https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3930

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BOMET** **ELC PETITION NO. E002 OF 2026** **(FORMERLY KERICHO ELC PETITION NO. E001 OF 2023)** **IN THE MATTER OF ARTICLES 1, 2, 3, 19(2), 20(5), 21, 22, 23, 26, 27,28, 29, 40, AND 47 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES 1, 2, 3, 19(2), 27, 28, 40 AND 47 OF THE CONSTITUTION OF KENYA 2010** **AND IN THE MATTER OF THE LAND REGISTRATION ACT 2012** **BETWEEN** **JOSHUA CHEPKWONY MWEI………………..……………PETITIONER** **VERSUS** **JOSEAH KIPKEMOI RONO……………..……………1ST RESPONDENT** **KIPROTICH KENDUIWO………………….………….2ND RESPONDENT** **THE COUNTY LAND REGISTRAR BOMET….......3RD RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL…....4TH RESPONDENT** **JUDGEMENT.** **INTRODUCTION.** 1. The Petitioner commenced the present proceedings vide the Petition dated 1st September, 2023. 2. The Petitioner avers that on 1st February, 1980, the Registrar of Titles issued him with a Certificate of Lease for land parcel No. **P/N Sotik Township/313** which measures 0.0931 Ha. 3. The Petitioner also avers that the lease was for a period of ninety-nine years. 4. The Petitioner further avers that he took possession of the said parcel of land soon after he was issued with the Letter of Allotment. 5. It is the Petitioner’s averment that on 12th December, 2006, the 3rd Respondent erroneously issued a Certificate of Lease for the suit parcel of land to the 1st Respondent. 6. It is also the Petitioner’s averment that upon realizing its mistake, the 3rd Respondent wrote to the 1st Respondent asking him to surrender the irregularly issued Certificate of Lease which the 1st Respondent refused to return. 7. It is further the Petitioner’s averment that the 2nd Respondent has been in occupation of the suit parcel of land since the year 2019 to his exclusion and yet he is the registered owner. 8. The Petitioner avers that since he purchased the suit parcel of land he has never sold or transferred it and therefore any purported transfers are unprocedural and unlawful. 9. The Petitioner also avers that 3rd Respondent issued two certificates of lease with respect to land parcel No. P/N Sotik Township/313 that is to both the Petitioner and the 1st Respondent. 10. The Petitioner further avers that his efforts to have the Certificate of Lease issued to the 1st Respondent recalled have not borne any fruits as the certificate of search still shows that the land is registered in his name. 11. It is the Petitioner’s averment that the Respondents breached his right to property when the land was transferred to the 1st Respondent. 12. It is also the Petitioner’s averment that the Respondents have made it difficult for him to enjoy quiet possession of the suit parcel of land. 13. It is further the Petitioner’s averment that the 3rd Respondent should be compelled to make good the demands to cancel the Certificate of Lease issued to the 1st Respondent made in the letter dated 3rd June, 2022. 14. The Petitioner avers that alternatively, the 1st Respondent should be compelled to surrender the Certificate of Lease. 15. The Petitioner also avers that his rights under **Articles 27, 28, 29 (c) & (f), 40, 47, 49** and **159 (2)(a) & (b)** of the Constitution of Kenya have been infringed. 16. The Petitioner seeks the following orders; 1. ***A declaration that the Petitioner John Chepkwony Mwei is the only legal and indefeasible registered proprietor of the parcel of land registered as P/N Sotik Township/313.*** 2. ***A declaration that the constitutional rights of John Chepkwony Mwei of right to property, under Article 40 and the right to fair administrative action under Article 47 were violated by the 1st, 2nd and 3rd Respondents.*** 3. ***A declaration that the 3rd Respondent did not follow the right procedure when issuing out the certificate of lease for the parcel known as P/N Sotik Township/313 to the 1st Respondent on the 12th of December, 2006.*** 4. ***This Honourable Court be pleased to issue an order of cancelation of the certificate of lease issued by the 3rd Respondent to the 1st Respondent dated 12th of December 2006.*** 5. ***An order of eviction do issue against the 2nd Respondent, his agents and servants from the land registered as P/N Sotik Township/313.*** 6. ***An order that the Officer in charge Sotik police station to assist in compliance of order (e) above.*** 7. ***An award of general damages for pain and suffering, humiliation and distress visited upon the Petitioner against the Respondents. (sic)*** 8. ***Costs of this Petition.*** 9. ***Any other or further relief that this Honourable Court considers appropriate and just to grant.*** **THE PETITIONER’S CONTENTION.** 1. The Petition is supported by the affidavit of the Petitioner that is sworn on 1st September, 2023. 2. He reiterates the averments in the Petition and contends that he has been in possession of the suit parcel of land and has paid all the land rates. 3. He also contends that after the 3rd Respondent erroneously issued the 1st Respondent with a Certificate of Lease for the suit parcel of land, the 3rd Respondent wrote a letter dated 3rd June, 2022 to the 1st Respondent requesting that the said Certificate of Lease be surrendered. 4. He further contends that in the said letter, the 3rd Respondent stated that if the 1st Respondent does not surrender the Certificate of Lease then they would nullify it by dint of **Section 79 (2)** of the **Land Registration Act.