[2018] KEHC 8887 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

ELC PETITION NO. 7 OF 2015

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

AND

IN THE MATTER OF THE PREAMBLE OF THE CONSTITUTION AND ARTICLES 1,2,3,10,19,20,21,22,23,24,25,27,28,39,40,48,60,61, 63, 65, 66,68, 159 (1) & (2), 165 (3) (d), 258 AND 259 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE DOCTRINE OF LEGITIMATE EXPECTATION

AND

IN THE MATTER OF THE DOCTRINE OF REASONABLENESS AND PROPORTIONALITY

AND

IN THE MATTER OF PRINCIPLES OF DEMOCRACY, FAIRNESS, EQUITY AND NON-DISCRIMINATION

AND

IN THE MATTER OF CONTRAVENTION AND VIOLATION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS AS ENSHRINED UNDER THE CONSTITUTION OF KENYA

AND

IN THE MATTER IOF SECTION 4 (1) & (2) (A) & (B) AND 37 OF THE LAND ACT NO 12 OF 2012

AND

IN THE MATTER OF SECTION 8 OF THE LAND REGISTRATION ACT, 2012

AND

IN THE MATTER OF SECTION 3, 5,6 OF THE NATIONAL LAND COMMISION ACT 2012

AND

IN THE MATTER OF INTERPRETATION OF ARTICLE 63 OF THE CONSTITUTION OF THE REPUBLIC OF KENTYA

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTIE AND PROCEDURE RULES, 2013

