[2023] KEELC 20330 (KLR)

Mwene Munda Welfare Association & 8 others (Suing through its Chairman, Secretary and Organizing Secretary) Duncan Kamba, Kavili Mbiti & Muthui Musembi) v Kitui County Government; Katoteni Nguamuka Farmers Environment Conservation (Interested Party) (Through its patron, organizing Secretary and Chairman respectively (Benson Kyalo Nguthu, Josephat Nguu Ndonga & Josephat Mwove Minda) (Environment & Land Petition 15 of 2021) [2023] KEELC 20330 (KLR) (26 September 2023) (Judgment)

Neutral citation: [2023] KEELC 20330 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitui

Environment & Land Petition 15 of 2021

LG Kimani, J

September 26, 2023

IN THE MATTER OF: ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS OF INDIVIDUALS UNDER THE BILL OF RIGHTS OF THE CONSTITUTION OF KENYA,2010 AND IN THE MATTER OF CONTRAVENTION AND ENFORCEMENT OF FUNDAMENTAL RIGHTS UNDER ARTICLES 2, 3,10, 19, 20, 21, 22,23, 25, 27, 28, 43, 47, 50, 174 & 258 OF THE CONSTITUTION OF KENYA, 2010

Between

Mwene Munda Welfare Association

1st Petitioner

Duncan Kamba

2nd Petitioner

Kavili Mbiti

3rd Petitioner

Muthui Musembi

4th Petitioner

Jackson Mwendwa

5th Petitioner

Kennedy Musyimi

6th Petitioner

and

Augustus Muthui Musembi

Appellant

and

Erastus Mua

1st Petitioner

Justino Ngala Mutia

2nd Petitioner

Suing through its Chairman, Secretary and Organizing Secretary) Duncan Kamba, Kavili Mbiti & Muthui Musembi

and

Kitui County Government

Respondent

and

Katoteni Nguamuka Farmers Environment Conservation

Interested Party

Through its patron, organizing Secretary and Chairman respectively (Benson Kyalo Nguthu, Josephat Nguu Ndonga & Josephat Mwove Minda

Judgment

1. Before the Court is a Petition dated 19th September 2019 for enforcement of fundamental rights and freedoms under the Bill of Rights of the Constitution of Kenya 2010 Articles 2,3,10,19,20,21,22,23,25,28,27,43,47,50,174 and 258.

2. The 1st Petitioner states that it is a duly registered welfare group with a membership of over 3,000 while the 2nd to 9th Petitioners are some of its members. The Respondent is stated to be the owner as trustee of Land Parcel LR 12010 that measures about 30,200 acres situated at Yatta B2 (Katoteni) in the Kitui District (now Kitui County) and Land Parcel LR 11802 situate north east of Thika Municipality measuring about 23,109 acres.

3. The Petitioners claim that the Respondent’s predecessor, the County Council of Kitui, granted a lease over land parcel LR 11802 measuring 23,109 acres to Kitui Yatta Kanyonyoo Co-operative Society Ltd on 1st January, 1965 for a term of 99 years with effect from 1st January, 1965 and pursuant thereto a grant was issued.

4. Pursuant to a gazette notice dated 17th January,1967 the Respondent set aside land parcel No. LR 12010 measuring 30,200 acres to Katoteni Ranching Society Ltd for a term of 20 years with effect from 17th August, 1967 and pursuant thereto the society was issued with a letter of allotment. The lease expired on 16th August, 1987 and was never renewed or the land leased to any person or entity. On or about 12th July, 1974, Kitui Yatta Kanyonyoo Co-operative Society Ltd and Katoteni Ranching Society Ltd merged into one entity and adopted the name B2 Yatta Ranching Co-operative Society the 2nd Respondent herein. They were issued with a Certificate thereto on 12th September, 1974. Upon expiry of the lease over LR 12010, the new society did not apply for a renewal of the grant.

5. On or about August 2006, over 3000 members of the 1st Petitioner entered and took possession over LR 12010, more specifically the portion situated at the intersection between Katoteni River and Mwita Syano River measuring 3,000 acres (the suit parcel of the land). They state that they have been in occupation, use and uninterrupted possession thereof to the exclusion of everyone, including the Respondent herein where they have been grazing animals, carrying out agri-forestry farming and conserving wildlife.

