https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2934

Maina (Suing as the Administrator of the Estate of Kitur Arap Koech) & another v County Government of Kericho & 2 others (Environment and Land Petition E006 of 2025) [2026] KEELC 2934 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELC 2934 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Petition E006 of 2025 LA Omollo, J May 14, 2026 IN THE MATTER OF ARTICLES 2, 3, 10, 27, 40, 50, 62, 64, 67, 162(1), (B), 165 , 179, 180, 183 AND 259(1) & (3) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION, VIOLATION & FRAGRANT ABUSE OF THE CONSTITUTION, SPECIFICALLY ARTICLES 2, 3, 10, 27, 40, 50, 62, 64, 67, 179, 180, 183 AND 259 OF THE CONSTITUTION AND IN THE MATTER OF THE LAND ACT NO. 6 OF 2012, THE LAND REGISTRATION ACT NO. 3 OF 2012, THE COUNTY GOVERNMENTS ACT NO. 17 OF 2012, THE PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT, 2015, THE LEADERSHIP AND INTEGRITY ACT, 2012 AND THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015 AND IN THE MATTER OF ARTICLE 75 OF THE CONSTITUTION OF KENYA, THE REGISTERED LAND ACT CAP 300 AND THE LAND ACQUISITION ACT CAP 295 (REPEALED) Between Alice Chepkurui Maina (Suing as the Administrator of the Estate of Kitur Arap Koech) 1st Petitioner David Kibet Mibei (Suing as the Administrator of the Estate of Kitur Arap Koech) 2nd Petitioner and County Government Of Kericho 1st Respondent Dr Erick Kipkoech Mutai (The Governor County Government of Kericho) 2nd Respondent The National Land Commission 3rd Respondent Judgment Introduction. 1.The Petitioners commenced the present proceedings vide the Petition dated 19th June, 2025. 2.The Petitioners aver that they are the administrators of the estate of Kitur Arap Koech (Deceased) and they were issued with letters of administration on 8th May, 2025. 3.The Petitioners also aver that Kitur Arap Koech (Deceased) was the registered proprietor of land parcel No. Kericho/Nyamanga/240 which measures 8.5 acres. 4.The Petitioners further aver that the family of the deceased was in uninterrupted possession of the suit parcel of land until the year 2005, when the Bureti County Council, the predecessor to the 1st Respondent, trespassed on the land and took possession of a two-acre portion under the guise of compulsory acquisition. 5.It is their averment that Bureti County Council thereafter constructed a Level 2 Public Health Facility known as Cheboin Dispensary in the same year. 6.It is also their averment that on 12th January, 2006, the Bureti County Council registered a caution on the suit parcel of land which restrained them from conducting any dealings on the land despite having a legitimate interest in it. 7.It is further their averment that the forcible takeover and alleged acquisition of the two-acre portion of the suit parcel of land was in contravention of Article 40 of the Constitution of Kenya and Sections 111 to 133 of the Land Act. 8.The Petitioners aver that the said acquisition is unconstitutional, illegal, null and void. 9.The Petitioners also aver that over the years they have attempted to assert their Constitutional right under Article 40 of the Constitution of Kenya but their efforts have been met with either empty promises or outright dismissal. 10.The Petitioners further aver that in their quest for justice, the 2nd Petitioner was arrested three times and detained at Litein Police Station. 11.It is their averment that even though the 2nd Petitioner was arrested, no charges were preferred against him and he has never been arraigned in Court. 12.It is also their averment that the failure to charge him confirms that the arrests were a form of intimidation and a misuse of state machinery in an attempt to dissuade them from their cause. 13.It is further their averment that in early 2025, the 2nd Respondent stated that he intended to upgrade the said facility to a Level three hospital. 14.The Petitioners aver that they were frustrated by the said declaration and they were compelled to re-enter the suit property. 15.The Petitioners also aver that they cultivated the land and resumed agricultural activities therein which resulted in the closure of the health facility. 16.The Petitioners further aver that this caught the attention of the 1st and 2nd Respondents who convened a meeting with them. 17.It is their averment that they in good faith reluctantly agreed to engage in negotiations despite the persistent injustice that has spanned over two decades. 18.It is also their averment that they held a meeting and the agents of the 3rd Respondent were present. 19.It is further their averment that the 1st and 2nd Respondents acknowledged that the occupation of the suit property by the 1st Respondent’s predecessor was unlawful. 20.The Petitioners aver that the 1st and 2nd Respondents stated that they would be fully compensated for the loss that was occasioned. 