BETWEEN

JOSEPH KIPNGETICH TANUI.............................................1ST PETITIONER

STEPHEN KIPKEMOI BUSIENEI.......................................2ND PETITIONER

PAULO KIPRONO SAMOEI..................................................3RD PETITIONER

JAMES KIBISU TANUI..........................................................4TH PETITIONER

ALICE CHEMUTAI CHUMO................................................5TH PETITIONER

JAMES KIBIWOTT RONO.....................................................6TH PETITIONER

MARGRET KIPSAINA............................................................7TH PETITIONER

MARY CHEMUTAI KIPTIYOT...............................................8TH PETITIONER

ANNA CHEPKOSGEY SAMOI...............................................9TH PETITIONER

ABRAHAM KIPROP NGETICH...........................................10TH PETITIONER

SAMUEL LAGAT......................................................................11TH PETITONER

HARRISON KIPKEMOI TANUI............................................12TH PETITIONER

JANET CHEPKEMOI...............................................................13TH PETITIONER

JUSTUS KIPCHEMBA NGETICH.........................................14TH PETITIONER

MARY BIRECH.........................................................................15TH PETITIONER

NOAH KIPRONO TANUI.......................................................16TH PETITIONER

SAMUEL ROTICH KIBIWOTT.............................................17TH PETITIONER

WILSON KIPTAUI ROTICH.................................................18TH PETITIONER

JANET CHEPKOSGEY ROTICH..........................................19TH PETITIONER

SAMUEL MALAKWEN TANUI..............................................20TH PETITIONER

SUSAN CHEBOI.........................................................................21ST PETITIONER

SAMUEL KIBORE MITEI.......................................................22ND PETITIONER

JANET CHEPCHUMBA CHUMBO........................................23RD PETITIONER

FRANCIS KIMUTAI LEITICH.................................................24TH PETITIONER

KIPLANGAT KIBENEI..............................................................25TH PETITIONER

RICHARD KIPKOSGEI BOR......................................................26TH PETITONER

CATHERINE ROTICH CHESIROR.........................................27TH PETITIONER

JOSEPH KIPLANGAT CHESIROR...........................................28TH PETITIONER

HILDA CHEROTICH TANUI......................................................29TH PETITIONER

PAULL KIPKOECH TUEI..........................................................30TH PETITIONER

RUTH CHEPKOROS CHUMO....................................................31ST PETITIONER

SAMUEL KIPKORIR SIELE.......................................................32ND PETITIONER

MARY KIPTOO............................................................................33RD PETITIONER

TABSABEII CHEPKORIR ROTICH..........................................34TH PETITIONER

MICA KIMUTAI TANUI..............................................................35TH PETITIONER

STEPHEN KIPLAGAT SIELE....................................................36TH PETITIONER

JOSEPH KIPNGENO SOI............................................................37TH PETITIONER

TABUTANY CHELAGAT LELEI................................................38TH PETITIONER

ROBBERT KIPLANGAT CHERUIYOT.....................................39TH PETITIONER

PETER KIPSANG KOSKEI..........................................................40TH PETITIONER

CHEPKWONY ARAP SOI............................................................41ST PETITIONER

CHELULE SITIENEI SIGIRA.....................................................42ND PETITIONER

KIPLAGAT GOKO........................................................................43RD PETITIONER

RUBEN A SIGE..............................................................................44TH PETITIONER

SALINA CHEMUTAI NGETICH................................................45TH PETITIONER

JOSEPH KIPKORIR MOSONIK................................................46TH PETITIONER

MICHAEL K. CHEBII...................................................................47TH PETITIONER

HENRY KIPKURUI MUTAI........................................................48TH PETITIONER

MOSES K BUNDOTICH...............................................................49TH PETITIONER

RICHARD MUZEE MARIDANY.................................................50TH PETITIONER

MOSES KIPTUM BOR....................................................................51ST PETITIONER

MARY CHEBORE CHESIROR....................................................52ND PETITIONER

JOEL KIBET LIMO.......................................................................53RD PETITIONER

EMILY CHEPKOECH SIELE.......................................................54TH PETITIONER

JOHN KIPROTICH MUTAI..........................................................55TH PETITIONER

WESLEY KIPKURUI TOO...........................................................56TH PETITIONER

DANIEL LELEI................................................................................57TH PETITONER

HELLEN CHEPKOECH CHILGE...............................................58TH PETITIONER

SHEILA JABET CHERONO.........................................................59TH PETITIONER

RAELI CHEPKURUI TUEI...........................................................60TH PETITIONER

GIDEON KIPTANUI CHESIREM...............................................61TH PETITIONER

REUBEN KIPKEMEI CHERUIYOT...........................................62ND PETITIONER

HILLARY KIPROTICH KIBOR...................................................63RD PETITIONER

REUBEN SIGIRA SANG................................................................64TH PETITIONER

MONICA CHEROP ALEXANDER...............................................65TH PETITIONER

CHRISTINA CHESANG BOR.......................................................66TH PETITIONER

JONATHAN KIPCHUMBA KOECH...........................................67TH PETITIONER

NICHOLAS RHIKHAYA KHAYUMBI.........................................68TH PETITIONER

SAMMY KIPKOECH BIWOTT.....................................................69TH PETITIONER

SAMUEL KIPKEMEI MOSONK...................................................70TH PETITIONER

RAEL JEPKOSGEI NGETICH......................................................71ST PETITIONER

ANNA CHEPKEMOI BOR..............................................................72ND PETITIONER

ANN JEBET CHEPNGENO.............................................................73RD PETITIONER

SIMIOM KIPRONO BARNO..........................................................74TH PETITIONER

COSMAS KIMUTAI LAGAT...........................................................75TH PETITIONER

RAELI CHEPKOSGEI CHERUIYOT............................................76TH PETITIONER

KIPKEMOI C BUNDOTICH............................................................77TH PETITIONER

JAMES AGUI SIGILAI....................................................................78TH PETITIONER

SALLY CHELANGAT NGOSOSEI.................................................79TH PETITIONER

ALICE CHEPKEMOI TUEI.............................................................80TH PETITIONER

PAUL K LEILEI.................................................................................81ST PETITIONER

PAULINA CHEPKURUI CHEPKUONY.......................................82ND PETITIONER

MARK ROP SIROREI....................................................................83RD PETITIONER

ROBERT KIPKORIR TONO..........................................................84TH PETITIONER

JOHN KIPKOSGEI KIPLAGAT.....................................................85TH PETITIONER

ESTHER CHELAGAT SIELE.........................................................86TH PETITIONER

TECLA CHEPKEMOI......................................................................87TH PETITIONER

BETTY CHEPWOGEN...................................................................88TH PETITIONER

DANIEL KIPYEGON SITIENEI...................................................89TH PETITIONER

JOHN KIPKORIR RUGUT............................................................90TH PETITIONER

VIOLA CHEPKEMBOI KIPLANGAT...........................................91ST PETITIONER

SAMUEL MUZEE MONGO..........................................................92ND PETITIONER

DANIEL KIPKOSGY KIGEN.......................................................93RD PETITIONER

NANCY KIPSAISAK.....................................................................94TH PETITIONER

MAGRET CHEPROP CHERUIYOT...........................................95TH PETITIONER

JOEL KIPKURUI SANG...............................................................96TH PETITIONER

NICHOLAS KIPTOOM KESSEI.................................................97TH PETITIONER

RACHEL TABELGA CHELULE................................................98TH PETITIONER

TIMOTHY KIPCHUMBA KIPTOO...........................................99TH PETITIONER

ROBERT TUEI...........................................................................100TH PETITIONER

RICHERD K. KITUR.................................................................101ST PETITIONER

BERNARD KIPKURUI KOSGEI.............................................102ND PETITIONER

SUSAN JEPTEKENY.................................................................103RD PETITIONER

DAVID KIPKEMOI CHELENGOI...........................................104TH PETITIONER

JOEL KIPNGENO SIGEI..........................................................105TH PETITIONER

GEOFFREY KIPKEMOI RONO..............................................106TH PETITIONER

MAURINE CHEROTICH MUTAI............................................107TH PETITIONER

KURUI KIPRONO STANELEY.................................................108TH PETITIONER

MARRY CHELAGAT MOSONIK.............................................109TH PETITIONER

DAVID SAMOEKI KIPKOECH.................................................110TH PETITIONER

VINCENT KIPTOO KIPLANGA'AT.........................................111TH PETITIONER

SARAH CHEPCHIRCHIR..........................................................112TH PETITIONER

EUNICE CHEPKORIR CHEBOMUI........................................113TH PETITIONER

SIMON KIPLAGAT CHEBEI.....................................................114TH PETITIONER

NAOMI CHEBEI KIPLAGAT.....................................................115TH PETITIONER

JOSEPH KIPKETER SANG........................................................116TH PETITIONER

JAMES KIPKOECH ROTICH....................................................117TH PETITIONER

JOYCE CHEROTICH...................................................................118TH PETITIONER

CHRISTINA KAPTUYA MITEI..................................................119TH PETITIONER

ELLEN CHELENGAT BARNO...................................................120TH PETITIONER

RUTH CHEPCHIRCHIR CHELANGAT.....................................121ST PETITIONER

CAROLINE CHELAGAT..............................................................122ND PETITIONER

JOSEPH CHEBOI...........................................................................123RD PETITIONER

BERNARD KIBET RONO.............................................................124TH PETITIONER

JONATHAN KIMTAI KIPTOO.....................................................125TH PETITIONER

JANE CHEPKOECH BOR.............................................................126TH PETITIONER

SARAH JEROTICH KIMELI........................................................127TH PETITIONER

JANE CHEPKOROS LELEI..........................................................128TH PETITIONER

MUSA KIPKOSGEI CHESIRE......................................................129TH PETITIONER

PAUL KOECH KIPLAGAT.............................................................130TH PETITIONER

RAEL JELIMO LAGAT....................................................................131ST PETITIONER

JANE CHEPKEMOI MARITANY..................................................132ND PETITIONER

SARAH JELAGAT ROTICH...........................................................133RD PETITIONER

CHRISTINE CHEPKORIR LELEI................................................134TH PETITIONER

JULIAS KIPYEGO KIPKOSGEI...................................................135TH PETITIONER

RICHARD CHEBOCHOK MARINDANY....................................136TH PETITIONER

ROSE JIPKOECH CHEBUTUK....................................................137TH PETITIONER

JOSEPH KIMELI SAWE.................................................................138TH PETITIONER

SAMMY KIPKOECH KEITANY....................................................139TH PETITIONER

RICHER KOECH..............................................................................140TH PETITIONER

TOIYOI CHEMBOI...........................................................................141ST PETITIONER

ESTHER CHELAGAT KERICH.....................................................142ND PETITIONER

JAMES KIPSEWER SITENEI.........................................................143RD PETITIONER

PASCAL ISHIBIRA LIKHIYA.........................................................144TH PETITIONER

BENJAMIN K. LANGAT...................................................................145TH PETITIONER

RAELY CHEKEMOI SANG.............................................................146TH PETITIONER

EUNICE JERUTO BUNDOTICH...................................................147TH PETITIONER

ROBERT CHEPKWONY...................................................................148TH PETITIONER

JONATHAN K. CHEPKURUI...........................................................149TH PETITIONER

ROBBERT KORIR..............................................................................150TH PETITIONER

GRACE CHEMELI TELO..................................................................151ST PETITIONER

FLORENCE CHEPKOECH...............................................................152ND PETITIONER

JOAN KIPROTICH KIPLANGAT....................................................153RD PETITIONER

SAMWEL KIPKORIR CHERUYOT................................................154TH PETITIONER

DAVID CHERUOT..............................................................................155TH PETITIONER

DAVID KIPSANG KOGO...................................................................156TH PETITIONER

JOSHUA ROTICH...............................................................................157TH PETITIONER

ELIZABETH CHEPTOO KOSGEI....................................................158TH PETITIONER

JACKSON KOSGEI..............................................................................159TH PETITIONER

WILSON KIPKORIR LANGAT...........................................................160TH PETITIONER

EZEKIEL TARAKWO...........................................................................161ST PETITIONER

REUBEN KIPLANGAT CHELULE....................................................162ND PETITIONER

ISAAC K. KIPTANUI............................................................................163RD PETITIONER

ERICK KIPNGETICH NGENO...........................................................164TH PETITIONER

AMOA CHEBUTUK..............................................................................165TH PETITIONER

JOSEPH KIPCHIRCHIR SIELE.........................................................166TH PETITIONER

MOSES LIMO........................................................................................167TH PETITIONER

STANLEY KIPCHUMBA NGENO......................................................168TH PETITIONER

ELISHA K. SITIENEI............................................................................169TH PETITIONER

PRISILLA CHEPCHUMBA SIMATWO.............................................170TH PETITIONER

JOSEPH KOTUT......................................................................................171ST PETITIONER

LORNA CHEPKUONY...........................................................................172ND PETITIONER

BENJAMIN KIPKORIR KIPLAGAT...................................................173RD PETITIONER

JOSEPH KIPNGETICH.........................................................................174TH PETITIONER

SILA BUNDOTICH.................................................................................175TH PETITIONER

ANNAN CHEPROP TELE.....................................................................176TH PETITIONER

ELIJAH CHEPKONGA..........................................................................177TH PETITIONER

