https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4426

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYAHURURU** **ELC PETITION NO. E002 OF 2022** **KISEWA KIDENYE…......................................1ST PETITIONER** **JONATHAN LENAITORONO………………………2ND PETITIONER** **JACKSON LENELIPEI……………………………….3RD PETITIONER** **JACKSON LERIARI…………………………….…….4TH PETITIONER** **(Suing on behalf of over 200 families of Yare Community)** **VERSUS** **LAND ADJUDICATION & SETTLEMENT** **OFFICER - SAMBURU……………………………..1ST RESPONDENT** **DEPUTY COUNTY COMMISSIONER** **SAMBURU CENTRAL………………………..….…2ND RESPONDENT** **NATIONAL LAND COMMISSION………………..3RD RESPONDENT** **CHARLES LENAIMALDA………………………….4TH RESPONDENT** **(Sued as the Chairperson of the Lkuroto Lands Committee)** **JUDGMENT** **Background and the Pleadings** 1. The suit parcel bears title No. **SAMBURU/LKUROTO WARD/1** registered in the name of Lkuroto Group Ranch (hereinafter the group) on **13.5.2021** which is an expansive chunk of land measuring 1414.25 hectares. The members of Lkuroto Group ranch who are the 4th respondents claim that they own this land and they desire to subdivide the same to their members. They do not deny that the petitioners occupy some portions of the suit land. The petitioners identify themselves as Yare village Community. They aver that they settled on the suit land from 1996, having fled from Marti and Baragoi in Samburu County due to insecurities. They desire to be included in the sharing of the suit land. 2. The petitioners therefore filed the petition dated 2.3.2022 seeking the following orders. **“ i) A declaration that the petitioners are members of the Lkuroto community for the purposes of allocation of land within Lkuroto sub-location;** **ii) An order directing the respondents jointly to list the petitioners as persons to benefit from the subdivision of the land parcel within Lkuroto sub-location;** **iii) A declaration that the respondent jointly and severally have violated Articles 10, 27, 28, 35 40, 47 and 63.** **iv) A mandatory injunction restraining the respondents from proceeding with the subdivision exercise without the involvement of the petitioners.** **v) An order in the form of a structured interdict requiring the 1st, 2nd and 3rd respondents to within 6 months report back to this Honourable Court on the progress of inclusion of the petitioners in the allocation of land within Lkuruto sub-location;** **vi) The cost of the petition and** **vii) Any and other orders this Honourable Court may deem fit, just and expedient to award in the interest of justice.)** 1. The case of the petitioners is primarily anchored on their Petition and the Supporting Affidavit dated **2.3.2022** sworn by KISEWA KIDENYE, JONATHAN LENAITORONO, JACKSON LENELIPEI and JACKSON LERIARI, on behalf of over 200 families of the Yare village Community as well as a Further Affidavit dated **26.3.2024** sworn by the 3rd petitioner. 2. The 1st and 2nd responddents opposed the suit vide the Replying Affidavit of EDWARD OKOTH sworn on **26.5.2022**. The deponent is a Land Adjudication and Settlement Officer. He avers that adjudication of the suit land commenced via a notice of 26.4.1991, that the adjudication register was completed on 24.1.2000 and the Certificate of finality for the adjudication section was issued on 20.5.2009. 3. The 3rd respondent opposed the suit vide the Replying Affidavit of BRIAN IKOL dated **30.10.2024** where they contend that in tandem with the provisions of Section 134 of the Land Adjudication Act ( the statute in question is the Land Act), the Commission assist the National and the County Governments in administration of settlement programmes. This party did not tender any evidence. 4. The 4th respondents opposed the suit vide the Replying Affidavit of CHARLES LENAIMALDA dated 17.5.2022. They contend that the process of adjudication was completed on the suit land way back in year 2000 and that they came to hear of the petitioners’ complaints for the first time in a meeting held on 23.10.2021. They made an offer of ½ an acre to the members of the petitioners of which 140 of them accepted. **The Evidence** *The case for the Petitioners* 1. In their pleadings, the Petitioners contend that the Yare Community comprises of over 200 families who have inhabited Lkuroto sublocation for 26 years and constitute over half of the population in the said sublocation. That they moved to the area after they were internally displaced from the conflict prone areas as a result of inter community clashes in Marti and Baragoi in Samburu County. They aver that in year 2000, the adjudication on the suit land was declared as complete, but the process was not completed as the suit land included land which had already been gazetted as belonging to the armed forces. However, in 2021, following requests by the Community, the 3rd respondent ( NLC) degazetted the land and the President of Kenya conferred the land back to the community and residents in occupation of the said land. That upon degazettement, certain persons comprising of a single ethnic group formed an organization known as Lkuroto Community and registered members excluding residents of Yare village. 2. That the Yare community raised their complaints with the governor, the ministry of lands the county commissioner’s office and human rights organizations. Following these complaints, a meeting was held before the DCC Samburu central resolving that subdivision of the suit land would not take place before their issues were resolved. The community was then invited to a meeting by the County Land Adjudication and settlement officer, where their issues were not resolved, but it was recommended that another meeting be held with the representation of the two sections of Lkuroto. 3. That on 9.2.2022, the petitioners wrote a letter to the County Commissioner complaining about the issuance of the consent to subdivide the suit land, then on 24.2.2022, members of the Lkuroto Community were spotted moving around the village identifying public utilities. 4. The petitioners therefore contend that the respondents have jointly and severally directly discriminated the petitioners by carrying out actions that will ensure that they do not benefit from the adjudication and registration of the community land. It is clear that the only persons set to benefit from the processes are the so called members of the “Lkuroto Group Ranch” leaving out members of the Yare Community. 5. It is further pleaded that the 1st-3rd respondents have failed to take deliberate measures to address the plight of the displaced Yare community, thus there is real threat of violations to their dignity. They contend that they have developed homes on the suit land, thus any subdivision that excludes them is a threat to their right to property. They aver that the respondents by their conduct have effectively told the petitioners that not **all land belongs to the people of Kenya** for their enjoyment as a community and as individuals. The decision to regard the Lkuroto community as a group ranch is in violation of contemporary laws, which no longer recognize group ranches. The land in this case is **community land** and the community includes the petitioners. The decision to exclude them from membership lists, from decisions on subdivision and ultimately the attempts to push them out of the community within Lkuroto Sub-location is a violation of the petitioners’ community land rights. The sum total is that the respondents have jointly and severally disrespected the Constitution, and have violated important provisions that seek to protect the rights of the petitioners. 6. At the trial, the petitioners called two witnesses. The 1st Petitioner, **KISEWE KINDENYE** testified as **PW1**. He identified himself as the Chairman of the Yare Community. He adopted their Supporting Affidavit of 2.3.2022 as his evidence which mirrors their pleadings. He also produced the annexures therein as their exhibits. He reiterated that they came from Samburu North at a place called Marti in Baragoi, a place they cannot go back due to insecurity. 7. In cross examination by the 4th defendant, Pw1 stated that he is 48 years old and he has resided at Lkuroto for 29 years. That when he came, he did find people there but he did not move any one. He was welcomed by his brothers. He occupies about one acre or half an acre of the suit land. He avers that there was indeed a meeting held in year 2021 between the warring groups but they were not offered any land and no single promise was made to them. He avers that it would still be a problem if they are given land where they stay. 8. He further stated that where they came from, they had a group ranch, but some of them were not members of those ranches, adding that one can be a member of 2 or even 3 group ranches. That all of them had land where they came from, chunks of land where no one is occupying. That when de-gazettement of the KDF land was made, the petitioners were in occupation of the suit land and they presented their views, but have no documents to show that Yare was involved in the de-gazettement of the said land. 9. When referred to the document at page 40 of their bundle, the notice dated 24.1.2000, Pw1 stated that they were not shown the said document. He could not explain as to where they got the document. Referred to the document at page 26 of their bundle, the list of members, Pw1 stated that they want to be given land as individuals and not as families, adding that they are more than 200 families in Yare and denied that any of their members are members of Lkuroto community and that if any are to be found there, they should be struck off. 10. On re-examination, Pw1 stated that when they came to Lkuroto, they did find other people, their brothers, but there was no one at the place he stayed. He reiterated that the place he came from still has a lot of insecurity, that it is all of them who were given the KDF land by the president. 11. **PW2** is **JACKSON LENELIPE** who also adopted their affidavit of 2.3.2022 as his evidence. He is the treasurer of the Yare Community. 