Introduction
1. This matter was instituted through a petition dated 29th June 2020, later amended on 16th January 2023, by the petitioners acting both in their individual capacities and as representatives of members of the Kumiisya Self Help Group, a Community Based Organization.
2. The Petitioners sought the following orders:
a) A declaration that the land known as L.R NO. 12610/2 is unregistered community land owned by the members of the Kumiisya Self Help Group Community having inherited it from their fathers, grandparents, and great grandparents.
b) An order of permanent injunction restraining the respondents from harassing, threatening, trespassing or interfering with the petitioners and other Kumiisya Self Help Group members’ quiet possession and enjoyment of the land known as L.R No. 12610/2.
c) An order directing the National Land Commission to facilitate issuance of documents of ownership to the petitioners and their members.
d) The respondents be condemned to pay costs of the petition to the petitioners.
e) Any other orders and/or directions this Honorable court deems fit to grant.
Legal basis of the petition
3. The Petition is anchored on various provisions of the Constitution. The Petitioners allege violations by the respondents of their rights guaranteed under Articles 40 and 63 of the Constitution, which respectively guarantee the right to property and provide for the recognition and protection of community land. They stated that they are permanent residents of parcel No. L.R NO. 12610/2 (suit property) where they have put up permanent residences/homes, conducted extensive cultivation and undertaken various economic activities to sustain them with their families, being a community of over 4000 people. They insisted that the suit property was part of Ngelani farm for over 10 decades which they inherited from their fathers, grandfathers and great grandfathers. They maintained that the National Land Commission has confirmed that the suit property is community land and that it is in the process of issuance of titles to the petitioners. They accused the respondents of constantly using the police to harass them and stated that the respondents fraudulently conspired and obtained title of the suit property knowing well that the same was community land belonging to the petitioners.
4. The Petitioners contend that the Respondents’ actions namely; the fraudulent acquisition of titles to community land, harassment and intimidation of community members, threats of eviction, and destruction of property, constitute a gross violation of their constitutional right to property and their collective right to community land. They argued that these actions have deprived them of their means of livelihood and placed them at risk of displacement and destitution.
5. The Respondents opposed the petition. The 1st and 3rd respondents filed replying affidavits separately sworn on 5th October 2020 while the 2nd, 4th, 5th and 6th respondents filed replying affidavits separately sworn on 21st September 2020. According to the respondents, the original parcel of land known as L.R. No. 12610/2 ceased to exist upon its lawful subdivision in the year 1988.
6. They averred that the said property, previously purchased from BAT Kenya Developments Limited by the partnership known as Mwito Investments Company, was duly subdivided and the resultant parcels allocated among the partners as follows: L.R. No. 13666 to Tom Mbaluto (1st Respondent); L.R. No. 13668 to David Wambua Masika (2nd Respondent); L.R. No. 13667 to Titus Musyoki Nguti (3rd Respondent); L.R. No. 13669 to Wilson Mwonga Ngoka (deceased), now represented by Anne Ndinda Ngoka (4th Respondent); L.R. No. 13671 to Samuel Kioko Muumbi (5th Respondent); and L.R. No. 13670 to Daniel Mutisya Ndonye (6th Respondent).
7. They deponed that each of them became the absolute and registered proprietor of their respective portions, having duly discharged any encumbrances with the Agricultural Finance Corporation and maintained that they are the lawful and bona fide proprietors of their respective parcels, which they have occupied, developed, and utilized over the years. It was their position that the petitioners are neither residents nor possess any ownership documents over the disputed land, and that the alleged community occupation is a recent fabrication intended to unlawfully dispossess them of their lawfully acquired property.
8. The respondents further deponed that the National Land Commission (NLC) has never revoked or cancelled their titles. They referred to a 2011 Government Task Force report on Irregular Appropriation of Public Land in Athi River District, which upheld the legality and sanctity of their ownership and recommended the eviction of trespassers.
9. They also placed reliance on a subsequent NLC advertisement of 30th October 2018, which expressly cancelled an earlier erroneous ‘Notice of Intention to Allocate Land’ that had included their parcels.
10. The Respondents denied allegations of harassment, threats, or destruction of property against the petitioners and averred that any such claims were baseless and unsupported by evidence.
11. The 4th respondent further stated that her late husband’s parcel, L.R No. 13669, is currently leased to third parties being Hui Commercial EPZ Ltd and Gillian Njoka who are in lawful possession. Similarly, the 6th Respondent, stated that L.R No. 13670, has been developed into a fully operational girls’ secondary school, further denying any alleged occupation by the petitioners.
12. The Respondents prayed for the court to dismiss the petition with costs, arguing that the reliefs sought would unjustly infringe upon their constitutionally guaranteed right to property and that the entire petition amounted to an abuse of the court process.