JOSEPH AGUI TANUI............................................................................178TH PETITIONER

JOSEPH K CHERUTICH.......................................................................179TH PETITIONER

PETER KIPLAGAT SIGILAI.................................................................180TH PETITIONER

TERIK KIPTUM CHEPKURUI..............................................................181ST PETITIONER

SARAH YAIKERIA..................................................................................182ND PETITIONER

SAMMY KIPLAGAT................................................................................183RD PETITIONER

ZATI CHELAGAT.....................................................................................184TH PETITIONER

PERES J MUIGEI.....................................................................................185TH PETITIONER

LUDIA CHEPKEMOI..............................................................................186TH PETITIONER

LEAH K. LALANG...................................................................................187TH PETITIONER

JOSEPHINE CHEPKOECH TUEI..........................................................188TH PETITIONER

MOSES KOMEN KIBOS..........................................................................189TH PETITIONER

RUTH CHEMUTAI LEITICH..................................................................190TH PETITIONER

ISAAC K. KIPLAGAT.................................................................................191ST PETITIONER

ROBERT KIPKOSGEI RONO..................................................................192ND PETITIONER

JOICE CHERUTO.......................................................................................193RD PETITIONER

JOSEPHINE CHELAGAT..........................................................................194TH PETITIONER

JOSEPH KOMEN SORE............................................................................195TH PETITIONER

GEOFREY KIPGENO KOSKEI................................................................196TH PETITIONER

CHRISTINA CABILO KAMISOI..............................................................197TH PETITIONER

SAMUEL KIPKORIR BIEGON.................................................................198TH PETITIONER

WILLIAM CHIRCHIR................................................................................199TH PETITIONER

WILSON ROTICH.......................................................................................200TH PETITIONER

CHERUIYOT KIMETO...............................................................................201ST PETITIONER

JOSEPHINE CHEPKOR KOECH.............................................................202ND PETITIONER

SAMUEL KIPYEKO KOSGEY..................................................................203RD PETITIONER

ALICE CHEBET KOCH.............................................................................204TH PETITIONER

HOSEA KIPTARUS.....................................................................................205TH PETITIONER

REBBECA CHEPCHIRCHIR TERER.....................................................206TH PETITIONER

ELIJAH KIPKOSGEI KIPROTICH.........................................................207TH PETITIONER

BETTY CHEBWOGEN MUTAI................................................................208TH PETITIONER

WILLON K. RUTTO...................................................................................209TH PETITIONER

JAMES KIPNGENY SIGILAI....................................................................210TH PETITIONER

FRANCIS KIPSANG KIPTOO...................................................................211TH PETITIONER

GRACE CHERONO KOGO.......................................................................212TH PETITIONER

MONICA CHEROTICH KIMETO............................................................213TH PETITIONER

ALICE CHEPKOSGEI CHELOGOI.........................................................214TH PETITIONER

SAMUEL K. KOECH...................................................................................215TH PETITIONER

EVALINE CHERONO KOSKEY................................................................216TH PETITIONER

PAULO AGUI LAGAT.................................................................................217TH PETITIONER

JOSEPH KIMUTAI RUTO..........................................................................218TH PETITIONER

CHRISTOPHER NGETICH........................................................................219TH PETITIONER

JOEL KIPKORIR........................................................................................220TH PETITIONER

DAVID KIPLAGAT KORICH...................................................................221ST PETITIONER

CATHERINE CHEPKOSGEI......................................................................222ND PETITIONER

PAULINA TERIKI CHEBII.........................................................................223RD PETITIONER

RAELY CHEPTANUI....................................................................................224TH PETITIONER

DAVID KIPLAGAT KORICH......................................................................225TH PETITIONER

WILSON KIBET MOSOIN...........................................................................226TH PETITIONER

PAULINE CHELAGAT..................................................................................227TH PETITIONER

STANLEY KIPSANG LAGAT.......................................................................228TH PETITIONER

KIMELI KIPLAGAT KORICH.....................................................................229TH PETITIONER

GLADYS CHEPKOSGEY...............................................................................230TH PETITIONER

SAMUEL KIPNGETICH KURUI...................................................................231ST PETITIONER

DAVID KIPKIMEI TUEI.................................................................................232ND PETITIONER

JANET TERIKI KIPKORIR...........................................................................233RD PETITIONER

RICHARD KIPRONO KOECH......................................................................234TH PETITIONER

JAMES KOECH KURUI..................................................................................235TH PETITIONER

ESTHER CHEPKEMOI...................................................................................236TH PETITIONER

RICHARD TERAGAT SALGONG.................................................................237TH PETITIONER

JOAN CHEBICHI.............................................................................................238TH PETITIONER

JAMES LIMO KIMISOI..................................................................................239TH PETITIONER

ELIZA KIPKSGEI.............................................................................................240TH PETITIONER

ROBBERT KIPRUTO WILLIAM....................................................................241ST PETITIONER

ROBERT KIMTAI KOSKEI.............................................................................242ND PETITIONER

ELIZABETH JEPKOSGEI KIBII.....................................................................243RD PETITONER

SHEDRACH K BII.............................................................................................244TH PETITIONER

SALINA CHELIMO...........................................................................................245TH PETITIONER

TONNY KIPROTICH........................................................................................246TH PETITIONER

JENIFFER JEPKOECH KIBWAI....................................................................247TH PETITIONER

COLLINS LAGAT..............................................................................................248TH PETITIONER

WILLIAM KIPSOY KIGEN.............................................................................249TH PETITIONER

BESON KIBIRICH MATETAI.........................................................................250TH PETITIONER

JOHN KIMAIYO KIPYEGON..........................................................................251ST PETITIONER

MOSES K BOIT..................................................................................................252ND PETITIONER

WILLIAM KIBWOTT CHERUOYOT............................................................253RD PETITIONER

DAVID KIPROP RONO.....................................................................................254TH PETITIONER

JOYCE CHEPKEMEI CHELAGAT.................................................................255TH PETITIONER

ELIJAH KANDIE................................................................................................256TH PETITIONER

AMOS SONGOL KANGUGA............................................................................257TH PETITIONER

JOSEPH CHERUIOT MASAI...........................................................................258TH PETITIONER

CHRISTINE KOSKEY.......................................................................................259TH PETITIONER

ERICK K BUNDOTICH....................................................................................260TH PETITIONER

ELIJAH KIPCHIRCHIR...................................................................................261TH PETITIONER

ISACK KIPRUTTO BIWOTT..........................................................................262ND PETITIONER

MICHAEL BOR.................................................................................................263RD PETITIONER

TECLA CHEMAIYO BARNO.........................................................................264TH PETITIONER

SAMSON KIPYEKO CHEPSEBA..................................................................265TH PETITIONER

JOHNSON K. KIPSANG..................................................................................266TH PETITIONER

CHEMATA KOLOI...........................................................................................267TH PETITIONER

JULIANAH CHEROP CHESANG..................................................................268TH PETITIONER

JUDITH CHEROP CHUMO............................................................................269TH PETITIONER

TABSHAKAI KOMEN......................................................................................270TH PETITIONER

ALICE BOR.........................................................................................................271ST PETITIONER

HADDA TUIYOT...............................................................................................272ND PETITIONER

ANDREW KIPKORIR SITINEI......................................................................273RD PETITIONER

PHILIP KIPLANGAT TOWETT.....................................................................274TH PETITIONER

HOSES KIMUTAI SAINI SANGUT................................................................275TH PETITIONER

JOHN KIPROTICH KIPLAGAT.....................................................................276TH PETITIONER

SILAS KIPROP KIPTOO.................................................................................277TH PETITIONER

JULIANA KIPNGETICH.................................................................................278TH PETITIONER

PHILEMON KEINO..........................................................................................279TH PETITIONER

VICTOR KIBIWOT LITIEMA.........................................................................280TH PETITIONER

ERICK LANGAT KECHEI.................................................................................281ST PETITIONER

LILIAN CHEPKONGA......................................................................................282ND PETITIONER

DANIEL KIYATOR KIPRONO.........................................................................283RD PETITIONER

STEPHEN K. KOECH.........................................................................................284TH PETITIONER

EDINAH JEPKOECH KIRONO........................................................................285TH PETITIONER

PAUL KOECH......................................................................................................286TH PETITIONER

RICHARD KIBICHI LIMO................................................................................287TH PETITIONER

MARTIN J. KIPTOO............................................................................................288TH PETITIONER

GRACE JEBICHI SAWE.....................................................................................289TH PETITIONER

KEVIN KIMUTAI LAGAT..................................................................................290TH PETITIONER

STANELEY CHEMUSUSU..................................................................................291ST PETITIONER

WILSON K. KIPSANG........................................................................................292ND PETITIONER

NEDDY JERUTO SAINA....................................................................................293RD PETITIONER

MILKA J SAINA..................................................................................................294TH PETITIONER

ESTHER KIGEN..................................................................................................295TH PETITIONER

SARAH J KIMELI...............................................................................................296TH PETITIONER

HOSESEA K SANGUT........................................................................................297TH PETITIONER

ESTHER KABON CHEPKURUI.......................................................................298TH PETITIONER

PERIS CHERUTICH...........................................................................................299TH PETITIONER

HELLEN CHEMWENO MOSONIK.................................................................300TH PETITIONER

ROBERT K KIPRONO.........................................................................................301ST PETITIONER

KIPROTICH CHEPKETANY..............................................................................302ND PETITIONER

BEATRICE JEBET KIMUTAI............................................................................303RD PETITIONER

CHRISTOPHER CHEIRUOT..............................................................................304TH PETITIONER

ELIZABETH KIMUTAI.......................................................................................305TH PETITIONER

MERCY CHEPKOECH........................................................................................306TH PETITIONER

KIMUTAI KIPROTICH........................................................................................307TH PETITIONER

JEREMIAH KIMUTAI YEGO.............................................................................308TH PETITIONER

KIPTO NGETICH KIPRONO..............................................................................309TH PETITIONER

KABON CHEBII.....................................................................................................310TH PETITIONER

FESTUS KIPKEMOI KIMUTAI...........................................................................311TH PETITIONER

ROSA CHEBII KIMETO.......................................................................................312ND PETITIONER

NICHOLAS KIPTOO ROTICH............................................................................313TH PETITIONER

ROSE CHEPKOECH SOI......................................................................................314TH PETITIONER

TABRADICH SAMOEI...........................................................................................315TH PETITIONER

SELINA J KONGA..................................................................................................316TH PETITIONER

WILSON KIPLIMO LELEI...................................................................................317TH PETITIONER

PAUL KIPKEMOI SITENEI..................................................................................318TH PETITIONER

LIMO SAWE.............................................................................................................319TH PETITIONER

RICHARD KIPTOO SAWEK.................................................................................320TH PETITIONER

IRINE JEPKEMBOI MAIYO.................................................................................321ST PETITIONER

VINCENT KIPKOGEI TANUI..............................................................................322ND PETITIONER

GRACE JEPNGETICH..........................................................................................323RD PETITIONER

