[2018] KEELC 4049 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC PET. NO. 2 OF 2014

IN THE ENVIRONMENT AND LAND COURT AT KITALE

CONSTITUTIONAL PETITION NO. 2 OF 2014

IN THE MATTER OF INGRINGMENT & CONTRAVENTION OF FUNDAMENTAL

RIGHTS & FREEDOM UNDER THE CONSTITUTION OF KENYA 2010

ARTICLES 22, 23, 24, 27 (1), (2), (4) & (5), 40, 47 (1), 60, 64, 67(2), 259 & 260

AND

IN THE MATTER OF THE SETTLEMENT FUND SCHEME (SFTs)

AND

IN THE MATTER OF THE SETTLEMENT OF THE MEMBERS OF THE POKOT

COMMUNITY ONTO THE CHEPCHOINA SETTLEMENT SCHEME FOLLOWING

THE PRESIDENTIAL DECREE IN 1994 TO SETTLE MEMBERS OF THESE

COMMUNITIES BEING LANDLESS & ADVERSELY AFFECTED BY THE

CONSTRUCTION OF THE TURKWEL DAM COVERING OVER 41,000ACRES

OF GRAZING LAND ONTO THE AGRICULTURALDEVELOPMENT

CORPORATION (ADC) FARMERS AT TRANS NZOIA

AND

IN THE MATTER OF THE SERIES OF ILLEGAL, WRONGFUL AND

UNLAWFUL ALLOCATION OF LAND WITHIN CHEPCHOINA

SETTLEMENT SCHEME MEANT FOR MEMBERS OF THE POKOT

SABAOT, LUHYA AND TURKANA COMMUNITIESTO

FOREIGNERS AND OTHER WRONGFUL PERSONS

AND

IN THE MATTER OF THE FORGED ALLOTMENT LETTERS ISSUED

FRO FOREIGHNERS AND OTHER WRONGFUL PERSONS

OUTSIDE THE ADC FARMS AT TRANS NZOIA

AND

IN THE MATTER OF THE FORGED ALLOTMENT LETTERS ISSUED

TO FOREIGHNERS AND OTHER WRONGFUL PERSONS

OUTSIDE THE ADC FARMS AT TRANS NZOIA

AND

IN THE MATTER OF THE AGGRIEVED OF OVER 100,000 LEGALY

ALLOTTED LAND MEMBERS FROM THE POKOT, SABAOT,

TURKANA AND LUHYA COMMUNITIES BEING

THE PETITIONERS/APPLICANT HEREIN

AND

IN THE MATTER OF:-

CHRISTOPHER KURUTYON LONYALA......................1ST PETITIONER

MUSA TINYANG................................................................2ND PETITIONER

LONYANGAREN LOKORRIONKOR............................3RD PETITIONER

ROBERT MATANDA.........................................................4TH PETITIONER

JOHN MATANDA..............................................................5TH PETITIONER

JOSEPH KANTICH............................................................6THPETITIONER

ELIZABETH CHEPSERET NDURURU.........................7TH PETITIONER

PAMELA CHEPKEMOI NGEINWA...............................8TH PETITIONER

ISAAC ATODO SIRE.........................................................9TH PETITIONER

TEGLA LOROUPE...........................................................10TH PETITIONER

MARKO CHEMASWET KAPSANDUI........................11TH PETITIONER

MOSES KABURU............................................................12TH PETITIONER

LOKALE...........................................................................13TH PETITIONER

RAMANYANG PRECH BIWOTT...................................14TH PETITIONER

ABRAHAM MARIAH KAMAKU...................................15TH PETITIONER

KAKUTO YARANGOLE ALUKUNYANG....................16TH PETITIONER

STEPHEN K.N. NGEIYWA...............................................17TH PETITIONER

ALEXANDER M. T. SIYWET...........................................18TH PETITIONER

BEN M. NGEIYWA.............................................................19TH PETITIONER

MNANGAR RITENYANG SEPITOI................................20TH PETITIONER

BOAZ NAIYWA....................................................................21ST PETITIONER

LOWGUROPUS LOKORKOU..........................................22ND PETITIONER

SAMWEL K. KAPAILEL.....................................................23RDPETITIONER

LOTANY LOTILIMAT.........................................................24TH PETITIONER

JAMES KABURU.................................................................25TH PETITIONER

BENJAMIN URIO.................................................................26TH PETITIONER

LORNAL EWOI......................................................................27TH PETITIONER

VERSUS

CABINET SECRETARYMINISTRY OF

LANDS AND SETTLEMENT...............................................1ST RESPONDENT