12. On cross examination by counsel for the 4th respondent, Pw1 stated that he was born in 1984 and he entered Yare village in 1996 when he was about 12 years old. They had moved as large families from Marti and Baragoi, they settled at Yare, but they also scattered all over as they were fleeing fights between Turkana and Samburu. The village where they settled as Internally Displaced People (IDPS) was within Lkuroto Community Land, but they were not the original occupants of Lkuroto. The land where they settled is with the Lkuroto Group Ranch, but they were not aware that the register of the group members had already been prepared way back in 1991 during adjudication, of which they saw the register of the group ranch when the case was already filed. He has come to learn that the Group Ranch already has a title issued in year 2021 consisting of over 400 members. He avers that in year 2000, he was at Lkuroto, but he did not hear about the adjudication process. 13. He avers that where they came from, there is a group ranch which he is not a member and the process of adjudication has been carried out at Marti where the register was closed in year 2000, but he has no register of the members therein. He avers that their first complaint was in year 2018 to the Governor of Samburu county as they felt discriminated. He is aware that in year 2021, the Deputy County commissioner ordered the Land Adjudication officer to call for a meeting so as to hear the complaint of the Yare people. However, when the meeting took place, the agenda changed to an AGM of the Lkuroto and he denies that they were offered half an acre each at the place they have settled. They were however told to raise their complaint and select representatives to attend another meeting, of which he was part of the 52 selected members. He avers that the list of their members contains adult persons who have Identity Cards (IDs), some are related. i.e brothers and sisters. However, at Lkuroto group ranch, not every person who is over 18 years has been given land, but there are some families where a man and his sons are in the register like in the case of Lemilan Loiriro. 14. Pw2 avers that they have rights over that land as no one was born with land and everyone moved at some point, and that is how some of them, about 16 of them managed to be in that register including Brigadier Leriari as well as the late Wein Lewarani. However, he did not know the parcel numbers of the people he had mentioned. He also does not have the list of their members who are in Lkuroto. He went on to state that about 40 of their members are in the Lkuroto register. He denies that there are people in their list who do not stay at Yare. 15. He avers that they are entitled to the suit land as they have been there for long period, that they have carried out developments on the land and that they complained against the KDF as a whole community, but he has no evidence that he contributed money to get back the land from KDF. 16. On re-examination, Pw2 stated that he came to that land with his parents who are buried on that land. He avers that by the time they moved unto the land, he didn’t know that there was a group ranch, and they were not made aware of its existence. He avers that the team of 52 members did deliberate on how their members could be helped as Yare people where by Mzee Loiriro proposed that they get ¼ of an acre each, but the meeting did not come up with a proposal. He avers that they complained about the army land as a whole group and they did contributions together. *Case for the 1st and 2nd Respondents* 1. The case for the 1st and 2nd respondents was advanced by **EDWARD ODHIAMBO OKOTH, DW1**, a Land Adjudication Officer in the ministry of Lands. He adopted his affidavit of 26.5.2022 as his evidence, and he produced the documents therein as their exhibits. His testimony as set out in his Replying Affidavit is that the Lkuroto Ward Adjudication section was established on 26th April, 1991 vide Ref/LA/SAM/33 Vol. IV/170 as pera copy of Notice of Establishment of Lkuruto Ward Adjudication Section marked E01. That the demarcation and survey work was completed and the adjudication register declared complete and eventually published on 24th January, 2000 vide Ref. No. LA/SEC/23/27 as pera copy of Notice of Completion of an Adjudication Register, Lkuroto Ward adjudication Section and objection summary marked as E002 and EO3). 2. That upon expiry of sixty (60) days’ notice, a total of twenty six (26) objection cases were filed, heard and determined. That with all the cases heard and determined, the Certificate of finality for adjudication section was eventually issued on 20th May, 2009 and the adjudication records forwarded to the Chief Land Registrar for registration and subsequent issuance of Title Deeds. That checking of the records was completed but registration for the section was not done because it was realized that part of the section had encroached into Kenya Defence Forces training area which had been set apart vide a Gazatte Notice. 3. That titles were eventually issued in 2021 after the government, through gazette notice, relocated the encroached area of the adjudication section to Samburu North. 4. That in regard to the complaints made by the petitioners, the land department convened a meeting held on 23.10.2021 attended by the group ranch members and the petitioners where it was resolved that each group was to avail representatives to address the issues, but this move did not bear fruits. Another attempt was made to resolve the issues vide the meeting of 19.11.2021 held at the Deputy County Commissioners office where the Lkuroto members agreed to share to Yare ½ acre but the representatives of Yare declined this offer. The same offer was made in a subsequent meeting of 20.12.2021 at the office of CEC Lands, but again this was rejected, where the petitioners insisted on getting an equal share with the Lkuroto members. Thus various government departments have tried to address the dispute in vain. 5. On cross examination by the 4th respondent, Dw1 stated that all the adjudication processes were lawful. He explained that the adjudication process is guided by a land adjudication committee, of which the process entails, the notice establishing an adjudication section, and coming up with the map of the area as well as the register of members, and this information is contained in a continuation sheet. Dw1 gave a step by step account of the dispute resolution mechanism in the adjudication arena, that the land adjudication committee has the first responsibility of recording claimant’s interests including claims of individuals wishing to be included in the register. From there, the disputes go to the arbitration board constituted by the D.C. Then there is the 60 days objection period of which 26 objections were dealt with in the adjudication in question. That section 29 (1) of the Land Adjudication Act then deals with the completion of the register whereby, any aggrieved person can go to court. Then upon completion of the register, a title is issued where the land belongs to the registered owners. 6. Dw1 further stated that the register of members can be updated through the AGM, and the group has discretion to add more members. 7. On the issue of KDF, Dw1 stated that the land adjudication committee helps to establish the perimeter boundary of the adjudication section, and in this case, the KDF land was found to be inside the boundary of the adjudication section. Thus when the register was finalized and a certificate of finality was issued by the Land Adjudication Officer where the register was final in all aspects, the Chief Land Registrar made a notification that the KDF land was within the adjudicated land and had to be removed. 8. Dw1 avers that the complaints arose when the group sought to sub divide the suit land amongst themselves, yet adjudication was over by year 2000. Dw1 avers that the dispute is not on adjudication but on how the land should be shared amongst the members, of which the persons entitled to the land are those in the register. Nevertheless, the members can have a meeting to update the register. 9. On cross examination by the Petitioners’ advocate, Dw1 stated that land matters in Samburu, just like in any other parts of the country, are potentially volatile, hence they should be handled in a sensitive manner. He concedes that the petitioners wrote the letters at pages 45, 51 and 54 of the petitioners bundle which he did not respond to. However, several meetings were held one of them chaired by the DC who stated that he would not issue a consent until parties agreed. However, when the said DC was transferred, a consent to subdivide the land was issued by the land control board. Dw1’s advice was not used in the issuance of the consent, but he did give his position to the land control board, adding that the latter had discretion to issue the consent. He is not aware if the consent has since been withdrawn. 10. Dw1 stated that the land in question was declared as an adjudication section in 1990 and that the Land Registrar’s responsibility comes at the point of registration, which is the final consumer of the process. That when the adjudication is finalized, they deposit the original records with the Land Registrar for issuance of title deeds. He avers that the moment an adjudication section is so declared, a notice is published. This allows anyone with an interest in the land to present their claim. After the establishment of the adjudication section, survey and recording of interests run concurrently. The general survey establishes the size of the land, but this is not his area, thus he is not sure about the total acreage including the KDF land, though he believes the title has the acreage. 11. Again on completion of the adjudication process, a notice is also published. 12. Dw1 further stated that he did not participate in the process of de-gazettement of the KDF title and he is not sure about public participation on the issue. 