behalf of Jumaa Mukuma. He also stated that he did not report that his land was fraudulently subdivided without his consent and did not file a case against this. The 5th Respondent closed their case, and the parties filed written submissions.

The Petitioner’s Submissions
50. Counsel for the Petitioner submitted that the Petitioner legitimately acquired land through lawful agreements for the purchase of land. On this point, the cases of Wreck Motor Enterprises vs the Commissioner of Lands & 3 others (1997)eKLR and the case of Kibugi and Mukobwa(1990)KLR 219.
51. He accused the 5th Respondent of a breach of fiduciary duty when the Petitioner entrusted him as the caretaker of his properties but he fraudulently altered adjudication records. On this point, Counsel relied on the cases of Mwangi & another  v. Mwangi (1986)eKLR and Chemei Investments Ltd v. Attorney General & others(2006)eKLR. Counsel accused the 1st -4th Respondents of altering the land record to exclude the Petitioner from being recorded as the rightful land owner, even after discovering that there was a fraudulent merge which they claim amounts to a lack of administrative fairness, and fraudulent deprivation of land rights under Article 40(1) of the Constitution as they cited the case of Matoya v. Standard Chartered Bank (K)Ltd (2003)KLR 425 among others.
52. The Petitioner also submits that his legitimate expectation was that the adjudication process would adhere to the due administrative process but failed to do so. Counsel argued that the actions of the 5th Respondent keeping the Petitioner’s land amounts to unjust enrichment. He relied on various cases.
53. In conclusion, the Petitioner submits that the Respondents have violated Article 10 of the Constitution on the duty of state officers to uphold transparency, integrity and accountability as well as Article 40 by depriving him of his property. Counsel cited and relied on the cases of:
Mitu-Bell Welfare Society v. Attorney General & 2 others (2013) eKLR
Trusted Society of Human Rights Alliance v. Attorney General & 2 others (2012) eKLR.
54. The Petitioners urged the Court to grant the orders sought as prayed.

The 1st-4th Respondents’ Submissions
55. The State Counsel for the 1st- 4th Respondents submitted that the Petition constitutes only civil wrongs and no constitutional connotation so that the court exercising the principle of constitutional avoidance must decline jurisdiction, relying on the case of Stephen Muthami Mbau & 10 others v. Kenya Railways Corporation.
56. Their concern is that a Constitutional Petition is not the right forum to determine issues concerning land ownership where credibility needs to be tested without applying constitutional connotations.
57. Secondly, State Counsel submits that the Petitioner has not proven his allegations to a required standard of proof, as they relied on the holding in the authority of the case of Northern Nomadic Disabled Person’s Organization (Nondo)-vs Governor County Government of Garissa & another (2013)eKLR. They submit that it is not possible to confirm the Petitioner’s assertion that he gave the 5th Respondent authority to act on his behalf during the adjudication process and that he agreed with the 5th Respondent to subdivide the suit property so that he could get his share.
58. On the issue of legitimate expectation, it was submitted that it could only flow from the law. The Petitioner has failed to prove any acquired legal right over the suit property, and they cited the cases of: Council of Civil Service Unions & others v. Minister for the Civil Service(1984)3 ALL ER 935, Jitendra Kumar & others vs State of Haryana & Another: Supreme Court of India Civil Appeal No.5803 of 2007, Republic vs Council for Legal Education & 2 others ex parte Michelle Njeri Thiongo Nduati(2019)eKLR.
59. The 1st -4th Respondents’ submissions were concluded by stating that the Petition has not met the threshold to be granted the orders as prayed and has failed to meet the standard set in the case of Anarita Karimi Njeru v. The Republic(1976-1980)KLR 1272 and Northern Nomadic Disabled Person’s Organization(Nondo)-vs Governor County Government of Garissa & another(Supra) and they submit that it should be dismissed with costs.

The 5th Respondent’s Submissions
60. Counsel for the 5th Respondent submitted that in 1996, when the area where the suit land is situated was unadjudicated, the land vested in the County Council of Kitui by Article 115 of the then Constitution. Therefore, the 5th Respondent had no proprietary rights to sell to the Petitioner since the County Council had no vested rights in any individual.
61. It was also submitted that the Petitioner did not attach any evidence of him challenging the adjudication of the suit land at any stage of the process and did not attach any proof that he was sick and thus unable to attend. He can, therefore, not be heard to say that his name was removed from the list of landowners during adjudication when his name was never on the list in the first place.