21.The Petitioners also aver that minutes of the said meeting were taken and they confirm that the said statements were made. 22.The Petitioners further aver that at the conclusion of the meeting, one Japheth Cheruiyot, the 1st Respondent’s agent stated that a solution had been reached and the issue would be acted upon expeditiously. 23.It is their averment that the 1st and 2nd Respondents sentiments were disingenuous pledges which were a ploy to pacify them as they remain unexecuted. 24.It is also their averment that the Respondents have not made any effort to regularize the unlawful acquisition. 25.It is further their averment that the Respondents tried to survey the suit parcel of land and yet they are aware that the land is private property. 26.The Petitioners aver that the Respondents intention to develop and upgrade the health facility to a level three hospital and their attempts to resurvey the property has made them apprehensive that the Respondents with the aid of governmental power and machinery, may at any time forcefully trespass onto the suit parcel of land and take over. 27.The Petitioners aver that their rights under Articles 2(1) & (3), 10(2)(d), 20(1) & (2), 21, 40 (1) & (3), 47, 50, 64, 67 & 232 of the Constitution of Kenya and Section 75 of the Land Acquisition Act Cap 295 (Repealed) have been infringed. 28.The Petitioners seek the following orders;a.A declaration be and is hereby issued that the property known as Kericho/Nyamanga/240 is a private property owned by the estate of the late Kitur Arap Koech (deceased) which the Petitioners herein administer.b.A declaration be and is hereby issued that the Respondents herein, have breached the Petitioners’ constitutional rights to acquire and own property as guaranteed by Article 40 of Constitution of Kenya, 2010.c.This Honourable Court be pleased to issue a permanent injunction restraining the Respondents, their agents or assigns from further trespassing, surveying, resurveying, invading, encroaching, creating access roads or in any manner whatsoever dealing with the Petitioner’s parcel of land known as Kericho/Nyamanga/240.d.In the alternative, this Honourable Court be pleased to issue an order that the 1st and 2nd Respondents promptly compensate the estate of the deceased Kitur Arap Koech at the current market value.e.Exemplary, Punitive and general damages.f.An order for costs. The Petitioners Contention. 29.The Petition is supported by the affidavit of David Kibet Mibei the 2nd Petitioner that is sworn on 19th June, 2025. 30.He contends that he has the authority of his Co-Petitioner to swear the affidavit. 31.He also contends that he is the son of Kitur Arap Koech (Deceased) and one of the two administrators of his estate and goes on to state that he and the 1st Petitioner were issued with a Grant of Letters of Administration with respect to his estate. 32.He reiterates the averments in the Petition and contends that if the 2nd Respondent’s intended actions are left unchecked; his actions will further entrench the illegal acquisition and occupation of the suit parcel of land. 33.He also reiterates that the 2nd Respondent’s actions are a blatant violation of his (2nd Petitioner) proprietary rights as provided for under Article 40(1) of the Constitution of Kenya. 34.He further reiterates that a meeting was held with the Respondents on 13th February, 2025. 35.He contends that after the meeting, the 1st Respondent published a Statement on their official Facebook Page which in part reads as follows;“After a closed-door meeting with the family, the officials announced in a joint statement that an agreement had been reached. While the County government works to resolve the raised concerns within the agreed timelines, service delivery at the dispensary will continue uninterrupted. This resolution is crucial, as the facility serves over 2,000 households in the area.” 36.It is his contention that a video was uploaded which showed the sentiments made after the said meeting which video he downloaded. He goes on to state that he took a screenshot of the statement made on Facebook to ensure that its integrity was guaranteed. 37.He reiterates that the 1st and 2nd Respondents sentiments were disingenuous and they remain unexecuted to date. 38.He further reiterates the averments in the Petition and contends that the compulsory acquisition of their land, without regard to due process and just compensation, amounts to land grabbing under the guise of public development. 39.It is his contention that this is an affront to the principles of accountability, equity and the rule of law as enshrined in Articles 10 and 40 of the Constitution of Kenya. 40.It is also his contention that he is advised by their advocates on record, that the illegal entry and trespass by the 1st and 2nd Respondents amounts to unlawful acquisition and it is meant to restrict and deprive them from the beneficial use and enjoyment of the suit parcel of land. 41.It is further his contention that he has been advised by his advocates on record, that the only way the 1st and 2nd Respondents can acquire the suit parcel of land is through compulsory acquisition under Sections 107 to 133 of the Land Act. 42.He contends that the 1st and 2nd Respondents and their predecessors did not act in accordance with the constitutional and legal framework of compulsory acquisition. 