6. The Petitioners aver that they have a legitimate expectation to be registered as the proprietors of the suit land and their registration should take precedence over all other people. They accuse the Respondent’s officers in cahoots with third parties of seeking allocation of the land to themselves, third parties and their beneficiaries who want to grab the suit of land. It is their position that a public body must not abuse its powers and must act responsibly and in good faith.

7. The members of the 1st Petitioner are now apprehensive that they shall be forcibly evicted since they continue to be harassed, threatened and charged with flimsy and frivolous charges and will suffer irreparable loss and damage unless the orders sought are granted.

8. The Petitioners claim that as per economic and social rights contained under the Bill of rights they are entitled to access to land, shelter, livelihoods that should be catered for by the Respondent in accordance with part IX of the Land Act which provides for establishment of Settlement Schemes to facilitate access to land, shelter and livelihood. The said part provides for settlement programs to provide for access to land to squatters, displaced persons, to establish land settlement schemes to be applied in the provision of access to land for displaced persons and squatters.

9. The Petitioners claim violation of rights under Articles 2(1), 3(1), 10(1) and 10(2) of the Constitution of Kenya 2010. The said provisions relate to national values and principals of governance and the provisions of the Bill of rights that entitle them access to land, shelter and livelihood. They aver that to the extent that the decision and acts of the Respondents have been influenced by corrupt practices they are in violation of the leadership and integrity provisions of Chapter six of the Constitution of Kenya, the County Government Act cap 265, and the Leadership and Integrity Act 2012.

10. The Petitioners pray for the following orders:i.A declaration that the Constitution as the supreme law is binding on all levels of government and no less on the Respondent and consequently the Respondent is mandated to act in accordance with and within the limits of the Constitution.ii.A declaration that your Petitioners’ constitutional right to property and/or interest in or over all that portion of land measuring 3000 acres LR 12010, situated at the intersection between Katoteni River and Mwita Syano river at Kitui Yatta B2(Katoteni) within Kitui County deserves the protection by the Honourable Court and that protection do issue accordingly.iii.A declaration that your Petitioners rights and fundamental freedoms and in particular, the protection of rights to all that portion of land measuring 3000 acres LR 12010, situated at the intersection between Katoteni River and Mwita Syano river at Kitui Yatta B2(Katoteni) within Kitui County and/or interest in or right over the said portion has ben violated and/or infringed or is about to be violated and/or is in real danger of being arbitrarily acquired by the Respondents and their beneficiaries to the detriment of our Petitioners.iv.A declaration that the threat to evict your Petitioners by the Respondent is without authority and illegal and the Respondent is liable in damages and/or compensation to your Petitioners for the illegal acts of the Respondent and/or quantum to be assessed by the Court.v.Damages as against the Respondents for breach and/or threatened violation of your Petitioners’ Constitutional Rights to properties and protection of the law.vi.A declaration that the Respondent should allocate and/or cause to be registered your Petitioners’ as the proprietors of a portion measuring 3000 acres LR 12010, situated at the intersection between Katoteni River and Mwita Syano river at Kitui Yatta B2(Katoteni) within Kitui County for the settlement of your Petitioners’ members.vii.An order restraining and/or prohibiting the Respondent from harassing, intimidating and/or threatening either by themselves, their authorized agents, servants, employees, workers or otherwise whomsoever from harassing, intimidating, threatening the officials and/or the members of the Plaintiff and/or entering, trespassing, evicting, threatening to evict, alienating, selling, advertising for sale, transferring, charging, mortgaging, registering, and/or otherwise interfering with the plaintiffs, its officials, members and/or their use, occupation and/or quiet enjoyment to all that portion measuring 3000 acres LR 12010, situated at the intersection between Katoteni River and Mwita Syano river at Kitui Yatta B2(Katoteni) within Kitui Countyviii.Any such further orders this Honourable court shall deem just.ix.Costs of this Petition be borne jointly and severally by the Respondents.

11. In the affidavit in support of the Petition, it is deposed by the 1st Petitioner’s chairman that they are a registered welfare group. He reiterates the contents of the petition as summarized herein and states that the members of the 1st Petitioner are now apprehensive that they shall be forcibly evicted from the suit parcels of land due to the harassment and threats they have received from the Respondent’s officials who want to allocate themselves the land.