** 5. He reiterates that to date, the 1st Respondent has not surrendered the Certificate of Lease and a search at the Land Registry shows that the land is still registered in his name. 6. It is his contention that the transfer of the suit parcel of land to the 1st Respondent was done unprocedurally and without the due process of the law being followed. He goes on to state that the said title should therefore be cancelled and/or nullified. 1. It is also his contention that the Respondents have violated his right to own property as they transferred his land to the 1st Respondent. 2. He reiterates that the 2nd Respondent has been in possession of the suit parcel of land since the year 2019 thereby excluding him from his land. 3. It is further his contention that he lost the documents that he was given after the registration of the suit parcel of land in his name. 4. He contends that he reported the said loss and Gazette Notice No. 3730 of 6th June, 2014 was issued before he was given a Provisional Title dated 8th September, 2014. 5. He also contends that he holds a Certificate of Lease for the suit parcel of land and adds that the Respondents have made it difficult for him to enjoy possession of it. 6. He further contends that the Respondents actions are unfair, unlawful and aimed at depriving him his rights over the suit parcel of land. 7. It is his contention that unless the orders sought are granted, he stands to lose his property, source of livelihood and suffer irreparable loss and damage. 8. He ends his deposition by stating that the Court should compel the 3rd Respondent to cancel the Certificate of Lease issued to the 1st Respondent on 12th December, 2006. **THE 1ST RESPONDENT’S RESPONSE.** 1. In response to the Petition, the 1st Respondent filed a Replying Affidavit sworn on 27th October, 2023. 2. He deposes that he is the registered owner of Plot No. 7288/313 which measures 0.0467 Ha. 3. He also deposes that his parcel of land is different from the Petitioner’s land. 4. He further deposes that **Plot No. 7288/313** was initially registered under the Registration of Titles Act as IR No. 58519 and **LR No. 7288313.** He goes on to state that it was registered under Land Survey Plan No. 164876 for a term of 99 years from 1st March, 1991 and adds that the land measures 0.0467 Ha. 5. It is his deposition that the said plot is situated next to Plot No’s **7288/312** and **7288/314.** 6. It is also his deposition that Plot No. **7288/313** was registered in the name of **Chepkebit Taita Company Limited** who sold it to **Emmanuel K. A Mitei**. 7. It is further his deposition that he purchased the said plot from **Emmanuel K.A Mitei** but at the time of purchase the land had not been transferred to him. He goes on to state that the land was therefore transferred from **Chepkebit Taita Company Limited** directly to his name. 8. He deposes that the said plot is underdeveloped and it is used to park lorries. 9. He also deposes that the Petitioner’s remedies if any cannot be issued by a Court sitting as a Constitutional Court. 1. He further deposes that the title of the said parcel of land was converted and registered under the **Registered Land Act** and a Certificate of Lease issued in his name on 13th December, 2006. 2. He ends his deposition by stating that the Petitioner’s parcel of land is Plot No. **7288/181, Grant No. 4476** and it measures 0.0931 and adds that the land is on Survey Plan No. 132121 and it is for a term of 99 years from 1st February, 1980. **THE 2ND RESPONDENT’S RESPONSE.** 1. In response to the Petition, the 2nd Respondent filed a “*Supplementary Affidavit*” sworn on 9th July, 2025. 2. He deposes that in the year 1988, the Government advertised Plot No. 45 for sale vide Gazette Notice No. 3337 of 29th July, 1998. 3. He also deposes that he paid the application fee and after he was listed as one of the successful applicants, he paid a deposit of Kshs. 1,000/=. 4. He further deposes that on 11th April, 1991 he was issued with an Allotment Letter Ref No. 30894. 5. It is his deposition that he followed the requisite procedure and the land was transferred to his name on 13th November, 1991 through a Memorandum of Registration of Transfer of Lands. 6. It is also his deposition that he is the owner of Commercial Plot No. **7288/248 Ref No. B1/313** which measures 0.078 Ha. 7. He ends his deposition by stating that he has been paying rates for the said plot and he is in occupation of it. **THE 3RD AND 4TH RESPONDENTS RESPONSE.** 1. In response to the Petition, the 3rd and 4th Respondents filed a Replying Affidavit sworn by **Ndege N. T** on 26th September, 2025. 2. He deposes that he is the County Land Registrar, Bomet and the 3rd Respondent herein. 3. He also deposes that Counsel showed him a letter dated 3rd June, 2022 whose original he has not been able to trace in the parcel file. 4. He further deposes that **Section 79** of the **Land Registration Act** outlines the circumstances under which a register can be rectified. He goes on to state that Regulation 92 of the Land Regulations of 2017 sets out the procedure of rectification. 5. It is his deposition that there is no evidence of double allocation as alleged by the Petitioner. 6. It is also his deposition that from the documents filed in Court by the parties, the Petitioner, the 1st Respondent and the 2nd Respondent are owners of distinct parcels of land. He goes on to state that each parcel of land has a distinct Grant & LR Number, survey plan and acreage. 