1. The Petitioners moved the Court through Petition dated 1st November 2024 wherein they averred that at all material times, all that land known as LR North/Mugirango/Boisanga/1607 hereinafter the “Suit Property” before its subsequent subdivision, was held in trust by the Gusii County Council for grazing.
2. The Petitioners averred that sometimes in or about 1970, Kianyaga Ochenge (deceased), his brother Nyanchongi Ochenge and Ibrahim Ongubo Nyaenya donated part of their land to be community land and that the suit property was not available for any private purpose unless it reverted back to the Ekerubo Gietai Community.
3. The Petitioners further averred that the subdivision of the suit property in 2001 and subsequent subdivision in 2009 were procured by misrepresentation, illegally and un-procedurally through a corrupt scheme as they were not registered.
4. They averred that sometime in the year 2009, the Gietai Community and the First and Second Respondents were consulted and agreed with local elected leaders and the Gietai Community Grazing Land Committee and the DOK surrendered the St Stephen Youth Polytechnic DOK Ekerubo Gietai to the public to establish Ekerubo Gietai Technical Training Institute now known as Nyamira National Polytechnic and the St. Stephen Vocational Training Centre as government institutions.
5. The Petitioners also averred that on 18th October 2024, the Second Respondent instructed the Sixth to Eighth Respondents and surveyors who forcefully evicted the Petitioners by felling the Rianyanchong’i SDA Church together with the Petitioners’ trees, fences, toilets and crops. That the Second Respondent as a private entity had no land at the Gietai Community Grazing Land to inform the evictions.
6. The Petitioners also stated that the Third Respondent illegally and un-procedurally sanctioned the subdivision of the suit property in the year 2001. The Petitioners therefore prayed for the following reliefs:
i) A declaration that the subdivision of North Mugirango Boisanga/1607 dated 30/10/2001 and subsequent issuance of N/M/Boisanga/4131, N/M/B/4688 and N/M/B/4682 is fraudulent, un-procedural, illegal, null and void.
ii) A declaration that the St. Stephenson Youth Polytechnic Ekerubo Gietai and St. Stephen Ekerubo Gietai Technical Training Institute are Public Institutions and public property.
iii) An order to revoke and cancel the title deeds N/M/Boisanga 4131, N/M/B/4688 and N/M/B/4682.
iv) A declaration that the eviction of the petitioners from North Mugirango Boisanga/1607 and or N/M/B/25 and N/M/Boisanga/1799 violated the petitioners fundamental rights to article 27, 28, 31, 35, 40 and 47 of the constitution.
v) An order that Rianyanchongi SDA Church has acquired 1.56 Ha of North Mugirango/Boisanga/1607 by adverse possession.
vi) An order to the Coordinator National Lands Commission to sign transfer documents for issuance of title deed to Rianyanchongi SDA Church.
vii) An Order of permanent injunction be issued prohibiting the 1st and 2nd respondents from trespassing in parcel North Mugirango Boisanga/1607, N/M/Boisanga/25, N/M/Boisanga/62 and N/M/Boisanga 1799.
viii) An order directing the 5th Respondent to visit, ascertain and fix the boundaries for the N/M/Boisanga/1607 and the petitioners private lands of N/M/Boisanga/25, N/M/Boisanga/62 and N/M/Boisanga 1799.
ix) An order of permanent injunction prohibiting the respondents from trespassing into the private properties of N/M/Boisanga/25, N/M/Boisanga/62 and N/M/Boisanga 1799.
x) An award of general, special and aggravated damages as compensation.
xi) Award of costs to the petition.
7. The Petition was supported by a verifying affidavit sworn jointly by the Second to the Seventh Petitioners on 1st November 2024. They deposed that they had enjoyed actual, open, public, continuous, exclusive hostile occupation and possession of portion around North/Mugirango/Boisanga/25, North/Mugirango/Boisanga/62 and North/Mugirango/Boisanga/1799 where they constructed permanent residential units, Rianyanchong’i SDA Church toilets and planted trees since 2009.