13. The matter proceeded by way of viva voce evidence. The petitioners presented five witnesses, and the respondents likewise presented five witnesses. The Interested party did not file any response, nor participate in the hearing of this petition despite being served.
Petitioners’ evidence.
14. PW1 was Nzioka Mutunga, the chairman of Kumiisya Self Help Group. He adopted his witness statement dated 21st November 2022 as his evidence in chief and produced documents attached to the list of documents dated 22nd November 2022. He testified that he and other members of the Kumiisya Self Help Group, numbering approximately four thousand individuals, have lived on the said land for over ten decades, having inherited it from their forefathers who occupied it since the colonial period. He asserted that the land forms part of community land, upon which members have constructed permanent homes and engaged in subsistence farming and other socio-economic activities.
15. PW1 further stated that the respondents have continuously harassed members of the group, used law enforcement agencies to intimidate them, and unlawfully laid claim to the land without any consultation with or approval from the community. He maintained that the National Land Commission had on several occasions confirmed that the land constitutes community land and had initiated the process of issuing ownership documents to the petitioners. On cross examination, he stated that their Self Help Group was formed in 2013 when they saw evictions happening in the community. That their group has people from different communities including communities of Kamba, Kikuyu, and Maasai. That he was aware of the taskforce referred to by the plaintiff although he did not know the decision made by the taskforce.
16. PW2 was Eunice Muthike Sammy, the Secretary of the Kumiisya Self Help Group. She adopted her witness statement dated 21st November 2022 as her evidence in chief. She reiterated the testimony of PW1. She testified that the petitioners and their families have occupied and cultivated the land formerly known as L.R. No. 12610/2 for over ten decades, having inherited it from their forefathers. PW2 asserted that the Respondents’ titles were unlawfully obtained and later revoked, and that their continued acts of harassment and interference infringed the Petitioners’ constitutional rights to property, housing, and livelihood guaranteed under Articles 40 and 43 of the Constitution. On cross examination, she stated that the registered proprietors of the suit properties are the 6 respondents and that she was aware of the taskforce formed as stated by the respondents.
17. PW3, Jane Waringa Kamau, the Treasurer of the Kumiisya Self Help Group, adopted her witness statement dated 21st November 2022 as her evidence in chief. Her testimony, consistent with that of the other Petitioners’ witnesses, was that the members of the Group and their forefathers had occupied and cultivated the land formerly known as L.R. No. 12610/2 for over a century, establishing permanent homes and engaging in subsistence farming and other economic activities thereon.
18. Upon cross-examination, PW3 stated that she was sixty-three (63) years old and that her family had resided on the suit property for generations. She indicated that although members of the Group had applied for title deeds in 2013, none had been issued by the Interested Party herein. Further that she was raised in Ngelani but attended school in Molo, Nakuru County, as there were no educational institutions in Ngelani at the time.
19. On re-examination, PW3 clarified that membership of the Kumiisya Self Help Group is diverse and not limited to one ethnic community. She further referred to a letter dated 3rd November 2017 from the National Land Commission, and alleged that the process of issuance of title documents to members of the Group was ongoing.
20. PW4 was Beatrice Nduku, a member of the Kumiisya S.H.G. She adopted her witness statement dated 21st November as her evidence in chief. Her evidence was consistent with that of the petitioners. On cross examination, she stated that she had been on the suit property for 80 years and built a house thereon and denied knowledge of possession of titles by the defendants herein. Further, she stated that she was unaware of when the Kumiisya S.H.G was formed, and whether a taskforce in 2011 had made a report concluding that the suit property belonged to the defendants.
21. On reexamination, PW4 stated that her forefathers had been in occupation of the land for long but did not have any documents to show ownership. That they applied to the Government to give them the land.
22. PW5 was Muriithi Kariuki, who adopted his sworn witness statement dated 21st November as his evidence in chief and testified that they had lived on the suit property for years. His evidence was similar to the other witnesses for the petitioners. On cross examination he stated that his father and grandfather had been living on the land for over 10 decades. That he had built a home on the suit property but it was demolished. He stated that they asked the Government to give them the land by applying to the National Land Commission. That in 2016, they realized that the defendants had title to the suit property.
23. On reexamination, he stated that Kumiisya S.H.G was duly registered and through it that they applied to the interested party herein for the land. That marked the close of the petitioners’ case.
