https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5243

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC LAND PETITION NO. E001 OF 2023** 1. **JOHN KAMAKIA NTHATU** 2. **EZEKIEL MAGOCHI NTHATU….………………. PETITIONERS** **=VERSUS=** 1. **THE DIRECTOR LAND ADJUDICATION** **AND SETTLEMENT OFFICER** 1. **THE LAND ADJUDICATION AND** **SETTLEMENT OFFICER THARAKA** 1. **THE LAND ADJUDICATION AND SETTLEMENT OFFICER** **GATUNGA ADJUDICATION SECTION** 1. **THE DISTRICT LAND REGISTRAR GATUNGA** 2. **DIRECTOR OF SURVEY** 3. **CHIEF LAND REGISTRAR** 4. **ATTORNEY GENERAL……………………………….…..RESPONDENTS** **=AND=** 1. **THE CHAIRMAN BOARD OF MANAGEMENT** **KARIKAMBURI PRIMARY** 1. **THE CHAIRMAN BOARD OF MANAGEMENT KARIKAMBURI DAY SECONDARY SCHOOL** 2. **SIMON MUTHENGI** 3. **JACOB KATHENGE……………………………INTERESTED PARTIES** **JUDGEMENT** 1. **INTRODUCTION** 2. Through this petition dated ***11th December 2023,*** the petitioners seek; * + 1. ***A declaration that the actions of the respondents of sub dividing or dealing with land parcel Tharaka North Gatunga adjudication section/2254 to create land parcels 2156 Tharaka North Gatunga adjudication section 4022 Tharaka North Gatunga adjudication secion,2265 Tharaka North Gatunga adjudication Section,2255 Tharaka North Gatunga adjudication Section 2272 Tharaka North Gatunga adjudication section was in contravention and violation of the petitioners’ constitutional rights;*** 2. ***A declaration that the subdivision on the land parcel Tharaka North Gatunga adjudication section/2254 was fraudulent and the resultant titles No. Tharaka North Gatunga adjudication section 2254 to create land parcels 2156 Tharaka North Gatunga adjudication section,4022 Tharaka North Gatunga adjudication section,2265 Tharaka North Gatunga adjudication section,2255 Tharaka North Gatunga adjudication section,2272 Tharaka North Gatunga adjudication section be cancelled/revoked and revert to the original land parcel;*** 3. ***A declaration that the respondents’ decision to register the interested parties as the proprietors of the land parcel Tharaka North Gatunga adjudication section/2254 to create land parcels 2156 Tharaka North Gatunga adjudication section,4022 Tharaka North Gatunga adjudication section, 2255 Tharaka North Gatunga adjudication section,2272 Tharaka North Gatunga adjudication section is unconstitutional and illegal; and;*** 4. ***Any further and or better orders, writs and directions as this honourable court may consider appropriate to grant.*** 3. The ***three (3) key issues*** to be determined in this Judgement are: 4. ***Whether the petition meets the threshold of a constitutional petition under the law;*** 5. ***Whether the petitioners are entitled to the reliefs sought in the petition; and*** 6. ***What order should be made with regard to costs of the petition.*** 7. Before I analyse and dispose all the key issues that fall for determination, I will briefly outline the parties’ respective cases. 8. **CASE OF THE PETITIONERS** 9. The case of the petitioners is contained in the petition dated ***11th December 2023;*** the supporting affidavit sworn by **John Kamakia Nthatu** on ***11th December 2023***; and the ***supplementary affidavit of John Kamakia Nthatu, sworn on 3rd July 2025.*** 10. The case of the petitioners is that land parcel no. ***Tharaka North Gatunga*** ***adjudication section/2254 measuring 97 acres,*** belongs to them. They contend that their grandfather ***Nkongoro Rukutha*** (deceased) gathered the said land during demarcation and established their home. The petitioners further contend that they were brought up in the suit parcel. The petitioners add that their grandfather left the suit parcel to their father, one ***Nthatu Nkongoro*** (deceased), and that in turn bequeathed them. It is their case that their parcel was demarcated and the record of existing rights was finalized and they were confirmed owners. 11. The petitioners add that before demarcation, they had established their home and had been in peaceful occupation of the land for the last three generations. They state that in 2005, they suspected that the interested parties had commenced a secret operation that affected their suit parcel with the assistance of corrupt adjudication officials. The petitioners further state that they protested to the **District Land Adjudication Officer, *Gatunga*** that the original maps were being interfered with secretly. It is their case that they went to the land registrar at **Marimanti** to confirm if their title deed was ready for collection. 