8. They also deposed that the boundaries by the First and Second Respondents leading to eviction of the Petitioners were selective and not by an independent and impartial government surveyor which stretched into the private land of North/Mugirango/Boisanga/25, North/Mugirango/Boisanga/62 and North/Mugirango/Boisanga/1799. They reiterated that the Second Respondent hired the Sixth to Eighth Respondents and private surveyors who forcefully evicted the Petitioners by felling the Rianyanchong’i SDA Church together with the Petitioners’ trees, bricks, fences, toilets and crops. That the Second Respondent used some of the trees to erect a fence around part of the suit property alleging that the suit property belonged to the First Respondent which was a private entity under custody of the Second Respondent.
9. They further deposed that the First and Second Respondents were statutorily barred from recovery of land after 12 years and that the subdivision of the suit property lacked consent from the local community and the Commissioner of Lands. That the Third Respondent sanctioned illegal subdivision of the suit property without a gazette notice on change of user or approved part development plan.
10. The First and Second Respondents responded to the Petition by filing Answer to Petition and Cross Petition dated 13th May 2025 which they later replaced with Amended Answer to Petition and Cross Petition amended on 7th November 2025. The Amended Answer to Petition and Cross Petition was supported by a verifying affidavit sworn by John Aunda Ndubi, the Chairman of the First Respondent. He deposed that the averments in the Amended Answer to Petition and Cross Petition were correct and true.
11. The First and Second Respondents also filed Notice of Motion dated 19th May 2025, through which they sought joinder of sixteen persons listed in the heading of the application as Interested Parties. The Court allowed joinder of the Interested Parties on 30th September 2025. I note that the parties’ pleadings have varying lists of Interested Parties. The correct list of Interested Parties is as per the heading of this judgment, in line with the order of 30th September 2025.
12. The First and Second Respondents averred in the Amended Answer to Petition and Cross Petition that the First Respondent was the owner of the suit property and the resultant subdivisions which it had never transferred to any other person. That the suit property had never been community land but was private land available to the First and Second Respondents to use as they wished.
13. They further averred that the suit property had always belonged to the church which was leasing it to members of the community. That the Petitioners and Interested Parties had trespassed into the suit property and its subdivisions and were squatting on them. That the Petitioners were illegally occupying North/Mugirango/Boisanga/4131 and that the allegation that the suit property was reserved as grazing land was misleading and inaccurate.
14. The First and Second Respondents also averred that the mutation for sub-division of the suit property was signed by the County Government of Nyamira thereby approving the sub-division. That the Petitioners’ mutations on the other hand were not signed by the County Government of Nyamira thereby rendering the Petitioners’ sub-divisions illegal.
15. The First and Second Respondents therefore prayed for the following reliefs:
a) That the Petitioners’ suit be dismissed with costs.
b) A declaration that the cross petitioners’ rights under Articles 27, 43, 47 of the Constitution have been infringed and/or are threatened with violation by the Petitioners and the Interested Party.
c) That the Court issue an order to revoke and cancel the title deeds related to North/Mugirango/Boisanga/4682 and 4683 or any other title purportedly generated from North/Mugirango/Boisanga/4131 being held by the petitioners and the Interested parties.
d) That an eviction order is issued to the Petitioners and the 1st to 13th Interested Parties who have trespassed to the parcel numbers North/Mugirango/Boisanga/4131 as indicated on the surveyor’s sketch map.
e) Any other relief the court deems fit to grant.
16. The First and Second Respondents also filed an affidavit in support of the Amended Answer to Petition and Cross Petition, sworn by John Aunda Ndubi, the Chairman of the First Respondent. He deposed that the First Respondent had been the lawful owner of parcel number North/Mugirango/Boisanga/4131 and that the parcel had been allocated to the Catholic Diocese of Kisii (DOK) through St Stephen Youth Polytechnic DOK which was later registered as St Stephens Ekerubo Vocational Training Centre.
17. That throughout the history of the parcel, any person who accessed it had to do so with the authority of the First Respondent through a lease. That the original parcel belonged to the defunct County Council of Nyamira and that a formal application for titling of the land which was occupied by the First Respondent was made, tabled before the County Council of Nyamira Special Town Planning and Marketing Committee meeting held on 23rd November 2000 and approved.