62. Submitting that the 5th Respondent’s title is clean and was obtained as a first registration with absolute ownership, it was submitted that the 5th Respondent had the unfettered right to subdivide the land as he did.
63. Regarding the allegation of violation of the Petitioner’s right to property, it was submitted that none of the Respondents barred the Petitioner from acquiring or owning property, that there is no evidence of fraud of an altered adjudication record and that it is the 5th Respondent who is guilty of taking the 5th respondent’s property.
64. It was concluded that the Petitioner has been unable to challenge the proprietary rights of the 5th Respondent as provided under Section 25(1) of the Land Registration Act and that the Petition ought to be dismissed with costs.

Analysis and Determination
65. Having considered the petition herein, the replies, evidence adduced at the hearing and submissions by Counsel for the parties, the Court considers the following as the issues arising for consideration:
A) Whether the Petition raises constitutional matters or the doctrine of Constitutional avoidance should be invoked to decline jurisdiction.
B) Whether the Respondents, fraudulently, unlawfully and in breach of the Petitioner’s rights, registered in the name of the 5th Respondent, the Petitioner's land as part of Land Title No. Ikanga/Ithumula/1554
C) Whether the Petitioner acquired ownership rights to the previously unadjudicated land now known as Land Parcel Ikanga/Ithumula/1696.
D) Whether the Respondents violated the Petitioner's constitutional right under Article 40(1) of the constitution of Kenya
A) Whether the Petition raises constitutional matters or the doctrine of Constitutional avoidance should be invoked to decline jurisdiction.
66. Counsel for the 1st to 4th Respondents submitted that the Court is divested of jurisdiction to hear and determine this petition based on the doctrine of Constitutional avoidance. Counsel argues that this court sitting as a constitutional court should limit its jurisdiction to interpretation and application of the constitution to land and environment disputes. The court should not descend into dealing with the interpretation and application of statutory provisions.
67. From the totality of the petition herein and replies filed, the court understands the dispute between the parties as seeking determination of several questions; One of them is whether the Petitioner acquired proprietary rights to land through purchase from various persons of portions of unadjudicated land which upon adjudication became land parcel number Ikanga/Ithumula/1554. The Petitioner seeks from the court a determination of whether the 1st, 2nd and 5th Respondents fraudulently and unlawfully demarcated and registered the land parcel number Ikanga/Ithumula/1554 in favour of the 5th Respondent and removed the Petitioner's name from the register of the adjudicated parcels of land. The court will thus be looking at whether or not the process of ascertainment and recording of rights and interests in land under adjudication was followed in registering the 5th Respondent as proprietor of the suit land. The Petitioner also seeks from the court a determination of whether the respondents have by declining and stopping the completion, execution and registration of the transfer of Ikanga/Ithumula/1696, a subdivision of land parcel Ikanga/Ithumula/1554, from the 5th respondent to the petitioner breached and violated his right under Article 40(1) of the Constitution.
70. The Respondents, on the other hand, argue that the process of land adjudication was properly carried out following the provisions of the Land Adjudication Act and the title that was issued to the 5th Respondent is unimpeachable. The court will be called upon to interpret the protections given to a proprietor of land and holder of a certificate of title to land under the provisions of Sections 24, 25, 26 and 27 of the Land Registration Act and the powers of Chief Land Registrar under Section 14 of the Land Registration Act among other provisions of the law.
71. The Constitutional-Avoidance doctrine is at times referred to as the Constitutional-Avoidance Rule or principle. Black's Law Dictionary, 10th Edition page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”
72. The doctrine deals with instances where a Constitutional Court will decline to deal with a matter because there exists another remedy provided in law that the aggrieved party is yet to utilize. That is also referred to as the doctrine of exhaustion. It interrogates whether there are other ways of resolving a dispute outside a constitutional petition.
73. The Supreme Court defined the principle of constitutional avoidance in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR
“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.”
Similarly, the U.S. Supreme Court held that it would not decide a constitutional question which was properly before it if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)). 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.”