13. He averred that during adjudication, they help the Group Ranch to constitute the register and retain one of the registers, another one is retained by the community, while another goes to Ardhi house, of which the register is drawn from the continuation sheet. The register is a list of members and it captures such information like; when the person became a member, serial number and member’s name, and the signatures of the officials are at the bottom. He reiterated that there were 26 objections during the objection proceedings of which 8 were successful and an aggrieved person could appeal to the minister, but there were no such appeals. That for member no. 415, he is Lewarani Laurin Salim who had filed objection no. 5 which was dismissed. Dw1 has no information as to how a dismissed objection’s member came to be in the register. He identified the document at page 52 of the 4th respondent’s bundle as the original register of the members, of which members can add names and then communicate to the office of Dw1. To this end, the heirs can be added to the group. In the case at hand, it is the members who can explain how the name of the aforementioned person came to be in the register. 14. He reiterated that on registration, the Group Ranch determines their members, of which they can remove or add members. 15. On cross-examination by the court, Dw1 stated that as at the time of adjudication of the suit land, the KDF land had been reserved through a gazette notice but with no title to the best of his knowledge, adding that the office of the Chief Land Registrar is the one which raised the issue of the KDF land. There was de-gazettement of the said land, then KDF was reallocated land in Samburu North and the Chief Land Registrar was able to issue a title to the Group Ranch. 16. On re-examination, Dw1 stated that a certificate of finality was issued on 20.5.2009, that is why he could not respond to the petitioners letter at page 51 of their bundle since the entire process had been finalized. That after a Certificate of Finality is issued, the responsibility of the management of the land is done by the members (inclusion or exclusion) and all that the office of Dw1 dose is to facilitate their meetings. This is what they did when the dispute arose. The petitioners requested to be included in the register, but the office of Dw1 informed them that the said office could not do so. That a selected team was set up comprised of members of the Group Ranch and the petitioners where an offer was made to the petitioners which they rejected, adding that the list at page 56 to 67 of the bundle of the 4th respondent is not from their office, it is from the group ranch. *Case for the 4th respondents* 1. The case for these respondents was advanced by one witnesses, namely **CHARLES LENAIMALDA, DW2**, the Chairman of Lkuroto group ranch. He adopted his affidavit dated 17.5.2022 as his evidence and he produced the annexures therein as their exhibits. He has given the history of their group ranch which was formed in 1991 following the declaration of Lkurorto as an adjudication section. That an adjudication register was opened comprising of persons who lived on the land from the inception of the adjudication section. The adjudication register was closed in April 2000. 2. Thereafter, the group embarked on pursuing their title, only to discover that part of the land they were claiming was earmarked for the armed forces. However, following the efforts of a committee elected to pursue this land, the army land was degazetted, thus the group was eventually registered as the owner of the suit land on 13.5.2021. 3. He avers that the first time they heard about the complaint by the petitioners was on 23.10.2021 in a meeting where Dw1 brought it to their attention that there was a pending complaint. That it was resolved that a select group of 52 persons be nominated to address the issue, whereby on 26.10.2021 at the place of the area assistant chief, the team met whereby Lkuroto group offered ½ an acre to each member of the Yare group. The Yare group was to go back and deliberate with their people of which 140 of them accepted the offer by availing their details like ID cards as per annexure CL 11. However, of the 140 people, 62 have been listed as petitioners as per the list no.CL12. 4. Further, some of the petitioners in the yare list no’s 8, 11,160 and 161 are members of the group ranch at nos. 160, 175, 178 and 155. Then there is a list of 40 people who are members of the group ranch but have been included in petitioners list availed as CL13. There are also people in the Yare list who do not reside on the suit land, 22 of them as seen in the list no.CL14. 5. It is averred that whereas the petitioners entered the suit land in 1996 or thereabout, their entry was through invitation by their close relatives and friends who are members of the group ranch. That some Yare people are members of other groups including El barta, Angata Nanyukie and Marti Lespen. 6. The deponent contends that Lkuroto group ranch is the registered owner of the suit land, of which the government had promised to facilitate the demarcation of the same, and they will lose on this good will if the prayers sought are allowed. He avers that the land belongs to a registered community where the petitioners are not members and have never applied to be members, adding that being a private group ranch, the people who are supposed to benefit from the land are its members, of which the petitioners are not members. He avers that they have no obligation to settle landless people. 7. On cross examination by counsel for the petitioners, Dw2 stated that the suit land is majorly occupied by communities from Samburu, and it is near Maralal town, of which many of them came there over decades ago from other places, but there are those who have always been there and are the members of the group. He identifies the suit land as a private group ranch as they have their own members who are registered. He denies that the Land Adjudication Officer misguided them in getting the title. 8. Dw2 avers that he has been the chairman of the group ranch since year 2014, and before him there was William Lekata and another. He confirms that the letter at page 45 of petitioners bundle is a letter written to Lekata, but he saw it on 4.4.2021. He contends that the list at page 56 of their bundle is in tandem with their register. That at page 35 of their bundle, the name reads Hellen Laikipia, who is deceased. While at page 62 of the bundle is no. 265 for Niki kieni Thoo, a child of Hellen and avers that she inherited the position. He explained that when a person dies or sells their rights, their name is indicated below the original member. If it is a sale, it is written “ agreement”. 9. He went on to state that even after the closure of the register, people come to pray that they be added. He avers that there were 26 objections, some of which the claimants wanted individual tenure. There were 16 people who were registered via appeals to the minister. Dw2 was cross examined at length on their register’s various entries of which he stated that some people bought land from members, thus their list is dissimilar to the government one. 10. On the KDF Land, Dw2 stated that they pursued to get the land back as a group ranch and not as a community, and so the land was given back to them. 11. He avers that in a certain meeting, the DCC said that the suit land should not be subdivided until the issue was resolved. However, the said officer was transferred, so they got the consent to subdivide the land. He reiterates that they allowed the Yare to stay there, they offered them ½ acre each even though they don’t belong to their community. 12. Dw2 stated that the document at page 56 is an internal document for their own use and not the register, of which annexure CL3 is their register. He avers that their members are 460, including the names of the people who were added. That the list had 444 members but they added the 16 persons who applied to be put in the register. He avers that a name can appear more than once depending on the purchase rights. But it is the group ranch which decided as to who was to be included as a member. 13. On re-examination, Dw2 stated that the land taken by KDF had been theirs. They were using it and it is only when they were looking for their title they learnt that there was KDF land within. He avers that their certificate of incorporation as a group ranch was acquired on 18.11.2014 before the new law, thus their group is a legal entity. He avers that the petitioners have never applied to the group to be added in the register. **Submissions** 1. The submissions of the petitioners are dated 10.12.2025 where they frame the following issues for determination; **“ a) Whether the Petition meets the threshold of a Constitutional Petition.** **b) Whether the procedure followed in establishing the “Lkuroto Group Ranch and issuing the consent for subdivision was lawful, regular, and constitutional.** **c) Whether the respondents owe the petitioners a legitimate expectation; and** **d) Whether the petitioners are deserving of the reliefs sought.”** 1. On whether the petition has met the threshold of a constitutional petition, the petitioners have cited the case of **Anarita Karimi Njeru V Republic (1979)eKLR** and **Matemu V Trusted Society of Human Rights Alliances & 50 Others (Civil Appeal 290 of 2012) (2013) KECA 445 (KLR) (26th July 2013)** to argue that with meticulous precision they have identified the specific actions complained of namely; the systematic exclusion from the alleged membership register, the discriminatory treatment, the issuance of subdivision consent in the face of unresolved disputes, and the imminent threat of dispossession. 2. On whether the adjudication process was procedural, lawful, regular and constitutional, the petitioners have cast aspersions on the adjudication process that took place from 1990’s to year 2000 averring that there was no meaningful public participation. They contend that the purported closure of the register in the year 2000 was a legal fiction conducted at a time when they were already in occupation of the suit land, thus their exclusion was an act of administrative absurdity and direct discrimination. They contend that the land remained public land until year 2021. The petitioners also discredit the objection proceedings as well as appeal to the Minister in which 6 persons were added as new members to the register. 