Respondents’ evidence
24. DW1 was Tom Mbaluto, the 1st respondent herein. He adopted his filed witness statement dated 15th February 2023 as his evidence in chief and also produced his bundle of documents of even date. He testified that he was the registered proprietor of L.R. No. 13666, a subdivision of the property formerly known as L.R. No. 12610/2, which he lawfully acquired in 1984 together with his business partners, under the partnership of Mwito Investments Company. That the partnership purchased the property from BAT Kenya Developments Ltd at a consideration of Kshs. 3,000,000/-, financed by a loan from the Agricultural Finance Corporation (AFC), which was later repaid, after which the land was subdivided among the six partners into distinct titles being L.R. Nos. 13666–13671. He produced the relevant documents, including the title as proof of ownership.
25. He denied that the Petitioners or members of the Kumiisya Self Help Group had ever occupied or developed the land, maintaining that it was vacant at the time of acquisition. He further relied on the Task Force Report on Irregular Appropriation of Public Land and the Squatter Problem in Athi River District, published under Gazette Notice No. 8467 of 2011, which upheld the legality of their titles and recommended the eviction of trespassers.
26. PW1 further discredited the petitioners’ reliance on a letter from the National Land Commission dated 3rd November 2017, contending that he was never consulted and that the letter was inconsistent with the official records of ownership.
27. On cross examination, he stated that the property was initially owned by BAT Kenya, and the offer letter was issued by one Lloyd Masika on behalf of the owners. He denied that the petitioners are in current possession of the suit property and stated that the land ownership was a leasehold from the Government through the Commissioner of Lands for over 900 years.
28. DW2, Titus Musyoki Nguti, the 3rd respondent herein, who adopted his witness statement dated 16th February 2023 as his evidence in chief and produced his bundle of documents of even date. He testified that he is the registered proprietor of L.R. No. 13667, being one of the six subdivisions of L.R. No. 12610/2, lawfully acquired in 1984 by himself and his business partners. That the partnership purchased the original parcel from BAT Kenya Developments Ltd at a consideration of Kshs. 3,000,000/-, financed by a loan from the Agricultural Finance Corporation (AFC). That following subdivision, each partner was issued with a distinct title.
29. He further testified that the loan advanced by AFC was subsequently repaid in full, after which a discharge of charge was registered, leaving him as the absolute owner of the property free of encumbrances. On cross examination, he maintained that the petitioners were not in occupation of the suit property.
30. DW3, David Wambua Masika, the 2nd respondent herein, adopted his witness statement dated 29th January 2023 as his evidence in chief and produced documents in support of his case. His testimony was in material respects similar to that of the 1st and 3rd respondents regarding the joint acquisition of the original parcel L.R. No. 12610/2 from BAT Kenya Development Limited through Mwito Investments Company, the subsequent subdivision of the land, and the apportionment of individual titles.
31. DW3 further testified that he had been in uninterrupted possession and utilization of L.R. No. 13668 until he transferred it to Virtuoso Limited, which subsequently subdivided and transferred portions to David Muithi Musyimi, AMREF Housing Development Company Limited, and Simba Youth Housing Cooperative Society Limited, all of whom are in possession. He dismissed the petitioners’ annexures as vague and misleading, contending that they failed to show any specific occupation or economic activity attributable to the petitioners. He added that the National Land Commission never revoked his title, and that the alleged newspaper notice was a cancellation of an earlier advertisement.
32. DW4, Anne Ndinda Ngoka, the 4th respondent herein, adopted her witness statement dated 24th January 2023 as her evidence in chief. She testified that she is the widow and duly appointed administratrix of the estate of the late Wilson Mwonga Ngoka, who was the registered proprietor of L.R. No. 13669 (Original No. 12610/2/4) measuring 39.33 hectares, and further stated that she is a director of Novillera Company Limited, the current registered owner thereof. She averred that her late husband, together with his co-respondents, lawfully acquired the original parcel L.R. No. 12610/2 from BAT Kenya Development Limited through Mwito Investments Company, and that the said parcel was subsequently subdivided in 1988 into six portions, each being transferred to the respective partners. That her husband’s share, L.R. No. 13669, was thereafter occupied and utilized by their family until it was leased to Hui Commercial EPZ Kenya Limited and Gillian Njoka, who are presently in possession thereon.
33. DW5, Daniel Mutisya Ndonye, the 6th respondent herein, adopted his witness statement dated 24th January 2023 as his evidence in chief and produced his subsequent bundle of documents. He testified that he is the registered proprietor of L.R. No. 13670 (Original No. 12610/2/5) measuring 39.57 hectares situated within Athi River Sub-County of Machakos County. He stated that the original parcel L.R. No. 12610/2 was duly acquired by himself and his co-respondents herein from BAT Kenya Development Limited and subsequently subdivided in 1988 into six portions. That his allocation, L.R. No. 13670, has since been under his occupation and use, initially as a commercial farm for the cultivation of French beans and livestock rearing, before establishing Danana Girls Secondary School thereon in the year 2000. That marked the close of the defence case.