MAURINE JEMUTAI TANUI...............................................................................324TH PETITIONER

WILLIAM K BARMOI..........................................................................................325TH PETITIONER

SARAH J RUTTO...................................................................................................326TH PETITIONER

JAMES ELIJAH MATUI.......................................................................................327TH PETITIONER

DAVID KIBICHI MUNDANY...............................................................................328TH PETITIONER

CHERUIYO CHERONO.......................................................................................329TH PETITIONER

MAURINE JEMUTAI KOSGEI...........................................................................330TH PETITIONER

KAMUREN KIBUT WILLSON............................................................................331ST PETITIONER

BEATRICE HEBET KIMUTAI............................................................................332ND PETITIONER

JACOB CHERUIOT KABISU..............................................................................333RD PETITIONER

SAMUEL K ROTICH.............................................................................................334TH PETITIONER

KIPTUM TANUI.....................................................................................................335TH PETITIONER

SAMSON KIPKORIR............................................................................................336TH PETITIONER

KIGEN KIPTUI......................................................................................................337TH PETITIONER

WILLY KIBET TANUI..........................................................................................338TH PETITIONER

TERIKI CHEPKEITANY......................................................................................339TH PETITIONER

JOSHUA KIPLIMO YATICH...............................................................................340TH PETITIONER

ANNE JEPKORIR KIPRONO...............................................................................341ST PETITIONER

JOSEPH CHELELE BOR......................................................................................342ND PETITIONER

REBECCA KITILIT................................................................................................343RD PETITIONER

SIMON KIPROTICH..............................................................................................344TH PETITIONER

ALICE CHEMUTAI KELONG..............................................................................345TH PETITIONER

BETTY CHEBET TANUI........................................................................................346TH PETITIONER

PAULINA KIPTOO..................................................................................................347TH PETITIONER

SANTOS KIBOR.......................................................................................................348TH PETITIONER

PHILIPH K ANUI......................................................................................................349TH PETITIONER

ELIZABETH CHEMUTAI SANG...........................................................................350TH PETITIONER

RAEL CHEPKEMOI LIMO.....................................................................................351ST PETITIONER

SUSAN KIMUTAI.....................................................................................................352ND PETITIONER

DAVID KIPTUM CHEMWOREM..........................................................................353RD PETITIONER

ANNAH CHEPKORIR KIPROP.............................................................................354TH PETITIONER

KIPKOECH ROTICH...............................................................................................355TH PETITIONER

ISAIH CHERUTICH ARUSEI.................................................................................356TH PETITIONER

WILLIAM KIBET KOTUT......................................................................................357TH PETITIONER

LINUS KIPKOR NGENO.........................................................................................358TH PETITIONER

ANN JEBET CHEPNGENO.....................................................................................359TH PETITIONER

VERSUS

CABINET SECRTETARY, MINISTRY OF LANDS,

HOUSING AND URBAN DEVELOPMENT.............................................................1ST RESPONDENT

THE NATIONAL LAND COMMISSION.................................................................2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL......................................................3RD RESPONDENT

REGISTERED TRUSTEES OF OUR LADY OF VICTORIA MONASTERY.....4TH RESPONDENT

THE REGISTERED TRUSTEES OF KENYA

EPISCOPAL CONFERENCE OF CATHOLIC BISHOPS....................................5TH RESPONDENT

PACIS INSURANCE COMPANY LIMITED...........................................................6TH RESPONDENT

MCHANGA DEVELOPERS LIMITED...................................................................7TH RESPONDENT

JUDGMENT

Introduction

1. The Petitioners instituted their suit against the Respondents by way of a Petion filed in this court on 23rd July, 2015. The said Petition was subsequently amended on 14th June 2016. The Amended Petition seeks the following orders:-

(a) A declaration that the actions by the respondents are brazen, illegal, egregious, discriminatory and hence a violation of the inalienable right to property, dignity, security of the person and the right to life of the Petitioners.

(b) A declaration that the constitutional principles of equitable distribution and access to land have been violated by the respondents jointly and singularly against the petitioners.

(c) An order of mandamus compelling the state to order the respondents to revert the land parcels L.R No 9848 and L.R No. 9849 to the Petitioners since it is their ancestral land as provided for in the Constitution of Kenya.

(d) That the 4th, 5th, 6th and 7th respondent, their agents, servants and or representatives be restrained from interfering with the land parcels L.R No. 9848 and L.R. No. 9849.

(e) In the alternative, adequate and prompt compensation at the current market value of the parcels of land in question be made to the Petitioners.

(f) A declaration that the government has abdicated its role and has become an escapist.

(d) An order that the 2nd Respondent has failed to address and redress historical injustices visited on the Petitioners and should therefore be reconstituted through auditing of the individual commissioners as per law established.

(h) The Petitioners be paid costs of this Petition.

2. The Petition is supported by the affidavit of Joseph Kipngetich Tanui sworn on 21st July 2015 on his own behalf and on behalf of the other 358 Petitioners.

BACKGROUND

3. This Petiton originates from alleged historical injustices carried out against the occupants of land parcels known as L.R No. 9848 and L.R No. 9849 measuring approximately 1,437 acres and 1,069 acres respectively (the “ suit property”) . The Petitioners allege that at all material times they and their forefathers have been in occupation of the suit property.

4. The Petitioners allege that they have been depending on the land for their livelihoods since the early 1920s. They further alege that the 4th Respodent herein found them in occupation of the Land in the 1960’s or thereabouts and they continued to co-exist without any problem until the mid 1980s.

5. It is alleged further that the 4th Respondents upon settling on the land enticed the Petitioners’ forefathers with promises of better lives and built schools, health facilities, and offered employment to some of the petitioners as casual labourers in their establishment known as Our Lady of Victory Monastery.

6. The Petitioners allege that they were not aware that the land parcrel known as L.R. Nos. 9849 and 9848 were granted to Robert Geoffrey Wilfred Hudson and James Doyle respectively by the Governor of the Colony and Protectorate of Kenya on behalf of Her Most Gracious Majesty Queen Elizabeth the II in 1960.

7. They further allege that the transfer of title of the Petitioners’ ancestral land constitutes the basis of this Petition as the Petitioners allege that the same is a violation of their right to property, life, security of the person and self determination. Further it is the Petitioners' case that the same violates the principle of equitable distribution of land and access to land by all its citizens.

8. They challenge the manner in which the 4th defendants acquired title to the suit property and later transferred it to the 5th and 6th defendants. They fault the Government through agencies such as the 2nd and 3rd Respondent for doing nothing to stop the 4th, 5th and 6th respondents from hoarding land for speculative purposes and abdicating their constitutional role of addressing historical injustices.

9. In the supporting Affidavit sworn by the 1st Petitioner on the 21st July, 2015 the 1st Petitioner reiterates the contents of the Petiotion and gives a chronology of events leading upto the acquisiton of the suit property by the 7th Respondent. He depones that the Petitioners and their forefathers occupied the suit land in the early 1920 when they established their homes and depended on the land for their livelihood. Unknown to them, land parcel L.R number 9848 was issued to one James Doyle and L.R Number 9849 was issued to Robert Gefoffrey Wilfred Hudson by the Governor of the Colonial and Protectorare of Kenya in 1960.

10. He avers that in or about 1962, L.R No. 9849 was tranferred to the 4th Respondents while L.R No 9848 was transferred to said Respondents in 1963. The Petitioners claim that they lived on the suit land togther with the initial registered proprietors and the 4th respondents upto the year 1987 when the 4th respondents unceremoniously evicted them when they tried to assert their rights over the said land. The Petitioners aver that they have been rendered destitute and squatters in their ancestral land.

11. The Petitioners previously filed three other suits in 1993, 2004 and 2008 but the said suits were withdrawn. They have annexed copies of photographs, birth certificates and correspondence between some of them and the Respondents to their affidavit in support of thier Petition.

12. The 1st, 2nd and 3rd Respondents did not file any response to the Petition. The 4th and 5th Respondents filed a joint Replying Affidavit sworn by Reverend Father Daniel Rono on 28th January, 2016.

13. In the said affidavit, he avers that the 4th Respondent was at all material times the lawful registered properietor of the suit property herein known as L.R No. 9848 situate “North West of Lumbwa Township in Kericho District” and L.R No. 9849 North West of Lumbwa Township in Kericho District” measuring 1437 acres nd 1069 acres repectively.

