https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3132

Mbinda & another v Land Adjudication Officer, Makueni & 5 others (Environment and Land Petition E003 of 2025) [2026] KEELC 3132 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELC 3132 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Petition E003 of 2025 EO Obaga, J May 20, 2026 IN THE MATTER OF ARTICLES 19,20,22,23,40,50,&159 OF THE CONSTITUTION OF KENYA, 2010 -AND- IN THE MATTER OF ALLEGED CONTRAVENTION OF PROTECTION OF RIGHT TO PROPERTY AND FUNDAMENTAL FREEDOMS: UNDER ARTICLES 25(c), 40(1)(a) &(b) & ARTICLE 50 (1) OF THE CONSTITUTION OF KENYA, 2010 -AND- IN THE MATTER OF THE LAND ADJUDICATION ACT (CAP 284) LAWS OF KENYA -AND- IN THE MATTER OF THE LAND PAREL NOS. MAKUENI/WAUTU/3168 & 3722 Between Gideon Muthusi Mbinda 1st Petitioner Makove Mbinda 2nd Petitioner and The Land Adjudication Officer, Makueni 1st Respondent Cabinet Secretary for Lands, Public Works, Housing and Urban Development 2nd Respondent The Hon Attorney General 3rd Respondent County Land Registrar, Makueni 4th Respondent County Surveyor, Makueni 5th Respondent Silas Musumbi Mutungi 6th Respondent Judgment Introduction 1.The Petitioners filed a constitutional petition against the Respondents in which they sought the following reliefs:a.A declaration be issued that the Adjudication process regarding land plot Nos. 3168 and 3722 Wautu Adjudication Section is unconstitutional, null and void.b.An order of certiorari do issue to bring to this honourable court for purposes of being quashed or to forthwith quash the adjudication register pertaining plot Nos.3168 and 3722 Wautu Adjudication Section.c.An order for cancellation of the title deeds for land parcel Nos. Makueni/Wautu/3168 and 3722.d.An order of Mandamus do issue against the 1st, 2nd, 3rd and 4th Respondents compelling them to reopen Wautu/Adjudication Section and demarcate the whole disputed parcels of land unto one (1) portion of land and process, print and issue one (1) title deed for land parcel No. Makueni/Wautu/3168 in the names of the Petitioners to wit; Gedeon Muthusi Mbinda and Makove Mbinda.e.An order of permanent injunction be issued against the 6th Respondent by himself, his agents and/or servants restraining them from cutting down tress and dealing in any manner with land parcel No. Makueni/Wautu/3168.f.An award for compensation and/or exemplary damages.g.Special damages in the sum of Kshs.167,776/=h.Costs of this petition be borne by the Respondents.i.Any other relief this honourable court deems fit and just to grant. 2.Though the petition was served upon all the Respondents, it is only the 1st to 5th Respondents who entered appearance and filed a response to the petition. The 6th Respondent neither entered appearance nor filed a response to the petition. Petitioner’s Case 3.The petitioners contend that they share a common ancestry with the 6th Respondent. They state that Maui Ngea was their grandfather who had originally settled at Kisekini area of Kilungu within Makueni County. Maui was married to two wives. The first wife was Mbulwa Maui who had three sons namely Sila Maui, Mathendu Maui and Kimeu Maui. 4.The second wife was Mwethya Maui who had one son called Mbinda Maui who is the Petitioners’ father. Sila Maui from the first house had three sons one of whom was Mutungi Sila, the father of the 6th Respondent. 5.Upon marrying his second wife, Maui Ngea move with her and settled at Kyakatovi, Wautu, Makueni County. Later, the 6th Respondent’s grandfather Sila Maui moved with one of his sons Mutungi Sila and settled at Wautu an area which was about one kilometer from where Maui Ngea had settled. 6.It is the Petitioners contention that upon demise of Maui Ngea and all those who had settled at Kyakatovi, Wautu, they were all interred at land which was later upon demarcation known as parcel 3168. The 6th Respondent’s grandfather, Sila Maui and his descendants were all buried at Kyakatovi, Wautu in an area which was one kilometer away from parcel 3168. 7.During the adjudication process, parcel 3168 was recorded in the names of the Petitioners. The 6th Respondent filed a complaint with the Adjudication Committee which ruled in his favour resulting in creation of parcel No. 3722. The Petitioners unsuccessfully filed a complaint to the Arbitration Board which agreed with the decision of the Committee. 8.The Petitioners contend that they filed an objection to the Land Adjudication Officer on 11th October, 2010 but that that objection has never been determined todate. They contend that title number Makueni/Wautu/3722 was illegally created from parcel 3168. 9.The Petitioners contend that the 6th Respondent’s grandfather Sila Maui unilaterally sold the ancestral land at Kisekini, Kilungu within Makueni County. 