18. Mr Ndubi further deposed that following the approval, the original parcel number North/Mugirango/Boisanga/1607 (the suit property) was subdivided by the defunct Nyamira Town Council upon payment of the requisite fees by the First Respondent and a mutation No. 120695 registered by the District Surveyor on 29th October 2001. That the subdivision created parcel numbers North/Mugirango/Boisanga/4130 measuring approximately 23 hectares and North/Mugirango/Boisanga/4131 measuring approximately 12 hectares. He added that title deed was subsequently issued to the First Respondent on 6th November 2001.
19. Mr Ndubi went on to depose that the First Respondent held the title deed in respect of North/Mugirango/Boisanga/4131 as of the date of his affidavit and had never subdivided it or consented to its subdivision of transfer and that all subdivisions emanating from the said parcel were forgeries which ought to be cancelled. He also stated that over time, the Petitioners and Interested Parties had encroached on various portions of the First Respondent’s parcel without authority or justification and that no legal process for compulsory acquisition had ever taken place in respect of areas occupied by Nyamira National Youth Polytechnic and Bunyunyu Police Station. In conclusion, he annexed a bundle of documents in support of the matters he had deposed to.
20. The Third Respondent reacted to the Petition by filing Notice of Preliminary Objection dated 9th December 2024 which raised the following grounds:
1. That the Petition and the application are bad in law, inadmissible and incurably defective and incompetent for being contra-statute.
2. That the Petition and the application are incompetent and born out of grave misapprehension of law.
3. That the Petition and the application are barred having been brought contrary to the provisions of Section 41 of the Limitations of Actions Act which expressly exclude Government land or land otherwise enjoyed by the Government and land vested in the County Council from being acquired through the doctrine of adverse possession and therefore the application and entire petition is improper.
4. That the Petitioners cannot adversely possess land against the Government such that the Government’s rights and interest over the land are extinguished as the 3rd Respondent’s title herein is a first registration with overriding interest which is indefeasible by way of adverse possession.
5. That it is trite law under the provisions of Article 62 (2) if the Constitution of Kenya 2010 and section 9 of the Land Act (CAP 280 Laws of Kenya) that public land cannot be arbitrarily and summarily privatized and disposed without following due process.
6. That the application as filed is contrary to the 3rd Respondent’s proprietary rights and in clear contravention of Article 62(2) of the Constitution of Kenya 2010.
7. That the Petition and the application is untenable, contra-statute and an abuse of the court process hence it ought to be dismissed with costs to the 3rd Respondent.
21. The Third Respondent also filed a replying affidavit sworn on 9th December 2024 by Francis Mbeche, its Director of Land Administration. He deposed that the First and Second Respondents fraudulently caused the unprocedural and unlawful alienation of the suit property, which according to him is public land. That the defunct Gusii County Council which was succeeded by the Third Respondent was, at all material times the registered owner of the suit property which was expressly reserved for Gietai common grazing ground. He stated that the subdivision of the suit property into Nyamira/North Mugirango/Boisanga/4130 and Nyamira/North Mugirango/Boisanga/4131 by the First and Second Respondents was fraudulent and unconstitutional as the mutation forms appeared forged.
22. Mr Mbeche further deposed that no notices of change of user, duly executed mutation forms or official supporting documents existed in government records to validate the alleged subdivision of the suit property. He further deposed that the Petitioners’ claim to ownership under the doctrine of adverse possession was legally untenable by virtue of Section 41 of the Limitations of Actions Act.
23. He added the Third Respondent was not involved in the illegal alienation of public land and only became aware of the irregular subdivisions after conducting an official search on the suit property for purposes of preparing initial documentation for establishment of Nyamira National Polytechnic. That the Petitioners cannot purport to restrain the Respondents from performing their constitutional mandate which included facilitating development and that they had consistently engaged the Petitioners in consultations to resolve outstanding issues regarding the alleged subdivision of government land.
24. Mr Mbeche went on to depose that it was in public interest that the Petitioners and the First and Second Respondents be stopped from interfering with the development of Nyamira National Polytechnic and urged the Court to order that a survey be conducted and beacons be placed on the suit property to establish boundaries. He further sought that the Third Respondent be removed from the suit owing to misjoinder since it had no interest in the other private parcels.
25. Upon proposal by parties, directions were given that the petition be canvassed through affidavit evidence and written submissions.