14. He avers further that the said parcels of land were subsequently transfered by the 4th Respondent to the 5th Respondent upon receipt of Kshs 80,000/- for L.R No. 9848 and annexes a copy of transfer and the title to that effect marked as RDR 1. He alleges that the land was subsequently charged to Agricultural Finance Bank and they must therefore have ascertained that the 4th Respondent had a good tiltle. He urges the court to note that 80,000 back in 1962 was good value for the property.

15. He also argues that 4th Respondent acquired L.R No. 9849 by purchase and transfer from Mr. Grimshaw Lomax for Kshs. 90,000 on 8th October 1963 and the transfers were registered at the Land Title Registry on 8th October 1963 contrary to what has been purported by the Petitioners. He annexes the copies of title as well as the transfer to that effect marked as RDR2.

16. He avers that the said amounts would be equivalent to millions or even billions of shillings today. He avers further that the said amounts are indicative of the fact that 4th Responent was a bonafide purchaser and that it purchased the said property in good faith. He further alleges that the Petitoners have not provided any evidence to show that they were indeed evicted and if they were, then they should have sought timely court remedies way back in 1986.

17. He further alleges that the Petitioners have filed several suits and that the instant Petition is the fourth attempt to claim rights over the suit property. The previous suits were subsequently withdrawn without proceeding to hearing. He avers that the multiple suits have caused the Respondents to lose their integrity and get embarassed in court by parties who do not have locus standi to sue.

18. It is further alleged that the photgraphs annexed to the Affidavit in support of the Petition should be disregarded as the same do not amount to proof of ownership and there is no proof that they were taken on the suit propery. Further, he argues that the birth certificates are not proof of ownership as Kericho is an expansive area.

19. The 4th Respondent urges the court to dismss the Petition with costs as the Petitioners do not have a lawful or rightful claim over the suit property.

20. The 6th Respondent filed its response to the Petition through a Replying Affidavit sworn by Peter Makhanu, its Managing Director on 29th October, 2015.

21. In the said affidavit he depones that the 6th Respondent is the bona fide, legal and registered owner of all that parcel of land known as L.R Number 9849/3 measuring 242. 9 hectares, having purcahsed the same from the Registered Trustees of the Kenya Episcopal Conference ( the 5th Respondents herein) and duly registered as such on 16th November, 2012.

22. He depones that the said parcel of land was a sub-division of L.R Number 9849. He has annexed a copy of the certificate of title issued to the 6th Respondent.

23. He depones that the 6th Respondent sold all that parcel of land known as L.R No 9849/3 to a limited liability company known as Mchanga Developers Limited ( the 7th Respondent herein) and that the said Mchanga Developers Limited was in the process of completing the registration of the land in its favour. He has annexed a bundle of documents in support of the said transaction.

24. The 6th Respondent’s position is that in view of the said sale of the land to the 7th Respondent, they became beneficial owners of the land to the exclusion of the 6th Respondent.

25. The 6th Respondents maintain that the Petitioners have failed to establish a nexus between themselves and the parcels of land they are claiming as the photos and other documents annexed to their affidavit are not proof of ownership. It is also the 6th Repsondent’s position that the Petitioners have not demonstrated any historical injustices that has been meted out to them. They urge the court to dismiss the Petion with costs.

26. The 7th Respondent filed its response vide a Replying Affidavit sworn by one Salim Mohamed ; one of its directors on 22nd November, 2016. In the said Affidavit, it is alleged that the 6th Respondent purchased all that parcel of land known as L.R No. 9849/3 measuring about 242. 9 hectares or thereabouts from the Registered Trustees of the Kenya Episcopal Conference, the 5th Respondet herein which parcel arose from the subdivision of L.R No 9849. He annexes copies of Certificate of Title marked as MDL-1 and MDL-2 to confirm this position.

27. It is further alleged that vide a letter dated 5th July, 2013 the 6th Respondent made an offer to the 7th Respondent to purchase 600 acres of land comprised in L.R No. 9849/3 at the price of 310,000/- per acre. He annexes a copy of the said offer letter marked as MDL-3 as well as the Sale Agreement dated 12th September 2013 marked as MDL-4.

28. He avers that the 7th Respondent paid a total sum of Kshs. 180,000,000/- after having coducted due diligence which showed there were no encumberances on the property. In the circumstances, he argues that the 7th Respondent is a bona fide purchaser for value and obtained good title which is indefeasible in law.

29. In the circumstances, the 7th Respondent urges the court to dismiss the Petition with costs as in his opinion the same is baseless on account of he Petitioners having failed to provide past or present evidence of ownership of the land.

30. The parties filed their submissions setting out their respective arguements. Learned counsels for the Petitioners, 4th, 5th, 6th and 7th Repondents then highlighted the salient features of their submissions. The litigation counsel from the office of the Attorney General also made brief oral submissions.

Petitioners’ Submissions

31. The Petitioner’s submissions are dated 20th December, 2016. Learned counsel for the Petitioners Mr. Kipkoech argues that the case of the Petitioners is captured by the preamble to the constitution which provides among other things for social justice as being central to our Constitution. He relies on Article 60 of the Constitution which provides for access to land.

32. Learned counsel has distilled the following issues for determination:

1. Whether the Petitioners have proprietary rights over the land parcels known as L.R no 9848 and 9849

2. Whether the Petitioners constitutional rights to land were violated

3. Whether the Petitioners have suffered loss as a result of the breach of their constitutional rights to land

4. Whether the Petitioners slept on their rights

33. Mr. Kipkoech, argues that the Petitoners and their forefathers have been in occupation of the parcels of land known as L.R No 9849 and 9848 since 1920. He invites the court to interogate the titles issued in 1960 and which were subsequenty transfered to the various parties mentioned in the Petition.

34. He argues further that the Respondents found the Petitioners in occupation of the land and acquired the same by a stroke of the pen. He disputes the contention that the Respondents are bona fide purchasers for value and instead states that they are beneficiaries of unjust colonial laws. He argues that even though the Respondents have titles the same must be looked at in the context of the principle of equality as provided under section 60 of the Constitution.

35. Learned counsel asserts that the suit property qualifies as community land as defined in article 63 of the Constitution as it was held by a community identified on the basis of ethnicity, culture or a similar community of interests. The Petitioners’ claim is therefore one of trust emanating not merely from occupation or possession of the suit property but from the fact that the property was ancestral land passed on from generation to generation thus qualifying as an intergenerational trust.

36. He states that section 8 of the Land Registration Act provides that subject to legislation on Community land made pursuant to Article 63 of the Constitution, there shall be maintained in each registration unit a Community Land Register. Moreover, the register must be prepared considering the name of the community identifed pursuant to article 63 of the Constitution.

37. Learned counsel faults the colonial Government for acquiring the Petitioners’ ancestral land contrary to the provisions of section 8 of the Trust Land Act of 1938 which provided that if any land which belonged to a person, group of persons or community had to be set aside by the Government or local Authority in an area designated as Trust land, the owners of the said land had to be compensated at the prevailing market value of the land. He submits that the failure to compensate the petitioners and their forefathers rendered the acts of the colonial Government unlawful and the subsequant transfers were equally illegal and unlawful.

38. He relies on the case of Rutongot Farm Limited V Attorney General & 3 Others (2014) e KLR where the court held that the unlawful acquisiton of the Petitioners land by the Government was in breach of the Petitioners right to property and that the property of an individual cannot be taken away except in accordanace with constitutionally provided means.

39. This position is reaffirmed by Article 40 (3) of the Constitution which provides as follows:

“that the state shall not deprive a person of property of 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 requires prompt payment in full of just compensation to the person and

c) allows a person who has an interest in or right over that property a right of access to a court of law.”

40. He has submitted that as result of being displaced from their ancestral land the Petitioners have been deprived of their source of livelihood and they have been living as squatters hence their right to property has been violated. He faults the successive Governments for failing to address the plight of the Petitioners.

41. Learned counsel further submits that the Petitioners have not slept on their rights as they have been pursuing the matter in various forums both in and out of court, to no avail. He cited the case of In re estate of William Kimngeny Arap Leting Deceased (2016 ) eKLR where the court held that a claim of nearly 30 years could not be defeated as there was no clear provision on the period within which Petitions should be commenced. The court took judicial notice of the nature of the claim, the individuals involved and the fact that the 2002 general elections had brought a change of regime that led to a new wave of litigation in respect of violation of human rights. He urged the court to view the Petitioners’ claim in light of their rights to property, dignity and humanity as guaranteed under the Constitution.

42. Learned counsel for the Petitioners also argues that this is a clear case where the National Land Commission ought to have investigated the Petitioners claims and made suitable recomendations. He argues further that the concept of title is not absolute as Africans owned land even before titles were issued.