7. It is further his deposition that this rebuts the allegations of illegal transfer and double allocation. 8. He deposes that as per the green card for land parcel No. Sotik Township/313, the land measures 0.0467 acres and goes on to state that the Lessor is the Government of Kenya while the Lessee is **Chepkebit Taita Co. Ltd**. 9. He also deposes that the green card was opened on 25th January, 2005 and the land transferred to the 1st Respondent on 13th December, 2006. 10. He further deposes that there is no evidence that the land was ever registered and/or transferred to the Petitioner. 11. It is his deposition that the process of issuance of Leasehold titles commences by way of an application and adds that after an application is made, it is acknowledged and a letter of allotment issued. 12. It is also his deposition that the acceptance of the terms of the letter of allotment has to be made within thirty days and goes on to state that after acceptance, a lease is prepared for registration. 13. It is further his deposition that after the lease has been prepared, it is executed, paid for and sent to the relevant Land Registry for registration and subsequent issuance of a Certificate of Lease. 14. He deposes that the process of issuance of a leasehold title involves various departments within the Ministry of Lands and the County Land Registrar comes at the tail end when he receives the Certificate of Lease for registration and issuance. 15. He also deposes that the Petitioner has not set out the particulars of how his constitutional rights were violated. 16. He further deposes that the Petitioner has not demonstrated with a reasonable degree of precision how his constitutional rights have been infringed. 17. It is his deposition that he has been advised by his Counsel that the prayers sought in the Petition touch on competing claims over land which can be determined in an ordinary suit. 18. It is also his deposition that the Petition violates the doctrine of Constitutional avoidance and it is coached to circumvent **Section 7** of the Limitation of Actions Act. 19. He ends his deposition by stating that the Petition is ill advised, misconceived, an abuse of the Court process and ought to be dismissed with costs. **THE PETITIONER’S RESPONSE TO THE 1ST AND 2ND RESPONDENTS REPLYING AFFIDAVITS.** 1. In response to the 1st and 2nd Respondents Replying Affidavits, the Petitioner filed a Further Affidavit that is sworn on 21st October, 2025. 2. He deposes that the 1st and 2nd Respondents Replying Affidavits are full of falsehoods which are meant to mislead this Court. 3. He also deposes that neither the 1st Respondent nor the 2nd Respondent have contested the validity of his title, it is therefore unimpeachable and ought to be protected by this Court. 4. He further deposes that the Court issued orders that a survey be done and that a survey was done and a report dated 8th February, 2025 filed in Court. 5. It is his deposition that the report was filed by the 3rd and 4th Respondents. 6. It is also his deposition that in the report, the 3rd and 4th Respondents confirm that as per the Amended Registry Index Map, land parcel No**. Sotik Township/313** occupies the same physical position as LR No. 7288/248. 7. It is further his deposition that the said report also confirms that the suit parcel of land is in possession of the 2nd Respondent. 8. He deposes that the 2nd Respondent filed a Replying Affidavit sworn on 9th July, 2025 wherein he relied on a Memorandum of Registration of Transfer of Lands and confirmed the position as per the Land Registrar’s Report. 9. He also deposes that the 2nd Respondent has not availed any title to the suit parcel of land and therefore, he is in possession of it without any color of right. 10. He further deposes that the 1st Respondent does not deny receiving the letter dated 3rd June, 2022 which was issued by the 3rd Respondent and goes on to state that in the said letter, he was required to surrender the Certificate of Lease which was irregularly issued to him failure to which it would be nullified under **Section 79(2)** of the **Land Registration Act.** 1. It is his deposition that based on the foregoing, the 1st Respondent’s Certificate of Lease that is attached to his Replying Affidavit sworn on 27th October, 2023, has been nullified and it is of no evidentiary value. 2. He ends his deposition by stating that he was issued with a Certificate of Lease on 1st February, 1980 and adds that his Certificate of Lease was first in time and it prevails over the 1st Respondent’s Certificate of Lease which was issued on 13th December, 2006. **ISSUES FOR DETERMINATION.** 1. The Petitioner filed submissions on 5th November, 2025, the 1st Respondent filed submissions on 26th January, 2026, the 2nd Respondent filed submissions on 14th January, 2026 and the 3rd and 4th Respondents filed submissions on 23rd February, 2026. The Petitioner then filed further submissions on 5th March, 2026. **The Petitioner’s Submissions.** 1. The Petitioner submits on the following issues; 1. ***Who is the legal and indefeasible registered proprietor of the parcel of land registered as P/N Sotik Township/313?*** 2. ***Whether the Certificate of Lease irregularly and unprocedurally issued to the 1st Respondent should be cancelled.*** 3. ***Whether the Petitioner’s constitutional rights were infringed.