34. The court directed that the parties file and serve submissions in respect to the petition. On record are submissions filed by the petitioners dated 21st May 2025, submissions filed by the 1st and 3rd respondents dated 23rd June 2025 and submissions filed by the 2nd, 4th, 5th, and 6th respondents dated 18th July 2025; all of which this court has duly and carefully considered.
Petitioners’ submissions
35. Counsel for the petitioners highlighted and submitted on three key issues, namely:
i. Whether the land known as LR No. 12610/2 is unregistered community land owned by members of the Kumiisya Self Help Group;
ii. Whether the acquisition of title to the land formerly or originally known as L.R. No. 12610/2 by the Respondents was fraudulent and/or illegal;
iii. Whether the Respondents’ actions have denied, threatened, violated, and/or infringed upon the Petitioners’ constitutional rights under Articles 27, 28, 40, 43(1), 47, and 63(1)(3) of the Constitution;
36. On whether the land known as LR No. 12610/2 is unregistered community land owned by members of the Kumiisya Self Help Group, counsel submitted that the land has, from time immemorial, been occupied, cultivated, and utilized by the Petitioners and their forefathers as part of the wider Ngelani Farm.
37. It was submitted that the members of Kumiisya Self Help Group, numbering approximately four thousand, have resided on and developed the said land for over ten decades, engaging in subsistence farming and other economic activities to sustain their livelihoods. Relying on Article 63(1) and (2) of the Constitution and the Community Land Act, No. 27 of 2016, counsel argued that the Petitioners qualify as a “community” as defined under Section 2 of the Act, being a consciously organized group sharing common ancestry, socio-economic interest, and geographical space.
38. Counsel further referred to the National Land Commission’s letter dated 3rd November 2017 and report dated 5th February 2018, and argued that there was an ongoing process of issuance of title documents in favor of the petitioners. It was thus submitted that the suit property falls squarely within the meaning of community land as contemplated under Article 63(2)(d) of the Constitution, and that the County Government of Machakos holds it in trust for the Petitioners pursuant to Article 63(3).
39. On the issue of whether the acquisition of title to the land formerly or originally known as L.R. No. 12610/2 by the respondents was fraudulent and/or illegal, counsel submitted that the respondents’ alleged purchase of the land from a company referred to as BAT Kenya Developments was unsubstantiated, as they failed to produce any documentary evidence proving the company’s existence, ownership, or authority to transfer the land.
40. It was submitted that during cross-examination, DW1, DW2, DW3 and DW5, all admitted that no sale agreement, title deed, or official search evidencing BAT Kenya’s ownership was ever produced, and that the alleged advertisement of sale was not tendered in evidence. The Petitioners thus contended that the respondents’ root of title was unsupported by credible proof, contrary to the requirements of Section 26(1)(a) and (b) of the Land Registration Act, which allow impeachment of a title acquired through fraud, misrepresentation, or illegal process.
41. Citing the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR and the Supreme Court decision in Dina Management Limited v County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), counsel submitted that once the root of title is challenged, the holder must go beyond mere possession of a certificate and demonstrate that the acquisition was lawful and procedurally sound. In the petitioners’ view, the respondents failed to do so and thereby acquired the land illegally and fraudulently, in disregard of the petitioners’ ancestral and community interests.
42. On whether the Respondents’ actions have denied, threatened, violated, and/or infringed upon the Petitioners’ constitutional rights under Articles 27, 28, 40, 43(1), 47, and 63(1)(3) of the Constitution, counsel submitted that by forcefully alienating, sub-dividing, and attempting to evict the petitioners from the suit property, the respondents violated the petitioners’ rights to equality, dignity, property, housing, and fair administrative action. They argued that the respondents, without any court order, used armed goons to burn homes and demolish structures belonging to the petitioners, actions that stripped them of shelter and livelihood, contrary to Article 43(1). They further contended that the petitioners’ right to property under Article 40 and to community land under Article 63(1) were blatantly infringed, as the land was unlawfully converted into private holdings.
43. Reliance was also placed on the principle in Anarita Karimi Njeru v Republic [1979] KLR 154, underscoring that a constitutional petition must distinctly identify the rights violated and the manner of infringement, a threshold which they argued had been met.
1st and 3rd respondents’ submissions.
44. Counsel for the 1st and 3rd respondents isolated and submitted on four key issues:
i. Whether the petitioners have established any legal or constitutional right in the suit property capable of protection;
ii. Whether the 1st and 3rd respondents are the legal and bona fide owners of the subdivided parcels of the suit property;
iii. Whether the petitioners are entitled to the reliefs sought; and
iv. Who should bear the costs of the petition?