3. In regard to the Kenya Defence Forces (KDF) land, the petitioners contend that 1/3 of the suit land was gazetted as public land belonging to KDF as per gazette notice No. 3210 of 1977 and remained so until 4th February 2021 when it was degazetted vide another gazette notice No. 2080. They contend that the KDF ceased utilizing the land in 1990’s whereby the community settled and developed the entire parcel and they also pursued the formal allocation of the land to the community. They argue that this 1/3 portion of the suit land was relinquished back to the community converting it into trust land. 4. The petitioners contend that “Lkuroto Group Ranch” does not exist as they have no certificate of incorporation as required under Section 7 of the repealed Land (Group Representatives) Act, Cap 287 Laws of Kenya. Further the documents produced by the respondents as the purported Form C- register of members does not conform to the statutory requirement of a register as prescribed under Section 17 of the repealed Land (Group Representatives) Act. 5. On whether the petitioners have rights and/or legitimate expectation to the suit property, the petitioners contend that they have given the history of the suit land where they have been in peaceful and uninterrupted occupation and control of their homes since 1996. They contend that the suit land was unregistered for decades and was only so registered on 13th May 2021. It follows that the route and processes through which the title was acquired is built on sand. This far the petitioners cited the cases of **Isack M’inanga Kiebia V Isaaya Theuri M’lintari & Another (2018)eKLR** and **Dina Management Limited V County of Mombasa & 5 Others (petition 8 (E010) OF 2021 (2023) KESC 30 (KLR)** amongst other cases. 6. In conclusion the petitioners contend that there is overwhelming evidence of constitutional violations, procedural illegality and imminent threat of irreversible harm and therefore they deserve the orders sought in the petition. 7. The submissions of the 4th respondent are dated 27th January, 2026. They frame the following issues for determination; **“a) Whether this Honourable court has jurisdiction to entertain the petition in light of the Land Adjudication Act and the doctrine of statutory finality;** **b) Whether the petitioners’ claims are statute-barred and un-procedural for failure to comply with section 9 and 26 of the Land Adjudication act;** **c) Whether a constitutional petition can lawfully be used to circumvent the dispute resolution mechanisms established under the Land Adjudication act;** **d) Whether the petitioners have proved membership in the Lkuroto Group Ranch or any enforceable proprietary or participatory rights;** **e) Whether any violation of constitutional rights has been established** **f) Whether the petition constitutes an abuse of the court process.”** 1. On jurisdiction, the fourth respondents have cited the case of **Njagi** **V Thaara (Civil Appeal No. E126 of 2022) (2025) KECA 367 (KLR)** to argue that this court lacks jurisdiction to entertain collateral constitutional attacks on completed adjudication processes. They contend that the disputes arising under the Land Adjudication Act must be resolved strictly within the mechanisms provided under the aforementioned statute. They further argue that adjudication decisions lawfully made and finalized under the statute, and which were not challenged within the prescribed statutory timelines, cannot be impugned under Article 47 of the Constitution decades later. Thus the petitioner’s failure to participate within the statutory processes or to lodge objections within the set timelines cannot be remedied through a belated invocation of Article 10. Other cases cited by the respondents buttressing the doctrine of exhaustion of remedies include; **Amarnath (Suing on behalf of the estate of the late Amarnath Gupta) V Kazungu & 2 Others, (Civil Appeal No. E033 of 2021) (2023) KECA 1280 (KLR)** and **Tobias Achola Osindi & 13 Others V Cyprian Otieno Ogalo & 6 Others (2013) eKLR**. 2. On membership, it is argued that membership in a group ranch or a community land entity is a matter of record and proof and is established through lawful processes and is reflected in the membership register, of which it is not inferred from residence vulnerability, or historical association. They argue that the petitioners are not members of Lkuroto Group Ranch and therefore the issue of being discriminated does not arise. It is argued that equality before the law does not entitle non-members to be treated as members, nor does it permit the court to compel equal sharing of land held under lawful membership regime. 3. On the KDF land, the respondents contend that the land in question was always within the declared adjudication section, thus any reservation or use for public purposes did not suspend or nullify the adjudication process. 4. In conclusion, the 4th respondents contend that the petition is incompetent, statute barred and amounts to an abuse of the court processes and therefore the subdivision of the suit land should not be halted, adding that the petition is a belated and impermissible attempt to circumvent the Land Adjudication Act, to reopen a concluded adjudication process, and to impose non-members upon a registered group ranch. They therefore pray for the dismissal of the petition with costs. **DETERMINATION** 1. I have carefully considered all the material presented before this court, including the pleadings, the evidence adduced, the documents availed as well as the rival submissions. There is no controversy that the Petitioners who identify themselves as the Yare community reside on some portions of the suit land and that they came there about 26 years ago in **1996**. Further, it is apparent that the suit land has a title number **SAMBURU/LKUROTO WARD/1** measuring **1414.25** hectares and the same is registered in the name of **LKUROTO GROUP RANCH**. The 4th respondents desire to subdivide the suit land amongst their members. However, the petitioners desire to share the suit land with the 4th respondents equally. The petitioners challenge both the adjudication and registration process of the suit land arguing that the respondents have discriminated them in the said processes. 2. The crux of the matter therefore turns on one issue; ***Whether the petitioners are entitled to a share of the suit land***. In determining the said issue, the court will also interrogate the applicable law as well as the tenure holding in the said land. ***The applicable law*** 1. The provisions of Article 61 of the Constitution stipulates that; **“ (1) All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.** **(2) Land in Kenya is classified as public, community or private.”** Also See-**Munkasio & 14 others (Suing on their own Behalf and Behalf of their Families and all the Members of the Maasai Community Living on Land Reference No 8396 (IR 11977) Situated in Kedong) v Kedong Ranch Limited & 8 others (Petition 57 of 2014) [2015] KEHC 2531 (KLR) (24 September 2015) (Judgment)** on definition of public, private and Community Land. 1. Section 9 (1) of the Land Act provides that; **“ Any land may be converted from one category to another in accordance with the provisions of this Act or any other written law.”** 1. Seeing that the land in question is registered in the name of a group ranch, then the court must also interrogate the statutory framework which governs the acquisition of rights and interests by such a group. The preamble of the “**The Land (Group Representatives Act) Cap 287** Laws of Kenya which was repealed upon the coming into force of the Community Land Act stipulated that it is; **“An Act of Parliament to provide for the incorporation of representatives of groups who have been recorded as owners of land under the Land Adjudication Act, and for purposes connected therewith and purposes incidental thereto”** 1. Thus the acquisition of rights and interests in a group ranch must trace their roots to an adjudication process, primarily governed by the **Land Adjudication Act** ( hereinafter, the **LAA**). 2. The Preamble of the **Land Adjudication Act** provides that it is; **“ An Act of Parliament to provide for the ascertainment and recording of rights and interests in community land, and for purposes connected therewith and purposes incidental thereto”** 1. In the LAA, a group is defined as follows; **“group” means a tribe, clan, section, family or other group of persons, whose land under recognized customary law belongs communally to the persons who are for the time being the members of the group, together with any person of whose land the group is determined to be the owner under the proviso to section 23(2)(a) of this Act”.** 1. The provisions of Section 5 of the LAA provides for the establishment of an adjudication section in an adjudication area. Disputes do arise in the adjudication process of which there are bodies which have the statutory mandate to resolve the same and they include; The Recording Officer at Section 13, The Adjudication Committee at section 6, the Arbitration board at section 7, Objection proceedings under section 26 and Appeals to the Minister under section 29. 2. The aforementioned dispute resolution mechanism is elaborate and was aptly captured in the case of **Martha Kigeu Vs Johana Tibino (2014) e K.L.R**, cited in **Republic v Tigania East District Land Adjudication and Settlement Officer & another; Joseph Mathita Ikirima Ex parte Solomon Mworia Samuel [2020] eKLR** where the Court held as follows: **“Under Section 13, every person who considers himself to have an interest in land within the adjudication section makes his claim to the recording officer and points out his boundaries to the demarcating officer. If there are two or more conflicting claims to an interest in land, and the recording officer is unable to resolve the conflict, the dispute is submitted to an Adjudication Committee as noted in Section 19. The Adjudication Committee is meant to listen to the conflict and issue a decision. If the Committee is unable to reach a decision on a matter before it, it shall refer the matter to an Arbitration Board. A person affected by a decision of the Committee may also make a complaint to the Executive officer of the Committee and the Executive officer is mandated to refer the complaint to the Arbitration Board. The Arbitration Board hears and determines the matters referred to it by the Committee. The Adjudication officer prepares what is termed as an Adjudication register. This comprises the demarcation map and the Adjudication record. Under Section 24, when the Adjudication register is completed, the Adjudication officer is inter alia supposed to give a 60 days’ notice for the inspection of the Adjudication register. Any person who is of the view that the Adjudication register is incorrect, may make an objection to the Adjudication officer in writing within 60 days of the publication of the notice for inspection. The Adjudication officer is empowered to determine the objection. He is also empowered to alter the adjudication register from time to time so as to conform to any objections. Any person aggrieved by the determination of an objection, may within 60 days of the determination, appeal to the Minister. After determination of all objections, the Adjudication register is inter alia forwarded to the Chief Land Registrar alongside any list of appeals. The Land Registrar then causes the registration of the parcels of land. Where there is an appeal, a restriction is to be made and registered on the subject land and is to endure until the determination of the appeal. Appeals are determined by the Minister and his decision is final. On such determination, the register may be altered in accordance with the determination. When all appeals have been determined, the Director of Land Adjudication certifies that the Adjudication register has become final”. Emphasize added.