IN THE MATTER OF ARTICLES 20, 22(1), 23, 258 AND 259 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF THE PETITIONER’S FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27(1), 28, 29 (f), 40, 47, 48, 50, AND 236 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTIONS 4 AND 6 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
INTRODUCTION AND BACKGROUND
The Petitioner through his petition dated 19 th November, 2024 seeks redress for what he characterizes as systemic and unconstitutional conduct by the 1 st Respondent in persistently enjoining him as a defendant in over 200 land recovery suits instituted in various courts across the country. He asserts that such actions have gravely impaired his fundamental rights, including the right to fair administrative action, dignity, and access to justice. He thus seeks the following redress:
a)……..
b) A DECLARATION that the Petitioner’s Rights under Articles 27(1), 28, 29(f), 40, 47, 48, 50 and 236 (a) of the Constitution stand violated, and/or are in danger of being Violated
c)An order of CERTIORARI do issue to bring to this Honourable court and strike cut the name of the Petitioner in all the proceedings instituted against him by the 1 st Respondent for any acts done by him in his capacity as Commissioner for Lands.
d) An-order of PROHIBITION do issue against the Respondents herein jointly and severally, their agents, servants, employees and or any person whomsoever acting under their instructions, from enjoining the Petitioner as a Defendant in any proceedings by reason of acts performed by him as a holder of the office of the Commissioner of Lands
e) An order of PROHIBITION do issue against the Respondents herein jointly and severally, their agents, servants, employees and or any person whomsoever acting under thew instructions. from visiting the Petitioner home for reason of acts performed by him ava holder of the office of the Commissioner of Lands.
f) General Damages,
g) Costs of the Petition
h) Any other relief or further orders, writs and directions the court considers appropriate and just to grant for the purpose of the enforcement of the Petitioner's fundamental rights and freedoms
The Petitioner served as the Commissioner of Lands from 1989 until his retirement in 1999. His appointment and tenure were governed by the Government Lands Act (now repealed) and Gazette Notice No. 14 of 1965, acting under the authority of the President or relevant County Councils. Following the promulgation of the Constitution of Kenya, 2010, the office of Commissioner of Lands was abolished and its functions assumed by the Interested Party herein.
Since his retirement, the Petitioner has been named as a defendant in over 200 suits filed by the 1 st Respondent, the Ethics and Anti-Corruption Commission (EACC), all concerning the recovery of public land allegedly irregularly alienated during his tenure. The Petitioner asserts that he has not been found personally liable in any of these suits and, in some instances, has not been served or made aware of their existence.
The Petitioner avers that the land allocation processes during his tenure were complex and involved multiple layers of approvals by government officials, including the President and the Minister for Lands. He contends that the decisions were institutional, not personal, and that his inclusion in the suits is arbitrary and discriminatory.
The cumulative effect of these suits has allegedly caused the Petitioner emotional trauma, reputational harm, and financial ruin, with legal fees amounting to over Kshs.178 million. The Petitioner further avers that the Interested Party, which holds the relevant records, is rarely enjoined in these suits, thereby denying him access to crucial documentation necessary for his defence.
The Petitioner, now aged 81 years, laments the psychological toll of persistent litigation and physical limitations that inhibit his ability to effectively participate in court proceedings.
PETITIONER’S CASE
The Petitioner through his Petition and Supporting affidavit both dated 19 th November, 2024 and further affidavit sworn on 2 nd April, 2025 by the Petitioner contends that the EACC’s conduct violates Articles 27(1), 28, 29(f), 40, 47, 48, 50, and 236(a) of the Constitution. He asserts that he is being targeted for acts performed in his official capacity and that the 1 st Respondent has failed to demonstrate personal culpability in any instance.
He further relies on court decisions, including Nakuru ELC 54b of 2021; Ethics and Anti-corruption Commission v Shadrack Koske & 3 Others [2019] eKLR and Nairobi ELC 56 of 2019; EACC V Zablon Mabea & 4 Others, in which courts found no personal liability on his part and questioned the EACC’s litigation strategy. He also cites his acquittal in Mombasa CMCC E003 of 2022; Republic v Jabu Salim, Wilson Gacanja & Zablon Mabea, where the prosecution failed to establish a prima facie case against him.
The Petitioner, in responding to the Respondents’ affidavits and objections, asserts that they misrepresent the purpose of his Petition, which is not to usurp the jurisdiction of other courts or relitigate settled issues. He clarifies that the Petition is intended solely to protect his constitutional rights from the 1 st Respondent’s alleged procedural improprieties. He disputes the attempt to equate his case with other past matters, such as ELC Mombasa Const. Pet E011 of 2023 , and insists his Petition is distinct in both substance and objective as he does not seek to halt lawful prosecutions but rather challenges the fairness and legality of the 1 st Respondent’s actions.
The Petitioner argues that this case is grounded in Articles 22 and 23 of the Constitution, along with the Fair Administrative Action Act, due to the administrative nature of the 1 st Respondent’s decisions. He denies attempting to overturn any precedent and instead seeks review of the repeated and allegedly arbitrary decisions to drag him into numerous litigations without fair process. He stresses the need for due process, including the opportunity to be heard before adverse action is taken, something he claims the 1 st Respondent has largely ignored. This disregard, he argues, results in unjustified prosecutions even where his role was minimal or nonexistent.
The Petitioner further argues that fair administrative action under Article 47 and the Fair Administrative Action Act requires the 1 st Respondent to act lawfully, reasonably, and procedurally. He avers that the arbitrary filing of suits without prior notice, proper investigations, or enjoining relevant parties violates this standard.
He also invokes foreign jurisprudence, including the Indian case of Ram Lal Patidar v State of Rajasthan (2024: RJ-jd:35519), to support the proposition that protracted litigation against elderly citizens lacking direct involvement in wrongdoing is inhumane and unjust. Additionally, the Petitioner contends that the independence granted to the 1st Respondent cannot be unchecked or exercised arbitrarily. He urges the Court to strike a balance between institutional independence and the protection of individual rights. He prays that the Court hears the Petition on its merits to safeguard the values enshrined in the Constitution.