45. On the first issue, counsel submitted that the petitioners had failed to discharge the burden of proof placed upon them under Sections 107 and 108 of the Evidence Act, Cap. 80 Laws of Kenya. It was contended that the petitioners did not demonstrate a recognizable legal, equitable, nor constitutional interest in the suit land capable of protection by this Honorable Court. Counsel emphasized that mere assertions of ancestral ties without documentary or credible evidence are insufficient to sustain a claim to land, particularly where, as in the present case, the petitioners failed to establish possession, ownership, or beneficial interest as contemplated under the Community Land Act, 2016.
46. The 1st and 3rd respondents’ counsel further submitted that the petitioners’ claim under Article 63 of the Constitution is unsustainable as the petitioners have not proved that the land was registered or declared as community land under any law. Reference was made to Sections 5 and 6 of the Community Land Act which require registration of community land before recognition of communal ownership. It was argued that the petitioners’ evidence consisted merely of hearsay and oral testimony uncorroborated by official records or credible witnesses, and that no documentary evidence was tendered to establish community tenure, ancestral occupation, or the existence of any unregistered community land held in trust.
47. Counsel relied on the decisions in Anarita Karimi Njeru v Republic [1979] KLR, Joseph Letuya & 21 Others v Attorney General & 5 Others [2014] eKLR, and Erick Barasa Makokha & 2 Others v Neema Ya Mungu Investment Co. Ltd [2021] eKLR, submitting that constitutional petitions must be supported by cogent evidence demonstrating the precise nature of the right violated, the manner of violation, and the nexus between the respondents’ actions and the alleged infringement. The petitioners, it was argued, had failed to meet this evidentiary threshold.
48. On the second issue, counsel submitted that the 1st and 3rd respondents are the lawful and bona fide proprietors of their respective parcels, having acquired valid and indefeasible title under the Registration of Titles Act (now repealed) and the Land Registration Act, Cap. 300. Reliance was placed on Article 40(1) of the Constitution, which guarantees the right to property, and Section 26 of the Land Registration Act, which deems a certificate of title to be conclusive evidence of ownership except where acquired through fraud, misrepresentation, or an illegal or corrupt scheme. Counsel cited the cases of Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 Others, Civil Appeal No. 60 of 1997, Elizabeth Wambui Githinji & 29 Others v Kenya Urban Roads Authority & 4 Others [2019] eKLR, and Torino Enterprises Ltd v Attorney General [2023] KESC 79 (KLR), emphasizing the doctrine of indefeasibility of title and sanctity of private ownership.
49. Counsel further contended that the petitioners failed to adduce any evidence of fraud, illegality, or unprocedural acquisition that could impeach the respondents’ titles. They maintained that the newspaper cuttings and NLC notices relied upon were of low probative value and, in any event, were not supported by testimony from the National Land Commission or any competent authority. It was urged that the petitioners’ claim rests on conjecture and speculation rather than admissible evidence.
50. On whether the Petitioners are entitled to the reliefs sought, counsel submitted that the prayer for a declaration of community land ownership cannot stand in the absence of proof of fraudulent or unlawful acquisition of title by the respondents. It was further submitted that allegations of fraud must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities but lower than beyond reasonable doubt, as held in Kinvanjui Kamau v George Kamau [2015] eKLR and Ndolo v Ndolo (2008) 1 KLR (G & F) 742. The petitioners, counsel argued, had failed to meet that standard.
51. Counsel also averred that the petitioners failed to call crucial witnesses, such as representatives of the National Land Commission, to substantiate claims of revocation or pending allocation, and thus invited the Court to draw an adverse inference against them under the principle enunciated in Kimotho v Kenya Commercial Bank (2003) 1 EA 108.
52. On costs, counsel submitted that the petition lacks merit and the respondents have successfully demonstrated the validity of their respective titles, thus the petition should be dismissed with costs to the Respondents in accordance with Section 27 of the Civil Procedure Act and the principle that costs follow the event.
2nd, 4th, 5th, and 6th respondents’ submissions.
53. Counsel for the 2nd, 4th, 5th, and 6th respondents highlighted and submitted on six key issues for determination:
i. Whether the suit land is community land;
ii. Whether the Petition meets the constitutional threshold;
iii. Whether the Petitioners have the locus standi to institute the Petition;
iv. Whether the Respondents acquired the suit land fraudulently;
v. Who owns the suit land?
vi. Whether the Respondents'' titles were cancelled by the National Land Commission.
54. On whether the suit land is community land, counsel submitted that the petitioners’ claim must be contextualized within the historical evolution of land tenure in Kenya, from the pre-colonial to the post-colonial era. Citing the Supreme Court Advisory Opinion in National Land Commission v Attorney General & 5 Others [2015] KESC (KLR), counsel emphasized that colonial land laws, particularly the 1915 Crown Lands Ordinance, extinguished all native or customary claims, vesting all land in the Crown. That the petitioners, therefore, could not validly claim unbroken community ownership spanning over a century without demonstrating how their rights survived the sweeping statutory and constitutional transitions.
