https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4968

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT KENYA** **AT NAKURU** **ELC PETITION NO. E011 OF 2024** **IN THE MATTER OF THE CONSITUTION OF KENYA, 2010 ARTICLES** **10,19,20,21,27,35,23,40,40(6),50,60,61,62,73,75,159,162(2)(B),165,201(A),232,258 AND 259** **AND** **IN THE MATTER OF CONTRAVENTION OF THE AGRICULTURAL DEVELOPMENT CORPORATION ACT, CAP 444** **AND** **IN THE MATTER OF LAND ACT, 2012, THE LAND REGISTRATION AND ENVIRONMENT AND LAND COURT ACT, THE AGRICULTURAL DEVELOPMENT CORPORATION ACT, CAP 444 AND THE FAIR ADMINISTRATIVE ACTION ACT, 2015** **AND** **IN THE MATTER OF UNCONSTITUTIONAL, ILLEGAL AND FRAUDULENT ACQUISITION AND TRANSFER OF LAND REFERRENCE NUMBER 13278/1 (TITLE NO. 40575), LAND REFERENCE NUMBER 13287/2(TITLE NO. 41767) AND LAND REFERENCE NUMBER 13287/88 (TITLE NO. 55573)** **BETWEEN** **JUMA OKUMU..........................................................................................PETITIONER** **AND** **AGRICULTURAL DEVELOPMENT** **CORPORATION………………………………………………...….1ST RESPONDENT** **THE HON. ATTORNEY GENERAL……………………..………2ND RESPONDENT** **THE CHIEF LAND REGISTRAR……………………...…………3RD RESPONDENT** **PATRICK MUTINDA MULINGE AND** **JAMES MUTUA MULINGE (Sued as the administrators** **of the estate of GENERAL JACKSON** **MULINGE)……………................................................................….4TH RESPONDENT** **CHEMUSIAN FARM LIMITED………………………..….……..5TH RESPONDENT** **SIAN ENTERPRISES LIMITED……………………...………..…6TH RESPONDENT** **MOHAMED HAJI MOHAMED…………………...…………..….7TH RESPONDENT** **JOSHUA KULEI…………………………………...………...……..8TH RESPONDENT** **AND** **THE NATIONAL LAND COMMISSION……………..….1ST INTERESTED PARTY** **THE CHIEF GOVERNMENT VALUER…………...........2ND INTERESTED PARTY** **JUDGMENT** 1. By a Petition dated 18th September, 2024, the Petitioner sought the following orders: 2. ***A declaration be and is hereby issued that the 4th Respondent was obligated to remit payment of Kshs. 3,425,000.00 as consideration towards the purchase or acquisition of Land Reference Number 13287/1 (title number IR 40575) before the registration of the transfer on 3rd March, 1986 and that whereas the transfer and Grant Number 40236 purports that payment of this amount was made to the 1st Respondent, the 4th Respondent and or the 5th and 6th Respondents did not and have not made this payment to the 1st Respondent State Corporation/ Government.*** 3. ***A declaration be and is hereby issued that the 7th Respondent was obligated to remit payment of Kshs. 279,960.00 as consideration towards the purchase or acquisition of Land Reference Number 13287/2 (title number IR 41767) before registration of the transfer on 31st December, 1986 and that whereas the transfer and Grant Number 40236 purports that payment of this amount was made to the 1st Respondent, the 7th Respondent and or the 5th and 6th Respondents herein did not and have not made this payment to the 1st Respondent State Corporation/ Government.*** 4. ***A declaration be and is hereby issued that the 8th Respondent was obligated to remit payment of Kshs. 24,000.00 as consideration towards the purchase or acquisition of Land Reference Number 13287/88 (title number IR 55573) before registration of the transfer on 22nd April, 1992 and that whereas the transfer and Grant Number 40236 purports that payment of this amount was made to the 1st Respondent, the 8th Respondent and or the 5th and 6th Respondents herein did not and have not made this payment to the 1st Respondent State Corporation/ Government.*** 5. ***A declaration be and is hereby issued that the indication in the transfer instruments for the parcel of land namely L.R No. 13287/1 and Grant Number 40236 that consideration of Kshs. 3,425,000.00 was paid to the 1 Respondent by the 4th Respondent, when it was not, was intended to deceive, illegally alienate public property, is fraudulent and constitutes a gross violation of sections 11(1) and 15(1) of the Public Officer Ethics Act, 2009 and Articles 73(1)(a) and 73(2)(b) of the Constitution and the national values and principles of governance under Article 10 of the Constitution by the 1st, 4th, 5th, 6th, 7th and 8th Respondents.*** 6. ***A declaration be and is hereby issued that the indication in the transfer instruments for the parcel of land namely L.R No. 13287/2 and Grant Number 40236 that consideration of Kshs. 279,960.00 was paid to the 1st Respondent by the 7th Respondent, when in reality it was not, was intended to deceive, illegally alienate public property, is fraudulent and constitutes a gross violation of sections 11(1) and 15(1) of the Public Officer Ethics Act 2009 and Articles 73(1)(a) and 73(2)(b) of the Constitution and the national values and principles of governance under Article 10 of the Constitution by the 1st, 4th, 5th, 6th and 8th Respondents.*** 7. ***A declaration be and is hereby issued that the indication in the transfer instruments for the parcel of land namely L.R No. 13287/88 and Grant Number 40236 that consideration of Kshs. 24,000.00 was paid to the 1st Respondent by the 8th Respondent, when in reality it was not, was intended to deceive, illegally alienate public property, is fraudulent and constitutes a gross violation of sections 11(1) and 15(1) of the Public Officer Ethics Act, 2009 and Articles 73(1)(a) and 73(2)(b) of the Constitution and the national values and principles of governance under Article 10 of the Constitution by the 1st, 4th, 5th, 6th, 7th and 8th Respondents.*** 8. ***A declaration be and is hereby issued that the 1st Respondent and its officers illegally aided and or abdicated their mandate and public trust in conveying interest over Land Reference Number 13287/1 (certificate of title IR 40575), Land Reference Number 13287/2 (certificate of title IR 41767) and Land Reference Number 13287/88 (certificate of title IR 55573) without payment of consideration to the 4th, 7th and 8th Respondents respectively.*** 9. ***A declaration be and is hereby issued declaring that by dint of sections 12(2) and 13(1) and (2)(d) of the Agricultural Development Corporation Act, Cap 444 the acquisition of and registration of the transfer for the parcel of land, namely, Land Reference Number 13287/1 (title number IR 40575) in favour of the 4th Respondent on 3rd March, 1986 without payment of Kshs. 3,425,000.00 to the 1st Respondent is illegal, null and void.*** 10. ***A declaration be and is hereby issued declaring that by dint of sections 12(2) and 13(1) and (2)(d) of the Agricultural Development Corporation Act, Cap 444, the acquisition of and registration of the transfer for the parcel of land, namely, Land Reference Number 13287/2 (title number IR 41767) in favour of the 7th Respondent on 21st December, 1986 from the 1st Respondent without payment of Kshs. 279,960.00 to the 1st Respondent is illegal, null and void.*** 11. ***A declaration be and is hereby issued declaring that by dint of sections 12(2) and 13(1) and (2)(d) of the Agricultural Development Corporation Act, Cap 444, the acquisition of and registration of the transfer for the parcel of land, namely, Land Reference Number 13287/88 (title number IR 55573) in favour of the 8th Respondent on 22nd April, 1992 from the 1st Respondent without payment of Kshs. 24,000.00 to the 1st Respondent is illegal, null and void.*** 12. ***A declaration be and is hereby issued declaring that: -*** ***a) The acquisition of Land Reference Number 13287/1 from the 1" Respondent by the 4th Respondent and his registration as the proprietor thereof on 3rd March, 1986 is tainted by manifest violations of the national values and principles of rule of law, good governance, integrity, transparency and accountability under Articles 10(2)(a) and (c) of the Constitution and is therefore unconstitutional, illegal, null and void.*** ***b) The acquisition of Land Reference Number 13287/2 from the 1st Respondent by the 7th Respondent and his registration as the proprietor thereof on 31st December, 1986 is tainted by manifest violations of the national values and principles of rule of law, good governance, integrity, transparency and accountability under Articles 10(2)(a) and (c) of the Constitution and is therefore unconstitutional, illegal, null and void.