** 1. Section 30 provides for institution of court proceedings with the consent of the adjudication officer. 2. This far, it becomes clear that the ascertainment of rights and interests in unregistered community land had statutory safe guards at various stages of the adjudication process that shepherded the said process in transitioning of land rights from one land tenure holding (customary) to another tenure holding (registration). 3. The **Community Land Act** commenced on **21.9.2016**. It has transitional provisions, where by Section 46 (3) thereof provides that; **“Any instrument executed before the commencement of this Act whereby any disposition permitted under this Act is completed may be presented for registration in the prescribed register and— (a) the question whether any instrument so presented is to be registered shall be determined by the Registrar by reference to the law in force at the time of its execution; and (b) subject to the provisions of paragraph (a), the provisions of this Act shall apply to that instrument as if it had been executed after the commencement of this Act”.** 1. The schedule on transitional provisions at clause 2, provides that; **“ All rights, obligations and contracts which, immediately before the coming into operation of this Act, were vested in or imposed on a former institution shall be deemed to be the rights, obligations and contracts of the registered community”.** 1. In so far as the dispute is concerned, it is apparent that the adjudication process as commenced via the notice of 20.4.1991 and completed on 20.5.2009 via the Certificate of finality was anchored on a statutory regime which was in harmony with developments in the law. ***The Tenure status of the suit land*** 1. As already stated herein, the land is registered in favour of Lkuroto group ranch. Pursuant to the provisions of section 24 of the Land Registration Act, the title issued to the group in year 2021 conferred upon the group members the absolute ownership of that land to the exclusion of others, only subject to the overriding interests provided under section 28 thereof. 2. In the Supreme court of Kenya case of **Getao v Mokare & 4 others (Petition 9 of 2020) [2021] KESC 36 (KLR) (16 July 2021) (Judgment) John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2021] eKLR**, the court gave the definition of land holding in a group ranch as follows; **“The repealed Land (Group Representatives) Act was introduced to enable the inhabitants of large swathes of land in largely semi-arid pastoralist areas, to hold such land as a group, under one title. The title would be issued to and held by elected representatives on behalf of the group. Through that instrumentality, the group ranch not only acquired a corporate character, but became legally insulated from the tragedy of the commons. The group ranch was therefore owned by members of the group, in equal but undivided shares, until such time that each member acquired their individual titles. In the law of property in land, that was what could be characterized as a community of ownership (or co ownership) as opposed to community or communal ownership.** **In community of ownership (or co-ownership), each member had an equal share, though undivided, while in community or communal ownership, there was no equality of shares. The members derived their security of tenure qua members of that community. The nature of that tenure would also differ depending on the status of the members. The type of tenure operative in a group ranch under the Land (Group Representatives) Act, was a tenancy in common, as opposed to a joint tenancy. Members of the group ranch were tenants in common as opposed to joint tenants.** **At common law, each co-owner was as much entitled to possession of any part of the land as the others. He could not point to any part of the land as his own to the exclusion of the others; if he could, there would be separate ownership and not co-ownership. No one co-owner had a better right to the property than another. Tenants in common held property in undivided shares. Each tenant in common had a distinct share in property which had not yet been divided among the co-tenants. The only fact which brought them into co-ownership was that they both had shares in a single property which had not yet been divided among them. Therefore, while the tenancy in common lasted, no one could say which of them owned any particular parcel of land”.** 1. This far, it is clear that the Lkuroto group ranch owns the suit land in the tenure system of Community of Ownership (Co-ownership) as opposed to communal ownership. In essence, the land in question is private land even though it is owned by the group. ***Are the petitioners entitled to a share of the suit land*** *Adjudication* 1. The petitioners are claiming the suit land averring that the adjudication and registration processes were flawed. A perusal of the document availed at page 6 of the 1st and 2nd respondents bundle, it indicates that the notice declaring the land as an adjudication section was issued on **26.4.1991** which is 31 years ago upto the time this case was filed in year 2022. During cross examination, Dw1, the Land Adjudication Officer stated that the moment an adjudication section is established, it is published through a notice. *“ This allows anyone with an interest in that land to present their claims..”* 2. Counting from the year of filing the suit, (year 2022), the petitioners contend that they came to the suit land 26 years ago, which places them on the land as from **1996**. It follows that the petitioners do not fit the description of *“ anyone with an interest in that land”*. In other words, the petitioners could not have logically been part and parcel of the adjudication process from **1991 to 1996** as they came there in 1996. Therefore, they have no basis to question the processes under which the land rights were being ascertained through the process of recording, and demarcation. 3. Further more, Lkuroto section was not the only area undergoing adjudication during the given period in Samburu County. During cross examination, Pw2 stated that *“ where we came from is a place called Marti where there is a group ranch. ……….I came to learn that the register for Mati was closed in April year 2000”.* This means that the issue of adjudication was of general notoriety in the region and was not confined at Lkuroto alone. 4. The document at page 8 of the 1st and 2nd respondents bundle indicates that the **notice of completion of the register** was issued on **24.1.2000**, this was about 4 years from the time the petitioners came to the suit land. In such a scenario, could the petitioners have in anyway participated in the adjudication process seeing that the register was closed when they were already on the suit land?. To answer the above question, I make reference to paragraph 66-78 of this judgment where I have stated that the applicable law provided an elaborate dispute resolution mechanism which had statutory safe guards that shepherded the adjudication process in the ascertainment of land rights . In particular, the provisions of Section 20 of the Land Adjudication Act provided for the functions of the Adjudication Committee in the following words; **“The committee appointed for an adjudication section shall –** **(a) adjudicate upon and decide in accordance with recognized customary law any question referred to it by the demarcation officer or the recording officer;** **(b) Advise the adjudication officer or any officer subordinate to him upon any question of recognized customary law as to which he has sought its guidance;** **(c) Safeguard the interests of absent persons and persons under disability;** **(d) Bring to the attention of officers engaged in the adjudication any interest in respect of which for any reason no claim has been made; (e) Assist generally in the adjudication process”.** 1. During cross examination, Dw1 , the Land Adjudication officer stated as follows; **“ The land adjudication Committee have the first responsibility of recording claims or interests over that land and members wishing to be included in the register can petition to the land adjudication committee for inclusion into the register.** 1. In the case of **Silverio Akubu & 4 others v Charles Baariu Salesio & 3 others [2019] eKLR,** cited in **Fatuma Adan Dullo & 4 others v Cabinet Secretary Ministry of Lands and Physical Planning & 2 others [2020] eKLR,** the court brought to the fore the importance of the adjudication committee in the following words; **“The fact that the committee members are appointed from the area residents is a clear signal that these members become the EYE and EAR of the residents. They are entrusted with the duty of shepherding the process in such a manner that they even take into account the interests of persons who are absent and they also bring to the attention of the DLASO the existence of land which has no claimants. That is not all, they have the mandate to determine disputes arising from the adjudication process”.