*** 4. ***Whether the Petitioner is entitled to general damages as a result of the infringement of his Constitutional rights.*** 5. ***Who should bear costs of the Petition.*** 2. On the first issue, the Petitioner submits that two title documents have been presented before this Court as proof of ownership of land parcel No. **P/N Sotik Township/313.** 3. The Petitioner also submits that he has presented a copy of the Grant registered as LR No. 4476/1 while the 1st Respondent has presented a Certificate of Lease issued on 12th December, 2006. 4. The Petitioner relies on **Section 26** of the **Land Registration Act** and submits that on 1st February, 1980, he was given a 99-year lease for the parcel of land registered as **P/N Sotik Township/313.** 5. The Petitioner reiterates that he was issued with a Letter of Allotment and was registered as the Lessee of the said parcel of land which was then registered as LR No. 4476/1. 6. The Petitioner also reiterates that he took possession of the said land and has been paying land rates to date. 7. It is the Petitioner’s submissions that the grant that was issued to him has never been nullified and it is therefore valid. 8. It is also the Petitioner’s submissions that he has never sold and/or transferred his interest in the said parcel of land and neither have the Respondents contested the validity of his grant. 9. It is further the Petitioner’s submissions that even though the 1st Respondent claims to have purchased the suit parcel of land from **Emmanuel K. Mitei** and was issued with a Certificate of Lease, he has never been in possession of the land and neither has he proved that he has been paying land rates. 10. The Petitioner submits that where equities are equal, the first in time prevails. 11. The Petitioner also submits that since his lease dates back to 1980, it prevails over the 1st Respondent’s lease which was issued in the year 2006. 12. The Petitioner further submits that the Land Registrar admitted that the 1st Respondent was erroneously issued with a Certificate of Lease and it was recalled for cancellation. 13. It is the Petitioner’s submissions that by operation of **Section 79(2)** of the Land Registration Act, once the Land Registrar invalidates a lease and demands for its surrender, the lease loses its legal effect. 14. The Petitioner reiterates the averments in his supplementary affidavit, relies on the judicial decision of **Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & another [2013] eKLR** and urges the Court to allow prayer (a) of the Petition. 15. On the second issue, the Petitioner reiterates that the 3rd Respondent vide the letter dated 3rd June, 2022 requested the 1st Respondent to surrender the Certificate of Lease that was issued on 12th December, 2006. 16. The Petitioner relies on **Section 79** of the Land Registration Act and submits that since the Certificate of Lease was irregularly issued to the 1st Respondent, the Land Registrar should be compelled to rectify the register to reflect his name. 17. The Petitioner then relies on the judicial decision of **Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & another [2013]eKLR** and urges the Court to allow prayers (c), (d), (e) and (f) of the Petition. 18. On the third issue, the Petitioner submits that his rights under **Articles 27, 28, 40(1)** and **47** of the Constitution of Kenya were violated and reiterates his averments in the Petition. 19. The Petitioner relies on the judicial decision of **Charles Munge vs Nairobi City County Government & Others** (citation not given) and submits that the 3rd Respondent violated his rights under **Article 27** of the Constitution by registering the suit parcel of land in the name of the 1st Respondent. 20. The Petitioner relies on the judicial decision of **Muyale vs Kenya Veterinary Board** (citation not given) and submits that his right to dignity as provided for under **Article 28** of the Constitution was violated by the Respondents. 21. It is the Petitioner’s submissions that this right was violated by the unlawful issuance of a Certificate of Lease to the 1st Respondent and the subsequent occupation of the suit parcel of land by the 2nd Respondent. 22. It is also the Petitioner’s submissions that his rights under **Article 40** of the Constitution were violated by the unlawful issuance of a Certificate of Lease to the 1st Respondent. The Petitioner relies on the judicial decision of **Aaron Kitura Matti & 2 Others vs National Land Commission & 2 Others** (citation not given) in support of his submissions. 23. It is further the Petitioner’s submissions that his rights under **Article 47** of the Constitution were violated. The Petitioner relies on the judicial decision of **John Njeru Nyaga & 2 Others vs Attorney General & another [2022] eKLR** and urges the Court to grant prayer (b) of the Petition. 24. On the fourth issue, the Petitioner submits that equity does not suffer a loss without a remedy. 25. The Petitioner also submits that the unlawful occupation of the 2nd Respondent of the suit parcel of land has caused him significant pain and suffering. 26. The Petitioner further submits that the Court should compensate him for the pain, suffering, humiliation and distress caused by the violation of his right to own property as provided for under **Article 40** of the Constitution of Kenya. 1. The Petitioner relies on **Article 23(3)** of the Constitution of Kenya and submits that the Court has the power to issue reliefs including compensation for violation of rights. 