https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4310

Mwinzagu (Suing on Behalf of Himself and on Behalf of 25 other Families that were Fraudulently Dispossessed their Parcels of Land by the Respondents herein Through a Fraudulent Scheme) v Mackinnon Road Dokata Ranching Company Ltd & 5 others (Environment and Land Constitutional Petition E001 of 2025) [2026] KEELC 4310 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4310 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Constitutional Petition E001 of 2025 LL Naikuni, J July 9, 2026 IN THE MATTER OF: THE ALLEGED INFRINGEMENT OF THE PROVISIONS OF ARTICLES 2(1), 2(2), 2(4), 3, 10,22, 23, 26, 27, 28, 29 (d) AND (f), 40, 258 AND 259(1) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE ENFORCEMENT OF THE SUPERMACY AND DEFENCE OF THE CONSTITUTION AS PER ARTICLE 2 (1) AND 3 OF THE CONSTITUTION AND IN THE MATTER OF: THE CONTRAVENTION OF FUNDAMENTAL RIGHT AND FREEDOMS UNDER ARTICLE 40 OF THE CONSTITUTION REGARDING RIGHT TO PROPERTY AND IN THE MATTER OF: THE CONTRAVENTION OF THE FUNDAMENTAL RIGHT AND FREEDOMS UNDER ARTICLE 47 OF THE CONSTITUTION REGARDING THE RIGHT TO FAIR ADMINSTRATIVE ACTION AND IN THE MATTER OF: IN THE MATTER OF REDRESS FOR HISTORICAL LAND INJUSTICES & LEGITIMATE EXPECTATION Between Changoti Lugwe Mwinzagu Petitioner Suing on Behalf of Himself and on Behalf of 25 other Families that were Fraudulently Dispossessed their Parcels of Land by the Respondents herein Through a Fraudulent Scheme and Mackinnon Road Dokata Ranching Company Limited 1st Respondent Belewa Chiwaya Chuphi 2nd Respondent Alfred Ngalaa Chuphi 3rd Respondent Belewa Chiwaya Chuphi (sued in his capacity as the representative of the estate of YUSUF CHUPHI NGALAA - Deceased) 4th Respondent The Registrar Of Lands, Kwale 5th Respondent Director Of Surveys Of Kenya At Kwale 6th Respondent Judgment I. Preliminaries 1.The Judgment of this Court pertains to the filed Constitutional Petition dated 6th January, 2025 by Changoti Lugwe Mwinzagu, suing on his own behalf and on behalf of twenty‑five ( 25 ) families allegedly dispossessed of their parcels of land through a fraudulent scheme, the Petitioner herein, against Mackinnon Road Dokata Ranching Company Limited, Belewa Chiwaya Chuphi, Alfred Ngalaa Chuphi, Belewa Chiwaya Chuphi (sued in his capacity as the representative of the estate of Yusuf Chuphi Ngalaa – Deceased), the Registrar of Lands – Kwale, and the Director of Surveys of Kenya at Kwale, the 1st, 2nd, 3rd, 4th, 5th & 6th Respondents herein. 2.The Petition was brought under the dint of the provisions of Articles 2(1), 2(2), 2(4), 3, 10, 19, 20, 22, 23, 26, 27, 28, 29(d) & (f), 40, 43, 47, 258 and 259(1) of the Constitution of Kenya, 2010. The Petition was accompanied by an affidavit in support sworn by the Petitioner on the same date. 3.Upon service of the Petition, the Respondents vigorously opposed it. The 2nd Respondent, Belewa Chiwaya Chuphi, swore a Replying Affidavit dated 14th February, 2025 on his own behalf and on behalf of the 1st and 3rd Respondents, contending inter alia that the Petition was incompetent, time‑barred under the provision of Section 7 of the Limitation of Actions Act, and an abuse of the Court process. The Respondents further averred that the suit property, LR No. 14857 situate in Taru Location, Mackinnon Ward, Kwale County, is the private property of the 1st Respondent duly registered under a certificate of lease, and denied the allegations of fraud and dispossession raised by the Petitioner. The 1st to 4th Respondent also filed a response to the Petition dated 14th February, 2025. 4.Further the 5th and 6th Respondents filed a notice of Preliminary objection dated 3rd March, 2025 seeking to have the Petition struck out. II. Description of the parties in the Petition 5.The Petitioner, Changoti Lugwe Mwinzagu, is a male adult of sound mind residing and working for gain in the County of Kwale within the Republic of Kenya. He brings this Petition on his own behalf and on behalf of twenty‑five families who allege that they were fraudulently dispossessed of their parcels of land and livestock through the formation of Mackinnon Road Dokata Ranching Company Limited. 6.The 1st Respondent, Mackinnon Road Dokata Ranching Company Limited, is a limited liability company duly incorporated under the provisions of the Companies Act, Cap. 486 of 2015. It is sued herein as the entity alleged to have been formed through deception, whereby the Petitioners’ land and livestock were contributed under the guise of forming a community ranch but were subsequently converted into a private family enterprise. 7.The 2nd Respondent, Belewa Chiwaya Chuphi, is a male adult of sound mind residing in Mombasa County. He is sued in his capacity as a director and manager of the 1st Respondent, and as one of the persons alleged to have participated in the fraudulent acquisition of the Petitioners’ land. 8.The 3rd Respondent, Alfred Ngalaa Chuphi, is a male adult of sound mind residing in Kwale County. He is similarly sued as a director and manager of the 1st Respondent, and as one of the persons alleged to be in possession of the Petitioners’ parcels of land. 9.The 4th Respondent, Belewa Chiwaya Chuphi, is further sued in his representative capacity as the administrator of the estate of the late Yusuf Chuphi Ngalaa, the former Chief of Mackinnon area. The deceased is alleged to have mobilized the Petitioners to contribute their land and livestock towards the formation of a ranch, only for the same to be converted into a private family company. 10.The 5th Respondent, the Registrar of Lands, Kwale, is a public officer established under Section 13 of the Land Registration Act, 2012, charged with the custody and issuance of title certificates. The office is sued herein for having issued title certificates in respect of the suit property to the 1st to 4th Respondents, which the Petitioners allege were fraudulently obtained. 11.The 6th Respondent, The Director of Surveys of Kenya at Kwale, is a public officer established under the provision of Section 3(1) of the Survey Act, Cap 299, Laws of Kenya. The office is responsible for surveying, sub‑dividing, and marking boundaries of land. It is sued herein for having surveyed and delineated the suit property in favour of the 1st to 4th Respondents, which the Petitioners allege was done illegally and to their detriment. III. Direction of the Court before the hearing 12.Nonetheless, on 6th February, 2025, with the parties having fully complied on the Provisions of Order 11 of the Civil Procedure Rules 2010 and the matter proceed by way of documentation and the matter was put down for delivery of its judgment. IV. The Petitioners’ case 13.The Petition was founded on the following legal parameters from Paragraphs 7 to 21 of the Petition: -a.Article 2 (1) of the Constitution of Kenya pronounces the supremacy of the Constitution and provides that the Constitution binds all persons and all state organs at both levels of Government.b.Article 2 (4) of the Constitution provides, among other things, that any act or omission in contravention of the Constitution is invalid.c.Article 3 of the Constitution obligates every person to respect, uphold and defend the Constitution.d.Article 10 of the Constitution sets out the national values and principles of governance that state officers, state organs, public officers and all persons whenever they apply or interpret any law, make or implement public policy decisions.e.Among, the national values and principles of governance are: national unity, the rule of law, equity, social justice, equality, human rights, non-discrimination,f.Article 19 of the Constitution of Kenya, 2010 recognizes that the Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies and that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.g.The same Article 19 provides that the rights and freedoms in the Bill of Rights belong to each individual and are not granted by the state and that the said rights and freedoms cannot be limited unless in accordance with the constitution.h.Under Article 20 of the Constitution of Kenya, 2010,the Bill of Rights applies to all law and binds all state organs and persons.i.Article 26 protect the right to life. This applies to all human beings regardless of class, ethnic extraction, status or political connection.j.The constitution provides for the right to Equality and freedom from discrimination as enshrined under Article 27 of the constitution.k.The constitution further provides for the right to human dignity as enshrined under Article 28.l.The constitution also recognizes the right not to be subjected to torture in any manner, whether physical or psychological and the right not to be treated or punished in a cruel, inhuman or degrading manner as enshrined under Article 29 (d) and (f) respectively.m.The constitution further protects the right to property as enshrined under Article 40.n.The constitution also provides for the right to fair administrative action as enshrined under Article 47 of the constitution.o.Article 47(1) of the constitution guarantees every person fair administrative action which includes due process. The article and supporting legislation have guaranteed the Petitioner who is the elderly member of the society legitimate expectation. 14.The brief facts of the case were that:i.In/about the year 1970 livestock keepers from the villages of Egu, Dupharo, Nyacha, Dokata, Roka, Sirira and Silaloni came up with the idea of uniting in order to have common grazing grounds and water reserves for their livestock. This was as a result of meetings they held with the then area chief; Yusuf Chuphi Ngalaa (Deceased) who convinced the community to unite in order to benefit from this government initiative.ii.The idea was as a result of the vast stock of livestock that was reared in the areas that often caused conflicts amongst them over the grazing fields. There was also need to preserve their lands from land grabbers so that they do not become squatters over their land.iii.After long deliberations amongst the elders in the village, they unanimously agreed to unite and have common grazing fields for their livestock and reserve some of the land for crop farming.iv.The Chief then proposed that it was possible for the community to form a ranch and through his intervention, the government would provide immense assistance to the farmers which would boast their standards of living greatly.v.The villagers got more excited upon hearing the chief’s input about their unity. They were more motivated in the quest for unity than ever.vi.Thereafter, the villagers led by their chief embarked on getting a name that would best suit their would be ranch. It was unanimously agreed that since the community was predominantly formed of the Durma, then the ranch would be named “NORTH SAMBURU GROUP, DURUMA RANCH.”vii.According to the chief, the ranch would drastically change the lives of the members through the following ways:-The promised benefits of the ranch to its membersa.That the government would deploy agricultural officers to inspect the kind of breeds of livestock reared by the members and even bring better varieties.b.That there would be an avenue for the members to supply their milk to the Kenya Creameries Company Ltd. They were promised that the government would deploy vehicles that would come to the ranch on daily basis to collect milk.c.That members would be given credit in order to get fast growing heifers which would be later sold to the Kenya Meat Commission situate at Kibarani area in Mombasa.d.That members would benefit from Agricultural trainings and sensitization in order to practice economically viable farming.e.That members would benefit from dams constructed to supply water for their livestock and other farming and domestic activities.f.That members would benefit from drugs supplied by the government for control of pests and diseases in both livestock and crops.g.That members would be given loans to boast their farming at low interest ratesviii.The villagers embraced the idea fully knowing that it would impact positively on their lives.ix.The ranch would be formed by contribution of land and livestock which would be the starting point for the formation of the ranch.x.Indeed, as agreed villagers contributed their parcels of land and part of their livestock to form the ranch. The families that contributed their land and livestock are:-Full list of the Family of the families that contributed their land & livestock towards the forming of the Rancha.Kalinga