12. The petitioners contend that they discovered that the interested parties were assisted by the adjudication officials to alter the adjudication register and the original map to illegally create parcels of land. They further contend that the interested parties subdivided parcel no. ***2156, 4022, 2265, 2255, and 2272 Tharaka North*** ***Gatunga*** adjudication section, and evicted them from the parcel. The petitioners add that they raised the issue with the land registrar to stop the transactions until the matter was investigated, and he promised to investigate it. 13. The petitioners add that subsequently, they obtained the map of the area and confirmed the fraud carried out on their parcels. They state that the 1st interested party occupies a substantial part and has established a primary school, while the second interested party has established a secondary school, the 3rd interested party has established a church, and the ***4th and 5th interested parties have not done any developments.*** The petitioners further state that the interested parties misdirected the adjudication officials to allocate them land parcels **2156, 4022, 2255, and 2272**, ***Tharaka North Gatunga*** adjudication section, without visiting the suit parcels. It is their case that the adjudication officers have infringed on their right to property by illegally allocating land to the interested parties. 14. **CASE OF THE RESPONDENTS** 15. The respondents opposed the petition through ***grounds of opposition dated 25th October 2024.***The case of the respondents is that the petition is ***fatally defective, misconceived, and mischievous or otherwise an abuse of the court process and therefore, is unsuitable in the obtaining circumstances.*** 16. The respondents contended that the petition does not meet the threshold of a constitutional petition as set out in the case of ***Anarita Karimi Njeru vs Republic (1979) eKLR***as the petitioners have not set out how the specific provisions of the constitution has been infringed nor have, they demonstrated the violation or threatened violation of their fundamental rights and the manner in which their rights have been violated by the respondents. The respondents further contend that the Land Adjudication Act provides for a clear procedure for raising objections against any dealings in land that is subject to adjudication and also provides for appeals to the minister in case one is dissatisfied by determination of an objection however, the petitioners have not demonstrated having raised any objections or appeals to the minister. 17. The respondents add that this court has no jurisdiction to ascertain and determine interests in land in an adjudication area. They state that the petition ***contravenes the provisions of Section 30 of the Land Adjudication Act.*** The respondents further state that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is in exceptional circumstances that an order would be granted by courts and the plaintiffs have not established the existence of any exceptional circumstances. It is their case that the petitioners’ sole intention is to engage in fishing expedition in high seas of constitutional litigation to avert the statutory time limitation of appeals and Judicial review proceedings adding that the petition is frivolous, vexatious and is an abuse of the court process. 18. The respondents also opposed the petition through a ***replying affidavit sworn on 25th November 2025 by David Kamwara***. Their case is that, parcel number ***2156 Gatunga*** ***adjudication section was registered for use by the school and that the land has no pending disputes or objections***. The respondents state that the title deed was issued to the county government to hold in trust. The respondents further state that the petition does not meet the threshold of a constitutional petition as set out in the case of ***Anarita Karimi Njeru vs Republic (1979) eKLR as the petitioners have not set out how the specific provisions of the constitution has been infringed nor have, they demonstrated the violation or threatened violation of their fundamental rights and the manner in which their rights have been violated by the respondents.*** 19. The respondents contend that the ***Land Adjudication Act provides for a clear procedure for raising objections against any dealings in land*** that is subject to adjudication and also provides ***for appeals to the minister in case one is dissatisfied with the determination of an objection***. However, the petitioners have not demonstrated having raised any objections or appeal to the minister. They further contend that this court has no jurisdiction to ascertain and determine interests in land in an adjudication area. They add that the petition contravenes ***the provisions of Section 30 of the Land Adjudication Act.