https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3864

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMABAY** **ELC PETITION NO. E002 OF 2025** **CHARLES AREDHA OLONJE ………………….…….1ST PETITIONER** **JOHN BOSCO OOKO AREDHA …………….………2ND PETITIONER** **CAROLINE AKOTH OGINGA ……………….……..3RD PETITIONER** **VERSUS** **THE COUNTY GOVERNMENT OF HOMABAY ….1ST RESPONDENT** **LAVIN CONSTRUCTORS LIMITED ………….……2ND RESPONDENT** **THE HONORABLE ATTORNEY GENERAL …...….3RD RESPONDENT** **NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY …………………………………...………………………….4TH RESPONDENT** **THE CHAIRMAN NATIONAL LAND COMMISSION** **….……………………………………………………………5TH RESPONDENT** **RULING ON PRELIMINARY OBJECTION** **BACKGROUND FACTS** 1. The 1st Respondent, through the County Attorney herein, has filed a notice of Preliminary Objection dated 26th November, 2025 in opposition to the Petition filed by the Petitioners herein. 2. The Respondent seeks to strike out the Petitioners’ suit on the following grounds, with a sub-heading on doctrine of avoidance: 3. The Petition violates the principles of constitutional avoidance when it stipulates that the Court should only interpret the Constitution when absolutely necessary, as articulated in the judgment of the High Court in Petition No. 455 of 2018, Consumer Federation of Kenya v Toyota Motors Corporation & 4 Others. 4. The Petition is a simplistic claim for land encroachment, alleging illegality of trespass, yet it is camouflaged as a Constitutional Petition. 5. The Petition lacks the essential articulation of a genuine, earnest and crucial dispute between the involved parties necessary for resolution. 6. The Petition is inherently flawed and constitutes an abuse of the legal process. ## DIRECTIONS OF THE COURT 1. On 27/11/2025 directions were given and the Court gave the parties 14 days to submit on the same. ## SUBMISSIONS BY THE PARTIES 1. Having gone through the CTS I note that the 1st Interested Party filed submissions on 2/3/2026 while Counsel for the Petitioner filed his on 5.3.2026. 2. This was done in violation of the Court's directions, which is extremely outside the stipulated 14 days. 3. However, in the interest of justice, I will overlook the said violation and proceed accordingly but Counsels are reminded are reminded that they have a duty of assisting the court arrive at a fair and just decision, taking precedence over their clients. ## SUBMISSIONS BY THE 1ST RESPONDENT 1. The 1st Respondent states that the Petition has raised two crucial issues which, in the opinion of Counsel, fulfil the requirement of pure points of law, as established in the case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.** 2. The two tests are the test for [a] Constitutional Petition, and(b)the principle of constitutional avoidance. Counsel expounds on the 1st test by stating that the main dispute is a simplistic claim for land encroachment, alleging illegality of trespass, which should have been submitted as an ordinary plaint; that, in that respect, the Petitioners provided little or no particulars as to the allegations, and the manner of the alleged infringement, and, on that issue, the Petitioners should have seen the need to amend the Petition so as to provide sufficient particulars to enable the Respondents to reply. On that score ,Counsel relies on the decisions of **Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154, and Mumo Matemu v Trusted Society of** Human Rights Alliance, Civil Appeal No. 290 of 2012, [2013] eKLR. 3. On the Second limb, Counsel relies on the case of **Communications Commission of Kenya & another v Nairobi City Water and Sewerage Co. Ltd & Several Others [2015]** eKLR . On the above, he states the principle of constitutional avoidance dictates that where a dispute is one which can be determined under another area of law other than the Constitution, then it is best that it be so determined, and pure constitutional issues be left and that that there is no documentary evidence to demonstrate the alleged violations of the Petitioner's right, as required under Section 107(1) and other relevant provisions of the Evidence Act. 4. Counsel concludes by saying that justice requires that the Court cannot be compelled to warrant implementation of prayers in a factual vacuum. ## SUBMISSIONS BY THE PETITIONERS 1. The Petitioners' rejoinder to the 1st Respondent's submission is that the Petitioner should have instituted their complaint by way of a plaint; that Article 159(2) is clear that justice should be administered irrespective of status; he justifies this position by saying that the issue of boundary and encroachment into private property can only be heard by the Environment and Court, that it is only through the filing of this Petition that the Petitioners can be compensated, and lastly ,that any delay in this Petition, as anticipated by the 1st Respondent, will cause the more suffering to the Petitioners . No authorities were cited by the Petitioners’ counsel. ## DETERMINATION 1. **The issue for determination is whether the Petition is properly before this Court and whether it meets the threshold of a Constitutional Petition.