74. The Petitioner claims that he purchased portions of the suit land whilst they were undajudicated between 1996 and 2006. The Constitution in place during that period was the repealed Constitution, and the same provided for unadjudicated land which was known as trust land. Under Section 115 (1) of the repealed Kenyan constitution, it was provided that;
“All Trust land shall vest in the county council within whose area of jurisdiction it is situated:”
75. Section 115 (2) provided that;
  Each county council shall hold the Trust land vested in it for the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests or other benefits in respect of the land as may, under the African customary law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual: Provided that no right, interest or other benefit under African customary law shall have effect for the purposes of this subsection so far as it is repugnant to any written law.
76. Section 115 (4) states that;
Subject to this Chapter, provision may be made by or under an Act of Parliament with respect to the administration of Trust land by a county council.
(1) A county council may, in such manner and subject to such conditions as may be prescribed by or under an Act of Parliament, request that any law to which this subsection applies shall apply to an area of Trust land vested in that county council, and when the title to any parcel of land within that area is registered under any such law otherwise than in the name of the county council it shall cease to be Trust land.
(2) The laws to which subsection (1) applies are –
(a) the Land Consolidation Act and the Land Adjudication Act; and
(b) any other law permitting the registration of individual titles to estates, interests or rights in or over land that, immediately before registration, is Trust land (except so far as the law permits the registration of estates, interests or rights vested in persons or authorities for whose use and occupation the land has been set apart under this Chapter).
77. From the foregoing provisions of the repealed Constitution of Kenya, it is clear that at the time when the Petitioner was purchasing the land in question, the same was unadjudicated trust land that vested in the relevant county council. When the Land Adjudication Act was applied to the area as was confirmed by the parties, the process of ascertainment and recording of rights and interests in the land commenced. The Land Adjudication Act was then stated to be:
  An Act of Parliament to provide for the ascertainment and recording of rights and interests in Trust land, and for purposes connected therewith and purposes incidental thereto
78. The purpose of land adjudication is to record individual interests in land. Mbugua J. in the case of Fatuma Adan Dullo & 4 others v Cabinet Secretary Ministry of Lands and Physical Planning & 2 others [2020] eKLR held that:
“I find that while the Constitution of Kenya ( Article 63) gives a broad   overview of what community land is, both the Community Land Act and the Land Adjudication Act provide a more elaborate understanding of what amounts to community land and how community land rights are held (tenure system). The Land Adjudication Act primarily deals with ascertainment of rights and interests in land, recording of such rights and interests held in a communal tenure system in order for those rights and interests to transition to individual tenure system.”
79. The Land Adjudication process provides an elaborate mechanism for the ascertainment and recording of rights and interests in land under adjudication. It also provides an elaborate dispute resolution mechanism through the Committee stage under Sections 19 and 20, the Arbitration stage under Sections 21 and 22, the Objection stage under Section 26 and the Appeal to the Minister under Section 29. The Petitioner failed to follow up on the adjudication of his land.
80. Further, the Petitioner was expected to have lodged his claim to the land in accordance with Section 13 of the Land Adjudication Act, which provides that.
(1) Every person who considers that he has an interest in land within an adjudication section shall make a claim to the recording officer and point out his boundaries to the demarcation officer in the manner required and within the period fixed by the notice published under section 5 of this Act.
(2) Every person whose presence is required by the adjudication officer, demarcation officer, recording officer, committee or board shall attend in person or by a duly authorized agent at the time and place ordered.
81. The 5th Respondent denies being appointed by the Petitioner to follow up on his registration of the suit land. He contends that the suit land belonged to him all along.
82. In the Court’s view, the issues raised herein are matters that should have been settled during the adjudication process as mandated by the law. As a constitutional court, this court cannot usurp the functions of the land adjudication process and tribunals. P.M Njoroge J in the case of Mugere Kamotho v James Muchiri Ndegwa & 13 others [2021] eKLR, held that:
“This court cannot usurp the responsibility of the institutions established by the Land Adjudication Act and the Land Consolidation Act to ascertain ownership of land. If I make a different finding every Juma, Otieno, Kamau, and Esseli (JOKE) would rush to courts for them to be ascertained as landowners. The role played by these institutions would veritably be rendered moribund and the role of elders as custodians of customary law would be rendered unnecessary."