Mkoa (Ndoro Mnazi) (Deceased).b.Lugwe Mwinzagu Ndegwa (Deceased).c.Chuphi Katerya (Deceased).d.Changoti Lugwe Mwinzagu (Petitioner).e.Ngala Chome Mumba (Deceased).f.Kana Mae (Deceased).g.Mwakalela Wewa (Deceased).h.Mgongo Muyugo Bakadide (Deceased).i.Chuphi Nguta Halafu (Deceased).j.Chiba Chimba (Deceased).k.Mjape Chete (Deceased).l.Mgandi Mwaganjoni Mwahinzano (Deceased).m.Meri Lugwe (Deceased).n.Karisa Iha (Deceased).o.Mwachiramba Njemo Nyamawi (Deceased).p.Mwachiramba njemo Nyamawi (Deceased).q.Dukwe Njemo Nyamawi (Deceased).r.Mwambeyu Kaingu Bakadide (Deceased).s.Yawa Mwachilungo Tsimba (Deceased).t.Chongongwe Salimini (Deceased).u.Mwasoko Mwagawari (Deceased).v.Mwananyama Chibebe (Deceased).w.Manzi Ndoro (Deceased).x.Mgandi Chibebe (Deceased).y.Chaka Tsenga (Deceased).z.Mwero and Chiro (Deceased).xi.Shortly thereafter, officers from Kwale visited the area to inspect and assess the sustainability of the area for the formation of the ranch. The officers were taken round by the Petitioner herein while inspecting the sustainability of the land.xii.Shortly thereafter, the registration of the company started.xiii.Members learned with utmost dismay that the ranch name had mysteriously been changed to “MACKINNON ROAD DOKATA RANCH.”xiv.It later transpired that MACKINNON ROAD DOKATA RANCH had been registered as a private company owned by the Chief's family.xv.Slowly by slowly, the Chief turned into a very fierce person. He began isolating himself from the community and often shunned them and all their meetings.xvi.Soon, the villagers were warned never to step in the ranch and that anybody who would be found in the ranch would face dire consequences.xvii.The villagers by then who were comprised of illiterate old men & women did not know what to do. They hitherto lived under immense fear. They viewed their Chief as a very powerful personality who literally had the power to do anything as he pleased.xviii.After the formation of the ranch, the Chief collaborated with officers of the Kenya Wild Life service whom he employed to chase the villagers from their land that had not been contributed to the ranch and grabbed their land to form part of the ranch.xix.Any member of the village who resisted eviction was brutally assaulted by hired goons deployed by the chief and officers of the Kenya wildlife service.xx.The Chief forcefully grabbed livestock owned by the villagers and their land in his quest of expansion of the ranch.xxi.To date, the villagers have lived in abject poverty facing extreme financial difficulties having lost their source of livelihood to the hands of the greedy chief.xxii.Though the villagers have reclaimed their land, they are often harassed by goons employed by the family of the chief who often threaten to evict them.xxiii.The villagers have attempted addressing this problem through their local leaders but it has not borne any fruits.xxiv.In June, 2004, the then area Member of Parliament for Kinango Constituency, Hon Samuel Gonzi Rai (MP) compiled a report of the land problems in the area which was addressed to the then Minister for Lands and Settlement, the Hon. Amos Kimunya but upto date the problem has not been resolved.xxv.At some point, the villagers were advised to form a task force through which they would use to address their land injustices. As such, a team of ten members was formed as the task force members, but nothing much has come from it since its formation.xxvi.To date, the so called Dokata Ranch claims almost the whole of the land in the village after grabbing everything that was left to the villagers. The land that it claims surpasses the size that villagers originally contributed.xxvii.The Petitioner and his community aver that he Respondents acquired their land and livestock fraudulently.Particulars of fraud on the part of Respondentsa.Changing the name of the ranch single handedly.b.Converting a community ranch into their own family companyc.Taking the livestock & land in the community for their family benefit.d.Denying the community access to the ranch after it was formed.e.Failing to deliver the promises that the ranch would bring to the community.f.Enjoying the benefits from the ranch to the exclusion of the community.g.Using tricks and lies to lure the community to surrender their livestock and land to themxxviii.It suffices to note that Respondents have no land in the area. The Chief's family did not contribute any land nor livestock towards the ranch but simply took advantage of the illiteracy of the villagers and his influence and connection to dispossess them their land and livestock.xxix.The Petitioner therefore bring this Petition in seeking that court does justice by awarding the land to the community and all other related reliefs as outlined in the Petition.Particulars of alleged violationsa.The Petitioner and the affected families have nowhere else they know as home, a part from the suit land. To the extent that the Respondents dispossessed them their land and livestock through tricks, fraud, and deception, their right to own property in whichever area of the country as enshrined under Article 40 of the Constitution was gravely violated.b.To the extent that the Respondents fraudulently changed the name of the ranch without involving the Petitioner and the families involved, they violated their rights to a fair Administrative action as anchored under Article 47 of the Constitution.c.To the extent that the Respondents herein subjected the Petitioner and the affected families to extreme economic hardships by cunningly taking away their land and livestock, they in the process violated their social economic rights of the Petitioners as firmly established under Article 43 of the Constitution. 15.For these reasons, the Petitioner’s claim against the Respondents were as follows: -a.A declaration that the Respondents violated the Petitioner's Constitutional rights and by extension, the rights of all the affected families.b.An order revoking any title held by the Respondents with respect to the land known as LR No. 14857 situate in Taru location, Macknnon Ward in Kwale County.c.An order of eviction against the Respondents from the property known as LR No.14857 situate in Taru location, Macknnon Ward in Kwale County and the unsurveyed land grabbed by the Respondents.d.An order that the land known as LR No. 14857 situate in Taru location, Macknnon Ward in Kwale County and the unsurveyed land grabbed by the Respondents belong to the petitioner and 25 other affected families.e.An order for the 6th Respondent to survey the suit land and demarcate it in accordance with the boundaries shown by all the affected families and the 5th Respondent to issue titles to them within three months from the date of the judgment.f.A permanent injunction against the Respondents restraining them from interfering or continuing to interfere with the Petitioner's and all affected families quiet and peaceful enjoyment of the property rights on the parcel of land known as LR No.14857 situate in Taru location, Macknnon Ward in Kwale County and any other unsurveyed land grabbed by the Respondents.g.An order for general damages against the Respondents jointly and severally for violation of Petitioner's rights and those of the affected families.h.The Respondents be condemned to pay costs of this Petition.i.Interest on (7) and (8) a court rates.j.This Honourable Court be pleased to grant any other further relief as it may deem fit 16.The Petition was supported by a 33 Paragraphed affidavit sworn by CHANGOTI LUGWE MWINZAGU, the Petitioner herein on the same date as the petition where he averred that: -a.In or about the year 1970, the Affiant averred that livestock keepers from the villages of Egu, Dupharo, Nyacha, Dokata, Roka, Sirira and Silaloni came up with the idea of uniting in order to have common grazing grounds and water reserves for their livestock. This was as a result of meetings they held with the then area chief, Yusuf Chuphi Ngalaa (Deceased), who convinced the community to unite in order to benefit from a government initiative.b.The idea was necessitated by the vast stock of livestock reared in the area, which often caused conflicts amongst them over grazing fields. There was also need to preserve their lands from land grabbers so that they did not become squatters over their own land.c.Although he was a youth at the time, due to his ability to comprehend matters, he was invited to the meetings and participated in the process of the formation of the ranch.d.The Chief then proposed that it was possible for the community to form a ranch and, through his intervention, the government would provide immense assistance to the farmers which would boost their standards of living greatly.e.The villagers became more excited upon hearing the Chief’s input about their unity. They were more motivated in the quest for unity than ever.f.Thereafter, the villagers led by their Chief embarked on getting a name that would best suit their would‑be ranch. It was unanimously agreed that since the community was predominantly formed of the Duruma, then the ranch would be named “NORTH SAMBURU GROUP, DURUMA RANCH.”g.According to the Chief, the ranch would drastically change the lives of the members through various promised benefits, including:The Promised benefits of the ranch to its members that:-i.The government would deploy agricultural officers to inspect the kind of breeds of livestock reared by the members and even bring better varieties.ii.There would be an avenue for the members to supply their milk to the Kenya Creameries Company Ltd. They were promised that the government would deploy vehicles that would come to the ranch on daily basis to collect milk.iii.The members would be given credit in order to get fast growing heifers which would be later sold to the Kenya Meat Commission situate at Kibarani area in Mombasa.iv.The members would benefit from Agricultural trainings and sensitization in order to practice economically viable farming.v.The members would benefit from dams constructed to supply water for their livestock and other farming and domestic activities.vi.The members would benefit from drugs supplied by the government for control of pests and diseases in both livestock and crops.vii.The members would be given loans to boast their farming at low interest ratesh.The villagers embraced the idea fully, knowing that it would impact positively on their lives.i.The ranch was to be formed by contribution of land and livestock, which would be the starting point for its formation.j.Indeed, as agreed, villagers contributed their parcels of land and part of their livestock to form the ranch. The families that contributed their land and livestock were listed as follows:i.Kalinga Mkoa (Ndoro Mnazi) (Deceased).ii.Lugwe Mwinzagu Ndegwa (Deceased).iii.Chuphi Katerya (Deceased).iv.Changoti Lugwe Mwinzagu (Petitioner).v.Ngala Chome Mumba (Deceased).vi.Kana Mae (Deceased).vii.Mwakalela Wewa (Deceased).viii.Mgongo Muyugo Bakadide (Deceased).ix.Chuphi Nguta Halafu (Deceased).x.Chiba Chimba (Deceased).xi.Mjape Chete (Deceased).xii.Mgandi Mwaganjoni Mwahinzano (Deceased).xiii.Meri Lugwe (Deceased).xiv.Karisa Iha (Deceased).xv.Mwachiramba Njemo Nyamawi (Deceased).xvi.Mwachiramba njemo Nyamawi (Deceased).xvii.Dukwe Njemo Nyamawi (Deceased).xviii.Mwambeyu Kaingu Bakadide (Deceased).xix.Yawa Mwachilungo Tsimba (Deceased).xx.Chongongwe Salimini (Deceased).xxi.Mwasoko Mwagawari (Deceased).xxii.Mwananyama Chibebe (Deceased).xxiii.Manzi Ndoro (Deceased).xxiv.Mgandi Chibebe (Deceased).xxv.Chaka Tsenga (Deceased).xxvi.Mwero and Chiro (Deceased).k.Shortly thereafter, officers from Kwale visited the area to inspect and assess the sustainability of the land for the formation of the ranch. The officers were taken round by the Petitioner while inspecting the sustainability of the land.l.Shortly thereafter, the registration of the company commenced.m.The members learned with utmost dismay that the ranch name had mysteriously been changed to “MACKINNON ROAD DOKATA RANCH.”n.It later transpired that Mackinnon Road Dokata Ranch had been registered as a private company owned by the Chief’s family.o.Slowly, the Chief turned into a very fierce person. He began isolating himself from the community and often shunned them and all their meetings.p.Soon the villagers were warned never to step in the ranch and that anybody found therein would face dire consequences.q.The villagers, comprised mostly of illiterate old men and women, did not know what to do. They lived under immense fear and viewed their Chief as