*** It is their case that, ***where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure it is in exceptional circumstances that an order would be granted by courts and the plaintiffs have not established the existence of any exceptional circumstances.*** 20. The respondents add that the petitioners have not satisfied the conditions laid down by the law for the court to exercise discretion in their favour and urged the court to dismiss the petition with costs to the respondents. 21. **4TH AND 5TH INTERESTED PARTIES’ CASE** 22. The interested parties opposed the petition through a replying affidavit sworn on **17th April 2025** by **Simon Muthengi** and written submissions dated **20th April 2026**, filed by **M*/s JP Advocates & Co Advocates***. The case of the interested parties is that they are the registered proprietors of ***parcels 2255 and 2272***, ***Tharaka North Gatunga*** Adjudication Section. 23. They contend that the allegations on encroachment are denied and affirm that their acquisition of the suit parcels was lawful. The interested parties further contend that ***parcel no. 2255*** originally belonged to their grandfather, one ***Ngonjeo Ngonja.*** They add that upon his demise, the land was inherited by their father Nthatu, who cultivated the land. 24. The interested parties added that ***the 4th interested party*** commenced cultivating the disputed land around ***1984*** and his occupation thereon has been continuous since ***1985 to date.*** They state that in ***1995***, during the land adjudication process, the chief’s committee confirmed that he owned the land and denied collusion with the respondents. The interested party further states that the ***petitioners have not adduced any evidence to support their claim***. It is their case that the petitioners ***have failed to demonstrate how their constitutional rights have been violated.*** It is their case that the allegations of infringement lack specificity, ***rendering the petition defective and incapable of sustaining a valid claim.*** 25. The interested parties add that the ***land adjudication process provides a clear mechanism for raising disputes before the Land Adjudication committee*** as provided under the Land Adjudication Act. They contend that the ***petitioners have failed to demonstrate that they exhausted the remedies*** provided before instituting this case. The interested parties further contend that the proceedings demonstrate that the ***1st petitioner’s case*** was heard and determined by various local disputes and the claim was upheld. 26. The interested parties state that around ***2005 the 1st petition*** raised a claim against him before the sub area chief the matter was ruled in his favor. He further states that subsequently he raised the issue again and it was ruled in the ***4th interested party’s favour***. The interested party adds that the ***1st petitioner called for a family meeting and it was agreed that the 4th interested party*** would stay on the suit land. It is their case that through the Land Adjudication process the land was recorded in the favour of the ***4th interested party*** and that ***they acquired their titles following due process and their ownership is indefeasible under section 26 (1) of the Land Registration Act.*** 27. The interested parties contend that the allegation of collusion is unsupported by evidence. They further contend that the petitioners claim is legally untenable. They urge the court to dismiss the petition. 28. **ANALYSIS AND DETERMINATION** 29. The court has considered the petition, the responses to the petition and the parties’ respective submissions. The court has also considered the relevant legal frameworks and jurisprudence. The following, in my view, are the key issues that fall for determination in the petition: * + 1. ***Whether the petition meets the threshold of a constitutional petition under the law;*** 2. ***Whether the petitioners are entitled to the reliefs sought in the petition; and*** 3. ***What order should be made with regard to costs of the petition.*** 30. I will analyse and dispose the three issues sequentially in the above order. 31. ***Does This Petition Meet The Threshold Of A Constitutional Petition Under The Relevant Law?