Mwaisama & 158 others v Ndara B Community & 3 others (Environment and Land Petition E001 of 2023) [2026] KEELC 3918 (KLR) (Environment and Land) (29 June 2026) (Judgment)

Mwaisama & 158 others v Ndara B Community & 3 others (Environment and Land Petition E001 of 2023) [2026] KEELC 3918 (KLR) (Environment and Land) (29 June 2026) (Judgment) Neutral citation: [2026] KEELC 3918 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Land Petition E001 of 2023 EK Wabwoto, J June 29, 2026 Between Gadiel Maghanga Mwaisama & 158 others & 158 others & 158 others Petitioner and Ndara B Community 1st Respondent Trustees of Diaspora University Town 2nd Respondent Universal Resources International Limited 3rd Respondent County Government of Taita Taveta 4th Respondent Judgment 1.By a Petition dated 29th September 2023, the Petitioners who sue on their own behalf and, on their account, on behalf of the residents of Mlambenyi, Golani and Mto Mwagodi villages describe themselves as members of a community that has occupied a portion of the land known as L.R. No. Sagalla/Ndara “B”/1 since the 1950s. By their Petition they move the Court for the following principal reliefs:(a)a declaration that, by reason of their long, open, uninterrupted and continuous occupation of a portion of L.R. No. Sagalla/Ndara “B”/1, they have acquired title by adverse possession and a right to own and occupy the said portion, protected under Article 40 of the Constitution;(b)an order of judicial review in the nature of mandamus compelling the National Land Commission to survey and hive off the portion occupied by the Petitioners and to facilitate the issuance of title deeds to them;(c)a declaration that the forceful takeover of the Petitioners’ land breaches their right to own property guaranteed by Article 40 of the Constitution;(d)damages for loss of property and farm produce;(e)any other relief that the Court may deem fit; and(f)costs of the Petition. 2.The 1st Respondent, the Ndara B Community, holds the suit land as registered community land. The 2nd Respondent, the Trustees of Diaspora University Town, claims a registered interest in a portion of the land (which the Respondents say is now registered as Sagalla/Ndara “B”/17) for the establishment of a university town. The 3rd Respondent, Universal Resources International Limited, claims prospecting and mining interests over the land. The 4th Respondent is the County Government of Taita Taveta, joined as a party on account of its constitutional and statutory functions in relation to land within the County. The Petition is opposed by the 1st, 2nd and 3rd Respondents; the 4th Respondent, as set out below, neither filed any response nor participated in the proceedings. The Petitioners’ case 3.By their Petition, the Petitioners aver that they are small-scale peasant farmers who, together with the residents of the villages of Mlambenyi, Golani and Mto Mwagodi, have resided on a portion of L.R. No. Sagalla/Ndara “B”/1 which they call the suit property continuously since the 1950s, holding it by inheritance from their forefathers. They plead that in 1982 a meeting was convened at Makajinyi by the late Eliud Mwamunga, then Minister for Lands, to resolve a long-standing boundary dispute between the Sagalla and Rong’e people; that elders from both sides participated and the boundary was fixed; and that it was only later realised that the title for L.R. No. Sagalla/Ndara “B”/1 covered the whole area, including the suit property on which they were and remain living. They aver that the suit property lies on the Mwatate, and not the Voi, side of the administrative boundary, that they have always identified with and received civic and administrative services from Mwatate Constituency, and that they are accordingly the bona fide owners of the suit property, entitled by their long, uninterrupted occupation of more than sixty years to have title issued to them. 4.The Petitioners further aver that, of recent past, the 1st Respondent forcefully introduced the 2nd Respondent onto the suit property, and that the Respondents have harassed and intimidated them, destroyed their property, issued threats of eviction, assaulted some of their members and threatened to bring down their houses, contrary to their right to property under Article 40 of the Constitution. They plead that they reported the malicious damage to Mwatate Police Station, that several meetings to resolve the matter amicably bore no fruit, and that they had previously petitioned the National Assembly through their Member of Parliament, which deliberated on the matter and found their concerns to be valid. 5.The Petitioners particularise the alleged breaches as: the denial of their right to protection of property under Article 40 by the issuance of title over the area they occupy to the 1st Respondent; the threat to deny them the right to claim ownership by virtue of their long, uninterrupted occupation; the loss of economic and social rights under Article 43 through the annexation of their land and its declaration as part of Ndara B community land, leaving them with no land to reside on or utilise save on the community’s terms; and the failure to abide by the 1982 boundary resolutions when title was issued to the 1st Respondent. In the alternative, they plead a legitimate historical-injustice complaint lodged in, and determined by, Parliament, and they contend that, the suit land being community land, the portion they occupy ought to be hived off, subdivided and titled in their favour under Article 63(4) of the Constitution. They plead that the Petition meets the pleading threshold in Anarita Karimi Njeru v Republic [1979] eKLR, as emphasised in Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR, and that no other suit or petition over the same subject matter is pending between the parties. 6.In support of the Petition, the 1st Petitioner, Gadiel Maghanga Mwaisama, swore a supporting affidavit in which he describes himself as an official of a steering committee of members drawn from the villages of Mlambenyi, Golani and Mto Mwagodi, duly authorised to swear the affidavit on the Petitioners’ behalf, annexing an authority to plead and act together with the list of petitioners (marked GMM-1). He deposes that the Petitioners are owners of the suit property by inheritance from their forefathers, having lived on it from time immemorial; that they have no other home and depend on the land for their farming and survival; that they and their forefathers have buried their loved ones on the land; that the Respondents have interfered with their quiet possession and used the police to threaten and evict them; that the Respondents now seek to prevent them from burying their dead on the land; and that they are a vulnerable population comprising men, women, the elderly and school-going children. He annexes a copy of the parliamentary report (GMM-2), a bundle of eviction notices (GMM-3) and a document described as the history of the boundary meeting (GMM-4), and prays that the Petitioners be recognised as the bona fide owners of the land and issued with title in their favour. 