43.He also contends that the 3rd Respondent was not consulted and/or involved by the 1st and 2nd Respondents before they forcefully took possession of the land. 44.He further contends that if the suit parcel of land is compulsorily acquired, then they would be entitled to reasonable and prompt compensation upon valuation of the property. 45.It is his contention that all the illegal and unconstitutional acts occurred under the watch of the 2nd Respondent who is the Chief Executive Officer of the 1st Respondent. 46.He ends his deposition by stating that it is in the interest of justice that the Court restrains the Respondents from continuing the illegal occupation of the suit parcel of land. The 1St And 2Nd Respondents Response. 47.In response to the Petition, the 1st and 2nd Respondents filed a Replying Affidavit sworn by Richard Tanui the acting County Secretary and Head of County Public Service of the 1st Respondent on 15th October, 2025. 48.He deposes that he is authorized by the 1st and 2nd Respondents to swear the affidavit. 49.He also deposes that in the year 1971, Kitur Arap Koech (Deceased), the registered owner of the suit parcel of land donated it to the Bureti County Council, the then local authority and predecessor to the 1st Respondent, for the establishment of a health center to serve the members of the public. 50.He further deposes that in the same year, the Bureti County Council together with the Bureti Constituency Fund Office took possession of the suit parcel of land and constructed Cheboin Dispensary which is a health facility. 51.He further deposes that at the time of institution of the present petition, a period of fifty-four years had lapsed. He goes on to state that the Petitioners claim of trespass contravenes Section 7 of the Limitation of Actions Act. 52.It is his deposition that the Petitioners have only filed the present Petition upon learning that there were plans to upgrade the health facility to a Level Four Facility. 53.It is also his deposition that even though the suit parcel of land is registered in the name of Kitur Arap Koech (Deceased), it is public land and it belongs to the 1st Respondent. 54.It was further his deposition that the Respondents have not in any way interrupted the Petitioners possession of the suit parcel of land and neither have they trespassed on a two-acre portion of it. 55.He deposes that the Health Facility occupies half an acre of the suit parcel of land and he goes on to state that the Heath Facility consists of a permanent building, parking and a waiting area. 56.He also deposes that upon acquisition of the suit parcel of land by the 1st Respondent, neither the registered owner nor his family raised any objection save for the year 2005 when the Petitioners unlawfully dug the health facility compound thereby obstructing members of the public from seeking medical care. 57.He further deposes that since the Petitioners were threatening to interfere with the possession of the suit parcel of land, the then District Commissioner registered a caution to restrain them from undertaking any dealings on the land. 58.It is his deposition that the Petitioners are bringing their claim too late in the day. He goes on to state that their claim is unfounded, baseless and adds that the Petitioners are peddling falsehoods before the Court in an attempt to mischievously obtain compensation. 59.It is also his deposition that the minutes attached to the affidavit in support of the Petition do not reflect the true position of the meeting that was held by the County, the Petitioners and members of the public. 60.It is further his deposition that the office of the County Commissioner convened the meeting after members of the public raised an alarm over the disruptions of the operations of the health facility which serves about 2000 residents of Cheboin ward. 61.He deposes that the Petitioners have failed to demonstrate how the Respondents have infringed their constitutional rights. He goes on to state that public interest outweighs the private interest of the Petitioners. 62.He also deposes that the Respondents are custodians of public land. He goes on to state that granting the prayers sought in the Petition will have a draconian effect on the protection and preservation of public land. 63.He ends his deposition by stating that the Petition is defective, brought in bad faith, is an abuse of the Court process and ought to be dismissed with costs. The Petitioners Response To The 1St And 2Nd Respondents Replying Affidavit. 64.In response to the 1st and 2nd Respondents Replying Affidavit, the Petitioners filed a Supplementary Affidavit sworn by the 2nd Petitioner on 18th October, 2025. 