a very powerful personality who could do anything as he pleased.r.After the formation of the ranch, the Chief collaborated with officers of the Kenya Wildlife Service whom he employed to chase the villagers from their land that had not been contributed to the ranch and grabbed it to form part of the ranch.s.Any member of the village who resisted eviction was brutally assaulted by hired goons deployed by the Chief and officers of the Kenya Wildlife Service.t.The Chief forcefully grabbed livestock owned by the villagers together with their land in his quest for expansion of the ranch.u.As a result, the villagers lived in abject poverty facing extreme financial difficulties having lost their source of livelihood to the hands of the greedy Chief.v.Although the villagers reclaimed portions of their land, they were often harassed by goons employed by the Chief’s family who continually threatened to evict them.w.Further, that although the villagers reclaimed portions of their land, they were often harassed by goons employed by the Chief’s family who continually threatened to evict them.x.The villagers attempted to address this problem through their local leaders but it did not bear any fruits. (Complaint letters written to the authorities were annexed and marked CL‑2).y.In June, 2004, the then area Member of Parliament for Kinango Constituency, Hon. Samuel Gonzi Rai, compiled a report of the land problems in the area which was addressed to the then Minister for Lands and Settlement, Hon. Amos Kimunya, but to date the problem had not been resolved. (The report was annexed and marked as “CL ‑ 3”).z.At some point, the villagers were advised to form a task force to address their land injustices. A team of ten members was formed as the task force, but nothing substantial came from its formation.aa.To date, the so‑called Dokata Ranch claimed almost the whole of the land in the village after grabbing everything that was left to the villagers. The land it claimed surpassed the size that villagers had originally contributed. (Maps of the land were annexed and marked as “CL ‑ 4”).ab.The Respondents acquired the villagers’ land and livestock fraudulently.Particulars of fraud on the part of Respondentsa.Changing the name of the ranch single handedly.b.Converting a community ranch into their own family company.c.Taking the livestock & land in the community for their family benefit.d.Denying the community access to the ranch after it was formed.e.Failing to deliver the promises that the ranch would bring to the community.f.Enjoying the benefits from the ranch to the exclusion of the community.g.Using tricks and lies to lure the community to surrender their livestock and land to themac.The Respondents had no land in the area. The Chief’s family did not contribute any land or livestock towards the ranch but simply took advantage of the villagers’ illiteracy and his influence to dispossess them.ad.Therefore brought the Petition seeking that the Court order the Respondents to return the land fraudulently taken and to award all the prayers sought in the Petition.ae.He reiterated the contents of the Petition and urged the Court to find in his favour and grant the reliefs sought.af.He deponed that he swore the affidavit in support of the Petition herein. V. The case by the 2nd Respondent 17.The 2nd Respondent, responded to the Petition through a 15 Paragraphed Replying Affidavit sworn by BELEWA CHIWAYA CHUPHI, a director of Mackinnon Road Dokata Ranching Company Limited on 14th February, 2025 wherein the Affiant averred that: -i.He had been duly authorized by the 1st, 2nd and 3rd Respondents to swear the Affidavit on their behalf. (Annexed and marked as “BCC ‑ 1” and “BCC ‑ 2” were true copies of the Authority to swear Court process and Board Resolution dated 15th January, 2025).ii.He had read, and had it explained to him by the Advocates on record for the 1st to 4th Respondents, and understood the contents of the Petition dated 6th January, 2025 and filed in Court on 8th January, 2025 together with the Affidavit in Support sworn by Changoti Lugwe Mwinzagu on 6th January, 2025 and the annextures thereto. He wished to respond thereto as follows.iii.The Advocates on record for the 1st to 4th Respondents had advised him, which advice he verily believed to be true, that the Petition dated 6th January, 2025 and filed in Court on 8th January, 2025 was incompetent, bad in law, an abuse of the Court process and ought to be dismissed with costs. The Respondents further averred that the Petition was outrightly a claim to recover land and was time‑barred, having been brought outside the mandatory statutory limitation of twelve years, contrary to Section 7 of the Limitation of Actions Act.iv.He was further advised by the Advocates on record for the 1st to 4th Respondents that the Petition ought to be struck out as fatally defective, incompetent and bad in law for the following reasons:a.There was no authority filed by the Petitioner to plead and or represent the members of the 25 families that allegedly contributed their land & livestock towards the formation of the North Samburu Group, Duruma Ranch.b.The petitioner had failed to take out letters of Administration to act on behalf of the deceased members who allegedly contributed towards the formation of a ranch.v.He had been wrongly sued as the Administrator of the estate of the late Yusuf Chuphi Ngalaa. The Petitioner had not adduced any evidence to show that he was the legal representative of the late Yusuf Chuphi Ngalaa, which he was not.vi.Without prejudice to the foregoing, the Affiant deponed that the 1st Respondent was the registered proprietor of the leasehold interest over land reference number 14857/3 as delineated on land survey plan number 466791, measuring 9,720 hectares, located east of Mackinnon Road Municipality in Kwale District (hereinafter referred to as the suit property). (Annexed and marked as “BCC ‑ 3” was a true copy of the certificate of Title No. 83822).vii.Therefore the suit property was the private property of the 1st Respondent.viii.Their location was previously known as Samburu North Location and that his father, the late Mzee Yusuf Chuphi Ngalaa, was the area Chief until 1980 when he retired. He later served as a Councilor for fifteen years (three terms) between 1983 and 1997, the last two terms having been elected unopposed, which demonstrated that he was a man of the people and a good leader.ix.After independence, in Samburu North Location, there were three main ranches:a.Taru Ranchers Co. Ltd,b.Mackinnon Road Dokata Ranching Co. Ltd,c.Mwabeja Raching Co. Ltdx.The above‑named ranches were private ranches belonging to individuals who acquired shares by contributing money and livestock. It was not true, as alleged by the Petitioner, that membership in the ranches was by way of contribution of land.xi.Among the families listed in the Petition, most were initially members of Taru Ranch. These included the families of Lugwe Mwinzagu, Chuphi Katerya, Chuphi Nguta, Mjape Chete, Mgandi Mwanganjoni, Mwachiramba Njemo, Dukwe Njemo, Yawa Mwachilungo, Mwasoko Mwagawari and Magongo Muyugo. Similarly, the family of Magongo Muyugo was a member of Mwambeja Ranch. The rest of the families did not belong to any of the three ranches. Particularly, the Petitioner did not belong to any of them. (Annexed and marked “BCC‑4” was a true copy of the list of members of Taru Ranchers Co. Ltd).xii.The families of Chuphi Katerya, Chuphi Nguta, Mjape Chete, Yawa Mwachilungo and Mgadi Mwaganjoni transferred their shares and membership in Taru Ranches to Mackinnon Investments Limited.xiii.The 1st Respondent was a limited liability company incorporated on 16th May, 1973 as company number CR No. 11682. (Annexed and marked as “BCC ‑ 5” was a true copy of the CR12 of Mackinnon Road Dokata Ranching Company Limited as at 28th January, 2025).xiv.In its current structure, the 1st Respondent had thirty‑eight members, including Chiuphi Ngalaa, Nyamawai Ngala, Francis Ngedzo Ngalaa, Kamanza Ngalaa, Kauli Tsungurube, David Kamanza Ngalaa, Chiwaya Chuphi, Njemo Chuphi, Alfred Ngalaa Chuphi, Hassan Chuphi Ngalaa, Rumba Chuphi, Mwaka Chuphi, Kwekwe Chuphi, Maria Chuphi, Chinyavu Chuphi, Mbeya Chuphi, Fatuma Chizi Chuphi, Boniface Mwatela, Ngalaa Mbui, Rocky Chuphi, Njira Chuphi, Magari Chuphi, Beja Chuphi, Katana Chuphi, Mwezinane Chuphi, Mola Chuphi, Katerya Chuphi, Mwatsaka Chuphi, Mwahui Chuphi, Idd Chuphi, Kaginya Chuphi, Mchinabu Chuphi, Nguta Chuphi, Bati Chuphi, Hussein Chuphi, Margaret Mbodze Chuphi and Hassan Mwanamwenga Chuphi. (Annexed and marked as “BCC ‑ 6” was a true copy of the list of members of Mackinnon Road Dokata Ranching Company Limited).xv.Upon incorporation, the company was issued with a certificate of lease for a period of forty‑five years commencing 1st March, 1977. After expiry of the initial lease, the company was issued with another lease for fifty years commencing in the year 2021. Notably, in the new lease, the company surrendered 404 hectares of land to the Kwale County Government as part of the conditions for extension of the lease.xvi.The 1st to 4th Respondents denied the contents of Paragraphs 9, 10, 12, 13, 14, 15 and 16 of the Affidavit in support of the Petition and put the Petitioner to strict proof of the contrary. The Affiant further deponed that the Respondents wished to respond and state as follows:a.The shares of the 1st Respondent company were bought by its members through livestock or cash and not by surrender of land, and thereafter share certificates were subsequently issued.b.The 1st Respondent was originally registered as the lessee of the suit property from the Government of Kenya on 1st March, 1977, measuring approximately 10,233.6 hectares, and a certificate of lease was issued for an initial renewable term of forty‑five years. (Annexed and marked as “BCC ‑ 7” was a true copy of the Certificate of Title CR.N.77).c.The 1st Respondent’s leasehold interest was subsequently extended in 2021 and another certificate of lease was issued for a new renewable term of fifty years from 1st August, 2021. (Annexed and marked as “BCC ‑ 8” and “BCC ‑ 9” were true copies of the Surrender dated 30th November, 2023 and lease dated 01.12.2023).d.At no point after independence was there a ranch formed in the former Samburu North Location by the Petitioner or the twenty‑five family members he represented, known as North Samburu Group Duruma Ranch.xvii.The 1st – 4th Respondents denied the contents of paragraphs 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the Affidavit in support of the Petition and put the Petitioner to strict proof of the contrary. The Affiant further stated that the Respondents wished to respond and state as follows:a.The 1st – 4th Respondents never hired goons to harass the Petitioner and the twenty‑five families he purported to represent. In fact, it was the Petitioners who turned violent and hired goons to harass the Respondents in their peaceful possession of the suit property.b.The Petitioners were not and had never been in actual possession of the suit property.c.Some of the Petitioners’ families engaged in illegal hunting and/or poaching within the suit property, which is a vast land, and they were occasionally arrested by officers of Kenya Wildlife Service. Therefore, the allegations that the Respondents collaborated with KWS officers to forcefully evict or harass the Petitioners were strongly denied.d.It was not true that the then area Chief, Mr. Yusuf Chuphi Ngalaa (deceased), isolated himself from the community or shunned them. The Chief was a man of good reputation and social standing. Indeed, after serving as Chief, he was elected as area Councilor for three consecutive terms between years 1983 and 1997, the last two terms unopposed.e.Since September, 2024, members of the family of Kalinga Mkoa (Ndoro Mnazi) (deceased) had been collecting livestock from different pastoralists and charging them fees for grazing on the suit property. Equally, they had assaulted members of the ranch, and the same was reported to the Police and the DCI. (Annexed and marked as “BCC ‑ 10” were true copies of Police OB entries dated 31st December, 2024, 8th December, 2024, 9th January, 2025, 20th September, 2024 and 06th February, 2025).xviii.The 1st – 4th Respondents denied the contents of paragraph 29 of the Affidavit in support of the Petition together with the particulars of fraud enumerated thereunder and put the Petitioner to strict proof of the contrary. The Affiant deponed that the Respondents reiterated that the 