26. The Petitioners filed submissions dated 12th January 2026 in which they identified the following issues for determination: whether the preliminary objection meets the legal threshold, whether parcel numbers North/Mugirango/Boisanga/4130 and North/Mugirango/Boisanga/4131 were obtained legally, whether the First and Second Respondents have the locus standi to file the cross-petition and whether the eviction process was legal.
27. On the issue of whether the Preliminary Objection meets the legal threshold, the Petitioners submitted that the Preliminary Objection raised issues that required adducing of evidence in order to determine. That Preliminary Objection did not point to a particular parcel of land which was being referred to as government land and that from the documents filed in the present matter, parcel numbers North/Mugirango/Boisanga/4130, North/Mugirango/Boisanga/4131 and North/Mugirango/Boisanga/1607 did not exist and that in order to ascertain whether any of the said land is government land evidence had to be adduced. They contended that the suit property, being community grazing land could not be categorized as government land and urged that the Preliminary Objection should fail.
28. On the issue of whether parcel numbers North/Mugirango/Boisanga/4130 and North/Mugirango/Boisanga/4131 were obtained legally, the Petitioners submitted that a title only confirms rights to exclusive ownership of the land under the Article 40 of the Constitution and Section 26 of the Land Registration Act if the process leading to its acquisition was legally sound and that Article 40 (6) limits the protection of the right to property only to property that has been legally acquired. That the documents filed in this matter clearly indicated that the two parcels were as a result of the subdivision of the suit property. They added that the suit property was land held in trust by the Gusii County Council and reserved as community grazing land.
29. They further submitted that according to the Land Registrar's report dated 9th January 2025, the boundaries of the suit property were still intact which was a clear indication that parcels North/Mugirango/Boisanga/4130 and North/Mugirango/Boisanga/4131 only existed on paper but not on the ground.
30. The Petitioners went on to submit that the suit property was converted to private land in the year 2001 at a time when the Trust Land Act (Cap 288) and the Land (Group Representatives) Act (Cap 287) were in operation. That Section 13 of the Trust Land Act provided a mandatory process that was supposed to be followed and that in this case, the procedure for setting aside trust land was not followed, they were neither notified of any setting aside nor was there gazettement.
31. They noted that although the First and Second Respondents claimed that Nyamira County Council approved the subdivision, the County Council of Nyamira did not exist in the year 2001. That instead, the documents filed showed that the land was held by the defunct Gusii County which was the correct entity to approve any subdivision.
32. The Petitioners submitted that the Third Respondent stated in a Replying Affidavit that they filed in response to an application dated 1st November 2024 that the First and Second Respondents fraudulently caused unprocedural, unconstitutional, and unlawful alienation the suit property to their name. They contended that this confirmed that the process leading to the registration of parcels Nyamira/North Mugirango/Boisanga/4130 and 4131 was not legal.
33. That from the mutation of the suit property, the proprietor was indicated as Nyamira County Council when the search dated 14th November 2023 indicated the proprietor as Gusii County Council and that those inconsistencies only pointed to a fraudulent illegal process of the subdivision of the community grazing land.
34. The Petitioners referred to Section 13 (2) and (3) of the Trust Land Act (repealed) and submitted that the local community was not notified of any setting apart and that the First and Second Respondents did not file any gazette notice by the Nyamira County Council or the Gusii County council concerning any approval of setting aside of the suit land.
35. Relying on the case of Gitson Energy Limited v Ganya & 6 others (Civil Appeal 47 of 2014) [2017], the Petitioners argued that there was no public participation. They further contended that the mutation dated 1st December 2009 in respect of subdivision of North/Mugirango/Boisanga/4130 indicated that the subdivision was done by the Gusii County Council, a clear indication that the parcel was public land that was being converted into private ownership.
36. On the issue of whether the First and Second Respondents had locus standi to file the Cross-Petition, the Petitioners submitted that the First Respondent was not a legal person with the ability sue and be sued and that no document had been filed to confirm its legal personality. That equally, the Second Respondent had no locus standi since he was not the proprietor of the property in dispute.
37. The Petitioners concluded by contending that their rights as members of the community had been violated and that an illegal title could not confer rights.
38. The First and Second Respondents filed submissions dated 6th February 2026 in which they identified the following issues for determination: whether a permanent injunction can issue as prayed by the Petitioners, whether the declaratory orders sought can be granted in light of the evidence on record, whether an eviction order may issue against the Petitioners and Interested Parties in respect of North/Mugirango /Boisanga/4131, whether any title deed purportedly generated from North/Mugirango /Boisanga/4131 can be revoked particularly title numbers 4682 and 4683, and lastly, who bears costs of the suit?