12. He averred that since the Respondent has violated the requirements of the supreme law of the land, the court should assert the authority and supremacy of the constitution by ensuring the Respondents act within the law and fulfil their constitutional obligations.

13. The Petitioners attached to the supporting affidavit copies of Grant of land parcel LR No 11802, gazette notice and letter of allotment for LR No 12010, certificate of registration for B2 Yatta Ranching Co-operative Society, photographs and certificate of registration for 1st Petitioner.

The Respondent’s Replying Affidavit 14. Samson Nyamai Masila swore a replying affidavit on behalf of the Respondent as the County Executive Committee member in charge of lands and physical planning in the County Government of Kitui, deposing that the Respondent is registered as the trustee of all those parcels of land known as LR. No. 12010 measuring approximately 30,200 acres and LR. No. 11802 measuring approximately 23,109 acres situate in Kitui County.

15. The Respondent stated that it granted lease over LR 11802 to the B2 Yatta Ranching Co-operative Society on 1st January 1965 for a term of 99 years for purposes of ranching. On or about 17th January 1967, the Respondent gazetted LR No. 12010 for ranching purposes and leased it to Katoteni Ranching Society Limited for a term of 20 years and the said lease expired in 1985. It is upon expiry of the lease that groups, including the Petitioners invaded the land and have used crude means and violence to claim ownership.

16. That the lease for LR 11820 is still valid to date though the lease B2 Yatta Ranching Co-operative Society has been unable to manage the same for the purpose for which it was granted thus allowing the Petitioners and other groups to overrun it to the point where they now have the audacity to file the present petition to try and take over the land through what they call the backdoor.

17. The Respondent highlighted that the Petitioners herein were the Plaintiffs in Machakos ELC 200 of 2018 where they sought similar orders to those sought in this Petition where the Court ruled that the Plaintiffs could not claim the suit land by way of adverse possession. The Respondent states that this Petition amounts to a fishing expedition and that the Petitioners are determined to misuse the process of this Honourable Court to grab the land that legally belongs to them.

18. The Respondent further stated that it will at the appropriate time seek eviction of the Petitioners so that the land can be allocated and/or utilized in accordance with the laid down procedure. The Respondent further stated that it was in the process of considering revocation of the lease over parcel No. 11802 to B2 Yatta Ranching Co-operative Society on grounds raised by the Petitioners herein.

19. According to the Respondent, the lease granted to Katoteni Ranching Society Ltd in respect of LR 12010 expired in 1985 and the same was never renewed, and thus naturally the land reverted to the Respondent who is a custodian and trustee for the benefit of the people of Kitui County. That the Respondent is the authority that is mandated to ascertain and allocate the suit land when a proper application is made and the court cannot as sought in this petition usurp this power.

20. They also state that the Petition lacks precision and specificity, is incompetent and bad in law as it does not raise any constitutional issues with a reasonable degree of specificity and is inviting the Court to usurp the role of the Respondent and the National Land Commission.

The Interested Parties’ Replying Affidavit 21. The Interested Parties Katoteni Nguamuka Farmers Conservation filed an application dated 18th April 2020 seeking to be joined in this suit as interested parties and an order allowing them to be so joined was made.

22. Josephat Nguu Ndonga, the organizing secretary filed a replying affidavit stating that the Interested Party is a registered entity that looks after the welfare of over 3,000 members resident on land parcel LR 12010.

23. He deposed that the Petitioners had previously filed Machakos ELC 200 of 2018 (OS) which was similar in substance to the instant petition. In the said suit the Petitioner herein sued the Kitui County Government, B2 Yatta Ranching Co-operative Society Ltd and Katoteni Nguamuka Farmers Environment Conservation seeking injunctive orders and that when an application for contempt of court orders was dismissed on 20th September 2019 and Petitioners withdrew and/or discontinued the said suit and promptly filed the instant Petition. He deposed that the Petition does not disclose any cause or reasonable action and that the Petition as drafted is fatally and incurably defective and calls for striking out.

The Petitioners’ Written Submissions. 24. Counsel for the Petitioners submitted that the Petitioners are in occupation, use and possession of the suit land and hence national values and principles under Article 10 and human rights embodied in the Constitution should be respected and protected and applied to them by all.

25. Their submission is that the acts of the Respondents are meant to frustrate their members and forcibly evict them from the 3,000 acres that they occupy and procure registration of the land in their favour, their beneficiaries, officials their cronies and financiers in breach of the Constitution of Kenya in violation of economic and social rights protected under the Constitution.