1st Respondent had lawfully, regularly and procedurally acquired good title to the suit property and that the same was not tainted by fraud.xix.The 1st – 4th Respondents denied the contents of paragraph 30 of the Affidavit in support of the Petition and put the Petitioner to strict proof of the contrary. The Affiant averred that the Respondents reiterated that directorship and/or membership of the 1st Respondent ranch was through shares acquired by livestock or cash and not by surrender of land.xx.He swore the Affidavit in opposition to the Petition dated 06th January, 2025 and prayed that the Court dismiss the same with costs to the 1st Respondent.xxi.What was contained therein was true and correct to the best of his knowledge, information and belief, save for information whose sources had been disclosed. VI. The responses by the 1st to 4th Respondent to the Petition 18.The 1st to 4th Respondents also filed a 20 paragraphed response to Petition opposing the Petition in the following terms:-a.Save for what was expressly admitted, the 1st – 4th Respondents denied each and every allegation of fact contained in the Petition dated 06th January, 2025 and filed in Court on 08th January, 2025 as if the same were set out verbatim and traversed seriatim.b.The contents of Paragraphs 1 and 2 of the Petition were not contested in so far as they were merely descriptive of the parties to the suit, save that the 1st, 2nd, 3rd and 4th Respondents’ address of service for purposes of the suit was care of Messrs. Munyao, Muthama & Kashindi Advocates, ACK Cathedral Complex, 1st Floor Suite No.14, Nkrumah Road – Off Cathedral Drive, P.O. Box 2419‑80100 Mombasa. The 2nd Respondent further denied that the 1st Respondent was formed through deception which led to the Petitioners contributing their parcels of land towards its formation.c.The contents of Paragraphs 5 and 6 of the Petition were not contested in so far as they were merely descriptive of the parties to the suit, save for the allegation that the 1st – 4th Respondents fraudulently and illegally acquired the certificate of title to the parcel of land from the Petitioners.d.The Petition was described as incompetent, bad in law, an abuse of the Court process and one that ought to have been dismissed with costs to the 1st – 4th Respondents. The Respondents further maintained that the Petition was outrightly a claim to recover land and was time‑barred, having been brought outside the mandatory statutory limitation of twelve years (12) contrary to the provision of Section 7 of the Limitation of Actions Act, Cap. 22.e.The Petition was said to have been fatally defective, incompetent and bad in law for the following reasons:a.There was no authority filed by the Petitioner to plead and or represent the members of the 25 families that allegedly contributed their land & livestock towards the formation of the North Samburu Group, Duruma Ranch.b.The Petitioner has failed to take out letters of Administration to act on behalf of the deceased members who allegedly contributed towards the formation of a ranch.f.Without prejudice to the foregoing, the 1st – 4th Respondents maintained that the 1st Respondent was the registered proprietor of the leasehold interest over land reference number 14857/3 as delineated on land survey plan number 466791, measuring 9,720 hectares, located east of Mackinnon Road Municipality in Kwale District (hereinafter referred to as “The Suit Property”).g.The suit property was therefore described as the private property of the 1st Respondent.h.The suit property was located in an area previously known as Samburu North Location, where the late Mzee Yusuf Chuphi Ngalaa had served as the area Chief until year 1980 when he retired. He later served as a Councilor for fifteen years (three terms) between years 1983 and 1997, with the last two terms having been elected unopposed. This was said to demonstrate that he was a man of the people and a good leader.i.After independence, in Samburu North Location, there were three main ranches:a.Taru Ranchers Co. Limited.b.Mackinnon Road Dokata Ranching Co. Limited.c.Mwabeja Ranching Co. Limited.j.The above‑named ranches were private ranches belonging to private individuals who acquired shares by contributing money and livestock to the ranch. It was not true, as alleged by the Petitioner, that membership in the ranches was by way of contribution of land.k.Among the families listed in the Petition, most were initially members of Taru Ranch. These included the families of Lugwe Mwinzagu, Chuphi Katerya, Chuphi Nguta, Mjape Chete, Mgandi Mwanganjoni, Mwachiramba Njemo, Ndukwe Njemo, Yawa Mwachilungo, Mwasoko Mwagawari and Magongo Muyugo. Similarly, the family of Magongo Muyugo was a member of Mwambeja Ranch. The rest of the families did not belong to any of the three listed ranches. In particular, the Petitioner did not belong to any of them.l.The families of Chuphi Katerya, Chuphi Nguta, Mjape Chete, Yawa Mwachilungo and Mgadi Mwaganjoni transferred their shares and membership in Taru Ranches to Mackinnon Investments Limited.m.The 1st Respondent was a limited liability company incorporated on 16th May, 1973, as company number CR No. 11682.n.In its current structure, the 1st Respondent had thirty‑eight members, including Mr. Chiuphi Ngalaa, Mr. Nyamawai Ngala, Mr. Francis Ngedzo Ngalaa, Mr. Kamanza Ngalaa, Mr. Kauli Tsungurube, Mr. David Kamanza Ngalaa, Mr. Chiwaya Chuphi, Mr. Njemo Chuphi, Mr. Alfred Ngalaa Chuphi, Mr. Hassan Chuphi Ngalaa, Mr. Rumba Chuphi, Mrs. Mwaka Chuphi, Mrs. Kwekwe Chuphi, Mrs. Maria Chuphi, Mrs. Chinyavu Chuphi, Mrs. Mbeya Chuphi, Mrs. Fatuma Chizi Chuphi, Mr. Boniface Mwatela, Mr. Ngalaa Mbui, Mr. Rocky Chuphi, Mrs. Njira Chuphi, Mr. Magari Chuphi, Mr. Beja Chuphi, Mr. Katana Chuphi, Mr. Mwezinane Chuphi, Mr. Mola Chuphi, Mr. Katerya Chuphi, Mr. Mwatsaka Chuphi, Mr. Mwahui Chuphi, Mr. Idd Chuphi, Mr. Kaginya Chuphi, Mr. Mchinabu Chuphi, Mr. Nguta Chuphi, Mr. Bati Chuphi, Mr. Hussein Chuphi, Mr. Margaret Mbodze Chuphi and Mr. Hassan Mwanamwenga Chuphi.o.Upon incorporation, the company was issued with a certificate of lease for a period of forty‑five years commencing in the year 1977. After the term of the initial lease expired, the company was issued with another lease for fifty years commencing in the year 2021. Notably, in the new lease, 404 hectares of land were surrendered to the Kwale County Government as part of the conditions for extension of the lease.p.The contents of Paragraphs 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20 and 21 of the Petition were not denied in so far as they recapitulated the Articles of the Constitution of Kenya, 2010. However, the 1st – 4th Respondents reiterated that the Petitioner had failed to set out with a reasonable degree of precision the manner in which the Respondents infringed the said Articles of the Constitution.q.The 1st – 4th Respondents denied the contents of Paragraphs 29, 30, 31, 32, 33, 34 and 35 of the Petition and put the Petitioner to strict proof of the contrary. The Respondents further responded as follows:a.The shares of the 1st Respondent company were bought by its members through livestock or cash and not by land, and thereafter share certificates were subsequently issued.b.The 1st Respondent was originally registered as the lessee of the suit property from the Government of Kenya on 1st March, 1977, measuring approximately 10,233.6 hectares, and a certificate of lease was issued for an initial renewable term of forty‑five years.c.The 1st Respondent’s leasehold interest was subsequently extended in 2021 and another certificate of lease was issued for a new term of fifty years from 1st August, 2021.d.At no point after independence was there a ranch formed in the former Samburu North Location by the Petitioner or the twenty‑five family members he represented, known as North Samburu Group Duruma Ranch.r.The 1st – 4th Respondents denied the contents of Paragraphs 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and 47 of the Petition and put the Petitioner to strict proof of the contrary. The Respondents further responded as follows:-a.The Respondents never hired goons to harass the Petitioner and the twenty ‑ five (25) families he purported to represent. In fact, it was the Petitioners who turned violent and hired goons to harass the Respondents in their peaceful possession of the suit property.b.Some of the Petitioners’ families engaged in illegal hunting and/or poaching within the suit property, which was vast, and they were occasionally arrested by officers of Kenya Wildlife Services. Therefore, the allegations that the Respondents collaborated with KWS officers to forcefully evict or harass the Petitioners were strongly denied.c.The Petitioners were not and had never been in actual possession of the suit property.d.It was not true that the then area Chief, Mr. Yusuf Chuphi Ngalaa (deceased), isolated himself from the community or shunned them. The Chief was a man of good reputation and social standing. Indeed, after serving as Chief, he was elected as area Councilor for three consecutive terms between 1983 and years 1997, the last two terms unopposed.e.Since September, 2024, members of the family of Kalinga Mkoa (Ndoro Mnazi) (deceased) had been collecting livestock from different pastoralists and charging them fees for grazing on the suit property. This was within the knowledge of the Petitioner and had since been reported to the Police and the DCI.s.The 1st – 4th Respondents denied the contents of Paragraphs 48, 49 and 50 of the Petition together with the particulars of fraud and alleged violations enumerated thereunder and put the Petitioner to strict proof of the contrary. The Respondents reiterated that the 1st Respondent was incorporated in the year 1973 and lawfully acquired good title to the suit property, which was not tainted by fraud.t.REASONS WHEREFORE, the 1st – 4th Respondents prayed that the Petitioner’s suit commenced by way of a Petition dated 6th January, 2025 be dismissed with costs to the 1st – 4th Respondents. VII. The Notice of Preliminary objection raised by the 1st to 4th Respondents 19.The 1st to 4th Respondents raised a Preliminary Objection dated 4th February, 2025 who sought the suit to be dismissed on the following grounds:-a.The suit is time barred having been brought outside the statutory limitation period of 12 years contrary to the provisions of Section 7 of the Limitations of Actions Act.b.The suit as framed is a representative suit and consequently the Petitioner should have obtained the leave of Court or authority to bring this suit on his own behalf and on behalf of the 25 other families.c.The Petitioner lacks “locus standi” to institute this Petition as he is not the legal representative to the estate of the members of the deceased families estate.d.The Petition dated 6th January, 2025 is incompetent, bad in law, misconceived and an abuse of the Court process. VIII. The Notice of Preliminary objection raised by the 5th to 6th Respondents 20.The 5th and 6th Respondents raised a Preliminary Objection dated 3rd March, 2025 to seek to have this petition be dismissed and or struck out with costs on the following points of law:a.The Petition offended the Doctrine of Constitutional Avoidance.b.The Petition was a simple claim for land alleging fraud but is disguised as a Constitutional Petition, and therefore, should not have been filed as a constitutional petition but as an ordinary plaint.c.The matter could be properly decided on another basis other than through a Constitutional Petition IX. Submissions 21.The parties, while all present in Court, they, consented to canvassing the Petition dated 6th January, 2025 together with the Replying Affidavit filed by the 2nd Respondent on behalf of the 1st – 4th Respondents, by way of written submissions. Pursuant thereto, the Honourable Court confirmed the same, a Judgment date was reserved on Notice. Eventually, it was delivered on 9th July, 2026 accordingly. A. The Written Submissions by the Petitioner in respect to the preliminary objections raised 22.The Petitioner through the firm of Messrs. Edwin Yose & Co. Advocates filed their written submissions dated 9th May, 2025 in respect of the Preliminary Objections raised. Mr. Yose Advocate had the following opening remarks quoting the Sila Munyao J. in “Henry Wambega & 733 others – Versus - Attorney General & 9 others [2020]eKLR” that:“...I have not seen anywhere in the Constitution, or in the NLC Act, which provides that a person cannot initiate a Constitutional Petition based on a perceived historical injustice and that the NLC has a monopoly on such mandate. I think, so long as one can cite a violation of a Constitutional provision or Constitutional right, then such a person may initiate a Constitutional petition and seek redress. I don't think that the basis of such a complaint is important. Such complaints could be based on any foundation. It could be, as in our case, a historical injustice, or even a continuing land injustice. Thus, in as much as I agree that the NLC has a mandate to look into historical injustices; I do not agree that an individual cannot commence a Constitutional petition, on the foundation of historical land injustice. In so far as the jurisdiction of ELC, is concerned, the ELC will have jurisdiction, if the basis of the case is land and environment, including a matter founded on claims of historical land injustices.” 