83. This position is reiterated by Okongo J in Tobias Achola Osidi & 13 Others vs. Cyprianus Otieno Ogalo & 6 others (2013) eKLR, where the court held as follows;
"It follows from the foregoing that once an area has been declared an adjudication area under the Act, the ascertainment and determination of rights and interest in land within the area is reserved by the law for the officers and quasi-judicial bodies set up under the Act. It is for this reason that there is an injunction under section 30 of the Act to any civil suit being instituted over an interest in land in an adjudication area, save with leave of the Land Adjudication Officer. The Act has given full power and authority to the Land Adjudication Officer to ascertain and determine interests in land in an adjudication area prior to the registration of such interest. (Emphasize added). As I have mentioned above, the process is elaborate. It is also inclusive in that it involves the residents of the area concerned. I am fully in agreement with the submission by the advocates for the defendants that the Land Adjudication Officer cannot transfer the exercise of this power to the Court. The court has no jurisdiction to ascertain and determine interests in land in an adjudication area. In my view, the role of the court is supposed to be supervisory only of the adjudication process. The court can come in to ensure that the process is being carried out in accordance with the law. The court can also interpret and determine any point or issue of law that may arise in the course of the adjudication process. (Emphasize added). The court cannot, however, usurp the functions and powers of the Land Adjudication Officer or other bodies set up under the Act to assist in the process of ascertainment of the said rights and interests in land”.

84. Further, the Court of Appeal restated the Constitutional requirement for the use of alternative dispute resolution mechanisms and held that usurpation of their jurisdiction by the high court would not be promoting but rather undermining a clear constitutional objective under Article 159 (2) (c). This position was taken in the Court of Appeal decision in Mutanga Tea & Coffee Company Ltd V Shikara Limited & Another [2015] eKLR, where the following remarks were made:
“We entertain no doubt in our minds that the reasoning of the court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the constitution or a statute, to resort to that mechanism first before purporting to involve the inherent jurisdiction of the High Court.  The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.  The use of the word “including” leaves no doubt that Article 159 (2) (c) is not a closed catalogue.  To the extent that the constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the high court would not be promoting but rather undermining a clear constitutional objective.  A holistic and purposive reading of the constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165 (3) (a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms”.
78. Courts have emphasized the need for aggrieved parties to strictly follow any procedures that are specifically prescribed for the resolution of particular disputes. Speaker of the National Assembly V. Karume  [1992]  KECA 42 (KLR).  In granting an order for a stay of execution, the Court made the often-quoted statement that:
“Where there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
79. In the present case, the procedure laid down under the Land Adjudication Act, if followed, would have resolved the dispute at hand.   Ownership of the land under adjudication is determined after going through the process. Section 23 provides for the preparation of adjudication records and states that;
(1) The forms prepared by the recording officer under section 19 of this Act shall together comprise the adjudication record.
(2) In preparing the adjudication record, the recording officer, if he is satisfied that—
(a) any person has, under recognized customary law, exercised rights in or over land which should be recognized as ownership, shall determine that person to be owner of that land:
81. The Petitioner failed to follow the said procedure, and the 5th Respondent was declared to be the owner of the suit land since there was no objection raised to such a finding. The Petitioner cannot be heard in this petition to urge the court to make determinations that are tantamount to re-opening the whole adjudication process and grant reliefs that ought to have been sought. In the court's view, the Petitioner's claim is one of sale/purchase of portions of unadjudicated and is not within the constitutional mandate of this court. 
82. Article 40 (1) of the Constitution of Kenya 2010 provides for the protection  of the right to property and states that;
(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property--
  (a) of any description; and
  (b) in any part of Kenya.
83. In the Court’s view, the present petition does not seek a determination of whether or not the Petitioner's right to own property of any description in any part of Kenya. The Petition does not involve questions of whether or not the Petitioner has been deprived of his proprietary rights without compensation or without following due process. In the court's view, the Petitioner failed to participate in the process provided for in law for the ascertainment and recording of rights to trust land. The said rights were ascertained and recorded in favour of the 5th Respondent.
84. In the Court's view, this is a proper case for the application of the doctrine of constitutional avoidance and the Court finds that this case should not have been pursued as a Constitutional petition to be resolved by deciding a constitutional question when there was a process established in law for resolving the dispute at hand.
85. Having taken the above view, the court would dismiss the petition at this point, but in the interests of justice, the court will examine the other issues raised in the petition.