1 ST RESPONDENT’S CASE
The 1 st Respondent, through its replying affidavit sworn by Ben Murei, its Deputy Director of Legal Services and a Preliminary Objection dated 6 th February 2025, argues that the Petition is fundamentally flawed for seeking to quash or stay legitimate proceedings pending in competent courts of law, particularly the Environment and Land Court. It contends that the High Court lacks jurisdiction under Article 165(5)(b) of the Constitution to supervise courts of equal status.
It is averred that the Petition violates the doctrines of sub judice and res judicata as codified under Sections 6 and 7 of the Civil Procedure Act. It asserts that the questions raised herein, particularly on the Petitioner's liability in land alienation are pending or have been conclusively determined in numerous other suits, including the binding decision of the Court of Appeal in EACC v Judith Marilyn Okungu & Another, Civil Appeal No. 183 of 2014.
Additionally, it is argued that its decision to enjoin the Petitioner in recovery suits is based on credible findings that he acted beyond his lawful mandate as Commissioner of Lands. Citing Frann Investments Limited v KACC, the Respondent emphasizes that government officers may be held personally liable for actions taken ultra vires or in bad faith, even if those actions were purportedly done under official capacity.
It is argued that the Petitioner’s reliance on Article 236(a) and Section 126 of the repealed Government Lands Act is misguided, as such protections do not extend to acts done in excess of lawful authority or in breach of the public trust. It asserts that immunity under these provisions is qualified by the requirement of good faith. He further contends that the Petitioner's reliance on statutory protection is misplaced as it does not apply to acts done in bad faith. The EACC has established that Commissioners of Lands, including the Petitioner, acted beyond their lawful authority and are thus personally liable.
He further stresses that government officials, including civil servants, can be held personally liable for fraudulent acts done under the guise of official duty. He argues that the Petition seeks to unlawfully restrain the EACC from exercising its constitutional mandate under Articles 22, 252, and 258. Consequently, the Petition, if allowed, would undermine the principle of finality in litigation and prejudice ongoing cases that have been awaiting resolution for many years.
The 1 st Respondent refutes claims of harassment or selective prosecution, arguing that its mandate under Articles 79, 252 and 258 of the Constitution as well as Section 11 (1) (d)- (j) of the Ethics and Anti-corruption Commission Act authorizes it to independently investigate and institute civil proceedings for the protection of public property. The Petitioner's inclusion in multiple suits is premised on evidence implicating him directly in land allocations found to have been irregular or unlawful.
Further, it is emphasized that the Petition does not meet the constitutional threshold under Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. It asserts that the Petitioner has failed to show any specific violation of his rights and is merely seeking protection from legitimate proceedings. It is prayed that the Petition be dismissed with costs as its issues will be appropriately addressed during the hearing of the various suits already filed. Accordingly, the 1 st Respondent urges the Court to uphold its Preliminary Objection and strike out the Petition in limine for want of jurisdiction, abuse of court process, and for lacking any demonstrable violation of the Petitioner’s constitutional rights.
2 ND RESPONDENT’S CASE
The 2 nd Respondent, the Attorney General, opposes the Petition through its grounds of opposition dated 16 th January, 2025 on the basis that the High Court lacks jurisdiction to exercise supervisory authority over the Environment and Land Court, a court of equal status under the Constitution. It asserts that the reliefs sought, particularly orders of certiorari and prohibition cannot issue against proceedings actively pending before such courts.
The 2 nd Respondent further contends that the Petition fails to disclose any specific constitutional or statutory violation attributable to it. It argues that the Petitioner has not alleged, nor provided evidence, that the Attorney General initiated, participated in, or instructed the proceedings complained of, thereby rendering the joinder of the 2 nd Respondent unwarranted.
It emphasizes that the Petitioner has an effective legal remedy supported with well-established procedure to extricate himself in all legal proceedings where he has been wrongly joined as a party and claim legal costs in any proceedings where he is adjudged to have been unjustifiably joined. Thus, there exists no necessity for constitutional intervention where ordinary civil remedies suffice.
Accordingly, the 2 nd Respondent prays that the Petition be dismissed in its entirety or, in the alternative, that its name be struck out from the proceedings for misjoinder.
INTERESTED PARTY’S CASE
The Interested Party, filed its replying affidavit sworn on 12 th March, 2025 by Brian Ikol, its Director of Legal Services, opposing the Petition and asserting that the office of the Commissioner of Lands under the repealed Government Lands Act had clearly delineated powers which excluded the authority to allocate unalienated land, powers exclusively reserved for the President under section 3(a) of the Government Land Act (now repealed). It is contended that the Petitioner, while serving as Commissioner of Lands, acted beyond his legal mandate and in contravention of statutory provisions, thus incurring personal liability.
It is contended that Upon review of the supporting documents annexed to the Petition, the Interested Party notes that different courts have ruled variably on the Petitioner’s culpability, depending on the facts presented in each case. This, it argues, demonstrates that the Petitioner’s role is a material issue for trial and not one that warrants shielding through a constitutional petition.
It is further contended that it holds no direct stake in the allegations made, nor has it dispatched any agents or servants to the Petitioner’s home. Accordingly, it argues that its inclusion in the Petition is unwarranted. Furthermore, it emphasizes that previous judgments have been rendered without the Interested Party’s participation, without prejudicing the outcome.
Furthermore, the Interested Party argues that under Article 10 and Article 79 of the Constitution, all public officers are expected to uphold national values and can be subjected to oversight and litigation by the EACC for misconduct. The Interested Party argues that the Petitioner’s reliance on Article 236 for immunity is misplaced where abuse of office is alleged and substantiated.
The Interested Party maintains that the High Court cannot exercise supervisory jurisdiction over the Environment and Land Court, which is of concurrent status. It argues that the Petition offends the doctrines of res judicata and sub judice and constitutes an abuse of the court process. Consequently, it prays that the Petition be dismissed in its entirety or that the Interested Party be struck out for misjoinder.
The Petition was canvassed by way of written submissions and in compliance, all parties filed their respective submissions.