39. On the issue of whether a permanent Injunction could issue in favour of the Petitioners, they relied inter alia on Giella v Cassman Brown & Co. Ltd (1973) EA 358 and submitted that the Court needed to examine the evidence produced and weigh the same on a higher threshold than the one normally applied on the temporary injunctions.
40. They submitted that with regard to the suit property, there was a clear record showing that it no longer existed since it had been subdivided into two parcels being North/Mugirango/Boisanga/4130 and North/Mugirango/Boisanga/4131. That the Petitioners only sought to have North/Mugirango/Boisanga/4131 revoked leaving North/Mugirango/Boisanga/4130 intact. That the two subdivision titles were Siamese twins and that under the Mirror Principle in the Torrens system, the same validity must be inferred on the twin title North Mugirango/Boisanga/4131.
41. The First and Second Respondents further submitted that the allocation of part of the parcel of land was done procedurally and that they annexed minutes that speak to it. That the First Respondent had availed evidence showing that it was always in possession of its parcel and that the community could only use the grounds on a lease or upon permission from it.
42. The First and Second Respondents went on to submit that the Petitioners could not approach Court on a fishing expedition and on the basis of titles that were not capable of protection under Article 40 of the Constitution. That the origin of the Petitioners’ titles was not clear and could not be allowed to stand in law.
43. They also submitted that the County representative of the National Land Commission (the Fourth Respondent) with mandate under Article 62 of the Constitution neither entered appearance nor filed any document in this matter. That the Court could not therefore infer illegality or want of procedure when the institution charged with mandate on public land had not shown that such illegality existed.
44. On whether the First Respondent’s title should be revoked on account of fraud, they submitted that the First Respondent had demonstrated how the property was acquired and that it had been in occupation. That those facts had not been rebutted by the relevant Government institutions and that its title was absolute and indefeasible. That there was no proof of fraud and that the Petitioners allegations remained just allegations. They placed reliance on the case of Watsula v Barasa [2024] KEELC 4956 (KLR) in support of that contention.
45. The rest of the parties did not file any submissions.
46. I have carefully considered the Petition, the Cross-Petition, the affidavits filed, the Preliminary Objection and the submissions. The issues that arise for determination are whether the Court has jurisdiction and whether the reliefs respectively sought by the parties should issue.
47. It cannot possibly be overemphasised that jurisdiction is at the core of any proceedings before the Court. As has often been restated by the Courts, jurisdiction is the entry point in any matter that the Court is called upon to determine and is the very life and soul of any proceedings. Without it, the proceedings come to a certain end and the Court cannot take any further step. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR.
48. Every Court must decide whether it has jurisdiction and that duty remains whether the parties chant in unison that the Court has jurisdiction. While it is obvious, it is important to reiterate the futility of proceedings conducted without jurisdiction. Suffice it to refer to the holding of the Court of Appeal in National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR) thus:
Jurisdiction, a mantra in adjudication connotes the authority or power of a court to determine a dispute submitted to it by contending parties in any proceeding. A Court of law is invested with jurisdiction to hear a matter when: (a) it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; (b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and, (c) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. The three ingredients must co-exist in order to infuse jurisdiction in a Court. Where a Court is drained of the jurisdiction to entertain a matter, the proceedings flowing from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity.
49. On its part, the Supreme Court stated in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR:
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents . . . that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings…..Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution.
50. In its Preliminary Objection, the Third Respondent contended inter alia that the Petition is untenable, contra-statute and an abuse of the Court process. I will examine validity of both the Petition and the Cross-Petition since the issue cuts across.
51. The Petitioners averred in the Petition that the subdivision of the suit property was procured by misrepresentation, illegally and un-procedurally through a corrupt scheme. Among other reliefs, they sought a declaration that the subdivision of the suit property and subsequent issuance of titles in respect North/Mugarongo/Boisanga/4131, North/Mugarongo/Boisanga/4688 and North/Mugarongo/Boisanga/ 4682 was fraudulent. They also sought cancellation of the said titles and a declaration that their eviction on the strength of the impugned subdivisions and titles violated their fundamental rights. Additionally, they sought an order that Rianyanchongi SDA Church had acquired 1.56 hectares of the suit property by adverse possession.