*** ***c) The acquisition of Land Reference Number 13287/88 from the 1st Respondent by the 8th Respondent and his registration as the proprietor thereof on 22nd April, 1992 is tainted by manifest violations of the national values and principles of rule of law, good governance, integrity, transparency and accountability under Articles 10(2)(a) and (c) of the Constitution and is therefore unconstitutional, illegal, null and void.*** 1. ***A declaration be and is hereby issued that the 4th Respondent having acquired the title over L.R No. 13287/1 in breach of sections 12(2) and 13(1) and (2)(d) of the Agricultural Development Corporation Act, Cap 444 and the constitutional values of rule of law, good governance, integrity and transparency, he lacked capacity to pass good title to the 5th and 6th Respondents.*** 2. ***A declaration be and is hereby issued that the 7 Respondent having acquired the title over L.R No. 13287/2 in breach of sections 12(2) and 13(1) and (2)(d) of the Agricultural Development Corporation Act, Cap 444 and the constitutional values of rule of law, good governance, integrity and transparency, he lacked capacity to pass good title to the 5th and 6th Respondents.*** 3. ***A declaration be and is hereby issued that the 8th Respondent having acquired the title over L.R No. 13287/88 in breach of sections 12(2) and 13(1) and (2)(d) of the Agricultural Development Corporation Act, Cap 444 and the constitutional values of rule of law, good governance, integrity and transparency, he lacked capacity to pass good title to the 6th Respondent.*** 4. ***A declaration be and is hereby issued declaring that neither the 6th Respondent, Sian Enterprises Limited nor its predecessors in title have any valid, legal or recognizable interest over the properties known as Land Reference Number 13287/1 (certificate of title IR 4075 Land Reference Number 13287/2 (certificate of title IR 41767) and Land Number 13287/88 (certificate of title IR 55573) and any interest that they hold is invalid, illegal, null and void.*** 5. ***A mandatory injunction be and is hereby issued compelling the Chief Land Registrar, the 3rd Respondent in the petition to annul, revoke and cancel any alleged land ownership documents held by the 6th Respondent and its predecessors in title in connection with the properties known as I.and Reference Number 13287/1 (certificate of title [IR 40575), Land Reference Number 13287/2 (certificate of title IR 41767) and Land Reference Number 13287/88 (certificate of title IR 55573) and revert and vest ownership and interest thereof on the 1 Respondent, the Agricultural Development Corporation herein within 7 days of the judgment hereof.*** 6. ***A declaration be and is hereby issued that the 1st Respondent is entitled to ownership, use and possession of the properties known as Land Reference Number 13287/1 (certificate of title IR 40575), Land Reference Number 13287/2 (certificate of title IR 41767) and Land Reference Number 13287/88 (certificate of title IR 55573) to the exclusion of the 4th, 5th, 6th, 7th and 8th Respondents as well as their agents, servants and employees.*** 7. ***A permanent injunction against the 4th, 5th, 6th, 7th and 8th Respondents be and is hereby issued prohibiting them, whether by themselves, their agents or servants from entering upon, remaining upon, trespassing onto, transferring, occupying, leasing, charging, alienating, assigning or in any manner whatsoever continuing to use, plough, lease or development the properties known as Land Reference Number 13287/1 (certificate of title IR 40575), Land Reference Number 13287/2 (certificate of title IR 41767) and Land Reference Number 13287/88 (certificate of title IR 55573) situated at Ngata in Nakuru City County within 7 days of the judgment herein, in default, an eviction order does issue and the Officer Commanding Station, Menengai Police Station or any other nearest police station do ensure compliance and or provide security during eviction.*** 8. ***In the alternative to prayers (xvi), (xvii) and (xviii) above, a mandatory order of injunction be and is hereby issued compelling the 4th, 5th, 6th, 7th and 8th Respondents to jointly and or severally: -*** 9. ***Pay the 1st Respondent State Corporation the sum of Kenya Shillings Ten Billion Two Hundred and Thirty Million Only (Kshs. 10,230,000,000.00), being the current market price for the parcel of land namely L.R No. 13287/1 as the purchase price and a condition precedent to validation of the interest within 30 days of the judgment herein in default of which the reliefs under prayers (xvi), (xvii) and (xviii) should take effect.*** 10. ***Pay the 1st Respondent State Corporation the sum of Kenya Shillings Three Billion Four Hundred and Ninety-Five Million Only (Kshs. 3,495,000,000.00), being the market price for the parcel of land namely LR No. 13287/2 as the purchase price and a condition precedent to validation of the interest within 30 days of the judgment herein in default of which the reliefs under prayers (xvi), (xvii) and (xviii) should take effect.*** 11. ***Pay the 1st Respondent State Corporation the sum of Kenya Shillings Three Hundred Million Only (Kshs. 300,000,000.00), being the current market price for the parcel of land namely L.R No. 13287/88 as the purchase price and a condition precedent to validation of the interest within 30 days of the judgment herein in default of which the reliefs under prayers (xvi), (xvii) and (xviii) should take effect.*** 12. ***A declaration be and is hereby issued that in failing to provide the Petitioner with information according to the application or request for information dated 5th August, 2024 in connection to the alienation of the properties known as Land Reference Number 13287 1 (certificate of title [IR 40575), Land Reference Number 13287/2 (certificate of title IR 41767) and Land Reference Number 13287/88 (certificate of title IR 55573), the 1st Respondent herein has breached the Petitioner’s right to access information under Articles 35 (1)(a) and (b) of the Constitution and section 4 of the Access to Information Act, 2016.*** 13. ***An award for mesne profits jointly and severally payable to the 1st Respondent by the: -*** 14. ***4th, 5th and 6th Respondents in connection with their illegal occupation of L.R No. 13287/1.*** 15. ***7th, 5th and 6th Respondents in connection with their illegal occupation of L.R No. 13287/2.*** 16. ***5th and 8th Respondents in connection with their illegal occupation of L.R No. 13287/88.*** 17. ***An order for costs of this petition.*** 18. The 2nd and 3rd Respondents filed grounds of opposition dated 11th October 2024, and stated that the Petitioner has failed to demonstrate any act or omission by the 2nd and 3rd Respondents in relation to the suit parcels which constitute a violation of fundamental rights and freedoms in the Constitution. 19. The Respondents further stated that the Petitioner has filed an action for recovery of land in the form of a Petition in an attempt to avoid or circumvent the statutory limitation of 12 years as provided for by the Limitation of Actions Act Cap 22 Laws of Kenya, and urged the Court to dismiss the Petition with costs. 20. The 4th Respondent filed a Replying Affidavit sworn on 15th November 2024, by Ambassador Major General (Rtd) JAMES MUTUA MULINGE, who deponed that he is one of the Administrators of the estate of the late General Mulinge. 21. He deponed that this matter came to his attention vide a newspaper advertisement dated 24th September 2024 at page 4 of Daily Nation, and was surprised to find out that the Petitioner had sought leave to effect substituted service upon the 2nd and 3rd Respondents vide a newspaper advertisement the prayer of which the court declined. That to his consternation the same was prominently reported on page 10 of the Daily Nation covering more than half a page the next day on 15th October 2024. 