PETITIONER’S SUBMISSIONS
The Petitioner through its written submissions dated 2 nd April, 2025 and Supplementary written submissions dated 23 rd May, 2025 submits that the Petition does not seek to challenge or overturn any judicial determination issued by a court of competent jurisdiction, nor does it attempt to re-litigate matters previously adjudicated. Rather, the gravamen of the Petition lies in challenging the continuous and systemic violation of his fundamental rights and freedoms under the Constitution through the arbitrary, repetitive, and procedurally irregular institution of civil and criminal proceedings by the 1 st Respondent. The Petitioner contends that such conduct constitutes administrative action within the meaning of Article 47(1) of the Constitution and therefore must comply with the requirements of lawfulness, reasonableness, and procedural fairness. The Respondent’s conduct, he avers, fails this constitutional threshold.
The Petitioner further submits that the preliminary objection raised by the 1 st Respondent on the ground of lack of jurisdiction is misconceived. He invokes Article 165(3)(b) and (d)(ii) of the Constitution to argue that this Honourable Court is vested with jurisdiction to determine allegations of violations of constitutional rights and to supervise the conduct of constitutional bodies, including the 1st Respondent. The Petition, he emphasizes, is not an appeal or review of Environment and Land Court (ELC) matters, but a sui generis action grounded in the Bill of Rights and procedural fairness
He asserts that contrary to the 1 st Respondent’s position, the Petition is not res judicata as it addresses a distinct constitutional grievance that has not been previously adjudicated. The Petitioner distinguishes this matter from EACC v Judith Marilyn Okungu (Supra) by asserting that the issue here concerns the fairness and legality of repeated prosecutions and enjoinments, not the underlying merits of specific allotments or fraud allegations. Reliance is placed in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] eKLR where the Court of Appeal held that res judicata cannot bar a claim where new issues touching on constitutional violations arise. Therefore, he argues, this matter is not barred by Section 7 of the Civil Procedure Act.
On the doctrine of sub judice, the Petitioner submits that this doctrine does not apply to constitutional petitions unless it is demonstrably shown that the constitutional issues raised are directly and substantially in issue in other pending proceedings. The Petitioner maintains that the instant Petition raises overarching constitutional questions that cut across multiple pending suits, and such systemic issues cannot be addressed through piecemeal defences in individual proceedings.
The Petitioner further argues that the continuous enjoinment of his name in over 200 proceedings, most of which seek no personal reliefs against him, is oppressive and violates his rights under Articles 28, 29(f), 47, 48, and 50 of the Constitution. He relies on the Indian case of Ram Lal Patidar vs State of Rajasthan (2024:RJ-Id:35519) , where the court quashed criminal charges against an elderly person on the basis of advanced age, lack of evidence, and humanitarian considerations. The Petitioner submits that this case is analogous, and that the principle of humane justice must inform prosecutorial and investigatory discretion. The petitioner placed reliance on several authorities to show how his constitutional rights have been violated.
The Petitioner maintains that the 1st Respondent, being a constitutional body, is bound by Article 47 of the Constitution and the Fair Administrative Action Act. He argues that the decision to prosecute is an administrative action that directly affects his rights and should be made in a manner that ensures fairness, notice, and an opportunity to be heard. The Petitioner references Robert Monda v EACC to underscore the duty to notify an affected party when recommending prosecution. He notes that while he was sporadically invited to respond to allegations, there has been no consistent or transparent process, reflecting arbitrariness on the part of the 1st Respondent.
The Petitioner contends that although the 1st Respondent claims not to make binding legal determinations, its decisions have significant adverse effects—including loss of property through legal fees and compromised access to justice due to numerous suits filed against him. He challenges the Respondent’s failure to enjoin the Interested Party (IP), the successor to his former office and the custodian of relevant documents. The suggestion that he should initiate joinder in over 200 cases, he argues, is impractical and demonstrates the 1st Respondent’s pursuit of personal rather than public accountability. This omission, in his view, undermines fairness and betrays a targeted campaign.
The Petitioner insists that the 2 nd Respondent, as the Government’s principal legal adviser under Article 156(6), must play a role in ensuring that all state organs act within constitutional limits. He argues that this court has jurisdiction to determine the Petition, as it concerns the legality of administrative decisions and not land disputes. The Petition, he clarifies, seeks a broader constitutional remedy to systemic and continuous violations rather than piecemeal responses like striking off his name from individual suits. He asserts that the nature and volume of cases filed—many without his knowledge—necessitate a judicial intervention that ensures finality and fairness.
The Petitioner also invokes Article 236(a) of the Constitution and Section 8 of the repealed Government Lands Act to submit that as a public officer acting in good faith under delegated authority, he is entitled to protection from personal liability. He notes that in Nakuru ELC Case 54b of 2021 , the court expressly held that no orders could be issued against the Commissioner of Lands where the decision was informed by ministerial and presidential approvals. Thus, the Petitioner's prosecution is unlawful in the absence of a demonstrated personal benefit or ultra vires action, and he should not be made to bear the burden of such proceedings in perpetuity.
It was submitted that the failure by the 1 st Respondent to consistently enjoin the Interested Party, the institutional successor to his former office, while suing him personally, is procedurally irregular and undermines his right to a fair defence. He submits that most of the documentation relevant to his defence is in the custody of the Interested Party, thereby placing him at an evidentiary disadvantage. The 1st Respondent’s selective prosecution without consideration of institutional continuity or record custody, he argues, is irrational, unreasonable, and prejudicial, contrary to the test of rationality in Pharmaceutical Manufacturers Association of SA and Another. In re: Ex Parte President of the Republic of South Africa and Others 2000 (4) SA 674 (CC) at para 90.
It was further submitted that the persistent litigation and publication of the petitioner’s name in the media as a defendant in corruption-related proceedings have violated his right to dignity and fair trial. The reputational damage, financial depletion, and emotional distress arising from these cases, he argues, constitute a constructive denial of access to justice under Article 48 of the Constitution. He urges the Court to find that the 1st Respondent has failed to exercise its powers with accountability, fairness, and restraint. He accordingly prays for the grant of declaratory, prohibitory, and compensatory reliefs to redress the violation of his rights.