7.At the hearing, the Petitioners’ case was advanced through three witnesses, whose evidence is summarised below. 8.PW1, Gadiel Maghanga Mwaisama, the 1st Petitioner, testified that he was born in or about 1950, is a lay reader of the Anglican Church of Kenya and resides at Ronge Nyika. He stated that the community acquired the land in colonial times and lived on it without difficulty until 1983, when a survey said to have been conducted on a Sunday by persons from Sagalla sparked the first dispute. He testified that the then Minister for Lands, the late Eliud Mwamunga, convened a meeting and directed the election of a boundary committee, but that the resulting minutes were never traced. A fresh dispute arose in 2012, and the community petitioned Parliament, which visited the site and prepared a report. He produced documents annexed to his supporting affidavit as P. Exhibits 1–4 and the survey report dated 24th March 2025. He prayed that the community’s land be restored and, in the alternative, that the Petitioners be declared owners by adverse possession, with costs. 9.On cross-examination, PW1 conceded that he had not produced photographs of his house, that the minutes of the 1983 meeting could not be traced, that he was not aware whether any adjudication had been done, and that he did not know when the 1st Respondent obtained its title. He stated that the sketch map in the survey report does not show the location of the Petitioners’ specific residences or parcels, that no burial permits or photographs of graves had been produced, and that he had no documentary evidence of the period each Petitioner had been on the land. He maintained that the Petitioners’ grievance was against Ndara B and that they sought cancellation of its title; he stated that the Petitioners had no quarrel with the other registered owners. 10.PW2, Wycliffe Kebaso, the County Surveyor of Taita Taveta with over twenty-five years’ experience, testified that he visited the site on 17th and 18th March 2025 pursuant to the Court’s order and prepared the report dated 24th March 2025 (produced as P. Exhibit 5). He stated that the Petitioners pointed out a total claim of 1,306.46 hectares (3,228 acres), captured in Drawings A and D of the report, which cut across several registered parcels, including approximately 455.16 hectares and 586.86 hectares of land associated with the 1st and 2nd Respondents respectively, together with other registration schemes. Crucially, he testified that the exercise was confined to capturing the Petitioners’ collective claim; that the attending Petitioners about twelve of them did not point out their individual claims, structures or parcels; that the Petitioners produced no registrable documents of title; and that the boundaries shown were natural features. He confirmed that the affected parcels were verified against the Registry Index Map and that the registered owners were not all parties before the Court. 11.PW3, Jackson Lundi Wakio, a farmer born in 1986, testified that he was born on the suit property and has lived there with his family, and that the dispute began in 2012 when the 2nd Respondent advanced the proposal for a university town. He stated that the community reported the matter to the Mwatate Deputy County Commissioner, the Governor, and Parliament, and that the Respondents had issued eviction notices and demolished houses. He produced photographs as P. Exhibit 6. On cross-examination, he conceded that his grandfather was not buried on the suit property; that he holds no title; that he does not know the owners of the demolished houses shown in his photographs; that the photographs do not indicate where they were taken; that he did not show the surveyor his portion; and that he had not stated the size of his land in his affidavit. The 1st Respondent’s case 12.The 1st Respondent, the Ndara B Community, opposed the Petition through the replying affidavit of Ronald Mwang’ombe, a member of the community and a trustee, sworn at Nairobi on 12th June 2025. The deponent recounts that the suit land is the ancestral land of the Sagalla people, of whom the Ndara B Community is part; that the community underwent the land-adjudication process required by law in 1978; that the land was registered and title Sagalla/Ndara “B”/1 issued in 1982 under the Group Representatives Act; that on the promulgation of the Constitution in 2010 it was recorded as community land under Article 63; and that in 2016, after the necessary approvals from the physical planning and land control authorities, the community received and approved a university-town development plan and allocated 1,500 acres towards its implementation, the resulting parcel (Sagalla/Ndara “B”/17) now being registered in the name of the incorporated Trust. 13.The deponent deposes that community land registered under Article 63(2) of the Constitution is the property of the community holding it and is protected from challenge by Article 2(3); that adverse possession and the Limitation of Actions Act do not operate against community land held under Article 63 or private land held under Article 64; and that the suit land, being registered community land, may be impugned only under section 18 of the Community Land Act. He further deposes that, having participated in the review of the Petition and an investigation into the Petitioners, it was established that the 1st Petitioner is not a resident of Sagalla/Ndara “B”/17, that there is no steering committee of residents of the Mlambenyi, Golani and Mto Mwagodi villages, and that the strategic environmental assessment conducted by the National Environment Management Authority in 2018–2019 found that the listed persons were not residing on the land; he characterises the 159 persons listed as persons unlawfully selling or buying community land, or holding themselves out so as to defraud the community, and asserts that the Petition is intended to subvert ongoing criminal investigations under section 43 of the Community Land Act. 14.On the reliefs, the deponent contends that the Court lacks jurisdiction to grant relief over land lawfully held and registered, that the Petitioners are not the owners of the 1,306.46 hectares shown in the survey report, and that the prayer for mandamus cannot issue against the National Land Commission, which is not a party and whose historical-injustice mandate falls to be invoked under Article 67 of the Constitution. He urges the Court to strike out and dismiss the Petition and to make declarations that the constitutional protection of community and registered land denies the Court jurisdiction to order a survey or to disturb the registered interests, and that the costs of the Petition (and of the survey) be borne by the Petitioners. 