65.He deposes that Kitur Koech (Deceased) was registered as the owner of the suit parcel of land on 18th May, 1967 and adds that the 1st Respondent registered a caution on the land on 12th January, 2006. 66.He reiterates the averments in the Petition, the affidavit in support of the Petition and deposes that the registered owner of the suit parcel of land did not in his lifetime donate it to the Bureti County Council. 67.It is his deposition that if at all the land was donated, the 1st Respondent would have transferred it to its name and therefore the land cannot be deemed to have been donated. 68.It is also his deposition that the 1st Respondent has not adduced any evidence to show that the suit parcel of land was donated. 69.It is further his deposition that there is a laid-out procedure for compulsory acquisition of private land for public use which procedure the 1st and 2nd Respondents did not follow. 70.He deposes that on 3rd October, 2025 they engaged the services of Primeland Appraisal Limited, valuers and property consultants to value the property and ascertain the loss they continue to suffer as a result of the encroachment. He goes on to state that a valuation was done and it was found that they (Petitioners) ought to be paid Kshs. 16,060,000/= and annual rent of Kshs. 1, 230,000/=. 71.He also deposes that the said sum of money needs to be calculated from the time the 1st Respondent trespassed onto the suit parcel of land. 72.He reiterates that the entire parcel of land measures 8.5 acres and the Respondents have encroached on a 2.08-acre portion and goes on to state that Respondents ought to compensate them for violation of their right to property. 73.He ends his deposition by stating that he has been advised by his advocates on record that violation of rights cannot be tied to the shackles of the Limitation of Actions Act. He goes on to state that this was the finding of the Court in Chief Land Registrar & 4 Others vs Nathan Tiro Koech & 4 Others [2018] eKLR. Issues For Determination. 74.The Petitioners filed submissions on 22nd October, 2025 while the 1st and 2nd Respondents filed submissions on 21st January, 2026. 75.The Petitioners submit on the following issues;a.Whether the Respondents by way of compulsory acquisition, acquired the Petitioners parcel of land known as Kericho/Nyamanga/240.b.Whether the constitutional rights of the Petitioners have been infringed, breached and/or violated.c.What quantum of damages should be awarded to the Petitioners for the breach of their rights by the Respondents. 76.On the first issue, the Petitioners rely on Article 40 of the Constitution of Kenya, Sections 24, 25 and 26(1) of the Land Registration Act and submit that they have attached a copy of a Certificate of Official Search of the suit parcel of land to the affidavit in support of the Petition that shows that Kitur Arap Koech (Deceased) is the registered owner of the suit parcel of land. 77.It is the Petitioners submissions that the only lawful way of acquiring the suit parcel of land would be through compulsory acquisition which procedure should comply with Article 40(3) of the Constitution of Kenya, 2010. 78.It is also the Petitioners submissions that the provisions of the Land Acquisition Act (repealed) was applicable at the time the Respondents allegedly acquired the land. 79.The Petitioners rely on Section 3 of the Land Acquisition Act, the judicial decisions of General v Zinj Limited (Petition 1 of 2020) [2021] KESC 23 (KLR) (3 December 2021) (Judgement), Patrick Musimba vs National Land Commission & 4 Others [2016] eKLR and submit that there is no gazette notice showing the Respondents intention to acquire the suit parcel of land and neither were they issued with any notice. 80.The Petitioners rely on Section 8 of the Land Acquisition Act (repealed) and submit that they have not been compensated for the Respondents possession of the suit parcel of land since the year 2005. 81.The Petitioners rely on Sections 107, 110 & 112 of the Land Act, the judicial decision of Juma Wacike & 11 Others vs Ministry of Interior and Co-ordination & another [2022] eKLR and while reiterating that the Respondents did not follow the requisite procedure for compulsory acquisition of land, submit that the suit parcel of land was grabbed. 82.The Petitioners rely on the judicial decision of Evelyn College of Design Ltd vs Director of Children’s Department & another [2013]eKLR and submit that the suit parcel of land is private land which has never been acquired by the government. 83.The Petitioners also submit that the Respondents have trespassed onto the suit parcel of land and have violated their right to property as provided for under Article 40(3)(a) and (b) of the Constitution of Kenya. 84.The Petitioners rely on the judicial decision of Wilfred Juma Wasike & 11 Others vs Ministry of Interior and Co-ordination & another [2022] eKLR and submit that Article 40 of the Constitution of Kenya prohibits the state from depriving a person property of any description unless the land is acquired for the benefit of the public. 