*** 32. Prior to the promulgation of **The Constitution of Kenya (Protection of Rights and Fundamental Freedoms*)* Practice and Procedure Rules 2013** ***(the Rules***), the threshold of the basic/essential elements of a constitutional petition was outlined in the famous case of ***Anarita Karimi Njeru v Republic (1979)******eKLR.*** 33. The above rules provide a legislative framework on the essential elements of a petition brought to court to enforce a provision of the **Bill of Rights.** 34. **Rule 10** provides as follows: ***“10. Form of petition*** ***(1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.*** ***(2) The petition shall disclose the following—*** ***(a) the petitioner’s name and address;*** ***(b) the facts relied upon;*** ***(c) the constitutional provision violated;*** ***(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;*** ***(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;*** ***(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and*** ***(g) the relief sought by the petitioner.*** ***(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.*** ***(4) An oral application entertained under sub rule 3 shall be reduced into writing by the Court.”*** 1. It is a well-established litigation that a party alleging violation of his or her constitutional rights must plead with a reasonable degree of precision the manner in which there has been such alleged violation. This proposition was enunciated by the **Court of Appeal in the case of Anarita Karimi Njeru Vs the Republic (1976 – 1980) KLR 1272** where the court stated-; “**Constitutional violations must be pleaded with a reasonable degree of precision.”** 1. The Court of Appeal reaffirmed the above principle in the case of **Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 others[2015] eKLR .** 2. I have perused the petition herein. Save for citing the Constitutional provisions in the body of the petition, the petitioners have not stated how the respondents have violated ***Articles 40, 47 and 258 of the Constitution***. 3. I agree with the ***4th and 5th interested parties’ submissions that the petition is based on generalized allegations and the petitioners have not disclosed the manner in which the Constitution has been violated in this regard.*** 4. Moreover, the petitioners have not specified how each of the respondents has violated any of the petitioners’ Constitutional Rights. As rightly submitted by the interested parties, the whole object of pleadings is to bring clarity to an issue. However, looking at the petition as drafted, the suit ought to have been presented as an ordinary suit. 5. Further and most importantly, the court has read and evaluated the petition in the context of the above legislated threshold. In its entirety, ***the petition does not disclose a single constitutional provision which was violated by the respondents.*** This omission offends ***rule 10(2) of the rules (*The Constitution of Kenya (Protection of Rights and Fundamental Freedoms*)* Practice and Procedure)** 6. For the foregoing reasons, the court agrees with the respondents and the interested parties that ***the petition does not meet the threshold of a constitutional petition under the law.*** 7. ***Are The Petitioners Entitled To The Reliefs Sought In The Petition;*** 8. Similarly, in view of the foregoing, it is apparent that I am not persuaded to find that the petitioners are entitled to any of the reliefs sought in the petition dated ***11th December 2023.*** Thus the ***2nd issue, holds in the negative.*** 9. ***What Orders Should Be Made With Regard To Costs Of The Petition.*** 10. ***On the issue relating to costs,*** under ***Rule 26 of the rules*,** the award of costs in a petition is at the discretion of the court. In exercising the discretion, the court is required to take appropriate measures to ensure that every person has access to the court to determine their rights and fundamental freedoms. 11. Taking the above into account, the court takes the view that it would be unfair to deny the ***4th and 5th interested parties’ costs of the petition,*** noting the unsubstantiated allegations that were made in the petition and the evidence that the respondents brought in relation to the suit parcels. 12. Consequently, the petitioners will bear costs of the petition. 13. **DISPOSITION AND ORDERS** 14. In the end, and the foregoing, all considered, this petition is rejected and dismissed for lack of merit. 15. The petitioner shall bear costs of the petition. **JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT CHUKA THIS 31ST JULY 2026.** **L.T. LEWA** **JUDGE** **IN THE PRESENCE OF:** **COURT ASSISTANT – MR. MUSYIMI** **PETITIONERS: ABSENT** **RESPONDENTS: ABSENT** **INTERESTED PARTIES: MR WACHIRA**