15.At the hearing, the 1st Respondent’s case was advanced through DW1. 16.DW1, Ronald Mwang’ombe, a member of the Ndara B Community born in 1974 and a former member of its management committee, testified relying on his affidavits dated 20th November 2023 and 12th June 2025. He stated that the suit land is ancestral land of the Sagalla community that was set aside for common grazing, that adjudication was carried out in 1978, and that the land was first registered on 31st March 1982, initially under the Land (Group Representatives) Act and later under the Community Land Act as community land belonging to the Ndara B Community. He testified that there was no dispute before 2012, that the Diaspora University proposal was approved by the relevant authorities following an environmental impact assessment and public participation, and that Parliament had found the land to belong to the Ndara B Community. He maintained that the Petitioners are not on the register of members, that adverse possession does not lie against community land, and that no fraud had been pleaded or proved against the registered owner. He prayed that the Petition be dismissed with costs. The 2nd Respondent’s case 17.The 2nd Respondent, the Trustees of Diaspora University Town, opposed the Petition through the replying affidavit of its trustee, Daniel Mbuthi Kamau, sworn at Nairobi on 12th June 2025. The deponent recounts that Kenyans in the diaspora conceived a university-town development plan; that the plan was submitted in February 2015 under Article 185(4) of the Constitution, reviewed by the County Assembly committee responsible for education, early childhood and vocational training, and approved by the County Assembly of Taita Taveta in May 2015; that in April 2016 it was presented to the Ndara B Community, which held the land as registered community land under Article 63 of the Constitution (title Sagalla/Ndara “B”/1); that following several meetings the community in August 2016 granted 1,500 acres for the establishment of a trust; that the Diaspora University Trust was incorporated under the Trustees (Perpetual Succession) Act on 31st July 2018, whereupon the granted assets vested in it; and that a strategic environmental assessment was conducted by the National Environment Management Authority in 2018–2019, in the course of which a resettlement plan for the families living on the land was established. 18.On the law, the deponent invokes Articles 1, 2, 22, 40(2) and 63(2) of the Constitution, deposing that community land includes land lawfully registered in the name of group representatives and ancestral or community-held land; that the 2nd Respondent’s due diligence established that the title had carried no encumbrances since its registration in 1982; that the 2nd Respondent obtained its interest lawfully and holds a title, so that the doctrine of adverse possession cannot operate against it and, in any event, ceased to be available once the 2nd Respondent was issued with its own title; and that Article 40(2) forbids any law permitting the arbitrary deprivation of property. He contends that the Petitioners did not meet the threshold in rule 4(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, and that the survey report relied on by the Petitioners covers 1,306.46 hectares (3,228 acres) whose rights are held by various persons not all before the Court namely Diaspora University (586.86 ha), Ndara B community land (455.16 ha), Ronge Nyika private lands (108.7 ha), Ndara A private lands (6.72 ha), Teri B community land (67.81 ha), Mgeno unregistered community land (30.4 ha) and Modambogho private lands (16.0 ha). 19.The 2nd Respondent accordingly urges the Court to declare that Article 40(2) of the Constitution forbids the creation of any law to take another person’s property, and that the Court cannot order any entity to survey another person’s land; to declare that the Petition fails to demonstrate how the constitutional provisions invoked were denied, violated, infringed or threatened; to order any persons unlawfully on the land to vacate it; and to award the costs of the proceedings, the Petition being, in its submission, devoid of merit. 20.At the hearing, the 2nd Respondent’s case was advanced through DW4. 21.DW4, Daniel Mbuthia Kamau, the Executive Trustee of the 2nd Respondent, testified relying on his affidavit dated 12th June 2025. He stated that the Diaspora University Town project was conceived by Kenyans in the diaspora to advance the constitutional rights of Kenyans; that the institutional development plan was presented to, and approved by, the County Assembly of Taita Taveta for implementation within the County; and that, having identified the suit land and been introduced to the Ndara B Community, the 2nd Respondent conducted due diligence and obtained the community’s consent through public participation, together with the consent of the Land Control Board. He testified that the community granted 1,500 acres towards the project; that the Diaspora University Trust was incorporated under the Trustees (Perpetual Succession) Act on 31st July 2018, whereupon the granted assets vested in it, and the land was transferred to it in 2021; and that an environmental impact assessment licence was obtained from the National Environment Management Authority following a strategic environmental assessment, which established that some 35 families were living on the land. He maintained that the Petitioners are not members of the community, that adverse possession cannot operate against a registered title and in any event ceased to be available once the 2nd Respondent obtained its own title, that the mandate to investigate historical land injustice is vested in the National Land Commission under Article 67 of the Constitution, and that the Petition, filed unprocedurally, had stalled a project of public benefit; he prayed that the Petition be dismissed. On cross-examination, he conceded that he is not a member of, and is not conversant with the customs of, the Taita community; that the parent title Sagalla/Ndara “B”/1 no longer exists, the 2nd Respondent’s interest being held under a separate title; that an earlier consent, taken in the name of an entity that has since ceased to exist, did not go through and a fresh consent had later to be obtained, an earlier lease having been surrendered; that there are graves on the land, for which the development plan reserves about 35 acres as a cemetery; that the 2nd Respondent had facilitated the community meeting with a payment