1 ST RESPONDENT’S SUBMISSIONS
The 1 st Respondent submitted that this Court lacks jurisdiction to entertain the present Petition to the extent that it seeks to challenge or interfere with matters pending before the Environment and Land Court, which is a court of equal status to the High Court as per Article 162(2)(b) of the Constitution. It cites the case of Greenfield Investments Limited & Anor v State of the Republic of Kenya & 3 Others [2013] eKLR to reinforce the principle that the High Court cannot exercise supervisory jurisdiction over another superior court of concurrent jurisdiction. As such, it is submitted that the Petition offends the constitutional scheme of judicial hierarchy and distribution of functions.
The 1 st Respondent further invoked the doctrines of sub judice and res judicata, arguing that the questions raised by the Petitioner, particularly regarding his personal liability have either been conclusively determined or are pending before competent trial courts. Reliance was placed in Joseph Njuguna & 28 Others v George Gitau T/A the [2019] eKLR for the proposition that the court must safeguard against abuse of process by refusing to entertain duplicative or parallel litigation. The Respondent emphasizes that allowing this Petition would disrupt the finality of judicial proceedings and create procedural confusion in the administration of justice.
With regard to the applicability of Article 47 of the Constitution and the Fair Administrative Action Act, it was submitted that its decision to institute suits is not an administrative act but an exercise of constitutional and statutory mandate. Relying on the Supreme Court decision in EACC & DPP v Tom Ojienda, SC t/a Prof. Tom Ojienda & Associates Advocates & 2 Others (Petition 30& 31 OF 2019) (consolidated) [2022] KESC 59 9KLR) , it submits that the Commission’s conduct constitutes investigative and quasi-judicial functions which are not subject to the procedural fairness requirements of Article 47. It is argued that the Petitioner’s complaints are therefore mischaracterised and legally untenable.
In addressing Articles 48 and 28 on access to justice and dignity, EACC maintains that court proceedings provide a platform for parties to be heard and cannot be construed as rights violations. The Commission highlights that some cases have absolved the Petitioner, while others, like Frann Investments Limited (Supra) , resulted in liability and damages. It also rejects the argument that the Petitioner has been unfairly singled out, noting that his formal approvals as Commissioner bind him even if subordinate officers initiated earlier steps. The assertion that only he has been targeted does not negate his legal accountability.
It was further submitted that the threshold for protection under Article 236(a) and Section 126 of the repealed Government Lands Act is not met in this case. It asserts that the immunity contemplated therein applies only to acts performed in good faith and within the scope of lawful authority. Where a public officer acts ultra vires or with intent to defraud, it is submitted that personal liability ensues. To support this proposition, the Commission relies on Frann Investments Limited v Kenya Anti-Corruption Commission & 6 Others [2024] where the Petitioner was found culpable for fraudulent alienation of land.
On the Petitioner’s claim that the Interested Party should bear institutional responsibility, it was contended that such arguments cannot shield a public officer from personal accountability for unlawful acts. It maintains that the Petitioner's role in each of the impugned transactions is a matter of evidence to be tested during trial and not a question to be determined in limine through constitutional litigation. The Respondent argues that the High Court should not be invited to make sweeping declarations insulating former officers from legitimate legal scrutiny.
The 1 st Respondent also challenges the Petitioner’s claim to damages, asserting that no evidence has been presented of malice, bad faith, or illegality on the part of the Commission. It relies on the decision in Irene Wangari Gacheru v AG [2017] eKLR to argue that constitutional compensation is only available where actual harm has been demonstrated and cannot be presumed. The mere existence of multiple suits does not, according to the 1st Respondent, amount to a constitutional violation.
In conclusion, the 1 st Respondent urges this Court to dismiss the Petition in its entirety for want of jurisdiction and for constituting an abuse of the court process. It submits that the proper forum for challenging the Petitioner’s joinder is within each pending suit, and not through a blanket constitutional petition. The Commission prays that the Preliminary Objection be upheld and the Petition be struck out with costs.
2 ND RESPONDENT’S SUBMISSIONS
The 2 nd Respondent, submitted that the High Court lacks jurisdiction to entertain the Petition, as it invites the Court to exercise supervisory authority over the Environment and Land Court, a court of equal status established under Article 162(2)(b) of the Constitution. Relying on the decisions of United States International University (USIU) v Attorney General [2012] eKLR and Bellevue Development Company Ltd v Gikonyo & 3 Others; Kenya Commercial Bank & 3 Others (Interested Parties) [2018] KECA 330 (KLR ), the 2 nd Respondent submits that constitutional questions incidental to specialized court matters must be resolved within those courts.
It was contended that the Petition fails to disclose any valid cause of action against it. It argues that the Petitioner has not demonstrated any involvement of the Attorney General in the impugned suits, nor has he shown that the AG played any role in instituting or sustaining them. Consequently, its inclusion in the Petition is unnecessary and procedurally improper.
The 2 nd Respondent relies on the doctrine of constitutional avoidance as articulated in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 Others [2014] eKLR , asserting that constitutional relief should only be sought where no adequate alternative remedy exists. The Petitioner, it argues, has several legal options, including seeking removal from suits under Order 1 Rule 10 of the Civil Procedure Rules or pursuing damages for malicious prosecution if warranted.
It is further submitted that the 2 nd Respondent has not been shown to have breached any constitutional or statutory duty and that the Petition seeks to improperly saddle it with liability for proceedings initiated independently by the EACC, a constitutionally distinct body under Article 253. The legal threshold for joinder, as articulated in cases such as Amon v Raphael Tuck & Sons Ltd, has not been met.
In conclusion, the 2 nd Respondent prays for dismissal of the entire Petition for want of jurisdiction or, in the alternative, that it be struck out from these proceedings for misjoinder. It urges the Court to uphold the principles of judicial economy and procedural fairness by avoiding unnecessary litigation against parties without demonstrable involvement or liability.
INTERESTED PARTY’S SUBMISSIONS
The Interested Party raised two issues for determination which are: whether it is a necessary party and whether the Petitioner is entitled to the reliefs sought.