23.Also Hon. Evans Makori in the case of:- “Buya & 2 others (Suing on behalf of Ndera Community, Tana River County and themselves) – Versus - National Land Commission & 5 others; County Government of Tana River (Interested Party) (Petition 10 of 2021) [2023] KEELC 20325 (KLR) (28 September 2023) (Ruling)”. 24.The Learned Counsel further submitted that there were two Preliminary Objections on the court's file. The first was dated 14th February, 2025 raised by the 1st - 4th Respondents. The second was dated 3rd March, 2025 and raised by the 5th and 6th Respondents. 25.The Learned Counsel relied on the following sets of issues for determination:-a.Whether the Court is vested with jurisdiction to hear this matter?b.Whether the Petitioner required leave to present the Petition and whether he had locus standi to institute this suit?c.Whether the Petition offends the principal of Constitutional avoidance? 26.On whether the Court is vested with jurisdiction to hear this suit. The Learned Counsel averred that the Petitioner brings this suit to address historical land injustices. His case was about a very powerful chief who lived in the Kenyatta and Moi regimes He invented a fraudulent scheme to defraud locals off their land. Generations have passed and now the current generation is keen on recovering their grabbed parcel of land through the fraudulent tricks of the then mighty and all powerful chief. 27.According to the Learned Counsel, this claim that found its roots under the provisions of Article 67 (1) of the Constitution. The Petitioner has therefore filed the instant Constitutional Petition to address violation of historical land injustices in line with the 2010 Constitution. By their nature, Constitutional Petitions for violation of fundamental freedoms and human rights under the Bill of Rights are not limited by the passage of time. This was so observed in the case of:- “Re Estate of Thomas Kipkosgei Yator & another (Deceased)[2016] eKLR” court cited with approval the case of “Durity – Versus - Attorney General [2002] UKPC 20” a Trinidad and Tobago a Commonwealth jurisdiction, decision where it was held inter alia that:-“The inherent jurisdiction of the High Court to prevent abuse of its process applied as much to constitutional proceedings as it did to other proceedings. The grant or refusal of a remedy in a constitutional proceeding was a matter in respect of which the court had judicial discretion. The constitution contained no express limitation period for the commencement of constitutional proceedings. The court should therefore be very slow to hold that by that limitation of constitutional proceedings was subject to a rigid andshort bar-the very clearest language was needed before a court could properly so conclude.” 28.Courts have held times without number that the courts have jurisdiction to admit and determine land disputes that arise from historical land injustices. On the same breadth, the same courts have held that claims of this nature are not barred by time and as such, they are not affected by the provisions of Section 7 of the Limitation of Actions Act, Cap. 22. 29.In the case of “Meru Cultural Center & 17 others – Versus - Kisima Farm Limited & 24 others (Constitutional Petition E006 of 2022) [2023] KEELC 19863 (KLR) (20th September, 2023) (Ruling)” the court cited with approval the case of “Chief Land Registrar & 4 others – Versus - Nathan Tiropt Koech & 4 others [2018] eKLR” in which the Court of Appeal stated as follows:-“ 72.The NLC is established under Article 67 (1) of the constitution, its mandate is outlined in Article 67 (2). One of its mandates pursuant to Article 67 (2) (e) is to initiate investigations, on its own motion or on a complaint, into present or historical land injustices and recommend appropriate redress... 75.On the question whether a court should await investigation and recommendation by the NLC before it can entertain a claim founded on historical injustice, it is our considered view that a court has jurisdiction to hear and determine any claim relating to historical injustice whether or not the NLC is seized of the matter. Our conviction stems from our reading of Article 67 (2) (e) of the Constitution. The Article provides that the NLC can investigate “present or historical” land injustices. We lay emphasis on the word "present “. If the NLC had an initial and exclusive mandate, it would mean that all present cases on land injustices can only be handled by the NLC and not courts of law. This would prima facie render the Environment and Land Courts redundant. We do not think this was intended to be so. Our view is fortified by Section 15 (3) (b) of the National Land Commission Act which permit the Environment and Land Court to deal with historical injustice claims capable of being addressed through the ordinary court system. 76.Further, there is nothing in the 2010 Constitution or in the National Land Commission Act ousting the jurisdiction of the High Court or barring a person from presenting a petition before a court in relation to a claim founded on historical injustice...” 30.In the case of:- “Buya & 2 others (Suing on behalf of Ndera Community, Tana River County and themselves) – Versus - National Land Commission & 5 others; County Government of Tana River (Interested Party) (Petition 10 of 2021) [2023] KEELC 20325 (KLR) (28th September, 2023) (Ruling) the court held that:-“ 7.Without prejudice to the foregoing, it is not lost on the 3rd Respondent that the Courts have recently settled the issue as to whether constitutional petitions, on of historical injustices over land matters, have time limitations. In particular, the Court of Appeal has held that Section 7 of the Limitation of Actions Act does not apply to these kinds of claims.” 31.In the case of:- “Henry Wambega & 733 others – Versus - Attorney General & 9 others [2020]eKLR”, Justice Munyao observed as follows:-“....... I have not seen anywhere in the Constitution, or in the NLC Act, which provides that a person cannot initiate a Constitutional Petition based on a perceived historical injustice and that the NLC has a monopoly on such mandate. I think, so long as one can cite a violation of a Constitutional provision or Constitutional right, then such a person may initiate a Constitutional petition and seek redress. I don't think that the basis of such a complaint is important. Such complaints could be based on any foundation. It could be, as in our case, a historical injustice, or even a continuing land injustice. Thus, in as much as I agree that the NLC has a mandate to look into historical injustices; I do not agree that an individual cannot commence a Constitutional petition, on the foundation of historical land injustice. In so far as the jurisdiction of ELC, is concerned, the ELC will have jurisdiction, if the basis of the case is land and environment, including a matter founded on claims of historical land injustices.” 32.In the case of:- “Re Estate of Thomas Kipkosgei Yator & another (Deceased)[2016] eKLR (supra)” court cited with approval the case of “Peter Ngari Kagume & 7 Others – Versus - Attorney General [2009] eKLR, H.C at Nairobi, Constitutional Appli 128 of 2006” where the Learned Judge Nyamu J. while commending on time limit within which to seek a constitutional redress, rendered himself at length as follows;“It is correct that Section 84 (1) of the constitution does not contain any time limit for filing constitutional applications such as the petition herein but a closer scrutiny of the way the section is couched grants the Petitioners the right to seek redress in the High Court. The Petitioners’ rights are captured by the words”... person (or that other person) may apply to the High Court for redress..........” 33.In the above case of in the case of:- “Re Estate of Thomas Kipkosgei Yator (supra)”, Court went on to observe that:-It is apparently clear that in view of the foregoing case law. Both the old and current constitutions do not provide for time limit within which to file a claim founded on violation of the constitutional rights under the Bill of Rights.................In the instant case, the claim is founded on transactions that took place way back in 1979, 1983 and 1982 amongst the government institutions, the Respondents herein. The petitioners have also implicated powerful forces, the former land commissioner, the State Comptroller and the retired President H.E Daniel T. Arap Moi, in the past regime (government) for being behind the alleged violations.It is my considered view that bearing the nature of the claim herein and the period of delay, approximately 30 years and the circumstances surrounding the Petition and the persons alleged to have been behind the process and the fact that there is no clear provision of the period of time for commencing such petitions the petition is not defeated by laches. Moreover, this court takes judicial notice that the general elections of 2002 brought to this country change of regime that led to a new wave of litigation in respect of violation of human rights. Those who feared victimization woke up to a new era where they could Petition for their rights without fear. 34.On whether the Petitioner required leave to present the Petition and whether he had locus standi to institute this suit, the Learned Counsel relied on the provision of Article 22 of the Constitution which provides that:-(1)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.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members 35.Article 22(3) goes on the other hand stipulates as follows:-“(3)The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that-(a)the rights of standing provided for in clause (2) are fully facilitated;(b)formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation; 36.It was their submission that the drafters of the Constitution intended that anybody would institute a Petition for infringement of human rights and fundamental freedoms. The wording of the Constitution itself is very clear that anybody can file a suit to address infringement of human rights either on their own behalf or on behalf of others. The provision of Article 22 (3) vests the Chief Justice with the powers and the duty to make rules that will facilitate the manner in which fundamental freedoms and human rights violation are addressed. These led to the enactment of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 famously known as the Mutunga Rules. These have hitherto been the rules of reference whenever court is faced with such Petitions. 37.The Learned Counsel argued that he had carefully perused the said rules and have not seen any place where it is provided that one needs to obtain leave of another before instituting such a petition. This notwithstanding, the Petitioner herein brings the suit on his own behalf and on behalf of other groups. He fell squarely within the ambit of a petitioner reckoned under Article 22 (2)(b). Clearly, the Petitioner has been given the authority by the Constitution to institute the current Petition. He had the requisite locus standi to institute this Petition. 38.According to the Learned Counsel, they noted that the objection was based on the provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010. With respect, it was their considered view that counsel has grossly misapplied the law and as such we invite the court to find that this Petition is guided by the Constitution and the Mutunga Rules which do not contain any provisions for seeking of leave. If the court will reach a conclusion that Civil Procedure Rules apply to Constitutional Petitions then they invited the Court to be guided with the holding of the court in the case of:- “Simeon A. Oloo & 19 others – Versus - Lake Basin Development Authority (Petition E049 of 2021) [2022] KEELRC 87(KLR) (16th June, 2022) (Ruling)” where it was held that:-“ 21.The next issue is whether the absence of the written authority is fatal to the petition herein. 