43. Mr Kipkoech ended his oral submissions by inviting the court to breathe life into the preamble as well as Article 60 of the Constitution on equality of land ownership and set a precedent in the realization of economic, social and cultural rights as enshrined in the Constitution.

1st and 3rd Respondents' Submissions

44. Mr. Qeu learned Counsel for the 1st, 2nd and 3rd Respondents submitted that the matter falls within the mandate of the National Land Commission as it requires investigation into the alleged historical injustices. He stated that it is for that reason that they did not deem it necessary to file written submissions.

4th and 5th Respondents’ Submissions

45. The 4th and 5th Respondents’ submissions are dated 15th September 2017 and filed in court on the 18th of September 2017. In their submissions, the 4th and 5th Respondents focused on three main points namely:

a) Whether the 4th and 5th Respondent is a correct party to the suit;

b) Whether in the absence of fraud; title can still be challenged; and

c) Whether the Petitioners have the correct locus standi.

46. On the first issue it is submitted that the 4th and 5th Respondents are not correct parties to the suit and reference is made to section 24 of the Registered Titles Act (RTA) Cap 281 ( repealed) in support of this position. Mr. Kariuki, learned counsel for the 4th and 5th Respondent argues that the said section of the repealed statute is still applicable in light of section 107 (1) and (2) of the Land Registration Act and section 106 (1) and (2) of the Land Act which are the saving and transitionary clauses for the repealed statutes.

47. Counsel relies on section 24 of the RTA to make the point that any action for recovery of damages for any person deprived of land or any interest in land is to be brought against the person upon whose application the land was brougtht under operation of this Act. They argue that the 4th and 5th Respondents are not the proprietors of the said land and are therefore the wrong parties to this suit.

48. They argue further that the Petitioners have not pleaded any acts overt or covert attributable to the 4th and 5th Respondents at the time they acquired the properties which would necessiatte an enquiry as to fraud. On this point they rely on the case of Hemedi Sefu Abdalla v Nainesh Kantilal Shah & 4 others [2015] eKLR.

49. They argue that the Petitioners proper remedy should be against the 1st individuals to have the property registered in their names and not the 4th and 5th Respondents. Further they contend that the Petitioners should have proved fraud in respect of the transfer from James Doyle and John Grimshaw Lomax to the 4th and 5th Respondents. It is their contention that the Petition is deficient in terms of particulars and description of the purported fraud.

50. On the second issue of whether in the absence of fraud title can still be challenged, the 4th and 5th Respondents argue that the Petitioners have not proved fraud against the 4th and 5th Respondents.They rely on section 23 of the Registration of Titles Act which provides that the person named in a Certificate of Title is the absolute and indefeasible owner thereof.

51. Counsel relies on the case of Shimoni Resort v Registrar of Titles & 5 others [2016] eKLRwhich held that in the absence of fraud, it is difficult to challenge the indefeasibility of title.

52. On the third point as to whether the Petitioners have the locus standi to institute the suit, the 4th and 5th Respondents argue that the prayers sought by the Petitioners cannot be granted as they have failed to prove their ownership of the suit property either as individuals or as community. They also argue that the Petitioners have failed to demonstrate any rights that have been infringed so as to as to entitle them to invoke Article 22 of the Constitution.

53. The 4th and 5th Respondents rely on the case of Anarita Karimi Njeru V Republic (1979) KLR 54 which held that a Petitioner alleging violaton of constitutonal rights must demonstrate with a reasonable degree of precision what provisions of the Constitution have been violated. It is their case that the Petitioners have failed to prove what rights they have in the suit property and how the same have been violated by the 5th Respondent.

54. In the circumstances, they urge the court to dismiss the Petition with costs as it is an abuse of the court process.

6th Respondent’s Submissions

55. In their submissions dated 1st November 2017, Mr. Okwengu learned counsel for the 6th Respondent raised the following points:

(a) Whether the 6th Respondent acquired a proper and legal title over title L.R No. 9849/3 and whether it is capable of passing a good title to the 7th Respondent;

(b) Whether the Petitioners have established any legal basis for claiming ownership of the parcels of land L.R No. 9848 and L.R No. 9849; and

56. On the first issue of whether the 6th Respondent acquired a proper and legal title over L.R No 9849/3 counsel for the 6th Respondent makes reference to the Replying Affidavit of Mr. Makhanu filed on 29th October, 2015 wherein it was stated that the 6th Respondent purchased the property L.R No. 9849/3 from the 5th Respondent and the title was duly registered in its favour.

57. It is also argued that prior to the purchase of the said property, the requisite due diligence had been condcted at the office of the 1st Respndent and it was confirmed that the land belonged to the 5th Respondent. In the circumstances they argue that the 5th Respondent subsequently passed a good and proper title to the parcel of land L.R No. 9849/3 to the 6th Respondent.

58. Counsel for the 6th Respondent relies on section 26(1) of the Land Registration Act 2012 which provides that the title of a registerted proprietor is prima facie evidence that the proprietor is the absolute and indefeasible owner of the land subject to any encumberances, easements, restrictions and conditions contained or endorsed in the certificate.The 6th Respondent argues that it is a bona fide purchaser for value having aquired a proper title from the 5th Respondent.

59. It is the 6th Respondent’s contention that the Petitioners have coneceded in their Petition to the fact that the 5th and 6th Respondents properly acquired the land through the system of land registration.

60. On the allegation of fraud, the 6th Respondent submits that a party seeking to charge another with fraud must clearly and consisely state the said charges to enable a party upon whom the fraud is inferred to rightly defend himself against such allegations. They rely on the case of Insurance Company of East Africa vs The Attorney General & 3 others [2001] eKLR.

61. They submit further that the Petitioners have failed to prove their case and have not been able to challenge the fact that the 6th Respondent obtained a proper and legal title to land which is absolute and indefeasible.

62. On the question as to whether the Petitioners have established any legal basis for claiming ownership to the suit parcels the 6th Respondent argues that the Petitioners are not claimining ownership on the basis of adverse posesson but rather on the basis that they have been living on the land as employees of the 4th Respondent. In their arguement this alone cannot confer on them a right to claim proprietorship to land. In this regard they submit that the Petitioners have not even remotely demonstrated any historical injustices against themselves and their forefathers.

63. The 6th Respondent further argues that the Petitioners have been merely playing footloose with the court system by filing a myriad of cases which have eventually been withdrawn therefore, one could infer that they had been no legal basis to file those cases.

7th Respondent’s Submissions

64. The 7th Respondent filed their submissions on 19th October, 2017. In the said submissions, the 7th Respondent focused on the following points:-

(a) Whether the 6th Respondent is the legal owner of land L.R No. 9849/3;

(b) Whether the 7th Respondent has interests in the said parcel of and capable of legal protection; and

(c) Whether the Petitioners are entitled to any remedies

65. On the first issue as to whether the 6th Respondent is the legal owner of land L.R No. 9849/3 counsel for the 7th Respondent argues that under section 26 (1) of the Land Registration Act 2012 the title of a registered proprietor is prima facie evidence of absolute and indefeasible title. Under the said section they argue that there are only 2 instances in which title can be challenged that is where a title is acquired through fraud or misrepresentation or where title is acquired through a corrupt scheme.

66. It is argued that the 6th Respondent bought the parcel of land after conducting due diligence over the same. The 6th Respondent relies on the case of Lawrence Mukiri v Attorney General and 4 Others [2013] as well as Katende v Haridar and Company Limited wherein the court defined a bona fide purchaser as :-

“...a bona fide purchaser for value is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, he must prove the following:-

(a) He holds a certificate of title;

(b) He purchased the property in good faith;

(c) He had no knowledge of the fraud;

(d) The vendors had apparent valid title;

(e) He purchased without notice of any fraud;

(f) He was not party to any fraud.”

67. In the premises he argues that the 6th Respondent having acquired the said parcel of land was a bona fide purchaser and having obtained the title legally, its sanctity cannot be questioned. They make reference to the Torrens system of land registration where the state guarantees the sanctity of title.

68. The 7th Respondent relies on the Court of Appeal case of Charles Karathe Kiarie & 2 others vs Adminsitrators of the Estate of John Wallace Muthare (deceased) & 5 others to state that under the Torrens system which is applicable in Kenya, a bona fide purchaser for value without notice of fraud could not be impeached.

69. They further argue that the Petitioners did not discharge their burden of proving fraud as required under the law as per the case of Nancy Kahoya Amadiva v Expert Credit Limited & Another. It is the case of the 7th Respondent that the 7th Respondent could only lose protection of the constitution if it is proved that they acquired the property fraudulently and that no aspects of fraud have been divulged in the present case.