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AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF THE PETITIONER’S FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27(1), 28, 29 (f), 40, 47, 48, 50, AND 236 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTIONS 4 AND 6 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
INTRODUCTION AND BACKGROUND
The Petitioner through his petition dated 19 th November, 2024 seeks redress for what he characterizes as systemic and unconstitutional conduct by the 1 st Respondent in persistently enjoining him as a defendant in over 200 land recovery suits instituted in various courts across the country. He asserts that such actions have gravely impaired his fundamental rights, including the right to fair administrative action, dignity, and access to justice. He thus seeks the following redress:
a)……..
b) A DECLARATION that the Petitioner’s Rights under Articles 27(1), 28, 29(f), 40, 47, 48, 50 and 236 (a) of the Constitution stand violated, and/or are in danger of being Violated
c)An order of CERTIORARI do issue to bring to this Honourable court and strike cut the name of the Petitioner in all the proceedings instituted against him by the 1 st Respondent for any acts done by him in his capacity as Commissioner for Lands.
d) An-order of PROHIBITION do issue against the Respondents herein jointly and severally, their agents, servants, employees and or any person whomsoever acting under their instructions, from enjoining the Petitioner as a Defendant in any proceedings by reason of acts performed by him as a holder of the office of the Commissioner of Lands
e) An order of PROHIBITION do issue against the Respondents herein jointly and severally, their agents, servants, employees and or any person whomsoever acting under thew instructions. from visiting the Petitioner home for reason of acts performed by him ava holder of the office of the Commissioner of Lands.
f) General Damages,
g) Costs of the Petition
h) Any other relief or further orders, writs and directions the court considers appropriate and just to grant for the purpose of the enforcement of the Petitioner's fundamental rights and freedoms
The Petitioner served as the Commissioner of Lands from 1989 until his retirement in 1999. His appointment and tenure were governed by the Government Lands Act (now repealed) and Gazette Notice No. 14 of 1965, acting under the authority of the President or relevant County Councils. Following the promulgation of the Constitution of Kenya, 2010, the office of Commissioner of Lands was abolished and its functions assumed by the Interested Party herein.
Since his retirement, the Petitioner has been named as a defendant in over 200 suits filed by the 1 st Respondent, the Ethics and Anti-Corruption Commission (EACC), all concerning the recovery of public land allegedly irregularly alienated during his tenure. The Petitioner asserts that he has not been found personally liable in any of these suits and, in some instances, has not been served or made aware of their existence.
The Petitioner avers that the land allocation processes during his tenure were complex and involved multiple layers of approvals by government officials, including the President and the Minister for Lands. He contends that the decisions were institutional, not personal, and that his inclusion in the suits is arbitrary and discriminatory.
The cumulative effect of these suits has allegedly caused the Petitioner emotional trauma, reputational harm, and financial ruin, with legal fees amounting to over Kshs.178 million. The Petitioner further avers that the Interested Party, which holds the relevant records, is rarely enjoined in these suits, thereby denying him access to crucial documentation necessary for his defence.
The Petitioner, now aged 81 years, laments the psychological toll of persistent litigation and physical limitations that inhibit his ability to effectively participate in court proceedings.
PETITIONER’S CASE
The Petitioner through his Petition and Supporting affidavit both dated 19 th November, 2024 and further affidavit sworn on 2 nd April, 2025 by the Petitioner contends that the EACC’s conduct violates Articles 27(1), 28, 29(f), 40, 47, 48, 50, and 236(a) of the Constitution. He asserts that he is being targeted for acts performed in his official capacity and that the 1 st Respondent has failed to demonstrate personal culpability in any instance.
He further relies on court decisions, including Nakuru ELC 54b of 2021; Ethics and Anti-corruption Commission v Shadrack Koske & 3 Others [2019] eKLR and Nairobi ELC 56 of 2019; EACC V Zablon Mabea & 4 Others, in which courts found no personal liability on his part and questioned the EACC’s litigation strategy. He also cites his acquittal in Mombasa CMCC E003 of 2022; Republic v Jabu Salim, Wilson Gacanja & Zablon Mabea, where the prosecution failed to establish a prima facie case against him.
The Petitioner, in responding to the Respondents’ affidavits and objections, asserts that they misrepresent the purpose of his Petition, which is not to usurp the jurisdiction of other courts or relitigate settled issues. He clarifies that the Petition is intended solely to protect his constitutional rights from the 1 st Respondent’s alleged procedural improprieties. He disputes the attempt to equate his case with other past matters, such as ELC Mombasa Const. Pet E011 of 2023 , and insists his Petition is distinct in both substance and objective as he does not seek to halt lawful prosecutions but rather challenges the fairness and legality of the 1 st Respondent’s actions.
The Petitioner argues that this case is grounded in Articles 22 and 23 of the Constitution, along with the Fair Administrative Action Act, due to the administrative nature of the 1 st Respondent’s decisions. He denies attempting to overturn any precedent and instead seeks review of the repeated and allegedly arbitrary decisions to drag him into numerous litigations without fair process. He stresses the need for due process, including the opportunity to be heard before adverse action is taken, something he claims the 1 st Respondent has largely ignored. This disregard, he argues, results in unjustified prosecutions even where his role was minimal or nonexistent.
The Petitioner further argues that fair administrative action under Article 47 and the Fair Administrative Action Act requires the 1 st Respondent to act lawfully, reasonably, and procedurally. He avers that the arbitrary filing of suits without prior notice, proper investigations, or enjoining relevant parties violates this standard.
He also invokes foreign jurisprudence, including the Indian case of Ram Lal Patidar v State of Rajasthan (2024: RJ-jd:35519), to support the proposition that protracted litigation against elderly citizens lacking direct involvement in wrongdoing is inhumane and unjust. Additionally, the Petitioner contends that the independence granted to the 1st Respondent cannot be unchecked or exercised arbitrarily. He urges the Court to strike a balance between institutional independence and the protection of individual rights. He prays that the Court hears the Petition on its merits to safeguard the values enshrined in the Constitution.