** 13.The suit herein was originated by a Petition dated 17th April, 2025, in which the Petitioners have sued the County Government of Homa BayLavin Contractors ,the Attorney general , NEMA and the Chairperson, National Land Commission. 14. They have set out the facts of the Petition and, in paragraph 10, they state that the 1st Respondent has encroached and wilfully trespassed on land parcels number Kanyada /Kanyango Kalanya/4169, Kanyada /Kanyango Kalanya/4170 and, 5002 and by creating an access road and shifting boundaries on their parcels of land, destroyed their trees and different types of fruits in the middle of their parcels, putting the parcels to public use without their consent or authority; that the same act is a wilful trespass on public land, and that the same was done in violation of the Petitioners' right to equal protection and enjoyment of the law, and that the Petitioners have never been contacted and have a legitimate expectation. 15. At paragraph 18 the Petitioners have pleaded compulsory acquisition and have gone further to set down particulars of the violation. 16.Also, at paragraph 20 they pray for an order to the County Surveyor and County Land Registrar to visit the site and reinstate the boundary, and lastly, an order of injunction to issue as well. 17. Other than the violations allegedly done by the 1st Respondent, the Petitioners have not set down, pleaded or particularised the violations done by the other parties. The other parties seem to be joy riders at the instance of the Petitioners. 18. In the case of **Anarita Karimi Njeru versus Republic Misc Criminal Application number (No. 4 of 1979)) (1979) KEHC 30154:]** ***“ 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 the Petition to meet the threshold to be entertained by the Constitutional Court, it must meet with a reasonable degree of precision the three-tier test, that is: stating the one who complains of the provision said to be infringed, the provision said to be infringed, and the manner in which they are alleged to be infringed.That although the Petitioner has enumerated Articles 28, 31*** ***and 42 of the Constitution as Articles that have been infringed, no particulars are pleaded with reasonable clarity on how they are violated or the extent of the violation.The Petitioner has not demonstrated how the respondent who is not the State has failed to support or infringed a right under Article 40(5) of the Constitution, when the said right is the responsibility of the State.*** 18. Similarly, in the case of **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal No. 290 of 2012, [2013] eKLR [2013] KECA 445 (KLR)**, the Court held: *‘****’23. It should be noted that the case of Anarita Karimi Njeru Republic (No. 1), [1979] KLR 154 (supra) has been relied upon from time to time to demonstrate the threshold of a Constitutional Petition. It should be appreciated that the requirements for a successful Petition are simple, and they are thus: the Petitioner should set out the constitutional provisions which he believes have been violated or threatened, and the manner in which the Respondents have violated those provisions. It is not enough for the Petitioner to just list the constitutional provisions without demonstrating how they were infringed upon.’’*** 19. From the above, I gather that for a Constitutional Petition to be sustained, the following basic ingredients are mandatory, namely: **(a) It must have a degree of precision.** **(b) It must identify the provisions of the Constitution that are violated.** **(c) It must bring out clearly the manner of violation.** 20. It therefore goes without saying that a Petitioner cannot just throw a wrench in the works by being scanty in citing relevant constitutional provisions and abdicate the residual responsibility to the Court to point out the violations allegedly committed by the respondents. 