55. Counsel further argued that, in light of Article 63(3) of the Constitution and the NLC case(supra), the National Land Commission has no constitutional or statutory authority to administer or manage community land, as its prior mandate under Section 5(2)(e) of the NLC Act was repealed. Consequently, counsel argued that even if the petitioners had proved that the suit land is community land (which they have not), such land would be held in trust by the Machakos County Government and not the NLC, which has no role in its administration or management.
56. It was further submitted that the petitioners had failed to show compliance with the statutory processes governing the recognition and registration of community land under Article 63 of the Constitution and the Community Land Act, 2016. Counsel stressed that, in the absence of proof that the land was declared or registered as community land, or that it is held in trust by the Machakos County Government, the petitioners’ assertions remain speculative and legally untenable.
57. On locus standi, counsel argued that the petitioners, being a Self-Help Group and not a registered community under Section 7 of the Community Land Act, lacked the requisite capacity to institute the petition. Reference was made to the case of Kihanya & 4 Others v Gichuri & Another [2024] KECA 852 (KLR), for the proposition that a suit instituted without locus standi is a nullity ab initio. Counsel maintained that the petitioners’ registration as a Self-Help Group did not confer upon them any proprietary or enforceable interest in land.
58. On whether the petition meets the constitutional threshold, counsel submitted that the petition fell short of the standard set in Anarita Karimi Njeru v Republic [1979] KLR, as it failed to plead with precision the specific constitutional provisions violated, the nature of the alleged violation, and the nexus between the respondents’ actions and the claimed breaches. Counsel submitted that this instant petition was essentially an ordinary land dispute disguised as a constitutional petition, devoid of sufficient particulars to warrant constitutional redress.
59. On the question of fraud, counsel submitted that allegations of fraud must be distinctly pleaded and strictly proved to a standard higher than a balance of probabilities but lower than beyond reasonable doubt, as held in Arthi Highway Developers Ltd v West End Butchery & 6 Others [2015] eKLR. It was argued that the petitioners neither provided particulars of fraud nor tendered any evidence linking the respondents to fraudulent conduct in the acquisition of the suit property. Counsel further submitted that the respondents, on the contrary, had demonstrated that they lawfully purchased LR No. 12610/2 from BAT Kenya Developments Ltd, held it as tenants in common, and thereafter subdivided it into six distinct parcels, namely LR Nos. 13666–13671, which were duly registered and titled in their names.
60. In support of their proprietary claims, counsel relied on documentary evidence including certificates of title, sale agreements, and official search records, all of which they argued, confirmed lawful registration under the then Registration of Titles Act (Cap. 281, repealed). Reference was also made to the NLC Report dated 5th February 2018, produced by the petitioners, which acknowledged the existence of lawful subdivisions and significant developments on the parcels, including Danana Girls Secondary School on LR No. 13670.
61. Counsel submitted that the petitioners’ reliance on an NLC letter and newspaper notice was misplaced, as the National Land Commission lacks jurisdiction over private land under Article 67 of the Constitution. That the purported notice of intention to allocate the land was withdrawn upon clarification that the suit property was privately owned and lawfully registered.
62. On ownership, counsel reiterated that the respondents had discharged both the legal and evidential burden of proving lawful acquisition, while the petitioners had failed to establish any recognizable right or interest in the property. It was argued that the respondents’ titles remain indefeasible under Section 26 of the Land Registration Act, in the absence of any proof of fraud, illegality, or misrepresentation. In conclusion, counsel submitted that the petitioners had failed to prove that the suit property is community land, failed to demonstrate legal standing, and failed to substantiate any allegation of fraud and prayed that the petition be dismissed in its entirety with costs to the respondents.
Analysis and determination
63. This court has carefully considered the petition, responses thereto, evidence and parties’ rival submissions. The following issues arise for the court’s determination, namely;
a) Whether the petition meets the constitutional threshold.
b) Whether the petitioners proved that the respondents violated their constitutional rights under Articles 40 and 63 of the Constitution.
c) Whether the respondents obtained registration of parcel LR No. 12610/2 by fraud and or illegality
d) Whether the petitioners are entitled to the orders sought.
64. It was argued by the respondents that the petition does not meet the threshold of a Constitutional petition, an argument opposed by the petitioners. On meeting the Constitutional threshold, Rule 10 of the Constitution of Kenya (Protection of rights and fundamental freedoms) Practice and Procedure Rules (also known as the ‘Mutunga Rules’) provides for the form and substance of a Constitutional Petition as follows:
‘ 10. (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary. (2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community; (e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition; (f) the petition shall be signed by the petitioner or the advocate of the petitioner; and (g) the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.’