70. On the second issue as to whether the 7th Respondent has rights over the land capable of legal protection, it is submitted that a Sale Agreement as well as a transfer instrument was executed between the 6th and the 7th Respondents herein and a purchase price of Kshs 180,000,000/- paid to the 6th Respondent as the consideration for the parcel of land.

71. They rely on the case of Souza Fignerido v Moorings Hotel Co. Ltd [1960] EA 926 which held that an unregistered document operates as a contract inter partes and can confer on the party in the position of the intending lessee a right to enforce the contract specifically and obtain from the intending lessor a registrable lease. On this point they also rely on the cases of Clarke v Sodhoni [1963] EA 107 as well as Chon Jeuk Suk Kim & another v E.J. Austin & 2 others [2013] eKLR. They also rely on the maxim of equity which states that:

“Equity treats as done that which ought to be done.”

72. On the issue of the remedies available to the Petitioner, the 7th Respondent argues that history which canot be verified cannot be used as a basis to deny a party his title to land which was not obtained by fraud. They argue that the Petitioners and their forefathers occupied the land in dispute as mere occupiers and did not have title to the same. The title to the property was registered and ultimately passed to the 6th Respondents who in turn are in the process of transferring the title to the 7th Respondents. In the circumstances, the Petitioners are not entitled to any remedy as against the Respondents. They therefore urge the court to dismiss the suit with costs to the 7th Respondents.

Issues for Determination

73. Having considered the Petition, Replying Affidavits, annextures and the respective parties’ rival submissions whose contents have been summarised above, I have have distilled the following issues for determination:-

(a) Whether the Petitioners have the requisite locus standi to institute the suit herein.

(b) Whether the Petitioners have proprietary rights over the land parcels known as L.R No 9848 and L.R No 9849

(c) Whether the 6th Respondent acquired a good title to pass to the 7th Respondent

(d) Whether the said title can be challenged on the grounds of fraud

(e) Whether the Petitioners are entitled to the remedies sought; and

(f) Who bears the costs of the Petition?

Analysis and Determination

(a)Whether the Petitioners have the requisite Locus Standi to Institute the Suit herein

74. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as “the right to bring an action or to be heard in a given forum”.

75. The 4th and 5th Respondents in their submissions argued that the prayers sought by the Petitioners cannot be granted as they lack the requisite locus standi in the matter by failing to assert their ownership right to the suit properties. They argue further that while Article 22 of the Constitution asserts the right for every citizen to institute a court proceeding when and if their rights are infringed, the Petitoners have failed to draw a nexus between any rights they may have and how these rights have been infringed by the 4th and 5th Respondent.

76. They rely on the case of Anarita Karimi Njeru V. Republic (supra)which held that a petitioner alleging violaton of constitutonal rghts must demonstrate with a reasonable degree of precision what provisions of the constitution have been violated.

77. In his submissions in reply to the Respodents Mr. Kipkoech argued that the Petitioners have locus standi based on Article 22 of the Constitution and referred to the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2014] eKLR.In the said case the Supreme Court held that by virtue of Article 22 and 258 of the Constitution every person has the right to institute proceddings claiming that the constitution has been contavened; that a person in that regard, includes one who acts in the public interest. The Supreme court further stated as follows:-

“It is to be noted that the promulgation of the 2010 Constitution enlarged the scope of locus standi, in Kenya. Articles 22 and 258 have empowered every person, whether corporate or non-incorporated, to move the Courts, contesting any contravention of the Bill of Rights, or the Constitution in general.”

78. Article 22 of the Constitution which is aptly titled “Enforcement of the Bill of Rights” provides as follows:-

(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed, or is threatened. (emphasis supplied)

(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by: -

a. A person acting on behalf of another person who cannot act in their own name;

b.A person acting as a member of, or in the interest of, a group or class of persons; (emphasis supplied)

c. A person acting in the public interest; or

d. An association acting in the interest of one or more of its members.

Article 258(1) of the Constitution provides as follows:-

(1) Every personhas the right to institute court proceedings claiming that this constitution has been contravened, or is threatened with contravention.

In the instant case the Petitioners instituted the suit on behalf of Kalambula squatters whose rights they claimed had been violated.

79. Guided by the provisions of Article 22 and 258 of the Constitution as set out above as well as the holding by the Supreme Court I am persuaded that the Petitioners have the requisite locus standi to institute and maintain the instant Petition.

(b) Whether the Petitioners have proprietary rights over the land parcels known as L.R No 9848 and L.R No 9849

80. It is common ground that the Petitioners do not have title to the suit property.The Petitioners have not annexed any documents to assert their properietary interest over the land herein. What they have annexed are birth notifications of persons born in Kericho district, correspondence between them and some of the Respondents as well a photographs allegedly taken on the suit property.

81. I agree with the submissions of counsel for the 6th Respondent that the pictures could have been taken anywhere and there is no proof that the same were indeed taken on the suit land. The birth notifications also indicate Kericho while others indicate that Petitioners were born in Kipkelion. This cannot be indicative of the fact that the Petitioners were born on the suit land as the stated areas are expansive.

82. The Petioners’ claim to the suit property is hinged on the fact that their forefathers were occupants of the said land which was subsequently taken away from them and issued “by the stroke of the pen” to the 1st registered owners James Doyle and Robert Geoffrey Wilfred Hudson. It is the Petitioners' case that the land was taken away from their forefathers through the operation of unjust colonial laws.

83. In his submissions learned counsel for the Petitioners asserts that the suit property qualifies as community land as defined in article 63 of the Constitution as it was held by a community identified on the basis of ethnicity, culture or similar community of interests. The Petitioners’ claim is therefore one of trust emanating not from occupation or possession of the suit property but from the fact that the property was ancestral land passed on from generation to generation thus qualifying as an intergenerational trust.

84. It is not clear whether the petitioners are asking the court to declare that the suit property was a community land as this is not one of the reliefs sought in the Petition. In any event, the Petitioners have not placed sufficent material before the court to enable the court reach such a conclusion.

(c)Whether the 4th 5th and 6th Respondents acquired a good title to the land

85. It is the case of the 4th , 5th ,6th and 7th Respondents that the land in dispute is private land and that the respective parties are bona fide purchasers for value. Mr. Limo learned counsel for the 7th Respondent submitted that his client paid Kshs 180,000,000 to the 6th Respondent for the property and all that is remaining is the transfer of the same.

86. Article 64 of the Constitution defines private land as consisting of :

(a) registered land held by any person under any freehold tenure;

(b) land held by any person under leasehold tenure; and

(c) any other land declared private land under an Act of Parliament.

87. In their submissions, the 4th , 5th and 6th Respondents have annexed sale agreements and title documents to demonstrate before this court that the land in question is indeed private land and to assert their respective rights (past or present) over the same. They rely on section 23 of the Registration of Titles Act ( Repealed). The said section provides as follows:

“The certificate of title issued by the Registrar to the purchase of land upon a transfer shall be taken by all courts as conclusive evidence that the person named therein as the proprietor of land is the absolute and indefeasible owner thereof subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon and the title of that proprietor shall not be subject to challenge except on grounds of fraud to which he is proved to be a party.”

88. The said section mirrors section 26 (1) of the Land Registration Act 2012. Under the said section there are only 2 instances in which title can be challenged that is where a title is acquired through fraud or misrepresentation or where title is acquired through a corrupt scheme.

89. In the Amended Petition, the Petitioners allege that the 4th 5th and 6th Respondents have no title in law as the same was acquired fraudulently by their predecessors and an illegally acquired title is not protected by law. This is however not borne out by the Petitioner’s evidence.

(d) Whether the 4th, 5th, 6th and 7th Respondents’ titles and or proprietary interests can be challenged on grounds of fraud

90. On the issue of fraud learned counsel for the 7th Respondent argues that Mchanga Developers Limited is a bona fide purchaser having paid Kshs 180,000,000/- as consideration for the Land known as 9849/3. He argues that the 6th Respondent purchased the same from the 5th Respondent after carrying out all due diligence and the transfer was duly registered in the name of the 5th Respondent and a title annexed to that effect.

91. It is trite that fraud requires a higher standard of proof than ordinary civil cases. Not only must allegations of fraud be particularized but they must also be specifically be proved at a standard higher than the ordinary standard.

92. The court in the case of Ruhangi Properties Limited & 2 others v Standard Chartered Bank of Kenya Ltd & 2 others[2000] eKLR considered allegatuions of fraud and stated as follows:

“Fraud of course, in addition to requiring particulars, requires a higher standard of proof.