26. The Petitioners claim violation of their rights which include inter alia human dignity, equity, inclusiveness, social justice, equality, human rights, dignity, non-discrimination, good governance, integrity, transparency and accountability which they aver the Respondent has a duty to uphold.

27. Counsel submitted that the Constitution as the Supreme law is binding on all levels of the government and no less the Respondent and that their corrupt practices are in violation thereof. It is their submission that if the Petitioners shall be forcibly evicted from the portion they have been possessing, occupying and using since August 2006 and they shall suffer irreparable loss and damage.

The Respondent’s Written Submissions. 28. Counsel for the Respondent submitted that their replying affidavit was not controverted by the Petitioners. They submitted that the suit land belongs to the Respondent since the lease to B2 Yatta Ranching Co-operative Society Limited expired sometime in 1985. That the Petitioners acknowledged that it is upon the expiry of the lease that they invaded the said land and now seek for the Court to affirm their “invasion rights.”

29. Further, Counsel submitted that the Petitioners have not established the rights under which they invaded the land and admit that they are land grabbers. The Petitioners have also not established the Constitutional rights, if any, that were allegedly breached by the Respondent to warrant this Honourable Court’s intervention.

30. It is the Respondent’s assertion that if the Petitioners made a claim for land in the right way to the Respondent requesting that they be considered for land allocation since the law has mandated county governments in conjunction with the National Land Commission to consider issues of landlessness they could have had a chance.

31. It is their final submission that the petitioners have a calculated scheme to take public property by using the Honourable Court’s powers which they state is an abuse of the Court process. The Respondent urged the Court to find that the Petitioners have not established any violation of the Constitution and to dismiss the Petition with costs.

Analysis and Determination 32. Based on the parties’ pleadings and respective submissions, the court considers that the following issues, once determined will dispose of the appeal at hand;A.Whether the Petition has clearly stated the Constitutional rights said to have been violated.B.Whether the Petitioners constitutional right to property over land parcel L. R. No 12010 have been violated.C.Whether the Petitioners constitutional right to occupation, use and possession of the suit land have been violated.

33. Constitutional Petitions are premised on Article 22, 23 and 165 of the Constitution of Kenya. Article 22(1) provides as follows:“Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”

A. Whether the Petition has Clearly Stated the Constitutional Rights Said to have Been Violated. 34. A party seeking declaration that their rights have been infringed upon through a constitutional petition must specifically state which rights have been infringed and in what way the rights have been infringed. This was observed by the Court in the case of Anarita Karimi Njeru v Republic [1979]eKLR where the High Court held:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

35. The Respondent contends that the Petitioners have not set out with precision which constitutional rights they allege to have been infringed. However, the Petitioners’ cited Articles 2(1), 3(1), 10(1) and 10(2) of the Constitution of Kenya as their grounds for relief based on violation of national values and principals of governance and the provisions of the Bill of rights that entitle them to access to land, shelter and livelihood.

36. The Court of Appeal in the case of Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others [2016] eKLR where it was stated with regard to consideration of formalism in constitutional petitions that:“We are quite clear in our minds that whereas the Hon. the Chief Justice in making the Rules did set out what a petition ought to contain, it cannot have been his intention, and nor could it be, in the face of express constitutional pronouncement, to invest those rules with a stone cast rigidity they cannot possibly possess. It seems to us unacceptable in principle that a creeping formalism should be allowed to claw back and constrict the door to access to justice flung open by the Constitutionwhen it removed the strictures of standing and formality that formerly held sway. We apprehend that the primary purpose of pleadings is to communicate with an appreciable degree of certainty and clarity the complaints that a pleader brings before the court and to serve as sufficient notice to the party impleaded to enable him to know what case to answer . Within that general rubric of notification to court and respondent, the Constitution, if it says anything at all on this subject, clearly does not lionize form over substance.Thus, while Anarita and other cases decided prior to the Constitution of 2010 were decided correctly in their context with their insistence on specificity, the constitutional text now doubtless presents an epochal shift that would preserve informal pleadings that would otherwise have been struck out in former times. We are satisfied that there was no doubt at all as to what Fugicha’s complaints were, against whom they were, and the provision of the Constitution he alleged had been violated or contravened.”