22. The 4th Respondent contended that the publication showed the Petitioner’s real intention was to publicly humiliate the Respondents with claims that he cannot substantiate. Further that the Petition is an abuse of court process, as it seeks to recover funds on behalf of the 1st Respondent which is a statutory body capable of suing and being sued in its name. 23. The Respondent further deponed that the Petitioner’s allegation that his late father caused the suit property to be registered in his name without paying the consideration with a fraudulent common intention is not supported by any evidence, hence preposterous and defamatory. 24. The 4th Respondent averred that the Petitioner’s attached valuation report stated that there is no evidence to show that the subject property was irregularly or illegally acquired and the Valuer confirmed that the property does not fall under the category of public purpose or the Ndungu Land Report. He urged the Court to dismiss the Petition with costs. 25. The 5th, 6th and 8th Respondents in opposition to the Petition filed their replying affidavit sworn on 11th October, 2024, by the 8th Respondent where he averred that the Petition was frivolous, an abuse of court process and a political and personal vendetta. 26. He averred that the Petitioner has disguised a purely commercial and civil claim as a constitutional issue, and the Petitioner failed to demonstrate what right has been violated and manifestation of that contravention as required in a constitutional Petition. 27. The 8th Respondent averred that the Petitioner sought declarations of illegal property transfers and unpaid consideration which are issues that belong in a commercial court and not a constitutional one. 28. He averred that the Petition attempts to frame the lawsuit as a public interest litigation and further that the public did not have a pecuniary stake in the 1st Respondent’s sale of agricultural land. He added that if there were any financial losses due to unpaid consideration, that loss would be suffered exclusively by the 1st Respondent, which has the legal capacity to sue on its own behalf, rather than the public. 29. The 8th Respondent further averred thatthe 1st Respondent entered into independent, private contracts for the sale of the suit properties (L.R. Nos. 13287/1, 13287/2, and 13287/88) with the 4th and 7th Respondents, and him. He also stated that the Petitioner was never a party to these contracts, which were not designed to confer any benefit upon him; therefore, the Petitioner fundamentally lacked the legal standing to enforce the contracts or to demand payment on behalf of the 1st Respondent. He added that it was peculiar that the Petitioner demanded payments, which the 1st Respondent itself has not demanded. 30. The 8th Respondent contended that the Petitioner breached the Respondents’ statutory privacy rights under Article 31 of the Constitution (Right to Privacy) and Section 25 of the Data Protection Act by demanding access to the private allocation letters, title deeds, ownership documents and statements of accounts. 31. The 8th Respondent further averred that the 1st Respondent was specifically mandated to sell the subdivided portions of land on a willing buyer willing seller basis following directives from the late President Daniel Toroitich Arap Moi, which sale targeted members of the Armed Forces such as Major Generals and Constables. The 8th Respondent stated that his role at the time of acquisition of the suit land was strictly that of a Personal Assistant to the late President and not a Personal Secretary. He denied having the power or influence to manipulate the actions of independent Military Generals or the 1st Respondent regarding land allotments. 32. The 8th Respondent denied the Petitioner’s claim that the land was acquired without payment of the consideration of Kshs. 3,425,000/ Kshs. 279,960/ and Kshs. 24,000/. He averred that the official transfer documents explicitly acknowledged the receipt of the purchase price effectively and legally passed proprietary interest to him. 33. In conclusion, the 8th Respondent urged the court to apply the principle of constitutional avoidance and find that the Petition did not meet the constitutional threshold as it offended the doctrine of privity of contract and that it was a commercial claim disguised as a constitutional Petition. 34. The parties canvassed the Petition by way of written submissions, which were duly filed, and highlighted on 22nd April 2026. **PETITIONER’S SUBMISSIONS** 1. Counsel for the Petitioner filed submissions dated 20th February, 2026, and identified the following issues for determination: 2. ***Whether the Petition is vague, meets the threshold for a public interest litigation under the Constitution, and is properly before this Court.*** 3. ***Whether L.R Nos. 13287/1, 13287/2 and 13287/88 were illegally, unprocedurally, and fraudulently acquired.*** 4. ***Whether the 6th Respondent can be deemed an "Innocent Purchaser for Value without Notice".*** 5. ***Whether the 1st Respondent has violated the Petitioner’s right to access to information.*** 6. ***What reliefs should issue.*** 7. On the first issue as to whether the Petition meets the threshold for a public interest litigation under the Constitution, counsel submitted that the Petition is brought pursuant to Articles 22 and 258 of the Constitution, which expressly grant every person the right to institute proceedings claiming that the Constitution has been contravened or is threatened with contravention. Counsel further cited Article 258(1), which permits any person to institute proceedings in the public interest without demonstrating personal injury or proprietary interest. 8. It was counsel’s submission that the Petition concerns alleged unlawful alienation of public land by high-ranking public officials in contravention of the Constitution, and public land being a public good, its protection is thus inherently a matter of public interest capable of being litigated by any citizen. Counsel further submitted that the Petition also concerns the abdication of responsibilities and duties under the Constitution, which undermines governance, accountability, and the protection of public resources, that can be litigated by any citizen, and relied on the case of **Kinyanjui V Attorney General & another [2016] KEHC 5104 (KLR).** 9. Mr. Keaton submitted that the Petitioner has the *locus standi* and has met the threshold as per the Anita Karimi Case. Counsel submitted that the Petitioner has expressly identified the constitutional provisions violated, including Articles 10, 35, 40(6), 73, and 201 of the Constitution; has clearly demonstrated the manner of violation, namely the fraudulent transfer of public land from the Agricultural Development Corporation without payment of consideration as indicated in the transfer instruments; provided detailed particulars including the specific parcels of land involved, namely L.R. Nos. 13287/1, 13287/2, and 13287/88, the chronology of transfers, the parties involved in the impugned transactions, and the manner in which the alleged illegality was perpetuated through subsequent transfers. 10. It was counsel’s submission that the 5th, 6th and 8th Respondents have filed a detailed Replying Affidavit and submissions addressing their acquisition, ownership, and legality of the suit properties, hence cannot assert that the Petition is vague. Counsel submitted that courts have cautioned against a rigid and technical application of the ***Anarita Karimi principle*** and emphasized that constitutional litigation should not be defeated by procedural formalism where the pleadings disclose a substantive constitutional controversy and relied on the case of **Trusted Society of Human Rights Alliance V Attorney General & 2 Others, Petition 229 of 2012.** 11. On the Respondent’s contention that the Petition involves private contracts, between ADC and the purchasers counsel argued that the 1st Respondent, the Agricultural Development Corporation (“ADC”) is a Government parastatal established under the Agricultural Development Corporation Act, Cap 444, a statutory body established for and on behalf of the people of Kenya, and is required to be prudent in managing the resources that belong to them. Further, doctrine of privity of contract generally prevents third parties from enforcing a contract, but it cannot be used to hide fraudulent transactions by public bodies from constitutional scrutiny, and relied on the case of Ms. **Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010.