of Kshs. 100,000/=; and that the principal obstacle to the project is the present Petition. The 3rd Respondent’s case 22.The 3rd Respondent, Universal Resources International Limited, opposed the Petition through the replying affidavit of Mark Lloyd Stephenson, its Chief Executive Officer, sworn at Nairobi on 27th May 2024. The deponent contends that the suit is frivolous, vexatious and an abuse of the process of the Court; that adverse possession is an equitable remedy governed by sections 13, 17, 18 and 38 of the Limitation of Actions Act, which must be claimed by originating summons under Order 37 rule 7 of the Civil Procedure Rules and not by a constitutional petition, so that the Court’s power to grant it has not been properly invoked; that the Petition does not meet the constitutional-pleading threshold in Anarita Karimi Njeru v Republic [1979] eKLR; that, by laying claim to the land against the Respondents, the Petitioners acknowledge that it belongs to the Respondents; and that the Petitioners, not being in possession, not having proved the acreage occupied, and not appearing on the closed register of members of the 1st Respondent, cannot claim adversely against an interest held collectively. 23.The deponent deposes that the suit land, Sagalla/Ndara “B”/1, is surveyed and registered community land within sections 11 and 16 of the Community Land Act, the 1st Respondent being a Community Land Management Committee duly registered under Article 63 of the Constitution and section 47(1) of that Act (annexing the certificate of registration as MLS-1, the title deed issued on 31st March 1982 as MLS-2, and the closed register of members as MLS-3); that the land, having been adjudicated under the Land Adjudication Act (in force from June 1968), was subsequently subdivided into Sagalla/Ndara “B”/18, 19 and 20, with interests passing to third parties (MLS-4); and that the third-party interests now subsisting include the lease for the Diaspora University City project (intended to deliver a hospital and medical-training university employing close to 8,000 persons) and a registered mineral exploration and exploitation agreement and mining licence in favour of the 3rd Respondent over manganese and other minerals (MLS-5 and MLS-6). He maintains that the order of mandamus sought is contrary to statute, the National Land Commission being neither a party nor under any duty owed to the Petitioners, and its historical-injustice mandate under Article 67(2)(e) of the Constitution having been time-bound under section 15 of the National Land Commission Act for the period 2012 to 2022. 24.The deponent further deposes that a registered title is indefeasible save for cancellation under section 26 of the Land Registration Act; that the Petitioners’ claim, raised some forty years after adjudication, is blurred, unascertainable and an impermissible hybrid of historical injustice and adverse possession, and that, the Petitioners not having demonstrated any interest or ancestry on the land, they are not a community but encroachers; that the Court is enjoined by section 18(a)(iv) of the Environment and Land Court Act to be guided by the principles of intergenerational and intra-generational equity; and that the right to development, recognised in the United Nations Declaration on the Right to Development, would be curtailed were the Petition allowed, given the development of public benefit earmarked for the land. He urges that the Petition be struck out and dismissed with costs. 25.The 3rd Respondent also relied on the further affidavit of Patrice E. Lumumba, its manager in charge of operations, sworn on 26th March 2024, and on the oral evidence of DW2 and DW3. In his affidavit, the deponent stated that he participated in the court-ordered survey of 17th and 18th March 2025; that the entire area pointed out by the Petitioners (1,306.46 hectares) is titled and registered in the names of various persons, most of whom are not parties to the suit; that the Petitioners pointed out only natural features as beacons; that there were no developments, structures, graves or stock evidencing occupation; and that the Petitioners produced no documents of ownership. He deposed that the land is registered community land under sections 11 and 16 of the Community Land Act and that its title may only be impugned under section 18 of that Act; that no fraud had been pleaded; and that the mandamus sought against the National Land Commission is misconceived, the Commission’s historical-land-injustice mandate under Article 67(2)(e) of the Constitution having been time-bound and, in any event, not engaged on the Petitioners’ own pleadings. 26.DW2, Mark Stephenson, the Chief Executive Officer of the 3rd Respondent, testified that the company holds a prospecting interest over the land, having obtained its first prospecting licence in 2010 and the consent of the registered owner, the 1st Respondent, after public participation and approval by the National Environment Management Authority. He stated that the company has invested substantial sums in the project, that the land was unoccupied when it began its activities in 2010, and that the persons now claiming the land emerged later. On cross-examination he conceded that he had not made a physical visit at the material time but had relied on agents, and that the status of the current prospecting licence was the subject of separate proceedings. 27.DW3, Patrice Lumumba, an accountant and the 3rd Respondent’s administration manager, testified that he accompanied the survey team on both days, that the team covered the whole land and was shown only natural features, and that he saw no houses, graves, cultivation, stock or other evidence of occupation. He stated that the land was vast, bushy, rocky and hilly. On cross-examination he conceded that he is not a survey expert, that he did not see the survey report, and that one of the figures in his affidavit differs from the survey report. The 4th Respondent 28.The 4th Respondent, the County Government of Taita Taveta, was duly served with the Petition and the accompanying documents and was granted every opportunity to participate in these proceedings. It did not file any replying affidavit, grounds of opposition or submissions, or attend any of the hearings; nor did it offer the Court any explanation for its absence. The 4th Respondent has therefore neither responded to the Petition nor placed any material before the Court. 