B) Whether the Respondents fraudulently, unlawfully and in breach of the Petitioner's rights, register in the name of the 5th Respondent, the Petitioner's land as part of Land Title No. Ikanga/Ithumula/1554
85. The Petitioner claims that when the area was declared an adjudication section and named the Ikanga/Ithumula Adjudication Section, he put the 5th Respondent in charge of taking care of his land and conducting the adjudication process on his behalf. However, contrary to their agreement, the Petitioner claims that the 5th Respondent conspired with the 1st and 2nd Respondents and had the 5th Respondent fraudulently registered as the proprietor of the Petitioner's land, which was combined with his land to create Ikanga/Ithumula/1554. The Petitioner stated that the acts of the 5th Respondent were in breach of a fiduciary duty, fraudulent and were an administrative failure by the 1st, 2nd and 4th Respondents.
86. The Petitioner alleges fraud on the part of the Respondents in merging his parcels of land with that of the 5th Respondent, registering the 5th Respondent as the absolute proprietor of the suit land and omitting him from the list of landowners. However, the Petitioner did not produce in evidence any adjudication records to show any initial recording of the Petitioner as the owner of the suit land and subsequent fraudulent removal of the name from the register.
87. Indeed, the Petitioner stated that he presented himself, produced documents and gave information to establish his rights and have his name registered as the owner of the suit land. Section 13 of the Land Adjudication Act provides the procedure for lodging a claim to land in an adjudication section and the attendance of parties when making claims. It states as follows;
(1) Every person who considers that he has an interest in land within an adjudication section shall make a claim to the recording officer, and point out his boundaries to the demarcation officer in the manner required and within the period fixed by the notice published under section 5 of this Act.
(2) Every person whose presence is required by the adjudication officer, demarcation officer, recording officer, committee or board shall attend in person or by a duly authorized agent at the time and place ordered.
98. Section 14 of the said Act provides for a warning to be given of demarcation and recording and states that;
Not less than seven clear days before the demarcation of an adjudication section is begun, the demarcation officer shall give warning of the intended demarcation and recording of claims, and of the time and place at which it will begin, in such manner as the adjudication officer considers most likely to bring the matter to the knowledge of the persons who will be affected by the demarcation and recording.
88. The Petitioner did not tell the court the time and the place where he went to make a claim for registration of his interests in the suit land. He did not call the Recording Officer to whom he made a claim to the land and neither did he call the Demarcation Officer to whom he pointed out the boundaries to his land. Further, the Petitioner did not call for the records of the said officers to show that he indeed made his claim.
89. On the claim that the Petitioner agreed with the 5th Respondent that he would follow up with the registration of the land and issuance of title deeds, the Court finds that there was no evidence that the Petitioner mandated the 5th Respondent to undertake the Petitioner's registration as owner of the suit land. According to Section 13 of the Land Adjudication Act, a person can attend before the adjudication officer, demarcation officer, recording officer, committee or board in person or by a duly authorized agent. The Black’s Law Dictionary 11th edition defines an agent as “Someone who is authorized to act for or in place of another; a representative” No evidence was laid before the court of the authority given to the 5th Respondent by the Petitioner. The 5th Respondent denied having been appointed an agent of the Petitioner to follow up on his title deed, and it was incumbent on the Petitioner to prove the agency.
90. The reason given by the Petitioner for delegating the duty of following up on the registration of the land was that he was hospitalized. The Petitioner did not produce in court a single document to show that he was hospitalized throughout the period of land adjudication.
91. Indeed, a look at the summary of land adjudication sections in Mutomo/Ikutha exhibited by the 5th Respondent shows that the register for the Ithumula area was published on 20th February 2002, whereas the Petitioner in his petition and evidence stated that the area was declared an adjudication section in 2007/2008. Such a discrepancy in dates raises the question of the period the Petitioner says he was so ill he could not attend to his registration as owner of the suit land.
92. The Petitioner alleges fraud on the part of the Respondents; however, in the Court's view, the same was not proved. Section 107 of the Evidence Act CAP 80 provides as follows;
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”.
93. While section 108 thereof provides that;
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
94. Section 109 of the said act provides that:
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.
95. It was held by the Court of Appeal in the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000]eKLR that:
“It is settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. See Davy v Garrett (1878) 7 Ch. D 473 at 489.”
96. In the Court's view, the Petitioner's claim of fraud was not proved.
C) Whether the Petitioner acquired ownership rights to the previously unadjudicated land now known as Land Parcel Ikanga/Ithumula/1696.