21. The purpose of precision is to enable the Respondent to respond to the alleged infringements and violations. If this has not been done, it would create a Herculean task for the Court in engaging with the Petition before it. 22. On the doctrine ofconstitutional avoidance, the Supreme Court of India, in Re: Application by Bahadur, (1986) LRC, stated thus at page 307: *“Courts have said time and again that mere allegations that infringement of rights has occurred cannot be sustained as a claim unless founded on substantive law. Of course, the proper course is to bring the claim under such law and not under the Constitution.The case highlights* the unwisdom of *ignoring the advice that the Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might, in certain cases, give rise to the redress provided for at Section 14, yet, as has been proclaimed by the highest court in the land, it is not a general substitute for the normal procedures for invoking judicial control of administrative action.”* (**See** **Harrikissoon v Attorney-General (1979) 3 WLR 62.)** 23. The Court of Appeal in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others, Civil Appeal No. 10 of 2015, [2015] eKLR (neutral citation [2015] KECA 304 (KLR)), made this crucial observation: *“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 the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. 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 diligent in, first of all, putting in place their own interest-protection mechanism for resolutions outside Court. This accords with Article 159 of the Constitution, which commands the Court to encourage alternative means of dispute resolution.”* 24. The policy of constitutional avoidance finds its genesis in a concurring opinion in the United States case of Ashwander v Tennessee Valley Authority. In his concurrence,Justice Louis Brandeis set forth the now-famous seven pillars (formulation) of judicial review: 1. “*The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining to decide such questions ‘is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.’”* 2. *“The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.”* 3. *“The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”* 4. *“The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”* 5. *“The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he was injured by its operation.”* 6. *“The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.”* 7. *“When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of a statute is fairly possible by which the question may be avoided”.* 25. I have considered the submissions filed, and the authorities referred to, by the Petition itself and, having analysed all relevant issues carefully, I now move to determine the issues that are pertinent to the proceedings herein. 26. The Petition[er's case against] the 1st Respondent emanates from its creating an access road on parcel numbers Kanyada/Kanyango Kalanya/4170, Kanyada/Kanyango Kalanya/5002 and 4169. 27. The Petitioners allege that the encroachment was done in contravention of the Petitioners' right to equal protection and enjoyment of the law as provided for in Article 27(1) and Article 40 of the Constitution of a party for whose benefit the statute was enacted. 28. At paragraph 15, the Petitioners say that the law is clear that the rightful and legally registered owner of property is entitled to peaceful and quiet possession, and ought to be consulted and adequately compensated before compulsory acquisition. 29. Lastly, they say that the impugned compulsory acquisition failed to adhere to the mandatory prescribed procedure. 30. The first issue to consider is whether the petition as drafted meets the test laid down in the case of **Anarita Karimi Njeru (supra).** 31. The Petition has set out the facts and, in so doing, pleaded trespass, compulsory acquisition, and violation of physical planning procedure, EMCA, and other relevant laws. 32. They also seek an order for stay, an order for reinstatement of the boundary, and an injunction to issue. 33. Hon. Justice Nyagaka in Awino v County Government of Homa Bay & 5 Others; Environment and Land Petition No. E001 of 2021 [citation partially illegible] KEELC […] (KLR), 16th March 2026 [ 2026] eKLR, the Court held: *“In the instant Petition, the allegations that the Respondents encroached into the land and destroyed his property and, by so doing, violated his constitutional rights. The Petitioner also seeks to rely on constitutional violations in order to found his claims for compensation herein. We have stated above that, while there may be damage to properties that called for compensation, the remedy was sufficiently and appropriately provided for in the resolution of the same through ordinary civil claims or plaint. There was a right to property violated when the acts allegedly committed were on a parcel of land whose boundary was not determined yet to form the claim of government (respondents)taking the Petitioners land without due process , which would have translated to a violation of Article 40(1) of the Constitution .For parties to turn every breach or violation of any right into a constitutional violation or breach would trivialize the constitution and clog the courts with unnecessary and uncalled for pronouncements on constitutional interpretation where there is basically none.