29.The Court cannot let that conduct pass without comment. The 4th Respondent is a public entity, a devolved unit of government clothed with constitutional and statutory responsibilities for land within the County, and it was joined precisely because the subject matter touches on those responsibilities. A litigant of that character is expected, more than any private party, to be exemplary in its conduct before the courts to honour the service of process, to assist the Court with the facts and records within its peculiar knowledge, and to account to the public it serves. The lackadaisical approach exhibited by the 4th Respondent, in ignoring duly served process and declining to participate despite ample opportunity to do so, is unbecoming of a public body, falls short of the standards demanded by the Constitution and of the national values in Article 10, and is to be deprecated. While the 4th Respondent’s default cannot prejudice the Court’s determination of the Petition on its merits, the Court records its disapproval of that laxity and trusts that the 4th Respondent will, in future, accord the seriousness due to judicial proceedings in which it is joined as a party The Court ordered survey 30.By its order of 29th January 2025, the Court directed all the parties to attend a survey exercise to establish whether the Petitioners were in occupation and use of the land claimed and the extent of that land. The exercise was conducted by the County Surveyor on 17th and 18th March 2025 in the presence of the parties’ representatives, and the resulting report is dated 24th March 2025. A preliminary objection to the admissibility of the report, on the ground that it had been transmitted under cover of a letter rather than formally filed, was overruled on 17th February 2026, the Court holding that the objection went to form and not substance and that, this being a constitutional petition, Article 159(2)(d) of the Constitution required that justice be administered without undue regard to procedural technicalities. Submissions 31.The Petitioners filed written submissions dated 10th March 2026. They submitted that they have acquired the portion claimed (1,306.46 hectares) by adverse possession, having been in open, continuous, exclusive and uninterrupted occupation since the 1950s, well before the first registration of the title in 1982, and they relied on sections 7, 13 and 38 of the Limitation of Actions Act and on the authorities of Titus Mutuku Kasuve v Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184 and Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR). On the prayer for mandamus, they relied on Article 67(2)(e) of the Constitution and on Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR, and on this Court’s decision in Gadi & 51 others v National Transport & Safety Authority & another [2024] KEELC 5350 (KLR). On the alleged violation of their rights, they relied on Articles 28, 40 and 43 of the Constitution and on Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others [2021] KESC 34 (KLR) and Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others [2013] eKLR, urging that any eviction must follow due process. On damages they relied on Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR and Article 23(3)(e) of the Constitution, and on costs they relied on section 27 of the Civil Procedure Act and the principle that costs follow the event. 32.The 1st and 3rd Respondents filed joint written submissions dated 5th May 2026. They submitted, first, that the Petition is incompetent: it merely cites Articles 40 and 43 of the Constitution without particularising the alleged violation, the manner of infringement, or the party responsible, and so falls short of the threshold in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. Secondly, they submitted that a claim for adverse possession must be commenced by originating summons under Order 37 Rule 7 of the Civil Procedure Rules read with section 38 of the Limitation of Actions Act, and cannot be ventilated through a constitutional petition, relying on Kyule & 640 Others v County Government of Kajiado & 5 Others [2023] KEELC 16997 (KLR), Bandari Investment Company Limited v National Police Service & Others [2021] KEELC 4483 (KLR) and Parkire Stephen Munkasio & 14 Others v Kedong Ranch Limited & 8 Others [2015] KEHC 6239 (KLR). Thirdly, they submitted that the elements of adverse possession were wholly unproved there being no proof of peaceful, open and exclusive possession nec vi, nec clam, nec precario, and no Petitioner having shown the surveyor the parcel he occupies relying on Kahindi Ngala Mwagandi v Mtana Lewa [2021] eKLR, and that the Petitioners, not residing on the land, came to equity without clean hands. 33.The 1st and 3rd Respondents further submitted that the suit land is registered community land within Article 63(2) of the Constitution and sections 11 and 16 of the Community Land Act, 2016, that the 1st Respondent’s title is indefeasible and may be impugned only under section 18 of that Act (fraud, misrepresentation or illegal, unprocedural or corrupt acquisition) grounds within which neither adverse possession nor historical injustice falls and that the sanctity of registered title is protected by sections 24, 25 and 26 of the Land Registration Act, relying on Republic v National Land Commission ex parte Holborn Properties Limited [2016] eKLR and Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others [2021] KESC 34 (KLR). They invoked the doctrine of exhaustion, submitting that the Petitioners ought first to have pursued the dispute-resolution mechanisms under the Community Land Act rather than petitioning the National Assembly, and relied on this Court’s decision in Mwasighwa & 55 Others v Mbulia Community Land & 3 Others [2024] KEELC 5866 (KLR). On the prayer for mandamus, they submitted that the order cannot issue against the National Land Commission, which is not a party, that no demand and refusal had been shown, and that the relief was in any event misconceived, relying on Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR and Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR. They added that mandamus cannot issue to survey, subdivide or hive off a title, Sagalla/Ndara “B”/1, which (they submitted) has been mutated and no longer exists in the register, such an order being incapable of implementation; that the 3rd Respondent holds subsisting third-party interests by way of Prospecting Licence No. PL/2018/0195 and Mining Licence No. ML/2018/0046, which the Court cannot disregard; and that the Petitioners, as authors of a frivolous and vexatious Petition, should bear the costs. 