** 12. Mr. Keaton further submitted that the Petitioner is not seeking to enforce a contract, but to set aside an unconstitutional and fraudulent alienation of public land, which was sold without payment of consideration, hence should be declared null and void. Counsel relied on the Petitioner’s supplementary affidavit sworn on 18th October, 2024, where the annexed letters acknowledged that they never paid Kshs. 3million. 13. On the issue as to whether the suit properties were lawfully alienated, counsel submitted that the Petitioner has demonstrated, through documentary correspondence from the 1st Respondent, that no such payments were ever received from the original allottees, in respect of L.R. No. 13287/1, to the late General Jackson Mulinge, which was registered on 3rd March 1986, at a stated consideration of Kshs. 3,425,000.00. Similarly, in respect of L.R. Nos. 13287/2, 13287/88, transferred on 31st December 1986, and 24th April 1992, at a consideration of Kshs. 279,960.00, and Kshs. 24,000.00, respectively. 14. Counsel submitted that the legal consequence of non-payment of consideration was that no valid interest was conferred on the original allottees, which they could pass to the 5th and 6th Respondents, and cited the case of **Torino Enterprises Limited V Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR).** 15. He further submitted that there were transfers effected to the Respondent that were contrary to the conditions and the law, and stated that the 1st Respondent had power to sell or alienate the properties but it had to do so in accordance with the law. Counsel relied on the case of **Kipkebut Kemboi V Richard Macharia & 2 others [2025] KECA 1665 (KLR),** and submitted that the alienation of L.R. Nos. 13287/1, 13287/2 and 13287/88 was unlawful, unconstitutional, and contrary to statute. 16. Mr. Keaton also submitted that they had attached the Respondent’s CR 12, which were companies owned by the 8th Respondent, hence could not claim to be bona fide purchasers since the initial considerations were never paid. He relied on the cases of **Dina Management Ltd V County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) and Katende V Haridar & Company Ltd [2008] 2 EA 173.** 17. According to counsel, the Petitioner had requested material information which was never provided, and relied on Article 35(1)(a) and (b) of the Constitution and section 4(1) of the Access to Information Act, 2016, which provide that every citizen has the right to access information held by the state and information held by another person and required for the exercise or protection of any right or fundamental freedom. Counsel further cited the case of **Katiba Institute V Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR).** 18. He submitted that the Petitioner requested for the letters of application for allocation of L.R Nos 13287/1, 13287/2 and 13287/88, the 1st Respondent’s allocation letters for purposes of purchase of L.R Nos. 13287/1, 13287/2 and 13287/88, correspondence relating to non-payment of the purchase price for L.R Nos 13287/1, 13287/2 and 13287/88, Titles and ownership documents for LR No.s13287/1, 13287/2 and 13287/88, statement of account in respect to L.R Nos 13287/1, 13287/2 and 13287/88, which information would have shown that L.R Nos. 13287/1, 13287/2 and 13287/88 were illegally alienated. Counsel stated that to date, the 1st Respondent has refused and/or neglected to provide the Petitioner with the requested information. 19. On 22nd April 2026, counsel for the Petitioner highlighted the submissions and reiterated the issues for determination in the Petition and emphasized that the Petitioner has met the threshold as laid down in the **Anarita Karimi case** and rule 10(3) of the Mutunga Rules. 20. Counsel further submitted that the Respondents cannot rely on the doctrine of bona fide purchaser as the consideration was never paid hence the properties were illegally alienated. Counsel therefore urged the court to allow the Petition as prayed. 21. In response to the Respondent’ submissions, counsel submitted that the doctrine of adverse possession did not apply in the instant case and that the Petitioner had the locus standi, further that the valuation was done by a reputable firm. 22. Additionally, counsel submitted that the Petitioner was not seeking to enforce a contractual dispute but to set aside an unconstitutional alienation of public land, that the Petitioner was not a party to a land sale agreement, and that the burden of proof shifted to the Respondent. 23. Mr. Keaton, argued that public interest value outweighed private individual’s value to the documents hence they were not a forgery, and relied on Rule 5(b) of Mutunga Rules, and submitted that a Petition could not be defeated by non-joinder. He added that the Petition is filed in good faith to enforce public interest. **1ST RESPONDENT’S SUBMISSIONS** 1. Counsel for the 1st Respondent filed submissions dated 20th February, 2026, and identified the following issues for determination: 2. ***Whether the Petitioner properly instituted their claim before the appropriate court and in accordance with legal procedures.*** 3. ***Whether the Petitioner has discharged the burden of proof to establish illegality, fraud or unconstitutional acquisition of the suit parcels.*** 4. ***Whether the suit parcels were lawfully acquired by the 4th, 7th, and 8th Respondents and whether the transactions complied with applicable legal requirements at the time.*** 5. ***Whether the 1st Respondent can reasonably be expected to produce records from transactions that took place in the 1980s and 1990s.*** 6. ***Whether the Petition herein raises confidentiality concerns. Whether the Petition amounts to an abuse of the court process and should therefore be dismissed with costs.*** 7. Counsel relied on their preliminary objection dated 8th October, 2024 which was later adopted as grounds of opposition and submitted that the Petitioner seeks redress against alleged non-payments relating to land transactions that took place between the years 1986 – 1992, which improperly invokes constitutional jurisdiction to resolve what is clearly a contractual dispute. 1. Counsel relied on the principle of constitutional avoidance as laid out in the cases of Consumer **Federation of Kenya (COFEK) v Toyota Kenya Limited & 4 others (Petition No. 455 of 2018), and Moses Kiarie Kuria & 2 Others V Attorney General [2019] eKLR,** that emphasizes that constitutional courts should not entertain matters that can be resolved through alternative remedies provided under statutory, administrative or common law frameworks. 2. Mr. Karumpu submitted that in the COFEK **case** above, the Petitioner alleged constitutional violations, particularly under Articles 35 and 46(1)(b) of the Constitution, regarding consumer rights and access to information. However, the court determined that the issues raised primarily concerned contractual disputes and product liability, which are matters capable of resolution through ordinary civil litigation rather than invoking constitutional jurisdiction. 3. It was counsel’s submission that the allegations raised regarding non-payment for land sold are contractual in nature, and as such, the claims fall squarely within the realm of contractual law and ought to be adjudicated through ordinary civil litigation governed by the Law of Contract Act (Cap 23) and the Civil Procedure Act (Cap 21), not constitutional proceedings. Further, the Petitioner has not demonstrated why he did not pursue the appropriate civil channels and urged the court to find that the Petition is an abuse of the court process, hence should be struck out *in limine.* 4. On the second and third issues, counsel submitted that the Petitioner has neither demonstrated any remedy available in this case nor adduced any documentary evidence to prove fraud, and cited **Section 107 of the Evidence Act** and the cases of **Jennifer Nyambura Kamau V Humphrey Mbaka Nandi [2013] eKLR, Joseph Burugu Karisa v Thomas Katana Nzai & 2 Others [2017] eKLR, and Republic v City Council of Nairobi & 3 Others ex parte New Milimani Sacco Ltd [2014] eKLR.