* 34. *I have looked at the constitution of Kenya (Protection of rights and fundamental freedoms) Practice and Rules LN 117 of 2013 Rule 8(2) form of* Petition Rules provide that the Petition should disclose the following: (a) The Petitioner's name and address. (b) The facts relied upon. (c) The constitutional provision violated. (d) Nature of [the] injury [and its] cause. 35. Rule 11(2) provides [that] if a party wishes to rely on any document, the document shall be annexed to the supporting affidavit, or to the Petition where there is no supporting affidavit. 36. In the case of Aisha Muray alias Jamal v Nation Media Group Limited & 6 Others (Constitutional Petition E666 of 2024 [2025] eKLR),Justice Bahati Mwamuye, while determining whether the Constitutional Petition was properly before him, held thus: *“In the instant Petition, this Court considers the allegations raised mainly lie in civil claim of defamation. The Petitioner's cause of action would have adequately been remedied by conventional civil law, not as a constitutional grievance. In the premises, to the extent that the Petitioners seek to vindicate the Petitioner's alleged defamation, it is misconceived. The jurisdiction of this Court was improperly invoked and, therefore, the Court declines to deal with the Petition further.”* Moreover, Petitioners have not adduced evidence to show the Respondents' publications violated the Constitution, and has also not shown how the information published was false and how the same is in violation his constitutional rights guaranteed in the Articles of the Constitution cited. Guided by the above principles, the Court is satisfied that the grievances raised in the Petitioner's Petition are ordinary civil disputes that the Petitioner is masking as constitutional grievances. Applying the doctrine of constitutional avoidance, his Court finds that it cannot consider the same as a constitutional petition. 38. **In Japheth Ododa v Vice Chancellor, University of Nairobi, Academic Registrar and Another, Constitutional Petition No. E197 of 2023, Judgment, page 23 of 40, [2018] KEHC 486 (KLR),** the Court discussed the issue of precision in pleadings as follows: *“15. Precision in pleading is vital in Constitutional Petitions because it enables the opposite party to fully understand the case they face and be in a position to adequately respond to it. It also enables the Court to decipher matters brought before it for adjudication. It helps in avoiding surprises and ambiguities in litigation, but, more importantly, it shows the link between the aggrieved party,the litigation the constitutional provisions at play, and the possible infringement.*This was well stated by the Supreme Court in the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others, Petition 14, 14A, 14B & 14C of 2014 (Consolidated), [2014] eKLR (neutral citation [2014] KESC 53 (KLR)). 39. In the case of Mala v Attorney General & 2 Others, Constitutional Petition No. E009 of 2025, [2025] KEHC […] (KLR), Justice Kemei stated: *“Being guided by the aforegoing authorities, as juxtaposed with the various claims raised by the Petitioner, it is clear that the Petitioner's Petition is a jumbled-up mess wherein one cannot tell with as to which claims or rights have been infringed or violated. The Petitioner has simply thrown in all manner of accusations without being clear and candid about the specific violations. That kind of scenario is not tenable, as it denies the Respondents the opportunity to respond to the Petition appropriately.* *The Petition, in my view, can be summed up as, inter alia, that it is irremediably defective in both form and substance, lacking precision, clarity and coherence, rendering it ambiguous, speculative and incapable of being answered in any meaningful way; that the 1st Respondent has been improperly included in the suit as a party without clear allegations or legal justification, amounting to misjoinder of parties.”* 40. Being guided by the above, and more specifically the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, which require precision, particularly in pleadings, I hold and find that the Petition as drafted fails to properly plead the particulars of the rights [allegedly] violated, the constitutional provision[s], and the nature of the injury occasioned. 41. To borrow the words of Justice Kemei, the jumbled-up Petition also has a multiplicity of remedies as it relates to trespass, compulsory acquisition, and a boundary dispute, which matters the Petitioners want the Surveyor and County Land Registrar to resolve and fix the boundaries aforesaid]. 