Establishing a prima facie case of fraud with a probability of success especially on affidavits presents the plaintiffs’ advocate with a very difficult task; more so when as here the statute provides that in these circumstances damages are an adequate remedy. The difficulties in relation to a prima facie case of fraud were considered by the Court of Appeal in CA 215/96 Central Kenya Limited v Trust Bank and others at pages 9-11 of the judgment. The onus is on the applicant and the burden of proof is heavier than in an ordinary civil case.

In summary it seems to be that the plaintiffs have not established the high burden of a prima facie case with a probability of success: furthermore, that there is at least an even argument that damages are an adequate remedy.”

In the instant case, it is my finding that the Petitioners have not discharged the burden of proof required where allegations of fraud have been made.

93. Under section 26(1) of the Land Registration Act 2012, the title of a registered proprietor is prima facie evidence that the proprietor is the absolute and indefeasible owner of land. The section further provides that such a title shall only be challeneged on grounds of fraud or misrepresentation to which the person is proved to be a party or where the certificate of title has been acquire illegally, unprocedurally or through a corrupt scheme.The Petitoners have not proved any of the requirements under section 26 of the Land Registration Act for impeachment of title.

94. The 4th-7th Respondents have adduced evidence before this court to prove that they honestly purchased the property and did not intend to acquire it wrongly. In the absence of cogent evidence to the contrary it is my finding that the 4th, 5th, 6th and 7th Respondents are bona fide purchsers. In any event , even if the allegation of fraud were to be proved (which is not the case here), the same would lie in the transaction between the protectorate and the 1st registered owner of the suit Land. In the circumstances, this court has no basis legal or otherwise to interfere with the sanctity of the said titles

(e) Whether the Petitioners Constitutional rights have been violated

95. The Petitioners allege that their rights to property, life, dignity and security of the person have been violated as a result of being displaced from their ancestral land. They also allege that they have been subjected to historial injustices. The courts have consistently held that a party who allges a violation of their constituional rights must must demonstrate with a reasonable degree of precision what provisions of the constitution have been violated and the manner in which they have been violated. See the case of Anarita Karimi (supra).

The Petitioners cited the case ofRutongot Farm Ltd V. Attorney General & 3 Others (supra). The said case is distinguishable from the instant suit as in the Rutongot Farm case the Petitioners demonstrated that they had bought the suit property for valuable consideration and they were forcefully evicted after taking possession thereof.

It is my finding that in the instant case the Petitioners have fallen short of proving the alleged violations.

96. Learned counsel for the Petitioners has submitted that the new Constitutional architecture recognizes social justice as a pillar of governance. He submits that he is not asking that land be taken away from the rich but merely that the court breathes life into the principles of land ownership so that equality is attained by victims of colonial injustices and so as to set a precedent in the realization of social economic and cultural rights as enshrined in the constitution.

97. It is a matter of judicial notice that in the recent past and more so since the promulgation of the Constitution of Kenya 2010 there have been heightened tensions between private property owners and persons claiming rights to land on the basis of social justice as well as under social economic rights guranteed under Article 43 of the Constitution.

98. These tensions were acknowledged by the Court of Appeal in the case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016] eKLRwhere the Court stated as follows:-

“We have surveyed the emerging judicial decisions in Kenya in an attempt to discern the emerging principles to address the seeming tension between private property and realization of socio-economic rights. The Constitution in the Bill of Rights recognizes and protects the right to private property....”

99. The principles of human rights, freedom, democracy, social justice and the rule of law are recognised under the preamble of the Constitution of Kenya . Article 43 of the Constitution provides for socio-economic rights and provides as folows:-

“(1) Every person has the right-

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;

(b) to accessible and adequate housing and to reasonable standards of sanitation;

(c) to be free from hunger, and to have adequate food of acceptable quality;

(d) to clean and safe water in adequate quantities;

(e) to social security; and

(f) to education.

(2) A person shall not be denied emergency medical treatment.

(3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependents”

100. However, the question that this court must address is whether implementation of socio economic rights can confer rights in the land of another. This question was considered by the Court of Appeal in the case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (supra)wherein the court stated as follows:-

“ Whereas socio-economic rights are recognized and are justiciable, the enforcement and implementation of socio-economic rights cannot confer propriety rights in the land of another. In Latin, socio-economic rights cannot conferrights in alieno solo. Under the law as it stands today, enforcement and realization of socio-economic rights does not override the provisions of theLimitation of Actions Act (Cap 22 of the Laws of Kenya).Prescriptive rights to land cannot be acquired in the name of enforcement of socio-economic rights. It is advisable to bear in mind that in interpretation of the Constitutional Articles on socio-economic rights, it is not the role or function of courts to re-engineer and redistribute private property rights. Re-engineering of property relationship is an executive and legislative function with public participation. In the absence of a legal framework, courts have no role in the guise of constitutional interpretation to re-engineering, take away and re-distribute property rights.Subject toArticle 25of the Constitution,all provisions in the Bill of Right are to be treated as equal with no one provision overriding another.”

101. Learned counsel for the Petitioner urges the court to interogate the titles in the posession of the Respondents against the principle of equality. He also states that the 4th and 5th Respondents being religious organizations should be more concerned with social justice rather than worldly possessions.

102. With tremendous respect for the religious beliefs of learned counsel for the Petitioners, Article 40 of the Constitution provides that every person has the right either individually or in association with others to acquire and own property. Article 260 on interpretation of the Constitution defines a person as including a company, association or other body of persons whether incorporated or unincorporated. In light of these provisions, it is clear that religious organizations are free to own property in Kenya subject to the provisions of Article 65 of the Constitution.

103. Under Article 21(2) of the Constitution it is the duty of the State to take measures, “legislative, policy and other measures” to achieve the progressive realization of the rights guaranteed under Article 43. In its Advisory Opinion (Advisory Opinion No. 2 of 2012) in The Matter of The Principle Of Gender Representation In The National Assembly & The Senate [2012] eKLR, the Supreme Court of Kenya when addressing itself to the concept of progressive realization stated that it simply refers to the gradual or phased-out attainment of a goal and that “there is no mandatory obligation resting upon the State to take particular measures, at a particular time” for the realization. See the case of Moi Education Centre Co. Ltd v William Musembi & 16 others [2017] eKLR.

104. It is trite that not all rights are non-derogable; rights have limitations as provided under Article 24 of the Constitution. The court in the case of Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLRconsidered the issue of limitation of rights and stated as follows:-

“ Chapter 4of the Constitution of Kenya contains the Bill of Rights, which is a collection of fundamental rights and freedoms sought to be protected including the right to life (Article 26),human dignity (Article 28), freedom of movement and residence (Article 39), right to property (Article 40), fair administrative action (Article 47), access to justice (Article 48) and fair hearing (Article 50). The bill of rights are to be applied so as to develop the law where there is a gap in giving effect to a right or fundamental freedom as perArticle 20 (3) (b). These rights are however not absolute, but subject to limitations in so far as such limitations are reasonable and justifiable taking into account the factors set out inArticle 24including the nature, importance, purpose and extent of the right vis a vis the limitations as well as prejudice to the rights and freedoms of others. The Constitution further dictates inArticle 24 (2)that any statute limiting a right or fundamental freedom should be clear about the right or freedom being curtailed and specifically express such intention as well as the nature and extent of the limitation for it to be valid. For the avoidance of doubt, the framers of the Constitution included a list of rights and freedoms which may not be limited notwithstanding any provisions of the Constitution. These absolute rights are set out inArticle 25. It is instructive that the right to property is not one of them.”

105. In light of the foregoing it is my finding that the Petitioners have failed to demonstrate that their rights have been violated so as to warrant interference with the proprietary rights of the 4th to 7th Respondents.

(d) Whether the Petitioners are entiled to reliefs sought

106. Having found that the Petitioners have not proved that their rights have been violated then it goes without saying that the Petitioners are not entitled to the reliefs sought in their amended Petition dated 22nd July, 2016. The Petition is in my view without merit and is hereby dismissed.

107. However, in view of the issues raised in the Petition, each party shall bear its own costs.

Dated, signed and delivered at Kericho this 26th day of January, 2018.

….....................

J.M ONYANGO

JUDGE

In the presence of:

1. Mr. Kemboi for Mr. Kipkoech for the Petitioners.

2. Mr. Terer for Sichangi & Co. Advocates for the 4th and 5th Respondents.

3. Miss Ngetich for Mr. Limo for the 7th Respondent.

4. No appearance for the 1st, 2nd, 3rd and 6th Respondents.