1 ST RESPONDENT’S CASE
The 1 st Respondent, through its replying affidavit sworn by Ben Murei, its Deputy Director of Legal Services and a Preliminary Objection dated 6 th February 2025, argues that the Petition is fundamentally flawed for seeking to quash or stay legitimate proceedings pending in competent courts of law, particularly the Environment and Land Court. It contends that the High Court lacks jurisdiction under Article 165(5)(b) of the Constitution to supervise courts of equal status.
It is averred that the Petition violates the doctrines of sub judice and res judicata as codified under Sections 6 and 7 of the Civil Procedure Act. It asserts that the questions raised herein, particularly on the Petitioner's liability in land alienation are pending or have been conclusively determined in numerous other suits, including the binding decision of the Court of Appeal in EACC v Judith Marilyn Okungu & Another, Civil Appeal No. 183 of 2014.
Additionally, it is argued that its decision to enjoin the Petitioner in recovery suits is based on credible findings that he acted beyond his lawful mandate as Commissioner of Lands. Citing Frann Investments Limited v KACC, the Respondent emphasizes that government officers may be held personally liable for actions taken ultra vires or in bad faith, even if those actions were purportedly done under official capacity.
It is argued that the Petitioner’s reliance on Article 236(a) and Section 126 of the repealed Government Lands Act is misguided, as such protections do not extend to acts done in excess of lawful authority or in breach of the public trust. It asserts that immunity under these provisions is qualified by the requirement of good faith. He further contends that the Petitioner's reliance on statutory protection is misplaced as it does not apply to acts done in bad faith. The EACC has established that Commissioners of Lands, including the Petitioner, acted beyond their lawful authority and are thus personally liable.
He further stresses that government officials, including civil servants, can be held personally liable for fraudulent acts done under the guise of official duty. He argues that the Petition seeks to unlawfully restrain the EACC from exercising its constitutional mandate under Articles 22, 252, and 258. Consequently, the Petition, if allowed, would undermine the principle of finality in litigation and prejudice ongoing cases that have been awaiting resolution for many years.
The 1 st Respondent refutes claims of harassment or selective prosecution, arguing that its mandate under Articles 79, 252 and 258 of the Constitution as well as Section 11 (1) (d)- (j) of the Ethics and Anti-corruption Commission Act authorizes it to independently investigate and institute civil proceedings for the protection of public property. The Petitioner's inclusion in multiple suits is premised on evidence implicating him directly in land allocations found to have been irregular or unlawful.
Further, it is emphasized that the Petition does not meet the constitutional threshold under Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. It asserts that the Petitioner has failed to show any specific violation of his rights and is merely seeking protection from legitimate proceedings. It is prayed that the Petition be dismissed with costs as its issues will be appropriately addressed during the hearing of the various suits already filed. Accordingly, the 1 st Respondent urges the Court to uphold its Preliminary Objection and strike out the Petition in limine for want of jurisdiction, abuse of court process, and for lacking any demonstrable violation of the Petitioner’s constitutional rights.
2 ND RESPONDENT’S CASE
The 2 nd Respondent, the Attorney General, opposes the Petition through its grounds of opposition dated 16 th January, 2025 on the basis that the High Court lacks jurisdiction to exercise supervisory authority over the Environment and Land Court, a court of equal status under the Constitution. It asserts that the reliefs sought, particularly orders of certiorari and prohibition cannot issue against proceedings actively pending before such courts.
The 2 nd Respondent further contends that the Petition fails to disclose any specific constitutional or statutory violation attributable to it. It argues that the Petitioner has not alleged, nor provided evidence, that the Attorney General initiated, participated in, or instructed the proceedings complained of, thereby rendering the joinder of the 2 nd Respondent unwarranted.
It emphasizes that the Petitioner has an effective legal remedy supported with well-established procedure to extricate himself in all legal proceedings where he has been wrongly joined as a party and claim legal costs in any proceedings where he is adjudged to have been unjustifiably joined. Thus, there exists no necessity for constitutional intervention where ordinary civil remedies suffice.
Accordingly, the 2 nd Respondent prays that the Petition be dismissed in its entirety or, in the alternative, that its name be struck out from the proceedings for misjoinder.
INTERESTED PARTY’S CASE
The Interested Party, filed its replying affidavit sworn on 12 th March, 2025 by Brian Ikol, its Director of Legal Services, opposing the Petition and asserting that the office of the Commissioner of Lands under the repealed Government Lands Act had clearly delineated powers which excluded the authority to allocate unalienated land, powers exclusively reserved for the President under section 3(a) of the Government Land Act (now repealed). It is contended that the Petitioner, while serving as Commissioner of Lands, acted beyond his legal mandate and in contravention of statutory provisions, thus incurring personal liability.
It is contended that Upon review of the supporting documents annexed to the Petition, the Interested Party notes that different courts have ruled variably on the Petitioner’s culpability, depending on the facts presented in each case. This, it argues, demonstrates that the Petitioner’s role is a material issue for trial and not one that warrants shielding through a constitutional petition.
It is further contended that it holds no direct stake in the allegations made, nor has it dispatched any agents or servants to the Petitioner’s home. Accordingly, it argues that its inclusion in the Petition is unwarranted. Furthermore, it emphasizes that previous judgments have been rendered without the Interested Party’s participation, without prejudicing the outcome.
Furthermore, the Interested Party argues that under Article 10 and Article 79 of the Constitution, all public officers are expected to uphold national values and can be subjected to oversight and litigation by the EACC for misconduct. The Interested Party argues that the Petitioner’s reliance on Article 236 for immunity is misplaced where abuse of office is alleged and substantiated.
The Interested Party maintains that the High Court cannot exercise supervisory jurisdiction over the Environment and Land Court, which is of concurrent status. It argues that the Petition offends the doctrines of res judicata and sub judice and constitutes an abuse of the court process. Consequently, it prays that the Petition be dismissed in its entirety or that the Interested Party be struck out for misjoinder.
The Petition was canvassed by way of written submissions and in compliance, all parties filed their respective submissions.