2. The Petitioner relies on the judicial decisions of **John Njaria Mutunga vs Director of Criminal Investigations & 2 Others** (citation not given), **Charles Munge & Nairobi City County Government & Others** (citation not given) and submits that he has been deprived of the use of the suit parcel of land for a period of close to two decades. 3. It is the Petitioners submissions that the Court should therefore award him Kshs. 3,000,000/= as general damages. 4. On the fifth issue, the Petitioner relies on **Section 27(1)** of the **Civil Procedure Act,** the judicial decision of **Cecilia Karuru Ngayu vs Barclays Bank of Kenya & another [2016] eKLR** and urges the Court to award him costs of the Petition. **The 1st Respondent’s Submissions.** 1. The 1st Respondent in his submissions reiterates the averments in his Replying Affidavit, sets out a summary of the contents of the 3rd and 4th Respondents Replying Affidavit and submits on the following issues; 1. ***Whether the Petition is merited.*** 2. ***Whether the Petitioner has remedies elsewhere (Constitutional avoidance) (sic)*** 3. ***Costs.*** 2. On the first issue, the 1st Respondent relies on the judicial decisions of **Anarita Karimi Njeru versus Republic [1979] eKLR, Consumer Federation of Kenya vs Toyota Motors Cooperation & 4 Others** (citation not given) and submits that the Petitioner has failed to demonstrate which of his fundamental rights have been violated by the 1st Respondent. 3. On the second issue, the 1st Respondent submits that the doctrine of constitutional avoidance provides that constitutional issues are only raised where necessary. 4. The 1st Respondent also submits that litigants ought to explore all the available legal remedies before resorting to a claim under the Constitution. 5. The 1st Respondent further submits that the issues raised in the present suit relate to ownership of land which can be filed in a civil suit. 6. The 1st Respondent relies on **Communications Commission of Kenya and 5 Others** (sic) in support of his submissions. 7. The 1st Respondent concludes his submissions by urging the Court to dismiss the Petition with costs. **The 2nd Respondent’s Submissions.** 1. The 2nd Respondent submits on the following issues; 1. ***Whether the 2nd Respondent is the lawful registered proprietor of LR No. 7288/248 IR 54000.*** 2. ***Whether the Petitioner has proved fraud or illegality against the 2nd Respondent.*** 3. ***Whether the Petitioner’s constitutional rights have been violated.*** 4. ***Whether the Petition meets the threshold of a Constitutional Petition.*** 5. ***Whether the Petitioner is entitled to damages.*** 6. ***Whether a residential plot and a commercial plot have any legal or registrable relationship.*** 7. ***Who should bear costs of the Petition.*** 2. On the first issue, the 2nd Respondent relies on **Section 26(1)** of the land Registration Act, the judicial decision of **Munyu Maina vs Hiram Gathiha Maina [2013] KECA 94 (KLR)** and submits that he has attached copies of the following documents to his Replying Affidavit; 1. ***Letter of Allocation dated 11th April, 1991 that was issued by the Commissioner of Lands.*** 2. ***Gazette Notice No. 3337 dated 29th July, 1988.*** 3. ***A Certificate of Title issued on 13th November, 1991.*** 4. ***Rate payment receipts and a rates clearance certificate.*** 5. ***Photographs showing the developments and occupation of the suit property.*** 1. The 2nd Respondent submits that the Petitioner has not produced any evidence to show that he (2nd Respondent) obtained his title fraudulently or through misrepresentation. 2. On the second issue, the 2nd Respondent relies on the judicial decision of **Kinyanjui Kamau V George Kamau [2015] eKLR** as was cited in **Isaac Muthuri Mugambi vs Silas Bundi Marete & 2 Others [2021] KEELC 1204 (KLR)** and reiterates that the allegations in the Petition are unsupported by evidence and amount to mere conjecture. 3. On the third issue, the 2nd Respondent submits that the Petitioner has failed to demonstrate how he violated his rights under **Articles 27, 28, 40** and **47** of the Constitution. 4. The 2nd Respondent relies on the judicial decisions of **Anarita Karimi Njeru v Republic [1979] KLR 154, Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, Harrison Kinyanjui v Attorney General & another [2012] eKLR** and submits that the Petition contains broad and sweeping allegations. 5. The 2nd Respondent also submits that the Petition does not create linkages to any specific unconstitutional acts alleged to be done by him. 6. The 2nd Respondent further submits that no evidence has been tendered to show arbitrary action, discrimination, denial of due process, or infringement of property or human dignity. 7. It is the 2nd Respondent’s submissions that the Petition fails on this ground. 8. On the fourth issue, the 2nd Respondent relies on the judicial decision of **Kibunja vs Attorney General [2009] eKLR** and submits that the dispute before Court is at its core a land ownership and boundary dispute. 9. The 2nd Respondent also submits that such disputes should be commenced by way of a Plaint and not through a Constitutional Petition. 10. The 2nd Respondent furthers submits the present Petition is therefore procedurally defective and amounts to an abuse of the Court process. 11. On the fifth issue, the 2nd Respondent relies on the judicial decision of **Kenya Power & Lighting Company Ltd vs. James Njoka [2017] eKLR** and submits that the sum of Kshs. 3,000,000/= sought by the Petitioner as general damages is speculative, unsubstantiated and legally untenable. 