DIRECTOR OF LAND ADJUDICATION..........................2ND RESPONDENT

DISTRICT LAND

ADJUDICATIONTRANS-NZOIA......................................3RD RESPONDENT

COUNTY COMMISSIONER TRANS-NZOIA..................4TH RESPONDENT

DEPUTY COUNTY COMMISSIONER KWANZA..........5TH RESPONDENT

POLICE COUNTY COMMANDANTTRANS-NZOIA....6TH RESPONDENT

ADMINISTRATION POLICY COUNTY

COMMANDANT -TRANS NZOIA...............................................7TH RESPONDENT

INSPECTOR GENERAL OF POLICE.........................................8TH RESPONDENT

HON. ATTORNEY GENERAL......................................................9TH RESPONDENT

FRANCIS KAPCHANGA...............................................................10TH RESPONDENT

PETER CHAKALI............................................................................11TH RESPONDENT

R U L I N G

1. The application dated 18/1/2018 seeks the following orders:-

(a) ……spent

(b) That the applicants seek leave of court to amend this petition and be enjoined in Petition No. 2 of 2014 as Interested Party in the interests of justice without any prejudice.

(c) That there be made such other and/or further orders as the ends of justice may demand.

2. The grounds upon which the application is made are that the applicants were allocated land by the Government in 1997 and 1998 through the ADC and they have been in peaceful occupation of then bona fide plots in ADC Chepchoina Phase ll S.F.T. Scheme which is now allegedly threatened by the respondents.

3. It is alleged that the applicants would suffer irreparable injury should their application be declined. Since their plots of land are their source of livelihood, income and place of abode.

4. I have noted that on 2/3/2016 a status quo order was made, that all those allottees who received land from the Government should maintain their respective portions without any interference from any quarters. That order was further clarified on 26/4/2016 by this court. This matter has proceeded. Two witnesses for the prosecution have given evidence. On 27/9/2017 this court ordered that the plaintiff will have I hour and 15 minutes more to present its case.

5. Lists of persons entitled to the land by whatever means they claim, will be available. I do not find any difference between the claim by the petitioners and the claim that the applicants now purport to have. Though I believe that this petition is a matter of public law and I believe that the petitioners interests are appropriately catered for in the petition even at present, I will exercise my discretion and allow the applicants named in the list filed in court and headed “Authority to plead and swear affidavits” to be enjoined as interested parties in this petition. They shall file their documents for use in the main petition within 21 days of the order herein and the other parties shall have leave to reply to those documents, if need be within 10 days of service.

6. The witnesses of the applicants in the list attached to the application shall be the only witnesses the applicants shall be allowed to file the affidavits of or to call as witnesses to testify in this petition and no other documents save those in the applicant’s list dated 18/1/2018 shall be allowed.

7. The application for an order to amend the petition is denied for the reason that a party may not be allowed to come into proceedings midway and purport to want to amend another party’s pleadings. Each party shall bear their own costs of this application in any event.

Dated, signed and delivered at Kitale on this 28th day of February, 2018.

MWANGI NJOROGE

JUDGE

28/2/2018

Coram:

Before: Mwangi Njoroge, Judge

Court Assistant - Collins/Picoty

Mr. Rono for petitioners

Mr. Karani for 10th and 11th Respondent

Mr. Karani holding brief for Wabwire for the 1st - 9th Respondents

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

28/2/2018