37. In the present case the court is satisfied that there is clarity as to what the Petitioners’ complaints are, against whom they are, and the provision of the Constitution they allege have been violated or contravened.

B. Whether the Petitioners Constitutional Right to Property Over Land Parcel LR No 12010 have been Violated. 38. It is common ground and accepted by all parties to this suit that the Respondent’s predecessor, the County Council of Kitui, granted a lease over land parcel LR No. 11802 situated within Kitui to Kitui Yatta Kanyonyoo Co-operative Society on 1-01-1965 for a term of 99 years with effect from 1. 1.1965. The said lease has thus not expired to date. Further, the 1st Respondent leased land parcel LR No. 12010 on 17. 1.1967 to Katoteni Ranching Society for a term of 20 years with effect from 17. 8.1967 and the same expired on 16-08-1987. The two Co-operative societies were amalgamated in 1974 to form B2 Yatta Ranching Co-operative Society Ltd.

39. The petition shows that the Petitioners’ claim is restricted to land parcel No LR 12010. They claim that on or about August 2006, over 3,000 of their members entered and took possession over a portion of the land more specifically the portion situated at the intersection between Katoteni River and Mwita Syano River. They state their claim of occupation, use and uninterrupted possession of the suit land to the exclusion of everyone, including the Respondent herein where they have been grazing animals, carrying out agri-forestry farming and conserving wildlife.

40. They aver that they have a legitimate expectation to be registered as the proprietors of that portion of land measuring 3,000 acres out of LR 12010, and their rights should take precedence over the allocation of the said portion to third parties. The Petitioners accuse the Respondent’s officers in cahoots with third parties of seeking allocation of the land to themselves, third parties and their beneficiaries who want to grab the portion occupied by the Petitioners’ members. It is their position that a public body must take care not to abuse its powers and must act in good faith and reasonably.

41. The Petitioners exhibited gazette notice No. 183 dated 17th January 1967 issued under the repealed Trust Land Act setting apart the suit parcel of land more particularly described in the notice measuring 30,200 acres. The setting apart is said to have been in exercise of powers conferred under part IV of the Trust Land Act Chapter 288 Laws of Kenya (repealed) for purposes of ranching. It is this setting apart by the Respondent of the suit parcel of land that gave leasehold rights over the land to B2 Yatta Ranching Co-operative Societies.

42. The legal regime for setting apart trust land under the repealed constitution then in force starts with .Section 117 of the repealed Constitution of Kenya The said section deals with setting apart of trust land by county councils and reserving the same for use and further provides the formal process that ends up creating new rights and extinguishing the rights and interests of the occupants of the land and persons with rights and interest in the land proposed to be set apart. The said process wass strictly regulated and controlled by statute. The entire section states as follows;“(1)Subject to this section, an Act of Parliament may empower a county council to set apart an area of Trust land vested in that county council for use and occupation -a.by a public body or authority for public purposes; orb.for the purpose of the prospecting for or the extraction of minerals or mineral oils; orc.by any person or persons for a purpose which in the opinion of that county council is likely to benefit the persons ordinarily resident in that area or any other area of Trust land vested in that county council, either by reason of the use to which the area so set apart is to be put or by reason of the revenue to be derived from rent in respect thereof, and the Act of Parliament may prescribe the manner in which and the conditions subject to which such setting apart shall be effected.2. Where a county council has set apart an area of land in pursuance of this section, any rights, interests or other benefits in respect of that land that were previously vested in a tribe, group, family or individual under African customary law shall be extinguished.3. Where a county council has set apart an area of land in pursuance of this section, it may, subject to any law, make grants or dispositions of any estate, interest or right in or over that land or any part of it to any person or authority for whose use and occupation it was set apart.4. No setting apart in pursuance of this section shall have effect unless provision is made by the law under which the setting apart takes place for the prompt payment of full compensation to any resident of the land set apart who -a.under the African customary law for the time being in force and applicable to the land, has a right to occupy any part of the land; orb.is, otherwise than in common with all other residents of the land, in some other way prejudicially affected by the setting apart.(5)No right, interest or other benefit under African customary law shall have effect for the purposes of subsection (4) so far as it is repugnant to any written law.

43. Subsequent to the setting a part of the suit land, the Petitioners have shown that a letter of allotment was issued to Katoteni Ranching Co-operative Society Ltd dated 17th August 1967 for a period of 20 years from 1st September 1967.