65. Essentially, a Constitutional petition must raise a Constitutional question requiring Constitutional interpretation as opposed to statutory interpretation. Therefore, a constitutional petition should clearly set out the respondents’ acts complained of, with a reasonable degree of precision; the constitutional provisions infringed upon by the respondents and the manner in which they are alleged to have been violated.
66. In the case of Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR, the Supreme Court of Kenya has articulated this position, as follows:
‘Although Article 22 (1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic [1979] KLR 154; the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the Constitutional process of dispute settlement…….’
67. Also, in Mumo Matemo v Trusted Society of Human Rights Alliance [2014] eKLR, the Supreme Court stated that:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle” In the case of Christian Juma Wabwire v Attorney General [2019] eKLR, the Judge relied on the decision in Lt Col Peter Ngari Kagume and 7 others v AG, Constitutional Application No 128 of 2006 where it was held that:-It is incumbent upon the petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true but the court is enjoined by law to go by the evidence on record. The petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses…… the court is deal to speculation and imaginations and must be guided by evidence of probative value. When the court is faced by a scenario where one side alleges and the rival side disputes and denies, the one alleging assumes the burden to prove the allegation… However, mere allegation of incarceration without providing evidence of the same does not at all assist the court. It was incumbent upon the Petitioners to provide evidence of long incarceration beyond the allowed period and not to be presumptuous that the court knows what happened….."
68. In the instant case, the petitioners have alleged that their rights as enshrined in Articles 40 and 63 of the Constitution have been violated on account of the acts of the respondents who have been harassing, threatening them and demolishing their homes. Therefore, the petitioners have with precision set out their grievances and constitutional provisions they allege were violated by the respondents. Hence, I find and hold that the petition herein has met the constitutional threshold.
69. On whether the respondents violated the petitioner’s rights, it was argued by the petitioners that they have lived on the suit property for over a century and that the same belonged to their great grandfathers. That the acquisition of title by the respondents was by fraud. According to the petitioners, the suit property is community land belonging to Kumiisya Self help Group, a Community Based Organization registered on 3rd July 2013.
70. Article 40 of the Constitution protects every person’s right to acquire and own land and provides as follows;
Protection of right to property.
40. (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.
(2) Parliament shall not enact a law that permits the State or any person—
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—
(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—
(i) requires prompt payment in full, of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.
(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.
(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.
(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
71. Community land is provided for under Article 63 of the Constitution as follows;
Community land.
63. (1) Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.
(2) Community land consists of—
(a) land lawfully registered in the name of group representatives under the provisions of any law;
(b) land lawfully transferred to a specific community by any process of law;
(c) any other land declared to be community land by an Act of Parliament; and
(d) land that is—
(i) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;
(ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities; or
(iii) lawfully held as trust land by the county governments,
but not including any public land held in trust by the county government under Article 62 (2).
(3) Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held.
(4) Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.
(5) Parliament shall enact legislation to give effect to this Article.
72. Therefore, a group of people is referred to as community on the basis of ethnicity, culture or similar community interest.
73. Section 2 of the Community land Act defines “Community” as
“Community means a consciously distinct and organized group of users of community land who are citizens of Kenya and share any of the following attributes;
(a) Common ancestry
(b) Similar culture or unique mode of livelihood;
(c) Socio-economic or other similar common interest
(d) Geographical space
(e) Ecological space; or
(f) Ethnicity.”
74. Essentially, for a group to be called a community, it must be intentionally and purposively distinct and organized based on a common denominator like common ancestry, similar culture or livelihoods, socio-economic or other similar common interest, geographical or ecological space or ethnicity.
75. Section 2 of the Community Land Act also defines community land to mean land declared as such under Article 63 (2) of the Constitution and land converted into community land under any law.
76. In the instant case, the petitioners herein state that their great grandparents owned the suit property and that they consist of several families of about 4000 people. Therefore, they claim to be a community based on common ancestry. These families and identities of the alleged 4000 people were not disclosed by the petitioners. They have not given the identity of their alleged great grandparents. PW1 testified that they had lived on the suit property for many years from the time their forefathers were on the land. She confirmed that their Self Help Group was registered in 2013 while the respondents got registered as proprietors of the suit property in 1983. The petitioners alleged to have been on the property for a century, yet no evidence of that allegation was availed to court. Photographs of a few houses while they may indicate possession, are not proof of period of possession. The petitioners’ witnesses stated that their group consisted of people from different ethnic groups including Kamba, Maasai, kikuyu, Luhya. From the petitioners’ evidence, they failed to demonstrate that they were a community based on common ancestry. They also did not prove being a community based on any attribute envisaged under section 2 of the Community Land Act as they are 3 people who claim to represent 4000 people whom they did not prove their existence. Even their own evidence from the NLC showed that there were just a few settlements on the land. The petitioners showed photographs of a few houses on the land and therefore three people in my view cannot be defined as a community.