** 1. It is pertinent to note that officers such as the demarcation, survey and recording officers had powers relating to the identification of the land which was to undergo adjudication. However, it is the Adjudication Committee appointed under section 6 of the aforementioned statute which bore the primary responsibility in determination of land rights in an adjudication section as membership of that committee was derived from the area residents. 2. I have keenly gone through the documents availed by the petitioners. None of them speak to invocation of the dispute resolution mechanism at this initial and very crucial stage of the adjudication process. Similarly, there was no reference of the subsequent dispute resolution stages such as the arbitration board, the objection stage under section 29 of the Land Adjudication Act or appeal to the minister by the petitioners as the Yare Community. 3. At paragraph 9 of his supporting affidavit, Pw1 does state that the adjudication officer declared the adjudication register as complete paving way for the objection proceedings as per their document at page 40. Dw1, the Land Adjudication Officer confirmed that indeed a total of 26 objections were lodged as per the documents at page 9 and 10 of the bundle of the 1st and 2nd respondents which is similar to the documents availed by the petitioners at page 82 of their bundle. None of those objections emanate from the Yare village Community, the petitioners herein. The said objections were lodged by individual’s. 4. It follows that indeed objection proceedings were undertaken in conformity with the prescribed law under Section 29 of the Land Adjudication Act. 5. In the case of **Lepore Ole Maito –vs- Letwat Kortom & 2 Others [2016] eKLR** cited in **John Masiantet Saeni v Daniel Aramat Lolungiro & 3 others [2017] eKLR**, the court stated as follows; **“The Land Adjudication Act, sets an elaborate procedure through which the rights and interests of all persons is to be established and once that process and procedure is followed and completed the determination of such rights and interests is final. The Act provides an appropriate mechanism for resolution of any disputes. The Minister is the apex in that dispute resolution mechanism and once an appeal is made to the Minister and determined under the provisions of Section 29 of the Act, such determination is deemed final and is not subject to any appeal. A party therefore aggrieved by the Minister’s decision can only challenge such determination by way of judicial review and not otherwise if he considers the Minister acted wrongly or exceeded his jurisdiction.** 1. Still in **John Masiantet Saeni v Daniel Aramat Lolungiro & 3 others [Supra],** the court while striking out the petition challenging adjudication process at Nkararo adjudication section in Transmara stated thus; **“The petitioner in the present case had his dispute dealt with in accordance with the provisions of the Land Adjudication Act and his appeal to the Minister was determined albeit against him. The Minister’s decision in terms of Section 29(1)(b) was final. The Director of Land Adjudication and Settlement conveyed the decision of the Minister to the Chief Land Registrar as required under Section 29(3)(b) of the Act for implementation. The instant petition is an attempt at reversing what had properly and validly been done pursuant to the provisions of the Land Adjudication Act. The petition is misconceived having been brought in total disregard of the law and in my view the same constitutes abuse of the court process. The Kenya Constitution, 2010 cannot be invoked to resurrect matters that had been duly resolved through due process such as the matter that the petitioner wishes to revive through the instant petition.” Emphasize added.** 1. I cannot agree more with the above holding. I am therefore in agreement with the proposition on the finality of an adjudication process as proffered by the 4th respondent in their submissions, particularly in the cited case of **Njagi V Thaara (supra).** Thus this court cannot entertain collateral constitutional attacks relating to a completed and lawful adjudication process. *The Register* 1. Should the petitioners have been included in the register of the members of the 4th respondent even after the closure of the adjudication process?. Dw1 stated that the document at page 52 of the 4th respondent is the adjudication record, also known as the continuation sheet which becomes the register of members and that the members can hold meetings to add or remove members because the members of the 4th respondent have a prerogative right to determine whom to include in their membership. I have keenly gone through the supporting affidavit of Pw1. It does not capture any steps undertaken by the petitioners requesting the 4th respondents to include them (Petitioners) in the register. The steps taken by the petitioners are enumerated at paragraph 15 of Pw1’s affidavit of which the petitioners are complaining to various platforms. For instance in their letter of 4.4.2021 addressed to the chairperson of Lkuroto Land Committee, the petitioners are asserting a right of ownership to the suit property where it is stated that; **“ Our clients have been in continuous and un-interrupted possession of their respective portions of land for over 25 years and as such they have the right under this Article to occupy the same in equal footing as other members of Lkuroto Community including you and others acting adversely and in infringement of this Article.”** 1. What more, the petitioners were raising their grievances rather late in the day, mostly after the title deed was issued in May 2021. 2. Notwithstanding the foregoing, some members of the petitioners community have indeed found their way in the register of the 4th respondent. To this end, Pw2 stated as follows during cross examination; *“ Some of us even managed to be in that register and I don’t know how they entered that register. So the rights of those IDPs who are in the register are equal to our rights. For instance we have Brigadier Leriari. He is in the register but he had come from Samburu North…………..* *I am aware that there were 16 members who were not in the register but were put there after they petitioned………..* *I do agree that some of our complainants in our list are also in the Lkuroto register”.* 1. This far, it becomes clear that the route to joining the 4th respondent’s register was open before and even after the adjudication register was closed which buttresses Dw1’s evidence that the continuation sheet ( the register) could be updated. For instance, Dw1 stated that in the objection proceedings, objection no 5 was for one Laurin Lewarani, but he still became a member of 4th respondent at member no 415. 2. At this juncture it is pertinent to point out that land under whichever tenure, is susceptible to be alienated including unregistered land. To this end, such land can be inherited, gifted, purchased and even stolen (through grabbing)! The petitioners made heavy weather about membership in the register of the 4th respondent including persons whose objections were dismissed instead of demonstrating the steps they undertook to be in the register. To this end, I find that the petitioners have no basis of challenging the register of the 4th respondent. *The KDF land* 1. It is pertinent to note that even under the repealed Land Group Representatives Act, the register of members of the group was not static. 2. The Petitioners have advanced a claim that they are entitled to the suit land because a 1/3 of the said land was relinguished to them by KDF. They submit that the KDF stopped using the land in 1990s, of which the community settled on the land and they then pursued the formal allocation of the land to the community. However, submissions remain persuasive arguments and they cannot replace evidence. Pw1 testified that the president made the announcement during the day when the land was given to both Yare and Lkuroto through an oral declaration but there is no document to support that claim. 3. The letter from the Chief Land Registrar dated 3.8.2000 availed by the petitioners indicate that adjudication was complete for Lkuroto adjudication section, but registration could not take place because the land had encroached on the KDF land. 4. Dw1 had stated in cross examination that “ All of KDF LAND is part of that title”. He went on to state that; **“ The office of Chief Land Registrar is the one which raised the issue of KDF land. So Chief Land Registrar could not issue a title when there was a reservation of land under KDF. So there was a degazettement of that land and the KDF land was re-allocated to Samburu North. Thereafter, Chief Land Registrar was asked to issue a title to the Group Ranch”** 1. It follows that the de-regazettement of the land was in favour of the persons who ordinarily had been in the area declared as an adjudication section as per the notice of **26.4.1991** (page 6 of the bundle of the 1st and 2nd respondents), of which the petitioners were not residents of the area by then. Thus the claim of the suit land on the basis that it was relinquished to everyone around is hollow. *Group Ranch* 1. An argument has been advanced by the petitioners that no evidence was tendered by the 4th respondent demonstrating the lawful conversion from trust land into a group ranch. Indeed no certificate of incorporation of the group was availed by the 4th respondent. However, as noted in the body of this judgment, the incorporation of the representatives comes after the ascertainment of rights and interest in land and recording of ownership under the Land Adjudication Act, of which this process had already taken place as far back as 24.1.2000. Further, the definition of the **“ Group”** under the Land Adjudication Act has been given a wide meaning as seen at paragraph 71 of this judgment. Thus it matters not that the 4th respondents assigned themselves the definition of a group ranch, the fact remains that their rights and interests in the suit land were ascertained through the laid down statutory mechanisms of the day conferring ownership of the suit land to them. It follows that the petitioners have no basis to impeach the 4th respondent’s identity as a group ranch. *Internally Displaced Persons (IDPs)* 1. The phenomenon of IDPS is not unusual in the Republic of Kenya often brought about by interclan and intercommunity conflicts fighting over resources. Recent times have seen emergence of internally displaced persons due to adverse environmental effects on land and water, examples being the displacement of people due to rising waters of Lake Baringo, Bogoria, Nakuru, Naivasha and even the Indian ocean, and not to forget such catastrophic disasters like the Maimahiu flash floods and Baringo land slides. 