44. The Petitioners herein do not challenge the setting a part of the suit land and the award of the lease. They further do not challenge the fact that upon expiry of the lease to the suit land the said land reverted to the Respondent herein.

45. The Petitioners do not claim to have any legally registrable interest in the suit land but claim entitlement to the land having been in occupation, use and possession of part of the suit land which they state is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. They further state that as per economic and social rights contained under the Bill of rights they are entitled to access to land, shelter and livelihoods which they claim should be catered for by the Respondent in accordance with Part IX of the Land Act No. 6 of 2012.

46. The Petitioners state that the Part IX of the Land Act provides for establishment of settlement schemes to facilitate access to land, shelter and livelihood: It also provides for settlement programs to provide for access to land to squatters, displaced persons, to establish land settlement schemes to be applied in the provision of access to land for displaced persons and squatters. They claim that allocation to them of the suit land should take precedence over allocation to 3rd parties and they oppose what they call plans by officers of the Respondent to allocate the land to themselves, 3rd parties, their cronies and other beneficiaries. They also oppose what they call efforts to grab the land from them and evict them.

47. Establishment of settlement schemes as claimed by the petitioners is provided for under Section 134 of the Land Act. The said section places a legal obligation on the National Land Commission on behalf of the national and county governments, to implement settlement programmes to provide access to land for shelter and livelihood. The settlement programmes are aimed at providing access to land to squatters, persons displaced by natural causes, development projects, conservation, internal conflicts or other such causes that may lead to movement and displacement.

48. Under subsection (3), the Commission is tasked with assisting the national and county governments in the administration of settlement programmes and further provides for identification of beneficiaries to be carried out and verified by a subcounty selection committee

49. Under Subsection (5), the Commission is mandated to reserve public land for the establishment of approved settlement programmes, and where public land is not available purchase private land subject to the Public Procurement and Disposal Act, 2005 (No. 3 of 2005) or any other law.

50. Under subsection (6) it is provided that upon planning and survey, land in settlement schemes is to be allocated to households in accordance with national values and principles of governance provided in Article 10 and the principles of land policy provided in Article 60(1) of the Constitution and any other requirements of natural justice.

51. The foregoing provision of the law shows a very clear and detailed process that has been established for the purposes of doing that which the Petitioners ask the court herein to do for them and that is the provision of access to land for shelter and livelihood by squatters and other persons who fall under the category claimed by the Petitioners. In court’s view the detailed process already in place ensures that constitutional rights under Article 10 and 60 of the Constitution of Kenya 2010 and other provisions on natural justice are upheld and protected.

52. The Petitioners claim that the Respondent has shown signs that in allocating the land it will be discriminatory and its officers in tend to allocate the land to themselves and others to grab the land from them and evict them. It is the court’s view the process provided under Section 134 of the Land Act is able to carry out identification and verification of bona fide beneficiaries and to ensure that the Petitioners fears are allayed in the event such a process is found to be the way to go.

53. Indeed the said process as set in law is an all-inclusive process that when adhered to will deliver to the parties adequate constitutional safeguards and protection. This is shown under Section 134 (5) of the Land Act where it is provided that “In carrying out its functions under Part IX of this Act, the Commission shall consult and co-operate with the departments responsible for land, finance, agriculture, environment and natural resources, and special programmes and with the relevant county government where applicable.”

54. It is the Court’s view that it is only after the process outlined has been put in place and undertaken can the Petitioners approach the court if there are any challenges encountered and any violation of the Constitution and the law are noted. At the moment, the Petitioners seek from the court that it arrogates to itself powers that have been given to other institutions and offices of government and the Court finds that it is not mandated to do so. In the court’s view, the Petitioners cannot by pass the process laid down by the law and invoke the court’s jurisdiction in the way in which they have done.

55. The Petitioners have not shown that they have invoked and or attempted to activate the provisions of Section 134 of the Land Act. They have also not shown that the Respondent herein or the National Land Commission has failed and/or refused to act as provided under the law.