77. The suit property was registered in the names of the respondents on 20th December 1984. Thereafter, it was subdivided in 1988 to create parcel Nos L. R 13666, 13667, 13668, 13669, 13670, 13671 registered land in the names of the respondents respectively. Therefore, the petitioners’ allegation that the suit property is unregistered community land is neither true nor supported by any iota of evidence. The suit property is not unregistered community land and has neither been registered in the name of the petitioners nor their self-help group nor held by the County Government in trust for any community. In the premises, I find and hold that the respondents are not a community capable of holding community land and the suit property is not community land, the same being private land having been registered in the respondents’ names.
78. The petitioners alleged that the suit property was obtained by the respondents through fraud.
79. Article 40 (1) and (6) only protects property lawfully acquired.
80. Section 26 of the Land Registration Act provide for indefeasibility of title as follows;
“Certificate of title to be held as conclusive evidence of proprietorship
(1) 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, unprocedurally or through a corrupt scheme.”
81. Therefore, unless there is proof that the acquisition of title by a registered proprietor was by fraud, misrepresentation, illegality, want of procedure or corruption, registration vests in a proprietor of land, absolute and indefeasible rights.
82. In the case of Dina Management Limited v County Government of Mombasa & 5 Others, the Supreme court of Kenya held that a title obtained unlawfully cannot confer lawful ownership.
83. It is trite that where a party alleges fraud, they must specifically plead the particulars thereof and strictly prove the same. The standard proof of fraud is slightly higher than the standard required in ordinary civil cases of the balance of probability. However, that standard is slightly below the standard of proof in criminal cases of beyond reasonable doubt. In the case of Kinyanjui Kamau –vs George Kamau [2015] e KLR the court held as follows; -
“…it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –vs- Ndolo [2008]1 KLR (G & F) 742 wherein the court stated that: “…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in Criminal Cases…”
84. In the instant case, the petitioners pleaded that the respondents fraudulently conspired to obtain title to the suit property knowing that the same was community land belonging to the petitioners. They insisted that the National Land Commission has on numerous occasions confirmed that the suit property is community land. I had considered provisions of the Constitution and community Land Act, and there is no where in those provisions which grant the NLC the power to create community land from private land. The petitioners relied on a newspaper extract where NLC had indicated notice to allocate the suit property. The NLC can only allocate unalienated public land as provided for in section 12 of the Land Act. The suit property herein is private land registered in the names of the respondents and therefore not capable of being allocated. Therefore, the NLC’s notice was null and void and of no legal consequence. The letter from County Coordinator relied upon by the petitioners confirms that the suit property was registered in the respondents’ names in 1983 and was subsequently subdivided, although it has a few settlements. In the premises, I find that no particulars of fraud were specifically pleaded and no fraud was proved by the petitioners.
85. The respondents gave the history of the land having acquired it through purchase from BAT Kenya. The respondents availed titles, contract of sale of land dated 5th March 1984, particulars of a loan facility advanced to their company Mwito investments by Agricultural Finance Corporation of Kshs. 3000, 000/=, certificate of registration of Mwito Investment, the six certificates of titles arising from the subdivision of parcel 12610/2, charge instruments in regard to the new titles, and discharge of charge among other documents. At the point of purchase of the suit property, the same was private land and not community land and the respondents’ acquisition thereof being through purchase was a legitimate and lawful way to acquire land. I am therefore satisfied that the respondents lawfully and procedurally obtained their respective titles in regard to the suit property and therefore the petitioners did not prove fraud or any form of illegality in the respondents’ acquisition of the suit property.
86. As the petitioners did not present any evidence demonstrating ownership of the suit property, they have no rights over it and are not entitled to occupy the same or interfere with the respondents’ ownership and enjoyment thereof. The petitioners have no claim whether legal or equitable against the respondents over the suit property and have not shown that their rights were violated. The respondents have shown that they lawfully and procedurally obtained title in respect of the suit property. Therefore, I find and hold that the petitioners have not proved that the respondents have violated any of their rights.
87. In the premises, I find no merit in the petitioners’ claim which I hereby dismiss with costs to the respondents.
88. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 12TH DAY OF NOVEMBER, 2025.
In the presence of;
Ms. Mutunga holding brief for Mr. Musyimi for the petitioners
Mr. Ajak Jok for the 1st and 3rd respondents
Mr. Nganyi holding brief for Ms Katasi for the 2nd, 4th, 5th and 6th respondents
No appearance for Interested party
Court Assistant- Delphine