** Counsel further submitted that in the absence of any evidence proving fraud or illegality, the court should uphold the sanctity of title and find that the 4th , 7th , and 8th Respondents engaged in lawful transactions and obtained valid titles, as the Petitioner has not demonstrated any procedural lapses or irregularities in these transactions. 5. On the issue as to whether the 1st Respondent can reasonably be expected to produce records from transactions that took place in the 1980s and 1990s, counsel submitted that the 1st Respondent could not produce documents of over 30 years ago since some of the individuals involved in the transactions were either deceased and were no longer working for the 1st Respondent, further the record keeping at the time was manual. Counsel relied on the case of **Julius Musili Kyunga V Kenya Commercial Bank Ltd [2019] eKLR,** where the Court held that a party cannot reasonably be expected to retain records indefinitely, and an adverse inference cannot be drawn from the unavailability of old documents. That the absence of records was not proof of non-payment. 6. On the fifth issue, as to whether the Petition is an abuse of court process, counsel submitted that it is highly questionable how the Petitioner, who is not an employee or agent of the 1st Respondent, has accessed confidential information allegedly proving non-payment. Such access raises concerns about possible interference with ADC's records or undue acquisition of sensitive institutional data. 1. Mr. Karumpu, stated that the Petitioner was not an employee of the 1st Respondent yet he relied on internal confidential documents thus raising the issue of integrity, and relied on the case of **Trusted Society of Human Rights Alliance V Attorney General & 2 Others [2012] eKLR,** where the Court held that “access to information must be exercised responsibly and in a manner that does not infringe on confidentiality or prejudice public bodies.” 2. According to counsel, the Petitioner had approached the court on a speculative basis without substantive evidence in support of his claims, and cited the case of **Okiya Omtatah Okoiti V Communications Authority of Kenya & 8 Others [2018] eKLR,** where the Court held that constitutional petitions must not be used as an avenue to “unearth evidence to support baseless allegations.” 3. Counsel further submitted that courts must safeguard public information from abuse and ensure that constitutional processes are not weaponized to serve private interests, as the Petitioner’s unexplained access to ADC’s sensitive records raises serious concerns about possible tampering and misuse. Further, if the Petitioner was genuinely pursuing this matter in the spirit of transparency and accountability, he ought to have fully disclosed the source of the information he is relying upon, as the failure to do so raises questions about the integrity, legality and authenticity of the said information. Counsel relied on the case of **Kituo Cha Sheria v Central Bank of Kenya & 8 Others [2014] eKLR**, where the Court underscored the importance of transparency and good faith in constitutional petitions, holding that a party who seeks to rely on information in support of their claims must demonstrate the credibility of such information and how it was lawfully obtained. 4. In conclusion, counsel submitted that the instant Petition was an abuse of court process since the claim was brought 3 decades later after the transactions and relied on the case of **Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR**. Counsel further stated that the Petitioner failed to present any credible evidence to support its claims, yet he sought to impose an undue burden on the 1st Respondent by compelling it to justify transactions that took place over three decades ago. 5. Counsel relied on the case of **Satya Bhama Gandhi v. Director of Public Prosecutions & 3 Others [2018] eKLR,** the court emphasized that litigation should not be used as an instrument of mischief and malice, and urged the court to dismiss the Petition with costs to the Respondents. 6. Ms. Kolum highlighted the submissions and emphasized the issue that the dispute is purely a contractual civil dispute and not a constitutional petition. Counsel further submitted that if the court were to hear the Petition, the Petitioner wants to shift the burden of proof to the Respondents and urged the court to dismiss the petition with costs. **4TH RESPONDENT’S SUBMISSIONS** 1. Counsel filed submissions dated 22nd January 2026, and submitted that the Petitioner lacks locus standi; hence it is an abuse of court process. Counsel submitted that the Petitioner has neither demonstrated any personal proprietary interest in the suit properties, nor violation of his personal rights beyond a generic public concern. Counsel submitted that public interest litigation must meet a threshold of demonstrated illegality and public injury and cannot be based on speculative and historical allegations raised after the fact and cited the case of Trusted **Society of Human Rights Alliance V Mumo Matemu & 5 Others [2014] eKLR.** 2. According to Mr. Osiemo, there was inordinate delay in filing this matter, as the transactions in dispute occurred between 1986 and 1999 and therefore bringing a Petition 25 to 38 years later was highly prejudicial since the key witnesses were deceased and documents were no longer available. The delay in filing the Petition prejudices a fair trial and violates the principle that equity aids the vigilant and relied on the case of **Communications Commission of Kenya & 5 others V Royal Media Services Limited & 5 others [2014] eKLR,** where the court held that courts will not entertain stale claims where delay is inordinate and unexplained, as it prejudices the parties’ ability to mount a proper defence. 3. On the issue of non- joinder of necessary parties, it was counsel’s submission that the Petitioner alleged fraudulent conspiracies involving the 1st respondent (ADC) and its officers but none have been joined as parties, and relied on the case of Ambrose **Rachier V Sammy K. Boit & 4 others [2013] eKLR,** where the court held that where fraud is alleged, all persons said to have participated must be joined to afford them a right of reply as failure to do so is fatal to such allegations. 4. Mr. Osiemo, relied on **Section 107 of the Evidence Act** and submitted that the burden of proving non-payment was on the Petitioner who failed to provide any evidence. Counsel also stated that the 4th Respondents as administrators hold a Certificate of Title issued on 3rd March 1986 which is prima facie evidence of ownership under Section 26(1) of the Land Registration Act 2012, which title has never been challenged for four decades. 5. On the issue whether there was any violation of the Agricultural Development Corporation Act (Cap 444) sections 12 and 13 of the ADC Act, counsel stated that the ADC Act grants the Corporation the power to acquire and dispose of property, and that the Petitioner has not shown that the price was irrational, corrupt, or so low as to amount to a gift. Counsel relied on the case of **Republic V Agricultural Development Corporation Ex parte Zachary Kariithi Mwangi [2019] eKLR,** where the court held that the court will not interfere with the administrative decisions of a statutory body unless the decision is illegal, irrational, or procedurally improper. 6. Regarding the allegation that subsequent transfers to the 5th and 6th Respondents were meant to disguise ownership, counsel argued that this was speculative, as the transfers were registered and supported by instruments whereby the 4th Respondent held a Certificate of Title from March 1986, which serves as *prima facie* evidence of ownership. Counsel cited the case of **Arun C. Sharma V Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 4 others [2014] eKLR.** 7. Mr. Osiemo further submitted that the Petitioner referred to multiple constitutional Articles such as 10, 73, and 201, but failed to link them to specific actions by the 4th Respondent. He argued that the mere fact that General Mulinge was a public officer does not automatically prove he used his office to influence the transaction, and relied on the case of **Gichira V Republic [2020] eKLR,** where the court held that allegations of corruption and abuse of office must be proved with a high degree of particularity, and suspicion, however strong, cannot take the place of proof. 