34.The 2nd Respondent filed written submissions dated 11th May 2026. It submitted that the burden of proof lay on the Petitioners under sections 107, 108 and 109 of the Evidence Act, and that they had placed before the Court no title, search, allotment, lease, succession document or documentary chain of ownership, their claim resting on bare oral assertions of occupation and ancestry. On the claim of ancestral entitlement, it submitted that the Petitioners had tendered no genealogical or succession evidence, relying on Nyawir v Trustees Evangelical Lutheran Church Kenya & Another [2024] KEELC 3775 (KLR) (citing Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR) and Karani v Burhani Foundation & 5 Others [2024] KEELC 13853 (KLR) (citing Henry Wambega v Attorney General [2020] KEELC 824 (KLR)). On adverse possession, it submitted that the Petitioners had not proved exclusive, continuous and hostile possession of identifiable portions, nor animus possidendi, nor any adverse acts such as fencing or exclusion, relying on Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2016] eKLR, Rodgers Mwambonje v Douglas Mwambonje [2014] eKLR and Mbasa v Mbasa & Another [2025] KECA 1420 (KLR) (citing Mtana Lewa), and that time could not have run because the 2nd Respondent’s title to Sagalla/Ndara “B”/17 was issued only in 2022. 35.The 2nd Respondent further submitted that Article 40 protects only lawful proprietary interests and not unproven claims; that occupiers without a recognised right are trespassers and suffer no violation of the right to property, relying on Parkire Stephen Munkasio & 14 Others v Kedong Ranch Limited & 8 Others [2015] KEHC 6239 (KLR) and Alphonse Omondi Otieno v University of Kabianga & 4 Others [2017] KEELRC 229 (KLR); and that, the land having transitioned to community land under Article 63 of the Constitution on promulgation, the allocation and subdivision (including the grant of about 1,500 acres for the Trust) were undertaken lawfully. On mandamus, it submitted that the remedy cannot issue to create rights that have not been established, relying on Republic v Attorney General & Another ex parte Jackson Musyoka Munyalo [2015] KEHC 958 (KLR); that the claim for damages, being consequential, must fail with the substantive claim; and that, costs following the event, costs should be awarded to the Respondents. It noted that the Petitioners had previously raised similar grievances in Public Petition No. 24 of 2021 before the National Assembly, in which the Departmental Committee on Lands recommended that the National Land Commission investigate any historical-injustice claim and that the Ministry review the community membership register, and that the Ministry had confirmed the conversion of the land into community land requiring a two-thirds majority of registered adult members for any disposal. Issues for determination 36.Having considered the pleadings, the evidence and the submissions on record, the issues that fall for determination are:(i)whether the Petitioners have established title to the portion claimed by adverse possession;(ii)whether the Petitioners are entitled to an order of mandamus compelling the National Land Commission to survey, hive off and title the portion claimed;(iii)whether the Respondents’ actions violated the Petitioners’ rights under Articles 28, 40 and 43 of the Constitution;(iv)whether the Petitioners are entitled to damages;(v)whether the Petition, as framed and constituted, is competent and the appropriate vehicle for the reliefs sought; and(vi)who should bear the costs of the Petition. Analysis and Determination (i) Adverse possession 37.The law on adverse possession is settled. A claimant must establish actual, open, peaceful, exclusive and uninterrupted possession of the land, with the knowledge of and adverse to the registered owner, for an unbroken period of not less than twelve years, such that the owner has been dispossessed or has discontinued possession, and the claimant must have the animus possidendi the intention to hold the land as owner to the exclusion of the true owner. Possession must be nec vi, nec clam, nec precario without force, without secrecy and without the owner’s permission. As the Court of Appeal explained in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, time begins to run when the proprietor is dispossessed or his title is challenged, rather than merely from the date of occupation, and the satisfaction of the elements does not vest title automatically; an application under section 38 of the Limitation of Actions Act is required. These principles, reflected in sections 7, 13, 17 and 38 of that Act, were also pressed by the Respondents through Richard Wefwafwa Songoi v Ben Munyifwa Songoi and Rodgers Mwambonje v Douglas Mwambonje cases. 38.On the evidence, the Petitioners have not established the essential elements of adverse possession, for several reasons. 39.First, the possession asserted is neither defined nor proven. The County Surveyor (PW2) testified candidly that the exercise captured only the Petitioners’ collective claim; that the Petitioners pointed out natural features rather than fixed beacons; that they did not identify individual parcels, structures or residences; and that they produced no registrable documents. PW1 conceded that the sketch map does not show the Petitioners’ residences and that there was no evidence of the period each Petitioner had occupied the land, while PW3 conceded that he had not shown the surveyor his portion and did not know the owners of the houses said to have been demolished. The Respondents’ witnesses testified that the land was vacant, bushy and hilly, with no houses, graves, cultivation or stock. There was no evidence of fencing, exclusion, or other acts of hostile dominion of the kind that evidences animus possidendi. A claim to land by adverse possession must be definite as to the land claimed and the possession asserted; a generalised, undifferentiated community claim over 1,306.46 hectares spanning several registered parcels does not meet that standard. 40.Second, the possession asserted was not peaceful and uninterrupted. On the Petitioners’ own account, the asserted occupation was punctuated by disputes in 1983, 1985 and 2012, by recourse to chiefs, the Deputy County Commissioner, the Governor and Parliament, and by a public petition seeking inclusion in the register of the registered community. These are acts that acknowledge, rather than oust, the title of the registered owner, and they are inconsistent with the hostile, exclusive possession that the doctrine requires. 