12. The 2nd Respondent submits that the Petitioner has not availed a valuation report and neither has he proved loss of income. 13. The 2nd Respondent further submits that the Petitioner has not availed any evidence of any intended development and neither is there proof that he (2nd Respondent) denied the Petitioner access to his land. 14. On the sixth issue, the 2nd Respondent submits that residential and commercial plots are distinct and different. 15. The 2nd Respondent also submits that ownership of either of the two does not automatically confer a legal interest on the other. **The 3rd and 4th Respondents submissions.** 1. the 3rd and 4th Respondents submit on the following issues; 1. ***Whether the Petition lacks merit.*** 2. ***Whether the Petitioner is entitled to the reliefs sought; and*** 3. ***Costs of the Petition*** 2. On the first issue, the 3rd and 4th Respondents submit that the Petition does not meet the threshold of a constitutional petition. 3. The 3rd and 4th Respondents also submit that the Petition violates the doctrine of Constitutional avoidance and it contravenes **Section 7** of the **Limitation of Actions Act.** 4. The 3rd and 4th Respondents rely on the judicial decisions of **Anarita Karimi Njeru vs Republic [1979] eKLR** and **Manase Guyo & 260 Others vs Kenya Forest Services [2016] eKLR** and submit that the Petition as presented does not advance any constitutional issues for determination. 5. It is further their submissions that the Petitioner has merely cited provisions of the Constitution without any correlation with the facts. 6. The 3rd and 4th Respondents rely on the judicial decisions of **Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR, Nguma & 78 Others vs Katelembo Athiani Muputi Farming & Ranching Co-operative Society & 5 Others; National Land Commission (Interested Party) (Environment and Land Petition 76 of 2017) [2025] eKLR** and submit that the issues raised in the present Petition can be resolved in a civil suit and without invoking the Constitution. 7. The 3rd and 4th Respondents also submit that the Petitioner ought to have approached the Court through an ordinary suit. 8. The 3rd and 4th Respondents further submit that the Court lacks jurisdiction to hear the Petitioner’s claim as it is statute barred. The 3rd and 4th Respondents rely on **Section 7** of the **Limitation** of **Actions Act** in support of their submissions. 9. It is the 3rd and 4th Respondents submissions that the Petitioner’s cause of action is founded on the Certificate of Lease that was allegedly erroneously issued on 12th December, 2006. 10. It is also the 3rd and 4th Respondents submissions that the present suit was filed in the year 2023 which is beyond the limitation period. 11. It is further the 3rd and 4th Respondents submissions that the Petitioner has filed the present Petition in order to circumvent the statute of limitation period. 12. The 3rd and 4th Respondents rely on the judicial decision of **Janmohammed (SC) (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v District Land Registrar Uasin Gishu & 4 others [2024] KESC 39 (KLR)** in support of their submissions. 13. On the second issue, the 3rd and 4th Respondents rely on **Section 107** of the **Evidence Act, Section 26** of the **Land Registration Act,** the judicial decision of **Mwaganda v National Land Commission & 2 others; Amin & 2 others (Interested Parties) (The administrator of the Estate of Mohanœd Al 'Min and Teba Binti Mohamed) [2023] KEELC 20957 (KLR)** and submit that the Petitioner should be restrained from substituting ordinary civil disputes with Petitions which seek redress for violation of fundamental rights and freedoms. 14. The 3rd and 4th Respondents conclude their submissions by relying on the judicial decision of **Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2014] eKLR** and urge the Court to dismiss the Petition with costs. **The Petitioner’s Further Submissions.** 1. The Petitioner submits that the 3rd and 4th Respondents contend that this Court does not have jurisdiction to hear the Petition on two grounds. 2. The Petitioner also submits that the first ground is based on the doctrine of constitutional avoidance while the second ground is based on the contention that his claim is statute barred. 3. The Petitioner reiterates that the 3rd Respondent acknowledged in its letter dated 3rd June, 2022 that the 1st Respondent was erroneously issued with a Certificate of Lease. 4. The Petitioner also reiterates that the 3rd Respondent’s actions violated his rights under **Articles 40** and **47** of the Constitution and therefore the doctrine of Constitutional avoidance does not apply to the present proceedings. 5. The Petitioner relies on the judicial decisions of **Omwoyo versus Attorney General and 4 Others [2024] KEHC 7511 (KLR), Savla versus Maralal Energy Limited and 2 Others; Commission on Administrative Justice (Interested Party) [2026] KEHC 1281 (KLR)** and submits that the 3rd Respondent is under a false impression that the reliefs sought are best suited in a civil action. 6. The Petitioner submits that the Petition is properly before this Court and it challenges the improper procedure the 3rd Respondent used in giving the 1st Respondent the Certificate of Lease. 