2. The petitioners contend that they were internally displaced from Marti and Baragoi within Samburu County due to persistent insecurity and inter community conflicts and that is how they settled on the suit land. Pw2 stated that; *“ We have rights over that Community Land because no one was born with land and everyone moved at some point. Some of us managed to be in that register and I don’t know how they entered that register. So the rights of those IDPS are equal to our rights……….”* 3. This argument does not hold, for even before the 2010 Constitution, the land tenure systems still existed. In the case of **The county Government of Meru & another v District Land Adjudication and Settlement Officer Tigania East Sub-County & 18 others [2018] eKLR,** the court cited an article*“Land Tenure Reform and changes in land use by Thomas Smucker”,* where it was stated as follows ; **“The objective of the individualization of tenure is to increase tenure security through the state sponsored adjudication of rights, thereby creating incentives for improved land management and increased productivity… Land tenure is often considered as a “bundle of rights”, indicating that the holder of tenure may possess any of a suit of use rights such as cultivation or extraction of resources (Hahn 1998). The nature of a system of land tenure relation can be categorized with reference to the breadth, duration, and assurance of rights (place et. Al. 1994). The breadth of rights refers to uses and resources and encompassed and the condition under which such use is granted. The duration of rights refers to the length of time for which tenure is granted. The assurance of rights consists of the certainty with which land use and tenure rights that are granted will not be prematurely interrupted or denied…. The current process of reform entails the adjudication of land rights to individuals… and the registration and titling of adjudicated parcels. The implications of these reforms for individual households and for changes in land-use systems continue to be of central importance to rural development in Kenya”** 1. The court in the aforementioned cited case commented as follows on the article; **“This write up aptly captures the impact of the adjudication process. The individualization of land tenure is something held dear by Kenyans, where the ultimate goal is for one to hold on to a document known as a title deed. This certainly brings about social economic dynamics in terms of increased security, easier and greater land productivity, certainty in inheritance rights and it generally reduces land conflicts”.** 1. In the case of **Fatuma Adan Dullo & 4 others v Cabinet Secretary Ministry of Lands and Physical Planning & 2 others [2020] eKLR,** the court stated that; **“As long as community land remains un-surveyed and un-demarcated, then conflicts of great magnitude will continue to thrive. This is because such land may be viewed as Res-nulliis *(it’s no body’s, it’s no one’s property, it is open access).”*** 1. As it were, the suit land is surveyed, demarcated and is registered in the name of the 4th respondent. Thus it is not any land out there, res nullis, no body’s land. 2. There is also a legal regime governing the issues of IDPS including settlement programmes set out at section 134 of the Land Act on access to land to persons displaced by natural causes and internal conflicts amongst other causes. In addition, there is also the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act Cap 134A, which requires such affected or displaced persons to be registered; See- **Mbugua (Rev) Displaced Citizen & Another V Attorney General & 5 Others (Petition 447 of 2013) (2024) KEHC 15528 (KLR) (Constitutional and Human Rights) (6 December 2024) (Judgment).** 3. There is no evidence to indicate that the petitioners have channelled their grievances through the aforementioned legal framework governing rights and interests of IDPs. 4. Thus the petitioners’ claim of entitlement to the suit land on the basis that they are IDPs is unmerited. *The concept of occupation/possession of land without legal title* 1. The occupation and or possession of land without legal title is a living phenomenon, a social reality that has existed since time immemorial. In the case of **Waitiki v Kenya Power & Lighting Co. Limited (Environment & Land Case 87 of 2012) [2022] KEELC 13795 (KLR) (12 October 2022) (Judgment) Neutral citation: [2022] KEELC 13795 (KLR )** the court sought the legal terminologies of 'Possession', 'Ownership' and 'Occupation' in the Blacks Law Dictionary where the definitions were given as follows; **“ Possession' 'The fact of having or holding control of property in one’s power; the exercise of dominion over property. The right under which one may exercise control over something to the exclusion of all others'.** **'Ownership' means 'The bundle of rights allowing one to use, manage and enjoy property including the right to convey it to others. The right to possess a thing regardless of any actual or constructive control'.** **'Occupation' means 'Possession, control, or use of real property. The seizure and control of a territory or property”.** 1. There are various methods or routes in which a person, a group or a community can occupy land without title including but not limited to the following; Conquest; In mediaeval times, occupation/possession of land without title was manifested mainly through conquest and brutal force giving rise to powerful empires such as the Roman, the Byzantine (the latter eastern Roman empire) and the Ottoman empires. Colonialism; The 15th century birthed the “ era of colonization” also known as the “*age of discovery*” where voyages of Vasco da Gama, Christopher Columbus and the likes enabled European powers to establish far flung overseas protectorates and colonies; for instance, the French colonial powers and military prowess in the pacific region led to annexation of New Caledonia leading to displacement and loss of land of the indigenous Kanak community, The British had their foot prints in almost all corners of the globe including such remote areas as the island of Tristian da cunha and saint Helena in the Atlantic, while Spanish empire conquered powerful indigenous states in Latin America. The Republic of Kenya was not spared in the feverish quest for prime lands and strategic military and trade points which saw the Portuguese and later the Omans taking control over much of the modern day coast of Kenya, while the British Government exercised control over the inland Kenyan territory through what was termed as a protectorate. The end result, massive takeover of indigenous land by the colonialists. Invasion; This is yet another mode of occupation of land by none owners, usually manifested in the sporadic informal settlement on any unoccupied land, regardless of whether it is public, private or community land. A classic examples are the South African cases of ;1) **Government of South Africa v Grootboom , Case CCT 11/00, 4th October 2000** where about 900 impoverished people living in an informal settlement known as wallacedene were frustrated by lack of housing, thus they occupied nearby privately owned land known as New Rust. 2) The second case is that of **President of the Republic of South Africa v Modderklip Boerdery ( Pty) Ltd** where thousands of informal settlers unlawfully occupied a privately owned farm known as Modderklip. The land owner obtained a court order for their eviction, but this could not be done due to the scale of occupation, thus the land owner was compensated by the government. Closer home, the issue of invasion of public, private, community and even riparian land is the bane of existence of numerous communities in the Republic of Kenya which has led to an avalanche of litigation, the leading cases include; **Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) (Judgment)** concerning occupation of public land ( under the management of Kenya Ports of Authority) by informal settlers of Mitumba village and **Satrose Ayuma & 11 others v Registered trustees of the Kenya Railways Staff retirement benefits scheme& 3 others [2015] eKLR** where the petitioners were residents of Muthurwa estate in Nairobi and had lived on the estate for many years without legal title but the land owners, the Kenya Railways Staff Retirement Benefits Scheme desired to develop the land. The petitioners did not get the legal title over the land, but the state was directed to undertake legislative and policy measure on forced evictions and demolitions. Also see **Moi Education Centre Co. Ltd v William Musembi & 16 others [2017] Eklr.** During the 1997 Likoni clashes, people in their thousands invaded and occupied a farm know as Waitiki, informally divided the same, and settled there. After years of litigation, the Government of Kenya acquired the land, compensated the registered owner while apparently regularising the occupation of the informal settlers. The aforementioned invasion has been captured in several decisions including **Waitiki v Kenya Power & Lighting Co. Limited ( Supra).** Adverse possession; This is a none permissive occupation/ possession of land by a person who has no legal title, but the claim can mature into legal title through the doctrine of adverse possession after meeting the requisite criterias. The houses without land; This is another distinctive characteristic of land tenure system mainly found at the coast of kenya. The phenomenon is rooted in the historical take over and registration of coastal lands by persons of European and Arab origin. The indigenous coastal communities were permitted to build houses on these lands without acquiring ownership. **Permissive occupation/possession of land.