22.Article 159 (2)(d) of the Constitution calls upon this court to do justice to all, and do so without undue regard to procedural technicalities. Rule 5(a) of Mutunga Rules is clear that for the purposes of furthering the overriding objective under Rule 3 of the Mutunga Rules, the Court is required to handle all matters presented before it to achieve just determination of the proceedings. 23.In my view, the purpose of the Civil Procedure Rules in Constitutional Petitions is to bridge a gap and to pursue the ends of justice. In the instant Petition, the provisions of Article 159 (2)(d) and (e) of the Constitution supersedes the provisions of Order 1 Rule 13. Consequently, I hold that the absence of the written authority is not fatal to the Petition herein, and this ground of the Preliminary Objection fails.” 39.According to the Learned Counsel in any event, the 1st to 4th Respondents had based their P.O. on the following:-“ 14.The Petitioner raises a claim for recovery of land that was originally registered to the 1st Respondent in 1977. There is no doubt that the period of more than twelve (12) years have lapsed from 1977 when the 1st Respondent was originally registered as proprietor of the suit property.” 40.They submitted that issues to do with registration of a lease could not be resolved through a preliminary objection as it will require production of evidence. In the end, they invited the Honourable Court to reach the conclusion that the Petitioner had the requisite locus standi to file this suit and that no leave was required before filing it. 41.On whether the Petition offended the principal of Constitutional avoidance, the Learned Counsel submitted that this doctrine goes hand in hand with the doctrines of ripeness and exhaustion as we shall see in this discourse shortly. 42.On this question, they firmly relied on the wisdom of Justice A.C. Mrima in his decision on a similar question in the case of “Anthony Miano &others – Versus - Attorney General & others [2021] eKLR”. The Learned Judge cited a myriad of decisions by the superior courts; (High Court, Court of Appeal and Supreme Court) to drive the point home. For the definition of the doctrine of constitutional avoidance, he relied on the case Supreme Court decision in “Communications Commission of Kenya & 5 Others – Versus - Royal Media Services Limited & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR” where it was observed thus:-“[105]. We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion” 43.The Learned Judge goes on to discuss instances when the doctrine may be invoked in the following terms:-“ [106].The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others – Versus - Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held: [256]..The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. 32.While speaking to Ripeness doctrine the Learned Judges stated as follows:- 107.The doctrine focuses on the time when a dispute is presented for adjudication.The Black’s Law Dictionary 10th Edition, [supra] at page 1524 defines ripeness as:The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made. 108.Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies.” 44.According to the Learned Judge, the doctrine of Constitutional avoidance means that, the High Court should only be moved as the last resort after all other mechanisms available for redress are exhausted. He based this argument on the holding of the Court of Appeal in the case of:- “National Assembly of Kenya & another – Versus - Institute for Social Accountability & 6 others Nairobi Civil Appeal 92 of 2015 [2017] eKLR”, where it was observed that:-“[74]Furthermore, questions such as division of functions, division of revenue, legislative process and budget process are essentially political questions which fall within the political question doctrine; and which the Constitution has assigned to other political institutions for resolution and created institutions and mechanisms for such resolution.” 45.The Judge went on to cite the decision in “National Assembly of Kenya & Another – Versus - The Institute for Social Accountability & 6 others [supra]” the Court of Appeal held:“(73)Since there was no actual live dispute between the national and county governments about CDF and if any, the mechanisms for resolving such disputes was not employed, the questions which were brought to High Court for determination had not reached constitutional ripeness for adjudication by the court.............” 46.The Judge further relied on the case of:- “Wanjiru Gikonyo & 2 others – Versus - National Assembly of Kenya & 4 others Nairobi Constitutional Petition No.453of 2015 [2016] eKLR”, Onguto I stated:“(27)Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases....... The court is prevented from determining an issue when it is too early or is simply out of apprehension, hence the principle of ripeness. An issue before court must be ripe, through a factual matrix for determination. 33.The doctrine of constitutional avoidance, therefore, deals with instances where a Constitutional Court will decline to deal with a matter because there exists another remedy provided in law which the aggrieved party is yet to utilize. That is also referred to as the doctrine of exhaustion.” 47.He also relied on the decision of a 5-Judge Bench in “Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR” which elaborately dealt with the doctrine of exhaustion. The Court stated as follows:-“ 52.The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R – Versus - Independent Electoral and Boundaries Commission (I.E.B.C) Ex - Parte National Super Alliance (NASA) Kenya and 6 others [2017]eKLR, where the Court opined thus: 42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly – Versus - Karume [1992] KLR 21 in the following oft-repeated words: Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures. 43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – Versus - Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews...The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 48.Applying the wisdom of Mrima J. to the instant case, the objection by Learned State Counsel, Mr. Pendo has not in any way suggested that the matter is not ripe to be heard by the ELC. There is no suggestion that there was lack of exhaustion before the Petition was filed at the ELC. No other port of reference had been suggested by the learned counsel for this matter. Instead, the Counsel stated that the Petitioner ought to had filed a Plaint. With tremendous respect, they submitted that counsel had misapprehended the Constitutional avoidance doctrine. 49.Courts had resolved cases on historical land injustices through Constitutional Petitions. They listed some of these cases as follows:-a.On 15th April 2016, Justice Antony Ombwayo presiding over ELC at Eldoret in “Re Estate of Thomas Kipkosgei Yator & another (Deceased) [2016] eKLR” determined a Petition on historical land injustices awarding the Petitioners a sum of Kenya Shillings Five Hundred Million (Kshs. 500,000,000/=) as mesne profits for land trespassed over by Respondents for over 30 years.b.The case of:- “Buya & 2 others (Suing on behalf of Ndera Community, Tana River County and themselves) – Versus - National Land Commission & 5 others; County Government of Tana River (Interested Party)(Petition 10 of 2021) [2023] KEELC 20325 (KLR) (28 September 2023) (Ruling)”, Justice Evans Makori at Malindi dismissed a similar objection that the Petition was time barred and that it offended the exhaustion principle. The Learned Judge held that he had jurisdiction to hear the Petition.c.The case of:- “Henry Wambega & 733 others – Versus - Attorney General & 9 others [2020] eKLR”, Justice Munyao observed as follows:-“...... I have not seen anywhere in the Constitution, or in the NLC Act, which provides that a person cannot initiate a Constitutional Petition based on a perceived historical injustice and that the NLC has a monopoly on such mandate. I think, so long as one can cite a violation of a Constitutional provision or Constitutional right, then such a person may initiate a Constitutional Petition and seek redress. I don't think that the basis of such a complaint is important. Such complaints could be based on any foundation. It could be, as in our case, a historical injustice, or even a continuing land injustice. Thus, in as much as I agree that the NLC has a mandate to look into historical injustices; I do not agree that an individual cannot commence a Constitutional petition, on the foundation of historical land injustice. In so far as the jurisdiction of ELC, is concerned, the ELC will have jurisdiction, if the basis of the case is land and environment, including a matter founded on claims of historical land injustices.” 50.In conclusion, the Learned Counsel stated that he had come to the end his submissions. He apologized for his submission were a bit lengthy. It was import that he lay enough material on the record to guide the Court. He invited the Honourable Court to allow the Petition to proceed to its logical conclusion. He believed he had laid enough grounds why the Preliminary Objections dated 14th February, 2025 raised by the 1st – 4th Respondents and 3rd March, 2025 raised by the 5th and 6th Respondents should be dismissed. This was his invitation to the Honourable Court. SUBDIVISION - B. The Written consolidated submissions by the 1st to 4th Respondents. 51.The 1st to 4th Respondent through the Law firm of Messrs. Munyao, Muthama & Kashindi Advocates filed their written submissions dated 17th April, 2025. Mr. Amakobe Advocate submitted that the submissions were for the 1st to 4th Respondents in respect of two pending Notice of Preliminary Objections by the Respondents dated 14th February, 2025 and 3rd March, 2025 respectively. By the Notice of Preliminary Objection dated 4th February, 2025, the 1st to 4th Respondents sought for the suit to be dismissed on the following grounds:-a.The suit is time barred having been brought outside the statutory limitation period of 12 years contrary to the provisions of Section 7 of the Limitations of Actions Act, Cap. 22.b.The suit as framed is a representative suit and consequently the Petitioner should have obtained the leave of Court or authority to bring this suit on his own behalf and on behalf of the 25 other families.c.The Petitioner lacks locus standi to institute this Petition as he is not the legal representative to the estate of the members of the deceased families estate.d.The Petition dated 6th January, 2025 is incompetent, bad in law, misconceived and an abuse of the Court process 52.By the Notice of Preliminary Objection dated 3rd March, 2025, the 5th to 6th Respondents sought for the Petition to be dismissed and/or struck out on the following points of law:a.That the Petition offends the Doctrine of constitutional avoidanceb.That the Petition is a simple claim for land alleging fraud but is disguised as a constitutional petition, and therefore should not have been filed as a constitutional petition but as an ordinary Plaint.c.That the matter can be properly decided on another basis other than through a constitutional petition 53.On the background, the Learned Counsel submitted that by a petition dated 6th January, 2025, the Petitioner instituted the suit herein on his behalf and 25 other families alleging to be the rightful owners of land known as LR. No. 14857situated in Taru location Macknnon ward in Kwale County - the suit property. Subject to meetings held with the area chief, Yusuf Chuphi Ngalaa (deceased) on or about the year 1970, livestock keepers from the villages of Egu, Dupharo, Nyacha, Dokata, Roka, Sirira and silaloni unanimously agreed to unite and form a ranch within their common grazing fields for their purposes of livestock keeping and crop farming. The name of the ranch was to be named North Samburu group, Duruma Ranch. 54.The Petitioner allege that the ranch was to be formed by contribution of land and livestock. The 1st to 4th Respondent on the other hand state that the 1st Respondent is a private company limited by shares duly incorporated on 16th May, 1973. That the 1st Respondent was originally registered as the lessee of the suit property herein from the government of Kenya from 1st March, 1977 measuring approximately ten thousand two hundred and thirty three decimal six (10233.6Ha) and a Certificate of Lease was issued for an initial renewable term of 45 years. 