7. The Petitioner also submits that the Petition does not offend the Statute of Limitation Act and explains that even though the 1st Respondent was issued with a Certificate of Lease in the year 2006, he only learnt about it in the year 2019. 8. It is the Petitioner’s submissions that he wrote a demand letter dated 16th December, 2019 which was responded to by the letter dated 3rd June, 2022 which letter conceded to the alleged mistake in the issuance of the Certificate of Lease to the 1st Respondent. 9. It is also the Petitioner’s submissions that the time of limitation therefore begun to run from 16th December, 2019. 10. The Petitioner relies on **Section 7** of the **Limitation of Actions Act,** the judicial decision of **Kamau versus Kitana & 2 Others [2025] KEELC 8456** and submits that he filed the present Petition four years after discovery of the 3rd Respondent’s mistake which is well within the twelve-year statutory period. 11. The Petitioner concludes his submissions by urging the Court to find that the Petition is properly before this Court. **ANALYSIS AND DETERMINATION.** 1. After considering the Petition, the responses thereto, the Further Affidavit and the rival submissions, it is my view that the following issues arise for determination; 1. ***Whether the jurisdiction of this Court was properly invoked.*** 2. ***Whether the Petitioner is entitled to the orders sought in the Petition.*** 3. ***Who should bear the costs of the Petition.*** **A. Whether the jurisdiction of this Court was properly invoked.** 1. The Petitioner contends that he is the owner of the land registered as **P/N Sotik Township/313** which measures 0.0931 Ha. 2. The Petitioner also contends that he was given a Certificate of Lease for the said parcel of land on 1st February, 1980. 3. The Petitioner further contends that on 12th December, 2006, the 3rd Respondent erroneously gave the 1st Respondent a Certificate of Lease for the same parcel of land. 4. It is the Petitioner’s contention that upon the 3rd Respondent realizing the said error, it wrote a letter to the 1st Respondent asking him to surrender the said Certificate of Lease. 5. It is also the Petitioner’s contention that the 1st Respondent has refused to surrender the said Certificate of Lease. 6. It is further the Petitioner’s contention that in the year 2019, the 2nd Respondent took possession of the suit parcel of land. 7. The Petitioner contends that the Respondents have therefore infringed his rights as provided for under the Constitution. 8. Among the documents attached to the affidavit in support of the Petition is a letter dated 3rd June, 2022. The Letter is written by **K.E.M Bosire**, the County Land Registrar, Bomet County. It is addressed to **Joseah Kipkemoi Rono** and **Joshua A. Mwei** through the Area Chief Chemagel Location. The reference of the letter is “*Surrender of Certificates of Lease in Respect of P/No. Sotik Township/313-Regularizations*”. The contents of the said letter are as follows; ***“We have established from our records that the above lease documents are duplicated. In order for the undersigned to commence the process of regularizations, you are hereby directed to surrender the Certificate of Lease you were issued on 12th December, 2006 (Joseah Kipkemoi Rono).*** ***Take note that failure to surrender the above stated Certificate of Lease within the next twenty-one (21) days from the hereof, (sic) your lease documents will be expunged from our records and the certificate that you were issued will be deemed nullified under Section 79(2) of Land Registration (sic)”*** 1. The said letter is copied to the following; 1. ***The County Commissioner, Bomet County*** 2. ***C.C.I.O Bomet*** 3. ***Bomet Police Station*** 4. ***Deputy County Commissioner, Sotik Sub County.*** 2. The 1st Respondent on the other hand contends that he is the registered owner of Plot No. 7288/313 which measures 0.0467 Ha. 3. The 1st Respondent also contends that the said plot was first registered in the year 1991 under the Registration of Titles Act before it was converted and registered under the **Registered Land Act.** 4. The 1st Respondent further contends that on 13th December, 2006 he was issued with a Certificate of Lease with respect to the said parcel of land. 5. It is the 1st Respondent’s contention that the Petitioner is the registered owner of LR No. 7288/181 which is different from his parcel of land. 6. Among the documents attached to the 1st Respondent’s Replying Affidavit, is a copy of the Certificate of Lease for land parcel No. **Kericho/Sotik Township/313**. It shows that the land measures 0.0467 Ha. The Lessor is the government of Kenya and it is a lease of 99 years from 1st December, 1992. The Certificate of Lease shows that **Joseah Kipkemoi Rono** ID 6244875 P.O Box 493, Sotik was registered as the owner of the said parcel of land on 13th December, 2006. 7. The 2nd Respondent contends that he is the owner of LR No. 7288/248 which parcel of land was transferred to him through a Memorandum of Registration of Transfer of Lands. 8. The 3rd and 4th Respondents contend that land parcel No. **Sotik/Township/313** was registered in the name of the 1st Respondent on 13th December, 2006. 9. The 3rd and 4th Respondents also contend that the said parcel of land has never been registered in the name of the Petitioner. 10. It is the 3rd and 4th Respondents contention that the prayers as sought in the Petition touch on issues over competing claims of ownership of land, which can be conclusively determined in an ordinary suit without invoking the Constitution. 