8. Counsel submitted that the 1st Respondents who are parties to the transfers, confirmed that the transfer was in good faith and that they did not have any claim against the Estate of General Mulinge, hence, the deceased had a good title which could not be impeached. 9. On the Petitioner’s claim under **Article 35 (Access to information**), counsel submitted that the same is misdirected as it was not the 4th Respondent’s duty to fill gaps for the Petitioner, as the 1st Respondent was the custodian of the records the Petitioners alluded to and cited the case of **Kenyans for** **Justice and Development Trust V Attorney General & another [2018] eKLR,** where the court held that the right to information is enforceable against the holder of the information as it cannot be used to penalize a third party who is not the information custodian. 10. In conclusion, counsel urged the court to dismiss the Petition, as it is an abuse of court process. Counsel further highlighted the submissions and reiterated the points in the submissions. **5TH, 6TH and 8TH RESPONDENTS’ SUBMISSIONS** 1. Counsel filed submissions dated 11th October 2024, and submitted on four issues, that, the Petition does not meet the threshold of a Constitutional Petition under Rules 4 and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, (known as the Mutunga Rules); secondly, that the Petition is an abuse of court process as it does not meet the threshold of public interest litigation; thirdly, that the Petition is a civil claim disguised as a constitutional matter; and fourthly, that the Petition offends the doctrine of privity of contract. 2. On the first issue as to whether the Petition meets the threshold of constitutional petitions, Prof. Ojienda (SC) submitted that the Petitioner’s Petition revolves around whether the 4th 7th and 8th Respondents paid the consideration to the 1st Respondent for the acquisition of LR No 13287/1, 13287/2 and 13287/88, the failure of which the Petitioner alleges has deprived the 1st Respondent of its property. 3. Counsel further submitted that the Articles relied on by the Petitioner, Articles 10 on national values, Article 73(2) (b) which provides the guiding principles on leadership and integrity, that the said Articles do not confer any particular rights and freedoms under the Bill of Rights but serve to guide State Officers in the performance of their duties, and relied on the case of **Harrikissoon v Attorney General of Trinidad and Tobago ([1980] AC 265)** where the Privy Council held that a public officer's ordinary administrative grievance, such as a transfer, does not automatically constitute a constitutional rights violation, and misusing constitutional motions to bypass standard judicial review is an abuse of process. 4. Counsel therefore argued that the Petitioner’s claim is anchored on violations of statutory provisions, which, even if attached to general provisions of the Constitution cannot amount to constitutional violation, and relied on the case of **Murage v Fineserve Africa Limited & 3 others [2015] KEHC 7330 (KLR), and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR),** where the court held that not each and every violation of the law must be raised before the High Court as a constitutional issue. 5. Prof Ojienda (SC) therefore submitted that in the absence of evidence of infringement of a fundamental right or freedom by the 1st 4th 7th and 8th Respondents or a link between how the alleged violations have or shall directly impact the public, the Petition should be dismissed with costs. 6. On the second issue as to whether this is a Petition or a civil claim, counsel relied on the Supreme Court **Communication Commission case (supra)** where the court stated that where it is clear that a claim can be resolved through another mechanism other than a Petition, such mechanism must be applied. That the current claim is a civil claim as can be seen in the wording of the Petition and relied on the **South Africa Constitutional Court case in the Matter between Vuyile Jackson Gcaba Vs Minister for safety and Security First & Others Case CCT 64/08 [2009] ZACC (**as cited in the case of **Republic V Chief Land Registrar & another [2019]eKLR,** where the court held that an Applicant’s pleadings contain the legal basis of their claim under which the Applicant has chosen to invoke the court’s jurisdiction. 7. Counsel further relied on the Court of Appeal case of Gabriel **Mutava & 2 Others V Managing Director Kenya Ports Authority & another [2016]eKLR,** while determining whether it was proper for a disgruntled employee to institute a constitutional Petition other than invoking the Employment and Labour Relations Act, the court held that the Constitution should not be turned into a thoroughfare for resolution of every kind of common grievance. Counsel also cited the case of Speaker **of National Assembly vs James Njenga Karume [1992] eKLR**, where the court emphasized the doctrine of constitutional avoidance and submitted that the Petition dated 18th September 2024 is a mere civil claim and should be dismissed with costs. 8. On the issue as to whether the petition is vexatious and an abuse of court process and does not meet the threshold of public interest litigation, counsel submitted that the Petition is simply meant to vex the 8th Respondent and serve personal and political interest and relied on the **Indian Supreme Court case in Ashok Kumar Pandey vs, State of West Bengal writ Petition 199 of 2003**, which warned courts against accepting all suits as public interest litigation. 9. On the issue as to whether the petition offends the doctrine of privity of contract, it was counsel’s submission that the Petition is anchored on the failure by the respondents to pay consideration and the challenge of the transfer of the suit properties to the Respondents by the 1st Respondent, it follows that the what is in contention is the terms of the sale between the 1st respondent and the Respondents, and whether or not the latter fulfilled their end of the bargain. 10. Prof Ojienda (SC) argued that the only parties that would have locus to demand performance of the sale obligations are the parties to the transaction, namely, the 1st and the 4th 7th and 8th Respondents personally as the Petitioner has no locus to demand payment on behalf of the 1st Respondent, and relied on the case of **Aineah Liluyani Njirah v Aga Khan Health Services [2013]eKLR**, while considering the doctrine of privity of contract held that, the essence of the privity rule is that only the people who actually negotiated a contract (who are privy to it) are entitled to enforce its terms. Counsel further relied on the case of Darlington **Borough Council v Witshire Norther Ltd [1995]1WLR 68** (as cited in the case of **Mark Otanga Otiende V Dennis Oduor Aduol [2021] eKLR.** 11. On the issue whether the Petitioner has proved the allegations of fraud and conspiracy to the required standard, counsel relied on Section 109 of the Evidence Act, and the case of Ndaru **Kagina v Esther Mbandi Kagina & Another [2016] eKLR.** It was counsel’s further submission that the Petitioner has not proven that the acquisition of the suit properties was marred with fraud and relied on the cases of **R.G Patel – V Lalji Makanji [1957] E.A 314, Vijay Morjaria Vs Nansingh, Madhusingh Darbar & another [2000] eKLR.** 12. On the issue as to whether the 1st respondent violated the Petitioner’s rights to access to information under Article 35 of the Constitution in failing to provide letters of application for allocation, allocation letters, correspondences relating to non- payment, title and ownership documents and statement of accounts with respect to the suit properties, counsel submitted that the Petitioner’s demand is in violation of sections 25 and 26 of the Data Protection Act and the Respondents’ right to privacy under Article 31 of the Constitution. 