97. The Petitioner claims that he acquired land in an unadjudicated area known as Ikanga in Kitui County adjacent to the 5th Respondent's land between 1996 and 2006. He extended his boundaries by buying more land from the 5th Respondent and their neighbours. The Petitioner claims that in total he got 53 Hectares through settlement and purchase through agreements for sale with various individuals.
98. The Petitioner exhibited the following documents as proof of purchase of land;
I) Document with unclear date in 1996 showing completion of payment of Kshs. 6,000/- for a piece of land purchased from Jumaa Mukoma and his mother Mbithe,
II) An agreement between the Petitioner and Matuku Kyalo for the purchase of a piece of land at an agreed price of Ksh 65,500 which was 26 goats for the price of Ksh 1,600 per goat. The amount was paid in two instalments, the first being Ksh.51, 600 and a balance of Ksh.13,900 was finalized.
III) An agreement between the Petitioner and Ngemus children-Kithuka and Kyangangu which land they are stated to have bought from Matuku Kyalo. The purchase price was Kshs 140,000/- where the two sellers received Kshs. 140,000 and Matuku Kyalo received 25,000/-
IV) The Petitioner also claimed that he purchased another parcel from Kimuli Makau, the area chief
99. Section 3 (3) of the Law of Contract Act provides as follows;
No suit shall be brought upon a contract for the disposition of an interest in land unless—
(a)the contract upon which the suit is founded—
(i)is in writing;
(ii)is signed by all the parties thereto; and
(b) signature of each party signing has been attested by a witness who was present when the contract was signed by such party:
100. The court notes that the 1st and 3rd sale agreements exhibited by the Petitioner are not between him and the 5th Respondent. The 4th agreement is not in writing. The 2nd agreement that is stated to be between the Petitioner and the 5th Respondent does not describe the land under purchase/sale. In the court’s view, the "description of land" would typically include detailed information about the property being sold, such as its size, location, title number (if any), boundaries, any existing structures, and any relevant legal descriptions, ensuring clear identification of the land parcel involved in the transaction.
101. The court is cognizant of the fact that the sales are said to have taken place before land adjudication and land parcel numbers had not been allocated, however, the agreements do not even describe the location of the land or other details for purposes of identification.
102. The 5th Respondent stated in evidence before the court that he never before adjudication sold any part of his land parcel Ikanga/Ithumula/1554. The 5th Respondent’s case is that he did sell to the Petitioner a parcel of land in the year 1996, but that the said parcel is situated at Kyawangu Village, which is about 3 kilometres away from the suit land and was demarcated as land parcel Ikanga/Ithumula/1042 whose title deed came out in his name on 27th July 2007 and which he transferred to the Petitioner on 7th December 2022. This, in the Court’s view, explains the 2nd agreement, where the 5th Respondent is said to have sold land to the Petitioner.
103.  The 5th Respondent further testified that he came to learn that the Petitioner purchased land from some people who came to court as his witnesses and who wrongly sold to him land belonging to one Musembi Mutunga. He also stated that some of them lied to the Petitioner, claiming that they sold to him land they had bought from the 5th Respondent. The Petitioner did not seek to verify the information given to him, and he thus ended up being defrauded, and the matters ended up in court.
104. Note that in the agreements exhibited by the Petitioner, the 5th Respondent is said to have put a thumbprint as his mark of identification while he signed the agreement he acknowledges where he was given by the Petitioner the land the Petitioner says he purchased from Mutindi Mwanzia. He also confirmed that he did not place the thumbprints because he knows how to sign.
105. In the Court's view, the Petitioner has not shown, through evidence that he acquired, through purchase ownership of a portion of the previously unadjudicated land parcel Ikanga/Ithumula/1554. In any event, if the Petitioner had purchased the said parcels of land, he would have followed the correct route of laying a claim under the Land Adjudication Act.
106. The Petitioner states that he was advised by the 1st -4th Respondents and agreed with the 5th Respondent to subdivide the Land Parcel Ikanga/Ithumula/1554 into two parcels, Ikanga/Ithumula/1695 for the 5th Respondent and Ikanga/Ithumula/1696 for the Petitioner, but that the 5th Respondent refused to transfer the same to his name.
107. The 5th Respondent denies that Land Parcel Title No. Ikanga/Ithumula/1696 belongs to the Petitioner and denies any agreement with the Petitioner to transfer the same to his name.