11. The 1st, 2nd, 3rd and 4th Respondents in their respective submissions, collectively rely on the doctrine of constitutional avoidance and submit that the issues as raised in the present Petition can be determined without invoking the Constitution. 12. In response, the Petitioner submits that in the letter dated 3rd June, 2022, the 3rd Respondent acknowledged that it irregularly issued the 1st Respondent with a Certificate of Lease for the suit parcel of land. 13. The Petitioner also submits that the prayers sought in the Petition relate to the contents of the said letter. 14. The Petitioner further submits that the impropriety of the process by which the 1st Respondent was issued with a Certificate of Lease violated his rights under **Articles 40 & 47** of the Constitution and therefore the doctrine of Constitutional avoidance is not applicable in the present proceedings. 15. 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) 1. 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) 1. 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) 1. 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 which the aggrieved party is yet to utilize. 2. In the Petition under consideration, the Petitioner essentially contends that he is the owner of land registered as P/N Sotik Township/313 and his rights under the Constitution have been violated by the alleged irregular issuance of a Certificate of Lease of the said parcel of land to the 1st Respondent. 3. It is apparent that the issues in dispute in the present Petition revolve around the ownership of land parcel No. Sotik Township/313 and whether the registration of the 1st Respondent as its owner was regular. 4. The prayers sought in the Petition also shed light on the nature of the dispute for determination by this Court. 5. The said prayers have been set out in the preceding paragraphs but I will nonetheless replicate them hereunder for ease of reference. They are: 1. ***A declaration that the Petitioner John Chepkwony Mwei is the only legal and indefeasible registered proprietor of the parcel of land registered as P/N Sotik Township/313.*** 2. ***A declaration that the constitutional rights of John Chepkwony Mwei of right to property, under Article 40 and the right to fair administrative action under Article 47 were violated by the 1st, 2nd and 3rd Respondents.*** 3. ***A declaration that the 3rd Respondent did not follow the right procedure when issuing out the certificate of lease for the parcel known as P/N Sotik Township/313 to the 1st Respondent on the 12th of December, 2006.*** 4. ***This Honourable Court be pleased to issue an order of cancelation of the certificate of lease issued by the 3rd Respondent to the 1st Respondent dated 12th of December 2006.*** 5. ***An order of eviction do issue against the 2nd Respondent, his agents and servants from the land registered as P/N Sotik Township/313.*** 6. ***An order that the Officer in charge Sotik police station to assist in compliance of order (e) above.*** 7. ***An award of general damages for pain and suffering, humiliation and distress visited upon the Petitioner against the Respondents. (sic)*** 8. ***Costs of this Petition.*** 9. ***Any other or further relief that this Honourable Court considers appropriate and just to grant.*** 6. As stated and as from the prayers sought in the Petition, it is evident that the dispute in this matter revolves around the issuance of a Certificate of Lease for land registered as P/N Sotik Township/313 to the 1st Respondent. The Petitioner therefore seeks among other orders, that a declaration be made that he is the owner of the suit parcel of land, that the Certificate of Lease issued to the 1st Respondent be canceled and an eviction order be issued against the 2nd Respondent. 7. It is my view that the said issues, that is, whether the proper procedure was followed in the issuance of the Certificate of Lease of the suit parcel of land to the 1st Respondent, whether the Certificate of Lease issued to the 1st Respondent should be cancelled and whether an eviction order can issue against the 2nd Respondent are civil in nature and can be determined without invoking the Constitution. 8. That being the case, 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. 9. Before penning off, I note that the Petitioner and the 3rd and 4th Respondents have extensively submitted on whether the Petitioner’s claim is statute barred. 10. I shall not address the said issue on its merits as I have invoked the doctrine of constitutional avoidance and found that the issues raised in this Petition can be pursued in a Civil Court. **B. Whether the Petitioners are entitled to the orders sought in the Petition.** 1. 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?** 1. The general rule is that costs shall follow the event. This is in accordance with the Provisions of **Section 27** of the **Civil Procedure Act (Cap. 21).** 2. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. **DISPOSITION.** 1. In the result, the Petition is hereby struck out with costs to the Respondents. 2. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 25TH DAY OF JUNE, 2026.** **L. A. OMOLLO** **JUDGE.** **In the presence of: -** **Mr. Nandi holding brief for Mugumya for the Petitioner.** **J.K Rono 1st Respondent – Acting in person.** **2nd Respondent - Absent** **Mr. Ojwang for the 3rd and 4th Respondents.** **Court Assistant; Mr. Joseph Makori.**