85.It is the Petitioners submissions that if the Respondents acts are left unchecked, they will further violate Article 40(3) of the Constitution as they are using their (Petitioners) property without paying any compensation. 86.It is also the Petitioners submissions that the Respondents decision to upgrade the facility to a level 3 hospital without according them a fair hearing, violates their rights as provided for under Articles 50 and 47 of the Constitution of Kenya. 87.It is further the Petitioners submissions that the Respondents have through their brazen acts of impunity contravened the provisions of Article 64 of the Constitution. 88.The Petitioners rely on Article 23 of the Constitution and urge the Court to allow the prayers sought in the Petition as they have demonstrated the violation of their right to own property. 89.On the second issue, the Petitioners submit that it is not disputed that the 1st and 2nd Respondents trespassed onto the suit parcel of land and constructed a public health facility. 90.The Petitioners also submit that the Respondents have been in possession of a portion of the said parcel of land for over two decades. 91.The Petitioners further submit that it is evident that the Respondents did not follow the due process and/or observe the rules of natural justice in taking possession of the land. 92.The Petitioners rely on the judicial decision of Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR as was cited in Wilfred Juma Wasike & 11 Others vs Ministry of Interior and Co-ordination & another [2022] eKLR, John Chumia Nganga vs Attorney General & another [2019] eKLR, Attorney General vs Zinj Limited (Petition 1 of 2020) and submit that the Court should award them Kshs. 100,000,000/= (one hundred million shillings) as general damages for trespass as they have been deprived off the suit parcel of land for over two decades. 93.The Petitioners rely on the judicial decisions of Rahinkhan Afzalkhan Rahimkhan & 4 Others vs Chief Land Registrar & 2 Others (citation not given), Mombasa West Limited vs National Land Commission & 2 Others [2022] eKLR and submit that the Court should award them exemplary damages of Kshs. 50,000,000/= taking into consideration that the Respondents are public servants and their actions were opaque, clandestine and egregious. 94.It is the Petitioners submissions that the suit parcel of land is a prime commercial property and they should therefore be awarded special damages of Kshs. 40,660,000.00 as itemized below;a.Open market value – Kshs. 16,060,000.00/=b.Land (part measuring 2.08 acres) – Kshs. 12,489,000.00/=c.Developments and site work – Kshs. 3,580,000.00Total – Kshs. 16,060,000.00/=Annual rent; 1,230,000 x 20 years of occupation = Kshs. 24,600,000.00Grand Total: Kshs. 40,660,000.00 95.The Petitioners reiterate that they should be awarded Kshs. 100,000,000.00 (One Hundred Million) as general damages, Kshs. 50,000,000.00 (Fifty Million) as exemplary damages and Kshs. 40,660, 000 (Forty Million Six Hundred and Sixty Thousand) as special damages. 96.The Petitioners conclude their submissions by urging the Court to allow the prayers sought in the Petition as prayed. 97.The Respondents submit on the following issues;a.Whether the Petitioners have established a prima facie constitutional claim under Article 40 of the Constitution.b.Whether the alleged cause of action is time barred.c.Whether the Respondents acted lawfully and in public interest in the occupation and utilization of the suit land.d.Whether the Petitioners are entitled to the relief’s sought. 98.The 1st and 2nd Respondents reiterate that the suit parcel of land was donated to the Bureti County Council in the year 1971 for the establishment of Cheboin Dispensary. 99.The 1st and 2nd Respondents submit that under Article 40(3) of the Constitution of Kenya, private land can be acquired for a public purpose. 100.The 1st and 2nd Respondents also submit that they have demonstrated that there has been continuous uninterrupted use of a portion of the suit parcel of land for a dispensary. 101.The 1st and 2nd Respondents further submit that the dispensary has served the local population for decades and the long-standing use of the portion of the suit parcel of land for public service satisfies the public interest requirement under Article 40(3)(b) of the Constitution of Kenya. 102.The 1st and 2nd Respondents rely on the judicial decision of Patrick Musimba vs National Land Commission (citation not given) in support of their submissions. 103.The 1st and 2nd Respondents reiterate that the Petitioners claim is statute barred and they cannot rely on constitutional remedies to revive a stale cause of action that dates back over five decades. 104.It is the 1st and 2nd Respondents submissions that the Petitioners contend that their right to a fair administrative action under Article 47 of the Constitution was infringed. 