52. On their part, the First and Second Respondents in their Amended Answer to Petition and Cross Petition sought cancellation of the Petitioners’ and Interested Parties’ titles in respect of North/Mugirango/Boisanga/4682, North/Mugirango/Boisanga/4683 and any other title generated from North/Mugirango/Boisanga/4131, on account of alleged illegalities. They also sought eviction of the Petitioners and Interested Parties from the parcels on account of the titles being illegal.
53. It will immediately be manifest that matters of nullification of title to registered land are adequately provided for by statute. In that regard recourse should be had to Section 26 (1) of the Land Registration Act which provides for grounds for nullification of such a title as follows:
The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, 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, un-procedurally or through a corrupt scheme.
54. Matters of eviction are covered under Sections 152A to 152I of the Land, trespass is dealt with under the Trespass Act, adverse possession under Sections 7, 13, 37 and 38 of the Limitation of Actions Act as well as the Civil Procedure Rules and, establishment of boundaries is dealt with under Sections 18 to 20 of the Land Registration Act. Additionally, there are avenues of redress under common law in claims under several of those headings.
55. The Petitioners’ and the First and Second Respondents’ claims are replete with allegations of fraud and irregular acquisition of public land. Those are intensely factual issues. They should be resolved through trial in an ordinary civil suit where parties have the full benefit of the judicial process including oral hearing, cross examination and scrutiny of exhibits.
56. Equally, proceedings for nullification of title, claims for eviction, trespass and adverse possession should be pursued through an ordinary civil suit. That is the proper recourse. The parties have not demonstrated that the statutory provisions and rules cannot address their grievances on nullification of titles, eviction, trespass, adverse possession and establishment of boundaries.
57. There are many authorities to the effect that a party seeking relief in a matter that can be addressed through interpretation of statutes and rules made thereunder must seek relief through an ordinary suit as opposed to a constitutional petition. In Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR, the Court of Appeal held as follows:
… where a legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra).
In conclusion, we find that the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition. ….
58. In Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR, the Court of Appeal held:
Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation. …
A corollary to the foregoing is the principle of constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a constitutional issue that should be done.
59. The Supreme Court discussed the principle of constitutional avoidance in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR as follows:
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.” ….
From the foundation of principle well developed in the comparative practice, we hold that the 1st, second 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.
60. Although the Petitioners and the First and Second Respondents have attempted to cloth their Petition and Cross-Petition as constitutional by seeking declarations that Articles 27, 28, 31, 35, 40, 43, 47 of the Constitution have been infringed, there is absolutely nothing constitutional in the disputes.
61. Everything that the Petitioners and the First and Second Respondents have alleged revolves around determination of statutory and common law disputes on validity of titles, eviction, trespass, adverse possession, establishment of boundaries.
62. It is not enough to just mention certain articles of the Constitution. The parties’ attempt to claim violation of the right to property and other fundamental rights on the strength of disputed title documents flies in the face of the doctrine of constitutional avoidance and the threshold set in Anarita Karimi Njeru vs. Republic [1979] eKLR. To that extent, as was held in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra) and Sumayya Athmani Hassan v Paul Masinde Simidi & another (supra), the subject matter of the case is not within the jurisdiction of the Court. A case filed in a Court without jurisdiction is dead on arrival and cannot be remedied. See Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR.
63. If the parties really want to get to the root of the disputed titles, they should consider filing an ordinary civil suit on the issues raised. A constitutional petition in the circumstances amounts to equivocating.
64. In view of the foregoing discourse, I find that the Court lacks jurisdiction to hear and determine the Petition and the Cross-Petition. I strike out both. Considering the outcome, each party shall bear own costs.
Dated, signed, and delivered at Nyamira, this 25th day of February 2026.
Delivered in the presence of:
No appearance for the Petitioners
Mr Anyoka for the 1st and 2nd Respondents
Ms Moeche for the 3rd Respondent
No appearance for the 4th Respondent
Mr Ndiritu for the 5th and 8th Respondents
No appearance for the Interested Parties
Court Assistant: B Kerubo