** This method may manifest itself in various forms including but not limited to 1) customary permissive occupation as well as 2) A licence. Under customary permissive occupation, many Kenyan communities practiced and still do embrace this tenure system whereby a person or group of people could be allowed to occupy another person’s land with the consent of the owner under usufructuary rights ; See; the writings **of Eugen Cotran on Restatement of African Law.** In this arrangement the occupier’s rights were permissive and not hostile to the owners title . Such rights arose from but not limited to kinship, social obligation and even friendship. In regard to licences, parties do enter into formal or informal agreements in which one party allows another to occupy and use land with or without consideration. The county councils of yester years and their successors have been issuing what is commonly known as Temporary Occupational licences (TOLs) to put up kiosks, market stalls, small scale industries and even grazing grounds. 1. I have taken the route of interrogating the above concept of occupation of land without title in order to discern in which category the petitioners could fall under. It is however pertinent to note that whereas the above scenarios have the potential to crystalize the occupation of land into rights of ownership, in the Kenyan context, the progression of such rights has to be anchored through a known legal regime including Government resettlement programmes, formalization and regularization of occupation, offers of transfers with or without consideration etc. 2. The petitioners aver that when they came to the suit land they were welcomed by their brothers. It is not clear whether the “ brothers” were their actual kinsmen or the term refers to the respondents. Which ever the case, the petitioners were allowed to settle there. I therefore come to the conclusion that the petitioners fall under the permissive occupation/possession of land without legal title under customary tenure system. 3. It is quite apparent that the petitioners did not integrate with the members of the 4th respondent, and they occupy just small portions of the suit land. It follows that their tenure terms on the suit land did not at any one time progress to status of ownership. In that regard, the petitioners cannot assert a claim of ownership on the basis off occupation of the suit land. **The rendition** 1. Are the petitioners entitled to any land taking into account the analysis made so far? The 4th respondent contends that the petitioners are not their members, that such membership is established through lawful process and reflected in membership register and is not inferred from residence, vulnerability or historical association. 2. In the case of o **Manase Guyo & 260 others v Kenya Forest Services [2016] eKLR,** cited in **Taireni Association of Mijikenda v North Witu Ranching Limited & 9 others; Kipini Wildlife and Botanical Conservatory Trust & 3 others (Interested Parties) (Petition E13 of 2020) [2023] KEELC 18778 (KLR) (10 July 2023) (Judgment) Neutral citation: [2023] KEELC 18778 (KLR)**, it was stated that; **“The right to enjoyment and acquisition of property is recognized under Article 40 of the Constitution of Kenya, 2010 . However, in order to claim a breach of the right to property a Petitioner has to clearly demonstrate the manner in which such property is acquired. The authors of Halsburys Laws of England, 4th Edition (Re-issue) Volume 8(2) paragraph 165 noted at page 25 “25. the protection under the Constitution of the right to property does not obtain until it is possible to lay claim in the property concerned…an applicant must establish the nature of his property right and his right to enjoy it as a matter of domestic law.** 1. While in **Musembi & 10 others (Suing on Their Own Behalf and on Behalf of 326 Persons Formerly Residing in City Cotton village and Upendo City Cotton Village and Their 90 School Going Children) & Margaret Kanini Keli & 2 others (Suing on their Own Behalf and on Behalf of 15 Residents of Upendo City Cotton Village at South C Ward, Nairobi) (Petitioners) v Moi Educational Centre Co. Ltd & 4 others (Respondents) (Petition 2 of 2018) [2021] KESC 50 (KLR) (Civ) (16 July 2021) (Judgment) William Musembi 13 others v Moi Educational Centre Co. Ltd & 3 others [2021] eKLR Neutral citation: [2021] KESC 50 (KLR)**, the Supreme Court of Kenya stated as follows; **“The Court of Appeal, whose Judgment embodied the generalities of the doctrine of progressive realization as pronounced in General Comment No. 4 of the CESCR, correctly held that it was the responsibility of the State to ensure that the rights guaranteed in Article 43 of the Constitution are realized progressively. The obligation to ensure the rights of Petitioners under Article 43 thus fell on the State, and that the State is imbued with the duty to ensure that these rights were realized, in consideration of prevailing circumstances such as the availability of resources, or the implementation of policy and structural programs to ensure that the rights are realized.”** 1. This far, it becomes clear that the 4th respondents cannot be compelled by this court to share the suit land with the petitioners who are none members of the Lkuroto group ranch since Article 40 protects legally recognized property rights. 2. It is apparent that the members of the 4th respondents had obtained the consent to subdivide their land so as to transition to individual ownership and this appears to have triggered an avalance of meetings where the grievances of the petitioners were discussed. In one of those meetings, ( see page 76 of the 4th respondents bundle), the 4th respondents made an offer of ½ an acre captured in the following words; **“ In regard to the dispute, the meeting was informed that Lkuroto representatives had settled for the offer of ½ acre after considering other options. They visited the Yare area to identify the beneficiaries but tension arose in the area. They however identified members of Yare who were willing to accept the offer and documented them. Lkuroto members added that their offer of ½ acre still stands with all widows and married sons of Yare members to be considered each individually. That none of them will be displaced from their current occupation to safeguard their developments.”** 1. The response from the petitioners was captured as follows; **“ In a quick rejoinder the Yare members insisted that no one communicated to them the ½ acre offer, adding that their members occupy one (1) acre and below, besides, the Lkuroto committee reduced the number of their members from 216 for consideration in the subdivision. They added that the ½ acre offer is not acceptable to them since its not enough. In their demand they insisted that they must get equal shares as Lkuroto members and that everyone above 18 years married or not must be considered for individual share. However one of their representatives supported the offer urging his colleagues to accept it.”** 1. And the rejoinder from the 4th respondent was that Lkuroto members said their offer was final and are ready to include any one from Yare who is willing to accept it. Their offer is also extended to other non members living within the Ranch most of whom have already accepted it. They reiterated that, the register cannot be open to none members at this time. They rejected the demand by Yare members for inclusion of everyone 18 years and above saying this would cause a bigger problem with their sons who are of the same age whom they have agreed not to be included in the list of beneficiaries as they will benefit from their parents shares. They added that besides this, the Yare members are still going to benefit from allocation of the trading center land set aside under the County Government. 2. It is clear beyond peradventure that this is a matter which could have benefited immensely from an alternative justice system, of which this court did beseech the parties to consider out of court discussions, but the move was not successful. The petitioners appear to have taken a hard stance, so much so that they even want their adult children to be considered in the share of the land, yet for the 4th respondent, the membership is as per families. 3. Nevertheless, I find that the offer apparently made by the 4th respondent was not withdrawn after the meeting of 19.11.2021. In the book; “**Constitutional Law, Doctrines and the Litigation of Fundamental Rights and Freedoms** **by Isaac Lenaola and Arnold Ochieng Oginga,”** the authors had this to say albeit on the issue of evictions; **“ Persons occupying land with at least a plausible belief that they have permission to be there can be looked at with far greater sympathy than those who deliberately invade land with a view to disrupting the organized housing programme and placing themselves at the front of the queue.”** 1. Whether it was out of sympathy, concerted negotiations, persuasions or whatever other reasons that drove the 4th respondent into making the offer of sharing some land with the petitioners, the fact remains that this is the only route in which the petitioners can acquire legal ownership of the land. The court is not able to fashion any other remedies beyond what was offered by the 4th respondent. As such, I proceed to grant final orders as follows; 2. **The prayers sought in the Petition dated 2.3.2022 are hereby dismissed.** 3. **However, based on the offer made by the 4th respondent, I hereby grant an order that each member of the petitioner is to get a share of the suit land to the tune of ½ an acre. The list to be used is the one availed by the petitioners marked as “ YARE 1” consisting of 238 members. However persons who are members of the respondents as well as persons who do not reside on the suit land are to be excluded from the share of the land even if they are in the list of the 238 persons.** 4. **The petitioners are condemned to pay the costs of the suit.** **DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 8TH DAY OF JULY 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** **Nancy Mwangi – C/A** **M/s Msando for petitioners** **Mr. gikuhi Chege for 4th respondent** **Other parties absent**