42. As earlier noted, the petitioner[s] have enjoined several parties without pleading or stating the particular violations they are alleged to have committed against the Petitioners. The allegations are hollow, vague and cannot be properly identified. 43. The 2nd Respondent is a private entity, and the particulars of the case against it have not been stated or pleaded with precision. 44. I agree with the finding of Justice Ombwayo, in the case of Fairplay Enterprises Limited v John Katana & Persons Unknown, ELC Petition No. E025 of 2024, [2026] KEELC [2115] (KLR), where he states thus: *“I have applied lifted the whole of Article 40 of the Constitution of Kenya, to demonstrate it does not envisage a violation of property rights of an individual by the State. The Court found that the Petition seeks to resolve a purely civil dispute between the Petitioner and the Respondents, and the same is actionable under civil law and not constitutional law, and, therefore, the Petition is unfounded. The Petitioner ought to file a proper civil suit for eviction of the Respondents, as provided for by Section 152A of the Land Act.”* 45. I find that the Petitioners are guilty of misjoinder, having improperly enjoined a private construction company — Lavin Contractors , a private legal entity, to the Petition, without any basis whatsoever. 46. The Petitioners have filed the Petition in the guise of a civil suit/matter which they ought to have filed as such. 47. Regarding compulsory acquisition, the Petitioners have set the cart before the horse — a classic idiom used to describe doing things in the wrong order, or acting before following the proper procedure for planning. 48. The procedure for compulsory acquisition is now aptly provided for under Part VIII of the Land Act and the Kenya Courts have made several pronouncements enforcing the procedure as provided by the law. For instance, disputes arose during the acquisition of land for the Standard Gauge Railway and in the decision of the 5-Judge Bench in Patrick Musimba v National Land Commission & 4 Others [2016] eKLR” the process was discussed. The Judges noted that jurisdiction to inquire into such matters and to compensate is vested with the National Land Commission. 49. Upon acquisition there is a process of appeal to the Land Acquisition Tribunal established under Section 133A of the Act. This Tribunal has jurisdiction to hear and determine appeals from the National Land Commission. 50. Regarding the fixing of boundaries arising from a boundary dispute under Section 18 of the Land Registration Act, 2012, it is the Land Registrar who has power to do so — (see **Mwanahawa Anyona Chilayi & Another v [Musa?] Mdadiro[?] Mwachoholo[?] (2016) eKLR).** 51. In Azzuri Limited v Pink Properties Limited, Civil Appeal No. 93 of 2017, [2018] eKLR (Court of Appeal at Malindi), the Court of Appeal held as follows regarding the application of Section 18 of **the Land Registration Act, 2012:** ***“[22] This means that, under the aforesaid provisions, boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land Registrar for resolution, while disputes pertaining to lands with fixed boundaries may be investigated and possibly resolved through a surveyor.*In this case, reference of the dispute to the Environment and Land Court at the first instance was proscribed by statute, and on that account alone appellant's case was a non-starter**.’’ 52. The Court finds that the order for recovery is misplaced, as the Court lacks jurisdiction to do so. 53. Applying the Constitutional Petition test, the doctrines of constitutional avoidance and exhaustion, I find that this Petition is one that tends to clog the administration of justice by failing to meaningfully plead issues relevant to the Petition, and by disguising a civil claim as a constitutional petition. 54. It is not certain what relief the Petitioners are seeking from this Court, as they have sought different reliefs without precision. 55. I agree with Counsel for the 1st Respondent that the Petitioners’ case fails the constitutional test as well as the constitutional avoidance test, which is akin to the constitutional exhaustion test. 56. The Preliminary Objection is, therefore, merited and is allowed as prayed. 57. In the result, I strike out the Petition with no order as to costs. 58. These are my Orders. Ruling, Dated and Delivered virtually via Teams Platform this 19th June of 2026 at 12:30 PM. In the Presence of; 1. Mr. Osoro Learned Counsel for the Petitioner- Present 2. Ms. Odhiambo Learned Counsel for the 1st Respondent – Present. 3. Ms. Awino, Court Assistant. JUSTICE, JOHN WALTER WANYONYI- JUDGE Preliminary Objection allowed. No orders as to Costs. File closed. Mr. Osoro: I request for a Copy of typed Ruling. Court: Same to be supplied through the portal. JUSTICE, JOHN WALTER WANYONYI- JUDGE