13. Counsel relied on Section 25 (a) of the Data Protection Act which mandates a data controller or data processor to ensure that personal data is processed in accordance with the right to privacy of the data subject and Section 26 (a) on the other hand accords a data subject the right to be informed of the use to which their personal data is to be put. It follows that the application letters. Allocation letters and any correspondence relating to the Respondents qualify as personal data that cannot be released to any random person without their consent, as it would be tantamount to violating their right to privacy 14. Prof. Ojienda (SC) submitted that the Ministry of Lands, is the custodian of all title and ownership documents with respect to all parcels sold and purchased within the Republic of Kenya, and such information could easily be acquired from the Department of Lands as the Valuers did and not the 1st Respondent. Counsel therefore stated that the 1st Respondent never violated the Petitioner’s right to access to information and urged the court to dismiss the Petition with costs. 15. Counsel highlighted the submissions and relied on the replying affidavit and the submissions as filed and submitted that the Petitioner is neither an aggrieved party nor an Interested party to bring the claim which is a civil claim in nature. 16. It was counsel’s further submission that the Petitioner’s supplementary affidavit dated 18th January, 2024, constituted documentary hearsay and ought to be struck out, as it contained documents purportedly written by various officers from the 1st Respondent to the 8th Respondent which were inadmissible as per **Sections 67, 68 and 69 of the Evidence Act,** and cited the case of **Lwangu V Ndote [2021] eKLR.** That the Petitioner could not produce evidence unless it complied with the Evidence Act. 17. In conclusion, counsel submitted that the 1st Respondent has the mandate to sue and be sued, hence did not need the Petitioner’s service to sue on their behalf. Further, the Petition was not a public interest litigation and urged the court to strike it out with costs. **ANALYSIS AND DETERMINATION** 1. By a Petition dated 18th September 2024, the Petitioner sought numerous reliefs which have been enumerated at the beginning of this Judgment. The prayers or reliefs sought by the Petitioner are a mouthful as seen from the pleadings. The factual background of this Petition has been elaborately captured in the Petitioner’s Supporting affidavit and the submissions by the Petitioner’s counsel; however, it is imperative to give a brief background, which necessitated the filing of this Petition. 2. The Petitioner contends that he filed the present Petition as a public interest litigator challenging the legality, validity and constitutionality of the acquisition of L.R No. 13287/1, L.R No. 13287/2 and 13287/88, being public land from the 1st Respondent without payment of consideration and its further transfers to the 5th and 6th Respondents. It was the Petitioner’s case that the legal consequence of non-payment of the consideration was that no valid interest could have been conferred on the 4th, 7th and 8th Respondents. He also alleged that the suit properties were fraudulently and illegally transferred by the 4th, 7th and 8th Respondents who were public officers who enriched themselves through the transactions. 3. The issues that emanate from the pleadings for determination are as follows: 4. ***Whether the Petitioner has met the threshold for constitutional petitions as provided for under Rules 4 and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules.*** 5. ***Whether the Petition is a public interest litigation*** 6. ***Whether the Petitioner has properly invoked the jurisdiction of the court*** ***and whether the Petition offends the principle of constitutional avoidance.*** 7. ***Whether the Petitioner is entitled to the prayers sought in the Petition.*** 8. ***Whether the Petition is an abuse of court process*** 9. ***Who should bears the cost of the Petition?*** 10. The cardinal point in constitutional petitions is that they must meet the threshold for precision, the identification of specific constitutional provisions and link the violations to the acts or omission as was set in the **Anarita Karimi case (supra)** where the court held that: ***“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.*** ***That based on this holding for petition to meet the constitutional threshold to be entertained by the Constitutional Court it must meet with a reasonable degree of precision the three-tier test, that is stating that which one complains of, the provision said to be infringed, the manner in which they are alleged to be infringed”*** 1. Rule 10(1) of the **Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (otherwise referred to as “The Mutunga Rules)** describes the form of a Petition as follows :- “***10. (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.”*** 1. The Petitioner must enumerate the articles of the Constitution that have been infringed, including the particulars pleaded with reasonable clarity on how they have been infringed. Mere listing of the Articles of the Constitution without linking them with the specific infringements is not enough to transform a pleading into a constitutional Petition. Many litigants have fallen short in meeting the constitutional threshold for Petitions, either due to being overzealous or trying to circumvent the doctrine of Limitation of Actions. 2. Either way the law or procedure catch up with them through the doctrine of constitutional avoidance or estoppel or being dismissed /struck out as an abuse of court process. 3. Coming back to the Petition, the Petitioner listed the following Articles of the Constitution, namely, Article 2(4), 10, 19(1), 19(3), 20(1), (2) (3), (4), 21, 23, 23(3) 162(2) (b), 35(1) (a) (b), 40, 40 (6), 50(1), 73 (1) (a), 73 (2), 74(1), 201(a), 258 (1), 259(1), 94(1), 26(1) of the Land Registration Act, Section 12 of Agricultural Development Act, 12 (2) 13(1) and (2) 159 (1). The petitioner elaborately listed the provisions of the Constitution and the Acts of Parliament but failed to indicate with precision how the said article have been violated and how they have infringed the rights of the Petitioner or the purported Kenyan public who did not receive the alleged consideration that was never paid to the 1st Respondent. 4. In the case of **Momanyi V National Police Service & 4 others (Constitutional Petition 23 (E023) of 2021) [2024] KEHC 1869 (KLR)** the court held as follows: ***“From the foregoing, it is not enough for a Petitioner to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the Respondents to respond to and/or answer to the allegations or complaints.”*** 1. Litigants sometimes stretch their luck by being the face of a purported public interest litigation where they are not able to precisely plead the particulars of violations and infringements with reasonable clarity to allow the Respondents to respond to the allegations. 2. The reason why there are guidelines on the filing of constitutional Petitions is to ensure fundamental rights are protected, and to avoid abuse of court processes where civil matters are disguised as constitutional Petitions. 3. The Petition, as filed from the onset, was bound to be knocked off the list of meeting the threshold for constitutional Petitions on three fronts, firstly that it offends the doctrine of constitutional avoidance, it is an abuse of court process and whether it is a public interest litigation petition which I will address shortly. 4. The court is cognizant of the right of every person to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention, as provided for under **258 of the Constitution** which states that: ***“258. (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.*** ***(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—*** 1. ***person acting on behalf of another person who cannot act in their own name;*** 2. ***a person acting as a member of, or in the interest of, a group or class of persons;*** 3. ***a person acting in the public interest; or*** 4. ***an association acting in the interest of one or more of its members.”