55.The 1st Respondent leasehold interest was subsequently extended in 2021 and another certificate of lease was issued to the 1st Respondent for another renewable term of 50 years from 1st August, 2021. At no point after independence was there a ranch formed in the former Samburu North Location by the Petitioner or the 25 other family members that he represents known as North Samburu Group Duruma Ranch. The only ranches in Samburu North Location were Taru Ranchers Company Limited, Mackinnon Road Dokata Ranching Company Limited & Mwambeja Ranching Company Limited. Membership in the Plaintiff company was through money and livestock and the Petitioners, and the 25 other families are not members of the Plaintiff company. 56.On the issues for determination, the Learned Counsel submitted that flowing from the following they relied on the following issues for determination:-a.Whether the suit is time barred under the provisions of the Limitations of Actions Act.b.Whether the Suit meets the threshold of a representative suit and whether the Petitioner should have obtained the leave of court or authority to bring this suit on his own behalf and on behalf of the 25 other families.c.Whether the Petitioner lacks locus standi to institute this Petition as he is not a legal representative to the estate of the members of the deceased families estate.d.Whether the suit offends the doctrine of constitutional avoidancee.Whether the Petitioner should bear the costs of the suit herein 57.On whether the suit is time barred under the provisions of the Limitations of Actions Act, the Learned Counsel submitted that it is trite law that Preliminary Objections should consist of a point of law which have been pleaded or which arises by clear implication out of the pleadings and on the basis that facts are agreed on by both sides, which if argued as a preliminary point may dispose of the suit. The 1st - 4th Respondents averred that the Petition is statute-barred having been brought outside the permitted limitation period of 12 years as provided for pursuant to provisions of Section 7 of the Limitation of Actions Act, Cap. 22. 58.The Petitioner raised a claim for recovery of land that was originally registered to the 1st Respondent in the year 1977. There was no doubt that the period of more than twelve (12)years had lapsed from year 1977 when the 1st Respondent was originally registered as proprietor of the suit property.Section 7 of the Limitation of Actions Act“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. 59.In the case of “Iga – Versus - Makerere University [1972] EA” it was held as follows:-“A Plaint which is barred by limitation is a Plaint barred by law. A reading of the provisions of Sections 3 and 4 of the Limitations Act Cap. 22 together with Order 7 Rule 6 of the Civil Procedure Rule of Uganda which has same provisions with limitations Act of Kenya seems clear that unless the applicant in this case had put himself within the limitation period by showing grounds upon which he could claim exemption the court shall reject his claim. The limitation Act does not extinguish a suit or action itself but operates a bar the claim or remedy sought for and when a suit is time barred the Court cannot grant the remedy or relief.” 60.The issue of limitation goes to the jurisdiction of the Court as was held in the case of “Bosire Ongero – Versus - Royal Media Services [2015]eKLR” the court held that:-“The question of limitation touches on the jurisdiction of the Court, which means that if a matter is statute barred, the Court would lack jurisdiction to entertain it. I therefore find and hold that preliminary objection raised in the instance case is on a pure point of law, and the same is validly and properly taken.” 61.On whether the Suit meets the threshold of a representative suit and whether the Petitioner should have obtained the leave of court or authority to bring this suit on his own behalf and on behalf of the 25 other families, the Learned Counsel submitted that the Petitioner had filed a representative suit on his own capacity and on behalf of the other 25 families but had clearly failed to lay a basis of such authority. Without such basis, it ought to be deemed that the Petitioner is suing on his own behalf and for his own benefit.The provisions of Order 1 Rule 8 of the Civil Procedure Rules provide as follows:-1)Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against anyone or more of them as representing all or as representing all except one or more of them.2)The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case my direct.3)Any person on whose behalf or for whose benefit a suit is instituted or defended under sub rule (1) may apply to the Court to be made a party to such suit. 62.Similarly, the provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010 provides as follows:-1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.2)The authority shall be in writing signed by the party giving it and shall be filed in the case. 63.The Court of Appeal described a representative suit in case:- “Sombo & 4 others (suing on behalf of 15,000 individuals of Tehe Amwezi and Mirima Clans of the Duruma Community ) - Versus - Nyari Investment (1998) Ltd & 5 others (Civil Appeal 23 of 2018) [2023]KECA 438 (KLR) (14th April 2023) (Judgment)” (with dissent -SG Kairu, JA) as follows:-“.......a person or group of persons are authorized to bring the suit on behalf of a larger group, who have common legal and factual questions they seek to advance in a claim or defence, and for this reason the law imposes a number of special procedural requirements, including demonstration of the authority in writing to appear for the other members of the group, which is found in Order 1 Rule 13 of the Civil Procedure Rules of 2010. A representative suit refers to legal proceedings where a representative Plaintiff, acting on behalf of a larger group, bring a suit to assert the right or interests of that group. The converse may also happen: a representative Defendant may be sued on behalf of a larger group.” 64.The Petitioner, Changoti Lugwe Mwinzagu did not file any written authority or consent from the members of the 25 families that he alleges to represent and no consent of the members or leave of the court was granted and thus the representative suit as filed is fatally defective and the same should be dismissed with costs to the Respondents. The whole purpose of the provisions of Order 1 Rule 8 of the Rule was to ensure that all persons with un litigated similar cause of action are desirous of having their cause determined was included in the suit for their own convenience and to obviate a multiplicity of suits. Hence the need to notify the, of the institution of the suit so that in case any of them wished to take part he was given the opportunity to do so. Until notices under the provision of:- Order 1 Rule 8 of the Civil Procedure Rules, were served, one may not know whether or not they will accept being treated as Petitioners. 65.On whether the Petitioner lacks locus standi to institute this Petition as he is not a legal representative to the estate of the members of the deceased families estate, they had sufficiently established that the representative suit as filed by the Petitioner was Fatally defective for lack of written authority by the 25 other family members. They further submitted that the Petitioner lacks locus standi to institute the suit on behalf of some of the deceased members of the said families. 66.What amounts to locus standi was described in the case of:- “Law Society of Kenya - Versus - Commissioner of Lands & 2 others [2001] KEHC 831(KLR)” where the court defined locus standi as the right to be heard. A person must have sufficiency of interest that has been prejudiced or about to be prejudiced to sustain his standing to sue in Court of law. It was the 1st to 4th Respondents humble submission that the Petitioner was not the authorized legal representative to the estate of the deceased members of the said families. No letters of administration intestate or a Grant of Probate had been adduced by the Petitioner to sufficiently represent the estate of the deceased members. As is, the Petitioner was a stranger to the deceased family members with no interest whatsoever to represent them in this suit. A deceased person cannot give authority to the Petitioner to sue on their behalf. 67.On whether the suit offends the doctrine of constitutional avoidance. The Learned Counsel submitted that the doctrine of constitutional avoidance was discussed in the Supreme Court decision in the case of:- “Communications Commission of Kenya & 5 others – Versus - Royal Media Services Limited & 5 others Pet. 14A, 14B & 14C of 2014 [2014] eKLR” where the Court observed 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.(257)in South Africa, in S – Versus - 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.” 68.Similarly in the case of “KKB – Versus - SCM & 5 others (Constitutional Petition No. 014of 2020) [2022] KEHC 289 (KLR) (22nd April 2022) (Ruling)”, Hon. Mativo,J.(as he then was) also expressed himself on the doctrine as hereunder:“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 constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant's cause...” 69.According to the Learned Counsel, it was clear from a cursory look at the reliefs sought by the Petitioner in the Petition dated 6th January, 2025, that this is a simple claim for recovery of land. The Petitioner seeks to challenge the 1st Respondent's title on account of fraud by the Respondents as provided for under the provisions of Section 26 of the Land Registration Act, No. 3 of 2012. The Petitioner, however, wrongfully disguised the suit herein as a Constitutional Petition. The gist of the suit herein relates to the acquisition and subsequent registration of a land ownership between the parties and not violation of the constitutional rights by the Respondents. Therefore, the suit ought to have been filed vide an ordinary plaint pursuant to the provisions of Civil Procedure Act, Cap. 21 and the relevant land laws and not as a constitutional petition. 70.On whether the Petitioner should bear the costs of the suit herein. The Learned Counsel averred that the provision of Section 27 of the Civil Procedure Act provides that Costs follow the event. Its their submission that both Notice of Preliminary Objections dated 14th February, 2025 and 3rd March, 2025 were merited. They should be allowed dismissing the Petitioner's suit with costs to the Respondents. X. Analysis and Determination 71.I have carefully considered all the filed pleadings pertaining to the Constitutional Petition dated 6th January 2025, the affidavits sworn by the Petitioner and the Respondents, the articulate written submissions by both parties, the myriad of cited authorities, and the relevant provisions of the Constitution of Kenya, 2010 together with the applicable statutes. 72.For this Honourable Court to reach an informed, just, fair, and reasonable decision, it has condensed the subject matter into the following salient four ( 4 ) issues for determination: -a.Whether the Preliminary objections dated 14th February, 2025 and 3rd March, 2025 by the Respondents meet the threshold of objections as per the Law and precedents.b.Whether the objections are merited?c.Whether the Petition by the Petitioner meets the threshold for Constitution Petition.d.Who bears the costs of the Petition and the Notice of Preliminary objection by the 1st to 4th Respondents and the 5th to 6th Respondents? ISSUE No. a). Whether the Preliminary objections 14th February, 2025 and 3rd March, 2025 by the Respondents meet the threshold of objections as per the Law and precedents. 73.Under this sub–heading, the Honourable Court must decipher whether the substratum of the matter raised by the Respondents amounts to a pure point of law. In determining the instant Notice of Preliminary Objection, the Court will first consider what constitutes a Preliminary Objection, then juxtapose that description against the grounds raised herein, and finally arrive at a finding on whether the objection is merited. 