PETITIONER’S SUBMISSIONS
The Petitioner through its written submissions dated 2 nd April, 2025 and Supplementary written submissions dated 23 rd May, 2025 submits that the Petition does not seek to challenge or overturn any judicial determination issued by a court of competent jurisdiction, nor does it attempt to re-litigate matters previously adjudicated. Rather, the gravamen of the Petition lies in challenging the continuous and systemic violation of his fundamental rights and freedoms under the Constitution through the arbitrary, repetitive, and procedurally irregular institution of civil and criminal proceedings by the 1 st Respondent. The Petitioner contends that such conduct constitutes administrative action within the meaning of Article 47(1) of the Constitution and therefore must comply with the requirements of lawfulness, reasonableness, and procedural fairness. The Respondent’s conduct, he avers, fails this constitutional threshold.
The Petitioner further submits that the preliminary objection raised by the 1 st Respondent on the ground of lack of jurisdiction is misconceived. He invokes Article 165(3)(b) and (d)(ii) of the Constitution to argue that this Honourable Court is vested with jurisdiction to determine allegations of violations of constitutional rights and to supervise the conduct of constitutional bodies, including the 1st Respondent. The Petition, he emphasizes, is not an appeal or review of Environment and Land Court (ELC) matters, but a sui generis action grounded in the Bill of Rights and procedural fairness
He asserts that contrary to the 1 st Respondent’s position, the Petition is not res judicata as it addresses a distinct constitutional grievance that has not been previously adjudicated. The Petitioner distinguishes this matter from EACC v Judith Marilyn Okungu (Supra) by asserting that the issue here concerns the fairness and legality of repeated prosecutions and enjoinments, not the underlying merits of specific allotments or fraud allegations. Reliance is placed in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] eKLR where the Court of Appeal held that res judicata cannot bar a claim where new issues touching on constitutional violations arise. Therefore, he argues, this matter is not barred by Section 7 of the Civil Procedure Act.
On the doctrine of sub judice, the Petitioner submits that this doctrine does not apply to constitutional petitions unless it is demonstrably shown that the constitutional issues raised are directly and substantially in issue in other pending proceedings. The Petitioner maintains that the instant Petition raises overarching constitutional questions that cut across multiple pending suits, and such systemic issues cannot be addressed through piecemeal defences in individual proceedings.
The Petitioner further argues that the continuous enjoinment of his name in over 200 proceedings, most of which seek no personal reliefs against him, is oppressive and violates his rights under Articles 28, 29(f), 47, 48, and 50 of the Constitution. He relies on the Indian case of Ram Lal Patidar vs State of Rajasthan (2024:RJ-Id:35519) , where the court quashed criminal charges against an elderly person on the basis of advanced age, lack of evidence, and humanitarian considerations. The Petitioner submits that this case is analogous, and that the principle of humane justice must inform prosecutorial and investigatory discretion. The petitioner placed reliance on several authorities to show how his constitutional rights have been violated.
The Petitioner maintains that the 1st Respondent, being a constitutional body, is bound by Article 47 of the Constitution and the Fair Administrative Action Act. He argues that the decision to prosecute is an administrative action that directly affects his rights and should be made in a manner that ensures fairness, notice, and an opportunity to be heard. The Petitioner references Robert Monda v EACC to underscore the duty to notify an affected party when recommending prosecution. He notes that while he was sporadically invited to respond to allegations, there has been no consistent or transparent process, reflecting arbitrariness on the part of the 1st Respondent.
The Petitioner contends that although the 1st Respondent claims not to make binding legal determinations, its decisions have significant adverse effects—including loss of property through legal fees and compromised access to justice due to numerous suits filed against him. He challenges the Respondent’s failure to enjoin the Interested Party (IP), the successor to his former office and the custodian of relevant documents. The suggestion that he should initiate joinder in over 200 cases, he argues, is impractical and demonstrates the 1st Respondent’s pursuit of personal rather than public accountability. This omission, in his view, undermines fairness and betrays a targeted campaign.
The Petitioner insists that the 2 nd Respondent, as the Government’s principal legal adviser under Article 156(6), must play a role in ensuring that all state organs act within constitutional limits. He argues that this court has jurisdiction to determine the Petition, as it concerns the legality of administrative decisions and not land disputes. The Petition, he clarifies, seeks a broader constitutional remedy to systemic and continuous violations rather than piecemeal responses like striking off his name from individual suits. He asserts that the nature and volume of cases filed—many without his knowledge—necessitate a judicial intervention that ensures finality and fairness.
The Petitioner also invokes Article 236(a) of the Constitution and Section 8 of the repealed Government Lands Act to submit that as a public officer acting in good faith under delegated authority, he is entitled to protection from personal liability. He notes that in Nakuru ELC Case 54b of 2021 , the court expressly held that no orders could be issued against the Commissioner of Lands where the decision was informed by ministerial and presidential approvals. Thus, the Petitioner's prosecution is unlawful in the absence of a demonstrated personal benefit or ultra vires action, and he should not be made to bear the burden of such proceedings in perpetuity.
It was submitted that the failure by the 1 st Respondent to consistently enjoin the Interested Party, the institutional successor to his former office, while suing him personally, is procedurally irregular and undermines his right to a fair defence. He submits that most of the documentation relevant to his defence is in the custody of the Interested Party, thereby placing him at an evidentiary disadvantage. The 1st Respondent’s selective prosecution without consideration of institutional continuity or record custody, he argues, is irrational, unreasonable, and prejudicial, contrary to the test of rationality in Pharmaceutical Manufacturers Association of SA and Another. In re: Ex Parte President of the Republic of South Africa and Others 2000 (4) SA 674 (CC) at para 90.
It was further submitted that the persistent litigation and publication of the petitioner’s name in the media as a defendant in corruption-related proceedings have violated his right to dignity and fair trial. The reputational damage, financial depletion, and emotional distress arising from these cases, he argues, constitute a constructive denial of access to justice under Article 48 of the Constitution. He urges the Court to find that the 1st Respondent has failed to exercise its powers with accountability, fairness, and restraint. He accordingly prays for the grant of declaratory, prohibitory, and compensatory reliefs to redress the violation of his rights.