41.Third, the Petitioners’ own theory is internally inconsistent. Adverse possession operates to extinguish the title of a registered proprietor after the statutory period has run against that proprietor. The first registration of the suit land occurred on 31st March 1982. The Petitioners cannot logically claim to have acquired title by adverse possession before there was any registered title against which time could run; and the Petition was filed in 2023, against a background of disputes that, on their own evidence, repeatedly interrupted the running of time. 42.Fourth, and in any event, the suit land is registered community land within the meaning of Article 63(2) of the Constitution and sections 11 and 16 of the Community Land Act, 2016. The sanctity of a community-land title is protected by section 18 of that Act, which renders the certificate of title prima facie evidence of absolute and indefeasible ownership, subject to challenge only on the grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. To similar effect are sections 24, 25 and 26 of the Land Registration Act and the authority on the sanctity of registered title, including Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR. A claim founded on adverse possession, or on historical injustice, does not fall within the statutory exceptions; and no fraud, misrepresentation or other vitiating ground was pleaded or proved against the registered title. 43.Fifth, to the extent that the Petitioners rely on inheritance and ancestral entitlement, that claim too is unproven. A claimant asserting ancestral land must establish, by cogent evidence, that the land belonged to his ancestors and devolved from one generation to the next. The Petitioners tendered no genealogical evidence, no succession chain, and no proof connecting any identified ancestor to a defined portion of the suit land; indeed PW1’s own identification particulars pointed to a different locality, and PW3 conceded that his forebears were not buried on the suit land. The claim of ancestral entitlement is therefore not made out. 44.For these reasons, the claim to title by adverse possession is not made out and must fail. (ii) The order of mandamus 45.An order of mandamus issues to compel the performance of a public duty by a public body that has failed or refused to perform it, where the body is properly before the Court, a specific legal duty exists, a demand for performance has been made and refused, and the applicant has established a clear legal right to the performance sought (see Republic v Kenya National Examinations Council ex parte Gathenji & Others (Supra) and Republic v Attorney General & Another ex parte Jackson Musyoka Munyalo (Supra). The Petitioners have not established that foundation. The National Land Commission is not a party to these proceedings and cannot be commanded by an order made in proceedings to which it is a stranger; nor have the Petitioners demonstrated that they made any demand to the Commission that was refused, or that they hold any clear legal right to the relief. 46.Further, the duty the Petitioners would have the Commission perform to survey, hive off and issue title to a portion of land registered in the name of the 1st Respondent and others is not a ministerial duty owed to the Petitioners that mandamus would lie to enforce. The Commission’s constitutional mandate under Article 67(2)(e) of the Constitution to investigate historical land injustices is exercised on a complaint or on its own initiative, subject to the framework and the time limits provided by statute; it is not a substitute for the survey and re-titling sought here. The resolution of the National Assembly relied on by the Petitioners directed the Cabinet Secretary responsible for lands to review the register of members of the Ndara B Community through alternative dispute resolution a different organ, and a different remedy, from the mandamus sought against the Commission. 47.There is a further, practical obstacle. The Respondents submit and the survey evidence tends to bear out that the parent title Sagalla/Ndara “B”/1 has been mutated and subdivided, the 2nd Respondent’s interest now being registered as Sagalla/Ndara “B”/17, and the Petitioners’ claim cutting across several distinct registered parcels held by different proprietors. Mandamus does not issue in vain, and the Court will not compel the survey, hiving-off or excision of a parcel that, as a single identifiable title, no longer exists in the register; such an order would be incapable of implementation and would require public officers to act outside the statutory framework governing survey and registration. 48.Finally, the reliefs sought would affect subsisting third-party interests, including the prospecting and mining interests asserted by the 3rd Respondent. Lawful statutory interests of that kind are entitled to protection, and the Court could not, consistently with Articles 47 and 50 of the Constitution and the rules of natural justice, make orders affecting the suit land while disregarding the interests of those who hold rights over it and who are not before it. 49.The decision in Gadi & 51 others v National Transport & Safety Authority & another (Supra) relied on by the Petitioners, is distinguishable: it concerned occupants of land that had been set aside for public use by a public authority, whereas the present claim is to registered community and private land. For all these reasons the prayer for mandamus fails. (iii) Alleged violation of constitutional rights 50.The Court takes seriously the Petitioners’ allegation that their homes were demolished and their occupation interfered with, for the jurisprudence is clear that even persons without title are entitled to protection against forced eviction carried out without due process, in accordance with the Constitution and the eviction safeguards of the Land Act. The burden, however, lies on the Petitioners to establish the violation alleged with the precision a constitutional claim demands. 51.On the present record, that burden has not been discharged. The photographs produced are of uncertain provenance; PW3 conceded that he did not know the owners of the demolished houses and that the photographs do not show where they were taken; no eviction notice or order was produced; and no specific act of demolition or eviction was attributed, on credible evidence, to any identified Respondent. Allegations of intimidation by police officers were likewise not substantiated. As the Respondents rightly submitted, relying on Parkire Stephen Munkasio & 14 Others v Kedong Ranch Limited & 8 Others and Alphonse Omondi Otieno v University of Kabianga & 4 Others (Supra) a constitutional violation must be demonstrated and not merely asserted, and Article 40 protects lawful proprietary interests rather than unproven claims. In the absence of proof, a finding that any Respondent violated the Petitioners’ rights under Articles 28, 40 or 43 of the Constitution cannot be sustained. 