74.According to the Black Law Dictionary a Preliminary Objection is defined as being:“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 75.The above legal preposition has been made graphically clear in the now famous case of “Mukisa Biscuits – Versus - Westend Distributor Ltd [1969] EA 696”, the court observed that: -“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. ” 76.This statement of the law has been echoed time and again by the courts: see for example, “Oraro – Versus - Mbaja [2007] KLR 141”. 77.The same position was held in the case of “Nitin Properties Ltd – Versus - Jagjit S. Kalsi & another Court of Appeal No. 132 of 1989[1995-1998] 2EA 257” where the Court held that;“A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.” 78.Similarly in the case of “United Insurance Company LTD – Versus - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that;“A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .” 79.Therefore from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that;“A Preliminary Objection cannot be raised if any facts has to be ascertained.” 80.I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR” as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia:-(i)A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.(ii)A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and(iii)The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. 81.Taking into account the above findings and holdings of various Courts on what amounts to a Preliminary Objection, the Court now turns to the grounds raised by the Respondents herein. The Respondents argued that the Petition was incompetent, time‑barred under Section 7 of the Limitation of Actions Act, and that the Petitioner lacked locus standi to represent the twenty‑five families without letters of administration. 82.The question of limitation of actions is indeed a pure point of law. If the Petition was filed outside the statutory limitation period, then the Court would lack jurisdiction to entertain it. Similarly, the issue of locus standi, particularly whether the Petitioner could represent deceased families without letters of administration, is a legal question that can be determined without recourse to contested facts. However, the Respondents also raised grounds touching on factual matters, such as whether the Petitioners contributed land or livestock, and whether fraud was committed in the incorporation of the 1st Respondent. Certainly, these are not pure points of law but factual disputes requiring evidence. 83.In light of the jurisprudence cited above, the Court finds that while certain aspects of the Preliminary Objection (limitation of actions and “Locus Standi”) raise pure points of law, other grounds advanced by the Respondents are intertwined with contested facts and therefore cannot properly be determined at the preliminary stage. SUBDIVISION - ISSUE No. b). Whether the Petition by the Petitioner meets the threshold for Constitution Petition. 84.Under this Sub heading, for the Court to respond to this query, assessing certain aspects of the concept of Constitutional provision are inevitable. To begin with, under the provision of Article 2 (1) & (4) of Constitution of Kenya defines the Constitution as being the Supreme law of the Republic and it bids all persons and all States at all levels. Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency and any act or omission in in contravention of this Constitution is invalid. 85.Additionally, I dare say that a Constitution is a living tissue. Just like all other tissues, it has to be fed and watered. It breathes without oxygen and freshness it will die. I have learnt that these things are not just metaphorical. They are real. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:-a.Promotes its purposes, values and principles;b.Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;c.Permits the development of the law; andd.Contributes to good governance……” 86.This Court is therefore enjoined to give a liberal interpretation to constitutional provisions, having regard to the language and wording of the Constitution, and to interpret it as a whole with all provisions sustaining and coordinating each other. 87.Based on the principles set out in the edit of the Court of appeal case of the “Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another (2013) eKLR” provided the standards of proof in the Constitutional Petitions as founded in the case of “Anarita Karimi Njeru – Versus - Republic [1980] eKLR 154” where the court is satisfied that the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:-“Constitutional violations must be pleaded with a reasonable degree of precision…………”Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR said in the year 1876 and which hold true today:“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule……was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing.” 88.Article 23(3) of the Constitution empowers this Court to grant appropriate reliefs in proceedings brought under Article 22 where there has been violation or threat of violation of a fundamental right or freedom. Reliefs may include declarations, conservatory orders, injunctions, compensation, or judicial review orders. 89.Stating the provisions of the Constitution alleged to have been violated is only part of the task. Establishing that the right claimed exists and linking the alleged violation to specific acts or omissions of the Respondents is the next step. In the present Petition, while the Petitioner invoked numerous constitutional provisions, the pleadings largely narrated historical occupation and dispossession without producing documentary proof of legal ownership such as title documents, adjudication records, or allotment letters. The core dispute was land ownership and alleged wrongful subdivision/transfer of LR No. 14857. Such disputes, absent clear constitutional dimensions, are ordinarily pursued by way of a plaint, rectification under the provision Section 80 of the Land Registration Act, 2012, or complaint to the National Land Commission under the provision of Article 67(2)(e) of the Constitution. The Petition, therefore, risked being an ordinary civil dispute clothed in constitutional language. 90.The pleadings did not sufficiently link specific acts or omissions of the Registrar of Lands or the Director of Surveys to the infringement of particular constitutional rights with the required precision. The Attorney General’s Grounds of Opposition emphasized that alternative remedies existed and had not been exhausted. 91.In the case of the “Communications Commission of Kenya & 5 others – Versus - Royal Media Services Limited & 5 others [2014] eKLR”, the Supreme court of Kenya stated that:“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.” 92.In South Africa, the case of:- “S – Versus - Mhlungu, 1995 (3) SA 867 (CC)” before 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.” 93.The Petition does not meet the constitutional threshold as required under “Anarita Karimi Njeru (Supra)” and “(Mumo Matemu case (Supra)”. On the record, the Petition did not meet the threshold for a Constitutional Petition and was vulnerable to dismissal for being procedurally and substantively defective. The Petitioners did not demonstrate with precision how the Respondents’ acts violated the cited constitutional provisions, nor did they provide documentary evidence to establish legal interest in the suit property. 94.In the circumstances, this Court finds that the Petition, as framed, did not meet the constitutional threshold. It presented an ownership dispute without the required precision, documentary proof, or exhaustion of statutory remedies. The Petition does not meet the threshold for a constitutional petition under the principles in “Anarita Karimi Njeru (Supra)” and “Mumo Matemu (Supra)”. It is procedurally and substantively defective, and the issues raised are more appropriately pursued through statutory remedies under the Land Registration Act or before the National Land Commission.ISSUE No. c). Who bears the costs of the Petition and the Notice of Preliminary objection by the 1st to 4th Respondents and the 5th to 6th Respondents. 95.Under this sub–heading, the Court has considered the conduct of the parties, the nature of the dispute, and the applicable legal principles to determine who should bear the costs of the Petition and the Notices of Preliminary Objection. It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, “Cost” is defined to mean:-“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides: -“(1)The award of costs is at the discretion of the Court.(2)In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.” 96.In the case of “Reids Heweet & Company – Versus - Joseph AIR 1918 cal. 717” and “Myres – Versus - Defries (1880) 5 Ex. D. 180”, the House of the Lords noted: -“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it…..” 97.Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held: -“……….the basic rule on attribution of costs is that costs follow the event…..it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”. 98.In the present matter, both the Petition and the Notices of Preliminary Objections were hotly contested. The 1st to 4th Respondents raised objections on grounds of limitation and ‘locus standi”, while the 5th and 6th Respondents challenged the competence of the Petition. The Court has already found that while certain aspects of the objections raised pure points of law, other grounds were intertwined with contested facts and therefore not merited in limine. 99.The Petition itself was found to fall short of the constitutional threshold as per the principles in “Anarita Karimi Njeru (Supra)” and “Mumo Matemu – Versus - Trusted Society of Human Rights Alliance (Supra)”, being essentially an ordinary civil dispute clothed in constitutional language. The Court is therefore persuaded that the Respondents were justified in defending themselves and raising objections.However, given the nature of the dispute—touching on alleged historical land injustices and constitutional rights—the Court is mindful of the need not to unduly burden the Petitioner and the affected families with punitive costs. 100.In balancing these considerations, the Court finds that the appropriate order is that each party shall bear its own costs of the Petition and the Notices of Preliminary Objection. This will ensure fairness, avoid discouraging litigants from pursuing constitutional claims, and recognize that while the Petition was defective, it was not frivolous. 101.As it were, both the Petition and the Notices of Preliminary Objections are dismissed. Therefore, in the given circumstances, it is just fair, reasonable and Equitable that each party shall bear its own costs. XI. Conclusion and Disposition 102.Consequently, having intensively and thoroughly deliberated on all the framed issues herein, this Honourable Court arrives at the finding that the Petitioners have not succeeded in the prayers sought in their filed Petition. For avoidance of doubt, the Petition dated 6th January, 2025 is dismissed under the following terms:-a.THAT Judgement be entered having the Petition dated 6th January, 2025 be and is hereby dismissed in its entirety for failure to establish a constitutional cause of action and for want of requisite proof of title or legitimate interest in the suit property.b.THAT for the avoidance of doubt, this dismissal is without prejudice, as the Petition did not meet the threshold for a Constitutional Petition because it primarily raised an ownership dispute without the requisite documentary proof of title or the necessary particularity linking the pleaded facts to specific constitutional infringements.c.THAT the Petitioners are granted liberty to pursue any appropriate statutory or civil remedies available to them, including but not limited to proceedings under Section 80 of the Land Registration Act, 2012, or lodging a complaint before the National Land Commission under Article 67(2)(e) of the Constitution of Kenya, 2010.d.THAT both the Notice of Preliminary Objections dated 14th February, 2025 and 3rd March, 2025 respectively by the Respondents be and are hereby dismissed.e.THAT each party shall bear its own costs of the Petition and the Notices of Preliminary Objection filed by the 1st to 4th Respondents and the 5th to 6th Respondents. It is so ordered acordingly. JUDGMENT DELIVERED THROUGH MISCROFT TEAMS VIRTUALLY DATED, SIGNED AND AT KWALE THIS 9TH DAY OF JULY 2026.……………………………..…………HON. JUSTICE L. L. NAIKUNIENVIRONMENT AND LAND COURTATKWALEJudgement delivered in the presence of: -Mr. Daniel Disii – the Court Assistant.Mr. Yose Advocate for the Petitioners.Mr. John Kithome Advocate for the 1st, 2nd, 3rd, 4th, 5th & 6th Respondents.