1 ST RESPONDENT’S SUBMISSIONS
The 1 st Respondent submitted that this Court lacks jurisdiction to entertain the present Petition to the extent that it seeks to challenge or interfere with matters pending before the Environment and Land Court, which is a court of equal status to the High Court as per Article 162(2)(b) of the Constitution. It cites the case of Greenfield Investments Limited & Anor v State of the Republic of Kenya & 3 Others [2013] eKLR to reinforce the principle that the High Court cannot exercise supervisory jurisdiction over another superior court of concurrent jurisdiction. As such, it is submitted that the Petition offends the constitutional scheme of judicial hierarchy and distribution of functions.
The 1 st Respondent further invoked the doctrines of sub judice and res judicata, arguing that the questions raised by the Petitioner, particularly regarding his personal liability have either been conclusively determined or are pending before competent trial courts. Reliance was placed in Joseph Njuguna & 28 Others v George Gitau T/A the [2019] eKLR for the proposition that the court must safeguard against abuse of process by refusing to entertain duplicative or parallel litigation. The Respondent emphasizes that allowing this Petition would disrupt the finality of judicial proceedings and create procedural confusion in the administration of justice.
With regard to the applicability of Article 47 of the Constitution and the Fair Administrative Action Act, it was submitted that its decision to institute suits is not an administrative act but an exercise of constitutional and statutory mandate. Relying on the Supreme Court decision in EACC & DPP v Tom Ojienda, SC t/a Prof. Tom Ojienda & Associates Advocates & 2 Others (Petition 30& 31 OF 2019) (consolidated) [2022] KESC 59 9KLR) , it submits that the Commission’s conduct constitutes investigative and quasi-judicial functions which are not subject to the procedural fairness requirements of Article 47. It is argued that the Petitioner’s complaints are therefore mischaracterised and legally untenable.
In addressing Articles 48 and 28 on access to justice and dignity, EACC maintains that court proceedings provide a platform for parties to be heard and cannot be construed as rights violations. The Commission highlights that some cases have absolved the Petitioner, while others, like Frann Investments Limited (Supra) , resulted in liability and damages. It also rejects the argument that the Petitioner has been unfairly singled out, noting that his formal approvals as Commissioner bind him even if subordinate officers initiated earlier steps. The assertion that only he has been targeted does not negate his legal accountability.
It was further submitted that the threshold for protection under Article 236(a) and Section 126 of the repealed Government Lands Act is not met in this case. It asserts that the immunity contemplated therein applies only to acts performed in good faith and within the scope of lawful authority. Where a public officer acts ultra vires or with intent to defraud, it is submitted that personal liability ensues. To support this proposition, the Commission relies on Frann Investments Limited v Kenya Anti-Corruption Commission & 6 Others [2024] where the Petitioner was found culpable for fraudulent alienation of land.
On the Petitioner’s claim that the Interested Party should bear institutional responsibility, it was contended that such arguments cannot shield a public officer from personal accountability for unlawful acts. It maintains that the Petitioner's role in each of the impugned transactions is a matter of evidence to be tested during trial and not a question to be determined in limine through constitutional litigation. The Respondent argues that the High Court should not be invited to make sweeping declarations insulating former officers from legitimate legal scrutiny.
The 1 st Respondent also challenges the Petitioner’s claim to damages, asserting that no evidence has been presented of malice, bad faith, or illegality on the part of the Commission. It relies on the decision in Irene Wangari Gacheru v AG [2017] eKLR to argue that constitutional compensation is only available where actual harm has been demonstrated and cannot be presumed. The mere existence of multiple suits does not, according to the 1st Respondent, amount to a constitutional violation.
In conclusion, the 1 st Respondent urges this Court to dismiss the Petition in its entirety for want of jurisdiction and for constituting an abuse of the court process. It submits that the proper forum for challenging the Petitioner’s joinder is within each pending suit, and not through a blanket constitutional petition. The Commission prays that the Preliminary Objection be upheld and the Petition be struck out with costs.
2 ND RESPONDENT’S SUBMISSIONS
The 2 nd Respondent, submitted that the High Court lacks jurisdiction to entertain the Petition, as it invites the Court to exercise supervisory authority over the Environment and Land Court, a court of equal status established under Article 162(2)(b) of the Constitution. Relying on the decisions of United States International University (USIU) v Attorney General [2012] eKLR and Bellevue Development Company Ltd v Gikonyo & 3 Others; Kenya Commercial Bank & 3 Others (Interested Parties) [2018] KECA 330 (KLR ), the 2 nd Respondent submits that constitutional questions incidental to specialized court matters must be resolved within those courts.
It was contended that the Petition fails to disclose any valid cause of action against it. It argues that the Petitioner has not demonstrated any involvement of the Attorney General in the impugned suits, nor has he shown that the AG played any role in instituting or sustaining them. Consequently, its inclusion in the Petition is unnecessary and procedurally improper.
The 2 nd Respondent relies on the doctrine of constitutional avoidance as articulated in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 Others [2014] eKLR , asserting that constitutional relief should only be sought where no adequate alternative remedy exists. The Petitioner, it argues, has several legal options, including seeking removal from suits under Order 1 Rule 10 of the Civil Procedure Rules or pursuing damages for malicious prosecution if warranted.
It is further submitted that the 2 nd Respondent has not been shown to have breached any constitutional or statutory duty and that the Petition seeks to improperly saddle it with liability for proceedings initiated independently by the EACC, a constitutionally distinct body under Article 253. The legal threshold for joinder, as articulated in cases such as Amon v Raphael Tuck & Sons Ltd, has not been met.
In conclusion, the 2 nd Respondent prays for dismissal of the entire Petition for want of jurisdiction or, in the alternative, that it be struck out from these proceedings for misjoinder. It urges the Court to uphold the principles of judicial economy and procedural fairness by avoiding unnecessary litigation against parties without demonstrable involvement or liability.
INTERESTED PARTY’S SUBMISSIONS
The Interested Party raised two issues for determination which are: whether it is a necessary party and whether the Petitioner is entitled to the reliefs sought.
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