10.It is the Petitioners contention that their constitutional rights under Article 40 (1) and (2) (a) and (b) and Article 50 of the Constitution were violated. The 1st to 5th Respondents’ Case 11.The Respondents opposed the Petitioners’ petition based on grounds of opposition dated 16th June, 2025. The Respondents contend that the petition is misconceived, untenable, bad in law and an abuse of the process of court. They contend that the Petitioners have failed to demonstrate by evidence how their fundamental rights were violated. 12.The Respondents state that no evidence has been produced by the Petitioners to show that they filed an appeal against the decision of the Arbitration Board. They state that the Petitioners are seeking to circumvent previous rulings and judgments made and to grant the reliefs sought will greatly prejudice the Respondents. Parties Submissions 13.The Petitioners were directed to file written submissions. The Petitioners filed submissions dated 20th August, 2026. The 1st to 5th Respondents filed their submissions dated 13th October, 2025. Petitioners’ Submissions 14.The parties submitted that their petition is not res judicata. They relied on Section 7 of the Civil Procedure Act and the case of John Florence Maritime Services Ltd & Another –vs- Cabinet Secretary, Transport and Infrastructure & 3 Others (2021) KESC 39 (KLR). They further submitted that the 1st Respondent is not functus officio as there is still an objection which was filed on 11th October, 2010 which is still pending determination. 15.The Petitioners further submitted that their constitutional right to property and right to fair hearing were violated as their objection to the Land Adjudication Officer was not heard. They further submitted that no notice of completion of the Adjudication register was given as provided under Section 26 of the Land Adjudication Act. 16.The Petitioners submitted that they were driven way from the seat of justice without being heard. They submitted that the proceedings which resulted in issuance of title to the 6th Respondent were a nullity. They relied on the case of Macfoy –vs- United Co. Ltd (1961) 3 ALL ER 1169 where Lord Denning MR stated as follows:“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceedings which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse”. 17.Finally the Petitioners submitted that they had proved that they are entitled to all the reliefs sought in the petition. The 1st to 5th Respondents’ Submission 18.The Respondents submitted that the Petitioners did not meet the threshold set out in the case of Amarita Karimi Njeru –vs- Republic (1979) KEHC 30 (KLR). They further submitted that there was no serious issue of constitutional violation raised by the Petitioners. Reliance was placed in the case of Gabriel Mutava & 2 Others –vs- Managing Director KPA (2016) EKLR in which the Court of Appeal held that a constitutional litigation is a serious matter that should not be sacrificed at the alter of all manner of frivolous litigation christened as constitutional when they are not and would otherwise be adequately handled in other legally constituted forums. Analysis and Determination 19.The Petitioners’ contention is that they filed an objection to the Land Adjudication Officer on 11th October, 2010 and that that objection has never been heard. It is on this basis that they contend that they were denied a fair hearing which consequently deprived them of their right to property. The issues for determination in this petition are firstly, whether there was an objection filed before the Land Adjudication Officer. Secondly, whether the Petitioners were granted a fair hearing. Thirdly, was the Petitioners’ right to property violated. Fourthly, are the Petitioners entitled to the reliefs sought. Fifthly, which order should be made on costs. a. Whether there was an objection filed before the Land Adjudication Officer 20.There is no contention that when parcel 3168 was recorded in the names of the Petitioners during adjudication, the 6th Respondent filed an objection to the committee which found that he was entitled to a portion of parcel 3168 and that is how parcel 3722 was created. The Petitioners being aggrieved filed objection to the Arbitration Board but they lost. In accordance with Section 26 of the Land Adjudication Act, the Petitioners were at liberty to file an objection to the Land Adjudication Officer. 21.The question which then falls for determination is whether the Petitioners filed an objection to the Land Adjudication Officer as provide under the Land Adjudication Act. The Petitioners have annexed a receipt dated 11th October, 2010 for Kshs.1,000/= which was indicated as being for objection in respect of plot Nos.3722 and 3728. 