56. It is trite that where the Constitution or statute confers jurisdiction upon a court, tribunal, person or body or any authority, that jurisdiction must be exercised in accordance with the Constitution or statute. The Court of Appeal in the case of Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others [2018] eKLR held as follows:“Where the Constitution had reposed specific functions in an institution or organs of State, the courts must give those institutions or organs sufficient leeway to discharge their mandates and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution. Courts must decline to intervene at will in the constitutional spheres of other organs, particularly when they are invited to substitute their judgment over that of the organs in which constitutional power reposes, because those organs have expertise in their area of mandate, which the courts do not normally have. We must accordingly shun invitation to dabble in matters of national economic policy, when what is placed before us are the views of only two players in one industry.”

57. Similarly, the Supreme Court in the case of: Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017]eKLR was of the view that a the Court should exercise restraint where a specific mandate is designated to another agency; the court stated;“Notwithstanding the conventional judicial perception of ultimacy in judicial Orders, a question remains: what is the tenability of such Orders that directly abrogate the discharge of commanded legislative-agency process?From the facts of this case, it is clear to us that the integrity of Court Orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate-allocation under the Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility. No governmental agency should encumber another to stall the constitutional motions of the other. The best practices from the comparative lesson, signal that the judicial organ must practice the greatest care, in determining the merits of each case.”

C. Whether the Petitioners Constitutional Right to Occupation, Use and Possession of the Suit Land have Been Violated. 58. The members of the 1st Petitioner claim that they are now apprehensive that they shall be forcibly evicted and continue to be harassed, threatened and charged with flimsy and frivolous charges and are destined to suffer irreparable loss and damage unless the orders sought are granted. However, the court has not seen any acts of the Respondent that can be said to be acts of harassment or threats of forced evictions

59. It is the Courts view that the Petitioners claim of violation of rights under Articles 2(1), 3(1), 10(1) and 10(2) of the Constitutionof Kenya 2010 are unsupported and have no factual basis. It is also the court’s view that the process that the Petitioners claim will grant them access to land and shelter has an in built system that ensures protection of the constitutional rights and the Petitioners ought to have invoked the said process. The said provisions relate to national values and principals of governance and the provisions of the Bill of rights that entitle them access to land, shelter and livelihood.

60. The Petitioners claim that to the extent that the decision and acts of the Respondents have been influenced by corrupt practices in violation of the leadership and integrity provisions of Chapter six of the Constitution of Kenya, the County Government Act cap 265, and the Leadership and Integrity Act 2012. However, the claims made are unsupported by facts and the same are in the court’s view generalized allegations without any attempt to prove the same.

61. No evidence was tendered by the Petitoners of threats of eviction, plans by the Respondent’s officers to allocate to themselves, their cronies and other beneficiaries and to grab the land from them.

62. The court further notes that the Land Act, 2012 No. 6 of 2012 has clear provisions on the process of eviction of persons deemed to be in unlawfully occupation, possession and use of public, private and community land. This is under Section 152 (A) to (1) of the Land Act and any person is expected to adhere to the said provisions of the law.

D. Whether the Petitioners are Entitled to the Orders Sought 63. The Petitioners claim that their constitutional rights to property or interests over 3,000 acres out of land parcel No. 12010 have been violated. They pray for a declaration of entitlement to the said portion of the suit land. The court has found that the Petitioners have not proved that they have any proprietary rights and/or interests in the suit parcel of land. They have also not proved violation or infringement of rights and fundamental freedoms in relation to the said parcel of land.

64. The court has further found that the Petitioners’ claim of threatened eviction, harassment, intimidation, and their prayer for a declaration that the Respondent is liable in damages for the said acts has not been proved to the required legal standards.

65. Further, the court finds that the Petitioner’s prayer for retraining orders against the Respondent with respect to the 3,000 acres out of land parcel No. LR 12010 is not available to them having found that their rights and interests in the said land have not been proved.

66. On the issue of costs the court has considered that the Respondent does not seem to have taken any action to manage and/or control the persons in occupation and possession of the suit land since expiry of the lease. For this reason, the order that commends itself on costs is that each party shall bear its own cost of the petition. Final Orders:A.The Petition herein lacks merit and the same is hereby dismissed.B.Each party shall bear its own costs of the petition

DELIVERED, DATED AND SIGNED AT KITUI THIS 26TH DAY OF SEPTEMBER, 2023. HON. L. G. KIMANIENVIRONMENT AND LAND COURT JUDGEJudgement read in open court and virtually in the presence of;Wanyonyi holding brief for Macharia for interested partiesAmuhanda holding brief for Mwatha for PetitionersMusyoki for the Respondents