*** 5. In the case of **Attorney General & Another V Ruwa & 2 Others (Civil Appeal 275 of 2012) [2016] KECA 418 (KLR)** held as follows: ***“…the intention of the framers of the Constitution from which the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 are derived, was to allow any person who genuinely believed that there was a violation of fundamental freedoms and constitutional rights to approach the court for redress as envisaged under Article 22 of the Constitution 2010”.*** 1. However, this right must be exercised within the law and procedure without infringing on other people’s rights. Allowing people to wake up and make outrageous claims in the name of being public spirited to file Petitions which border on infringing other people’s rights would be counterproductive in the protection of fundamental human rights as provided for in the Bill of Rights. 2. The doctrine of constitutional avoidance was elaborated in the case of **Communications Commission of Kenya & 5 others V Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)**, where the court held that: ***“[256] The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:*** ***“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” ….*** ***[258] From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”*** 1. Similarly, the doctrine of constitutional avoidance was elaborated in the cases of Consumer **Federation of Kenya (COFEK) v Toyota Kenya Limited & 4 others (Petition No. 455 of 2018), and Moses Kiarie Kuria & 2 Others V Attorney General [2019] eKLR,** which emphasized that constitutional courts should not entertain matters that can be resolved through alternative remedies provided under statutory, administrative or common law frameworks. 2. The Petitioner challenges the acquisition, registration and transfer of the suit properties L.R No. 13287/1, L.R No. 13287/2 and L.R 13287/88 from the 1st Respondent to the 4th, 7th and 8th Respondent. He further claims that the acquisition and disposition of the suit properties being public land was without payment of the consideration contrary to **Section 12(2) and 13(2) of the Agricultural Development Act**, **and** argued that the legal consequence of non-payment of the consideration was that no valid interest could have been conferred to the 4th, 7th and 8th Respondents that they could pass to the 5th and 6th Respondents. 1. The Petitioner also pleaded that the suit properties were fraudulently and illegally transferred by the 4th, 7th and 8th Respondents who were public officers that enriched themselves through the transactions, and therefore acted contrary to **Section 11 of the Public Officer Ethics Act** and **Article 73(2)(b) of the Constitution.** 2. The Petition is based on a claim that consideration for the suit properties were never paid to the 1st Respondent more than 30 years ago. This is a purely contractual dispute, which involved the purchase of the suit properties from the 1st respondent. The bone of contention by the Petitioner is that the purchase price was never paid to the 1st respondent and therefore the court should order Respondents to pay the consideration to the tune of Kshs, 10 Billion to the 1st Respondent. 3. It is on record that these transactions took place between the years 1986 – 1992, and the Petitioner alleged that there was non–payment of consideration which is the basis of this Petition. Without using rocket science, it is clear that this claim is contractual in nature, and as such, it falls within the realm of contractual law and ought to be adjudicated through ordinary civil litigation governed by the Law of Contract Act (Cap 23) and the Civil Procedure Act (Cap 21), not a Constitutional Petition. 4. The question that begs an answer is why the Petitioner chose this forum, which is not appropriate for ventilating his alleged grievance. One of the logical reasons would be, to avoid the doctrine of Limitation of Actions and the privity of contract. The Petitioner would not have locus standi in a civil suit where he was neither a purchaser nor a seller. He would also not qualify as an interested party. He was neither a party to the contract as the transactions were entered into before he was born as was submitted by counsel for the 5th 7th and 8th Respondents. What would be the driving force or motive of filing the current Petition? 5. It is further on record that the 1st Respondent has the mandate to sue and be sued in its own name and there was no evidence that the Petitioner had instructions to sue on behalf of the 1st Respondent. The 1st Respondent also stated that they did not have any complaint against the Respondents as they had entered into the transactions which were above board and the Respondents did not owe them any outstanding balance. 6. It should be noted that the court will not interfere with the administrative decisions of a statutory body unless the decision is illegal, irrational, or procedurally improper as was held in the case of **Republic V Agricultural Development Corporation Ex parte Zachary Kariithi Mwangi [2019] eKLR,** 7. The 4th Respondent who sold the suit parcels to the 5th 7th and 8th Respondents also stated that they did not have any claim against the Respondents as they transacted in good faith and got their titles procedurally which is prima facie evidence of ownership. 8. From the foregoing, I find that this claim is a civil contractual dispute disguised as a constitutional Petition as was held in the case of Uhuru **Muigai Kenyatta vs Nairobi Star Publication Limited (2013) eKLR** Lenaola J (as he then was) stated: ***“…Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of decision of Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG V Dutambala Criminal Appeal No. 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions…”*** 1. Similarly, in the case of **Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR**, the court stated that : ***“65. It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in a manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.”*** 1. Ideally, the Petition would not qualify as a civil contractual dispute for the Petitioner, as he will be locked out by the doctrine of privity of contract. Further, the dispute would be stale, where the doctrine of Limitation of Actions would apply. Either way, the Petitioner is a stranger in every equation. 2. This would amount to an abuse of court process, when litigants like the Petitioner file suits which are baptized as Petitions and yet they are civil suits properly so called, as was held in the case of **Grace Jepkemoi Kiplagat vs Zakayo Cheruiyot (2021) eKLR,** where Mutungi J (as he then was) held that: ***“… there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitutional Court.”*** 1. Looking at the Petition, what is the constitutional issue that the Petitioner wants the court to adjudicate upon? Is it the non- payment of a consideration of the purchase price of the suit parcels that belonged to ADC the 1st Respondent? Is this a constitutional Petition or a civil suit? Is this a public interest litigation or an abuse of court process? 2. On the issue whether this is a public interest litigation, the Petitioner must prove that he is agitating for protection of human rights and safeguarding public resources rather than personal gain. The Petitioner’s primary motivation must be public good and not self-gain. 3. In the Indian **Supreme Court case in Ashok Kumar Pandey vs, State of West Bengal writ Petition 199 of 2003**, this case warned courts against accepting all suits as public interest litigation as some cases are meant to vex and embarrass the respondents. 4. As to whether the Petitioner is entitled to the reliefs sought, the court finds in the negative as the Petitioner has not met the threshold for constitutional Petitions, the Petition is an abuse of court process and is therefore dismissed. 5. Since this is not a public interest litigation, the Petitioner will pay costs to the respondents. Ordinarily courts rule that bona fide public interest litigants should not be condemned to pay legal costs if they lose, provided the suit was brought to genuinely advance a legitimate public interest as was held in the case of **Mwau v Attorney General [2015] KEHC 6979 (KLR).** 6. It is so ordered **DATED, SIGNED AND DELIVERED AT NAKURU THIS 30TH DAY OF JULY 2026.** **M. A. ODENY** **JUDGE**