108. The court finds that the registration of the 5th Respondent as proprietor of land parcel Ikanga/Ithumula/1554 vested in him the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto as provided under Section 24 of the Land Registration Act. Further, his rights as a proprietor cannot be liable to be defeated except as provided in the Land Registration Act as provided under Section 25. It is also provided that the rights of the registered proprietor are held free from all other interests and claims.
109. The Court further relies on Section 26 of the Land Registration Act in finding that the certificate of title issued to the 5th Respondent is to be taken as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner. The Section further provides that the title of that proprietor is not 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.
110. The Petitioner claims when he discovered that land parcel Ikanga/Ithumula/1554 had been registered in the name of the 5th Respondent he confronted the Respondents who agreed that the merger of the two parcels was a mistake and they agreed that the 5th Respondent would subdivide the land into two portions and transfer one of them to him. He stated that they carried out the subdivision by first obtaining the consent of the Land Control Board. The land was subdivided into L.R. Ikanga/Ithumula/1695 and 1696, whose subdivision was registered on 29th April 2010. The Petitioner claims that on 14th March 2021, the 5th Respondent applied for Land Control Board Consent to transfer parcel 1696 to the Petitioner, which was granted on 25th March 2021. The 5th Respondent also signed a transfer of the land in favour of the Petitioner, but before he could present it for registration, the 5th Respondent lodged a complaint that the process was being done against his will. Based on the complaint, the 4th Respondent confiscated the transfer form.
111. The 5th Respondent, on the other hand, contends that he did not at any time apply for the Land Control Board's consent to transfer his land parcel 1696 and that the application and consent exhibited by the Petitioner was a forgery. He stated that he never applied for the correction of his name on the title to the original parcel 1554, and neither had he applied for the subdivision of the land. He stated that when he discovered the subdivision of his land, he did not follow up on the matter since the resultant subdivisions still read his name, and to date, the two titles are in his name. He got to know about all these when he was summoned to the office of the Mutomo Sub-County Commissioner sometime in 2021. He was asked to sign an application for consent of the Land Control Board dated 14th March 2021 showing that the consent was for transferring the whole of parcel 1696, while the same was cancelled and shown he was subdividing the land into two portions.
112. The Court has considered the evidence presented by the Petitioner and the 5th Respondent. The court is of the view that if the parties ever reached an agreement for the 5th Respondent to transfer land parcel Ikanga/Ithumula/1696, they would have reduced the said agreement into writing. The Petitioner has shown enough antecedents for reducing into written form the agreements he entered between 1996 and 2006. As recently as 13th September 2020, the Petitioner entered into a written agreement to give the 5th Respondent a piece of land. It, therefore, does not make sense for the same parties to have agreed between 2009, when the subdivision was done, and 2021, when the transfer was to be done, and not have the agreement written down.
113. Further to this, the application to the Land Control Board for consent dated 14th March 2021 for land parcel 1696 does not appear to the court to be genuine and/or authentic for the reason that it states in paragraph 3 that the nature of the transaction is “transfer of whole portion”. This was cancelled and below was written “subdivision of 2 portions”. The application is not signed by either of the parties and in particular, the 5th Respondent as the proprietor of the land. Further, the letter of consent of the land Control Board issued in relation to parcel 1696 on 25th March 2021 exhibits the same confusion by showing the nature of the transaction to have been transfer while the consideration was at first written as “30,000/=” which entry was cancelled and replaced by “subdivision 2 portions.”
114. From the foregoing narration of the positions taken by the Petitioner and the 5th Respondent with regard to land parcel number Ikanga/Ithumula/1696, the court is not convinced that there was ever any agreement between the Petitioner and the 5th Respondent to transfer the land to the Petitioner. The evidence adduced being the application to the Land Control Board dated 14th March 2021 and the consent dated 25th March 2021 are not genuine and/or authentic and have been denied by the 5th Respondent, who should have been the party at the forefront of ensuring transfer was done if there was any agreement.
D) Whether the Respondents violated the Petitioner's constitutional right under Articles 10 and 40(1) of the constitution of Kenya
115. From the foregoing exposition of the claim by the Petitioner and the law, it is the Court’s view that the Petitioner has not proved that the Respondents violated his constitutional rights under Articles 10 and 40 (1) of the Constitution.
116. The final orders of the Court are that this petition lacks merit and the same is hereby dismissed with costs to the Respondents.

Judgement Dated, Signed and Delivered at Nyeri this 13th day of March 2025