105.It is also the 1st and 2nd Respondents submissions that they engaged with the Petitioners family including meetings convened by the District Commissioner once public services were disrupted. 106.It is further the 1st and 2nd Respondents submissions that administrative actions that impact public facilities used by a large community involve the balancing of public and private interests. 107.The 1st and 2nd Respondents submit that Courts have recognized that not every procedural lapse amounts to an unfair administrative action. 108.The 1st and 2nd Respondents also submit that the Petitioners have not adduced any evidence to show that the Respondents denied them access to information and/or opportunities to be heard. 109.The 1st and 2nd Respondents rely on the judicial decisions of Export Milling Zone (EPZ) Ltd v H. Young & Co. (EA) Limited & 2 Others (Environment & Land Case 85 of 2018) [2024] KEELC, Odhiambo vs Kenya Railways Corporation & 2 Others (Environment and Land Case Civil Suit 438 of 2018) [2024] KEELC 7061 (KLR) in support of their submissions. 110.The 1st and 2nd Respondents submit that there is no evidence of the registered donation. 111.The 1st and 2nd Respondents also submit that the Petitioners contend that the alleged unlawful acquisition took place in the year 2005 while on the other hand they contend that the land was donated in the year 1971. 112.The 1st and 2nd Respondents further submit that the Petitioners admit to the long-standing public use of a portion of the suit parcel of land which was not challenged until recently. 113.It is the 1st and 2nd Respondents submissions that the Court should not grant the injunctive orders sought because public interest requires continuity of provision of essential services in rural areas. 114.It is also the 1st and 2nd Respondents submissions that Courts should be slow to frustrate improvements to public infrastructure in instances where Respondents can demonstrate lawful stewardship of public land and services. 115.It is further the 1st and 2nd Respondents submissions that the Court should not grant the prayer for exemplary and punitive damages as the suit parcel of land was donated for community use and the Petitioners have not established oppressive and egregious conduct. 116.The 1st and 2nd Respondents conclude their submissions by urging the Court to dismiss the petition with costs. Analysis and Determination 117.After considering the Petition, the response thereto, the supplementary affidavit and the rival submissions, it is my view that the following issues arise for determination;a.Whether the jurisdiction of this Court was properly invoked.b.Whether the Petitioners are entitled to the orders sought in the Petition.c.Who should bear the costs of the Petition. A. Whether the jurisdiction of this Court was properly invoked. 118.The Petitioners contend that they are the legal representatives of the estate of Kitur Arap Koech (deceased) the registered owner of land parcel No. Kericho/Nyamanga/240. 119.The Petitioners also contend that in the year 2005, Bureti County Council, the 1st Respondent’s predecessor trespassed onto a two-acre portion of the suit parcel of land and established a health facility known as Cheboin Dispensary. 120.It is the Petitioners contention that on 12th January, 2006 the Bureti County Council registered a caution on the suit parcel of land. 121.It is also the Petitioners contention that they have over the years tried to resolve the said issue and assert their Constitutional rights under Article 40 of the Constitution but their efforts bore no fruits. 122.It is further the Petitioners contention that the Respondents did not follow the requisite procedure before taking possession of a portion of the suit parcel of land. 123.The Petitioners therefore contend that their right to property as provided for under Article 40(1) of the Constitution has been infringed. 124.The 1st and 2nd Respondents on the other hand contend that in the year 1971, Kitur Arap Koech (deceased) donated the suit parcel of land to the Bureti County Council for the establishment of a health facility. 125.The 1st and 2nd Respondents also contend even though the land is still registered in the name of Kitur Arap Koech (deceased), it is public land and they are therefore not trespassers. 126.The 1st and 2nd Respondents further contend that the health facility serves members of the public and that the Petitioners claim is statute barred. 127.On one hand the Petitioners contend that the Respondents trespassed onto the suit parcel of land in the year 2005 while on the other hand, the 1st and 2nd Respondents contend that the suit parcel of land was donated by Kitur Arap Koech (deceased) to the Bureti County Council. 128.Among the documents attached to the affidavit in support of the Petition is a copy of a Certificate of Official Search dated 18th February, 2025 for land parcel No. Kericho/Nyamanga/240. It shows that the said parcel of land measures 8.5 acres. Entry No. 1 is dated 18th May, 1967 and it shows that the suit parcel of land was registered in the name of Kitur Koech (Deceased). 