22.Section 26(1) and (2) of the Land Adjudication Act provides as follows:1.Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.2.The adjudication officer shall consider any objection made to him under subsection (1) of this section, and after such further consultation and inquiries as he thinks fit he shall determine the objection. 23.From the provisions of Section 26(1) of the Act, any person objecting to the register has to do so in writing within 60 days of publication of notice of completion of the Adjudication Register. Other than giving a copy of receipt issued on 11th October, 2010, the Petitioners did not provide the objection they allegedly filed. All documents filed in respect of any objection are public documents which any person can access. The Petitioners were able to produce proceedings before the committee and Arbitration Board. Nothing would have been easier than them providing a copy of the objection which they allegedly filed on 11th October, 2010. Whereas the proceedings which the Petitioners produced were certified by the Land Adjudication Officer, the receipt was not certified. 24.It is therefore clear that there was no objection filed by the Petitioners. b. Whether the Petitioners were granted a fair hearing. 25.Black’s Law Dictionary, 10th Edition defines a fair hearing as follows:“A judicial or administrative hearing conducted in accordance with due process”. 26.While dealing with issue (a) above, I found that there was no objection filed to the Land Adjudication Officer. This being the case, the Petitioner cannot complain that they were denied a fair hearing. 27.Article 50 (1) of the Constitution provides as follows:1.Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. 28.Whereas Article 50 (1) of the Constitution guarantees a right to fair hearing, the Petitioners did not demonstrate through evidence that they presented a complaint which the relevant authorities did not accord them a fair hearing. The Petitioners allege to have filed an objection to the Land Adjudication Officer on 11th October, 2010. If at all this is true which I highly doubt, they will not have waited for over 13 years to write to the Land Adjudication and Settlement Officer inquiring about a decision made regarding the parcel 3168 and 3722. 29.The titles for parcel Nos. Makueni/Wautu/3168 and 3722 were issued on 15th April, 2015 in favour of the Petitioners and the 6th Respondent respectively. One then wonders why the Petitioners were inquiring about a pending objection 8 years after they had obtained titles. 30.One cannot allege denial of fair hearing when he has not demonstrated that he was accorded a hearing which was not in accordance with due process. I therefore find that the Petitioners’ constitutional right under Article 50 of the Constitution was not violated. c. Whether the Petitioners’ right to property was violated. 31.The Petitioners contended that their right to property under Article 40 (1) (2) (a) and (b) were violated. Article 40 (1) provides as follows:1.Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property––a.Of any description; andb.In any part of Kenya. 32.Article 40(2)(a) and (b) of the Constitution provides as follows:2.Parliament shall not enact a law that permits the State or any person—a.To arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; orb.To limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4). 33.Parcel 3722 which was finally registered as Makueni/Wautu/3722 in favour of the 6th Respondent was created pursuant to a lawful process provided for under the Land Adjudication Act. The Petitioners did not overturn the decision of the committee when they moved to the Arbitration Board. As I have already found that the Petitioners failed to produce evidence that they filed objection to the Land Adjudication Officer, there is no basis upon which they can claim that their right to property was violated. The creation of parcel 3722 was lawful. I therefore find that there was no violation of the Petitioners’ rights under Article 40 of the Constitution as alleged. d. Whether the Petitioners are entitled to the reliefs sought 34.I have already found that neither the Petitioners constitutional right under Article 40 nor Article 50 of the Constitution were violated. This being the case, the Petitioners are not entitled to any of the reliefs sought. Disposition 35.Having found that the Petitioners’ constitutional rights were not violated, their petition fails and it is hereby dismissed with costs to the 1st to 5th Respondents. ..............................................HON. E. O. OBAGAJUDGEJUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF MAY, 2026.In the presence of:Mr. Mukula for PetitionersCourt assistants – Musyoki and Kilonzo