52.That said, nothing in this judgment authorises the eviction of any person otherwise than in accordance with the law. To the extent that the Respondents or any other party may hereafter seek to remove any occupant from the land, any such eviction must comply strictly with the due-process safeguards prescribed by the Constitution and the Land Act. (iv) Damages 53.The claim for damages is consequential upon a finding of violation. As no violation has been established, and as no evidence of the quantum of any loss by way of valuation, ownership of the structures said to have been destroyed, or the value of any farm produce was placed before the Court, the prayer for damages cannot be granted. (v) Competence and propriety of the Petition 54.The Respondents put the competence of the Petition squarely in issue, and it is in any event a question the Court is bound to consider, since it touches on jurisdiction and on the appropriate procedure. Three features call for comment. 55.First, a constitutional petition must plead with reasonable precision the right said to be infringed, the manner of the infringement, and the party responsible. As the Court of Appeal affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (Supra) restating the principle in Anarita Karimi Njeru v Republic (Supra) a party alleging the violation of a right must set out with specificity the nature of the injury and how the right was violated. 56.Second, the principal relief sought a declaration of title by adverse possession is, in substance, an ordinary private-law claim governed by the Limitation of Actions Act. Such a claim is required to be commenced by originating summons under Order 37 of the Civil Procedure Rules read with section 38 of that Act, and not by a constitutional petition. A litigant cannot, merely by invoking Article 40, convert a contested dispute over registered land into a constitutional matter, and where a claim may be resolved by recourse to ordinary law the Court should be slow to entertain it in its constitutional jurisdiction. That approach accords with the decisions relied on by the Respondents, including Kyule & 640 Others v County Government of Kajiado & 5 Others (Supra), Bandari Investment Company Limited v National Police Service & Others (Supra) and Parkire Stephen Munkasio & 14 Others v Kedong Ranch Limited & 8 Others (Supra), in each of which the court declined to determine an adverse-possession claim brought by way of petition. 57.Third, the order of mandamus sought is directed at the National Land Commission, which is not a party to these proceedings, and the relief in effect seeks the subdivision of, and the extinguishment of interests in, land registered in the names of several persons including the holders of the parcels identified in the survey report who are likewise not before the Court. The cardinal rule of natural justice, audi alteram partem, is that no person’s proprietary interest may be determined or extinguished in proceedings to which that person is not a party and in which it has had no opportunity to be heard. 58.To these I would add the doctrine of exhaustion. Where a statute provides a mechanism for the resolution of a category of dispute, a party should ordinarily pursue that mechanism before invoking the Court’s jurisdiction, and the mere allegation of a constitutional violation does not relieve a party of that obligation. As I observed in Mwasighwa & 55 Others v Mbulia Community Land & 3 Others (Supra), parties cannot veer off the dispute-resolution mechanisms that statute provides for community land. The Petitioners’ grievance concerning their inclusion in, or exclusion from, the register of members of the 1st Respondent community is a matter for which the Community Land Act provides, and which was not first pursued to its conclusion through the avenues that Act prescribes. 59.Drawing these threads together, the Petition in substance invokes Articles 40 and 43 of the Constitution without particularising, by evidence, the violation alleged or the party responsible for it; it seeks, under the guise of the Court’s constitutional jurisdiction, a declaration of title that is in substance a private-law claim governed by the Limitation of Actions Act and properly pursued by originating summons; it prays for orders that would determine and extinguish the interests of the National Land Commission and of registered proprietors who are not before the Court; and it does so without first exhausting the dispute-resolution mechanisms that statute provides for community land. For these reasons the Petition, as framed and constituted, falls short of the threshold required of a constitutional petition and is not a competent or appropriate vehicle for the reliefs sought. That conclusion would, of itself, be sufficient to dispose of the Petition; but lest the determination rest on that ground alone, I have considered the claim on its merits, and for the reasons already given it must in any event fail. (vi) Costs 60.The award of costs lies in the discretion of the Court, to be exercised judicially and upon reason. The settled principle is that costs ordinarily follow the event, but that principle is not immutable. As the Supreme Court explained in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR, an award of costs is not intended to punish the unsuccessful party but to compensate the successful one, and the claims of the public interest, together with the motivation and conduct of the parties before, during and after the litigation, are relevant considerations that may, for good reason, justify a departure from the general rule. The Supreme Court applied that very approach in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others [2021] KESC 34 (KLR), a matter touching on the land and housing rights of a poor community, where it declined to condemn any party in costs and made no order as to costs. 61.This Petition presents such an occasion for departure. Although it has not succeeded, nothing in the conduct of the Petitioners suggests that the Petition was brought in bad faith. The just and proportionate order, accordingly, is that each party shall bear its own costs of the Petition. Disposition 62.Having considered the whole of the evidence and the submissions on record, and for the reasons set out above, the Petitioners have not established their entitlement to the reliefs sought. I accordingly make the following orders:i.The Petition dated 29th September 2023 is dismissed.ii.For the avoidance of doubt, nothing in this judgment shall be construed as authorising the eviction of any occupant of the suit land otherwise than in strict compliance with the Constitution and the other applicable statutes.iii.The avenues open to the Petitioners under the National Assembly resolution and under the Community Land Act, in respect of their inclusion in the register of members of the 1st Respondent, remain available to be pursued in the appropriate forum.iv.Each party shall bear its own costs of the Petition.Orders accordingly. DATED, SIGNED AND DELIVERED AT VOI THIS 29TH DAY OF JUNE 2026.E. K. WABWOTOJUDGEIn the presence of:N/A for the Petitioners.Mr. Kago for the 1st and 3rd Respondents.Mr. Juma for the 2nd Respondent.N/A for the 4th Respondent.Court Assistant; Joseph Letisia