129.The Certificate of Official Search also shows that on 12th January, 2006, a caution was registered that prohibited any dealings without the consent of the Bureti County Council. 130.A black and white photograph of Cheboin dispensary has also been attached. 131.A copy of handwritten minutes of a meeting held on 13th February, 2025 have been attached. The agenda of the meeting is stated to be a Land Dispute. The minutes are copied on a grey colored document and the handwriting is for the most part illegible. 132.A copy of a Grant of letters of Administration Intestate issued in Kericho HC Succession Cause No. E014 of 2025 In the matter of the estate of Kitur Arap Koech (Deceased) on 27th May, 2025 to Alice Chepkurui Maina and David Kibet Mibei has also been attached. 133.It is not in dispute that Cheboin Dispensary is constructed on a portion of land parcel No. Kericho/Nyamanga/240. It is also not in dispute that Bureti County Council, 1st Respondent’s predecessor constructed the said dispensary. The following are some of core issues that are in dispute;1.Whether in the year 2005, the Bureti County Council trespassed onto land parcel No. Kericho/Nyamanga/240 and constructed Cheboin Dispensary.2.Whether in the year 1971, Kitur Arap Koech (Deceased) donated land parcel No. Kericho/Nyamanga/240 to the Bureti County Council. 134.Essentially, the Petitioners contend that instead of the Respondents compulsorily acquiring the suit parcel of land, they trespassed on it, constructed a health facility thereby violating their right to property under Article 40 of the Constitution. Conversely, the 1st and 2nd Respondents contend that the suit parcel of land was donated to Bureti County Council. 135.It is worth emphasizing that on one hand, the Petitioners contend that the Respondents trespassed onto the suit parcel of land in the year 2005 while on the other hand, the 1st and 2nd Respondents contend that the suit parcel of land was donated to the 1st Respondent’s predecessor in the year 1971. 136.It is my view that the questions whether or not there is trespass by the Respondents onto the suit parcel and/or whether or not the suit parcel of land was donated to the Respondents can be determined without invoking the Constitution. Further, these twin issues are issues of fact that ought to be established by way of oral and not affidavit evidence. 137.In the judicial decision of Rumasila v Kenya Urban Roads Authority & 2 others (Environment & Land Petition E006 of 2022) [2024] KEELC 4826 (KLR) (20 June 2024) (Judgment) the Court observed as follows;“The procedural law relating to constitutional matters requires that where there exist ample statutory avenues for resolution of a dispute, the statutory options for redress must be followed and the constitutional Court will decline to entertain the dispute. The basis for that kind of approach is the principle of constitutional avoidance. The principle bars the practice of bringing ordinary disputes to the constitutional Court.” (Emphasis mine) 138.The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment) discussed the principle of Constitutional avoidance as follows;“(256)The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”(257)Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).(258)From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.” (Emphasis mine) 139.In KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) the Court held as follows;“ 36.In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause.”{Emphasis Mine} 140.Essentially, the principle of Constitutional avoidance deals with instances where a Constitutional Court declines to deal with a matter because there exists another remedy provided in law through which the aggrieved can seek redress and the aggrieved party is yet to utilize. 141.As aforementioned, some of the issues in dispute are whether the Respondents trespassed onto the suit parcel of land and/or whether the suit parcel of land was donated. My view is that all these issues are civil in nature and are capable of determination in a Civil suit. 142.This Court, sitting as a Constitutional Court, invokes the doctrine of constitutional avoidance and finds that the issues raised in this petition are such as can be pursued in a Civil Court. B. Whether the Petitioners are entitled to the orders sought in the Petition. 143.Given my finding on issue (A) above, the prayers sought in the Petition cannot be granted. C. Who should bear the costs of the Petition 144.It is now settled that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 145.In the result, the Petition is hereby struck out with costs to the 1st and 2nd Respondents. 146.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 14TH DAY OF MAY, 2026.L. A. OMOLLOJUDGE.In the presence of: -Miss Mukundi Mr. Koech for the Petitioners.­­­­­­­­­­­­­­­Miss Kitur for the 1st Respondent and 2nd Respondents.No appearance for 3rd Respondent.Mr. Makori – Court Assistant.