https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4230

Onoka v County Government of Homa Bay (Sued as the Successor of South Nyanza County Council) & 2 others (Constitutional Petition 003 of 2025) [2026] KEELC 4230 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 4230 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Constitutional Petition 003 of 2025 FO Nyagaka, J June 17, 2026 IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF VIOLATION OF ARTICLE 40 OF THE CONSTITION OF KENYA AND IN THE MATTER OF ARTICLES 3(1), 10(1) (C) & (2) (b), 47(2), 48, 50(1) AND 159 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEMDOM) PRACTISE AND PROCEDURE RULES 2013, RULES 3, 4AND 10) AND IN THE MATTER OF LAND REFERENCE, NO EAST KASIPUL/ KOJWACH KAWERE/ 1028. Between Moses Odhiambo Onoka Petitioner and County Government Of Homa Bay (Sued as the Successor of South Nyanza County Council) 1st Respondent Homa Bay County Water & Sanitation Company Ltd (homawasco) Formerly South Nyanza Water& Sanitation Company 2nd Respondent Ongoro Water Point 3rd Respondent Ruling Introduction 1.The Petitioner filed a Petition dated 20th February 2025. He averred that he is the registered owner of land parcel no. East Kasipul/Kojwach Kawere/ 1028 measuring measures 1.59 Hectares, and which parcel of land boarders the Respondents’ parcel of land, being land parcel No. East Kasipul/ Kojwach Kawere /460. 2.The Petitioner averred that he inherited his parcel of land from his grandfather, and upon confirmation of grant, he was allocated the suit property herein. He also indicted that the Respondents had trespassed into a portion of the land he inherited and unlawfully occupied/developed the said suit property. 3.It was the Petitioner’s further averment that he approached the court in Oyugis SPMC Misc. Application No. 26 of 2020 for purposes of determining the boundary between his parcel of land and that of the Respondents besides determining the extent of the Respondent’s encroachment. Accordingly, the Rachuonyo Sub County Land Registrar and Surveyor visited the site, compiled and filed in court survey report dated 8th August 2023 confirming that the Respondents fenced off, occupied and built on part of the Petitioner's parcel measuring 0.044 Hectares. 4.The Petitioner outlined the various rights that had been violated by the Respondent’s including Articles 40, 47, and 48 of the Constitution and prayed that the court be pleased to grant him the following reliefs:a.A declaration that the encroachment of the Respondents onto the Petitioner's parcel of land without compensation is a violation of the Petitioner's fundamental right to the protection of property.b.A declaration that the Petitioner is entitled to compensation by the Respondents at the market value of the portion of land acquired at the time of judgment and in default the Respondents do surrender vacant possession.c.Compensation for general, aggravated, exemplary and punitive damages for violation of the Petitioner's rights.d.Cost of the Petition and interest.e.Any further or other reliefs that the honorable court deems fit to grant under the circumstances. The preliminary objection 5.The1st and 2nd Respondents filed a notice of preliminary objection dated 30th June 2025. The preliminary objection was premised on the grounds that:a.That the Petition violates the Principles of constitutional avoidance which stipulates that court should only interpret the Constitution when absolutely necessary, as articulated in the Judgment in High Court Petition No. 455 of 2018- Consumer Federation of Kenya vs Toyota Motors Corporation & 4 others.b.The Petition is simplistic claim for land encroachment alleging illegality of trespass, yet it is camouflaged as a Constitutional Petition. It should not have been submitted as a constitutional Petition, but rather as an ordinary plaint, thereby circumventing the Last Resort Rule that dictates that judges/courts should ideally adjudicate cases based on non-constitutional grounds first before resorting to constitutional grounds.c.The Petition at hand lacks the essential articulation of the genuine, earnest and crucial dispute between the involved parties necessary for its resolution. Consequently, the dispute could be more suitably addressed through alternative legal avenues, such as a traditional civil lawsuit. Therefore, the Petition is inherently flawed and constitutes an abuse of the legal process, warranting its dismissal with cost at the outset. 6.Consequently, the 1st and 2nd Respondents prayed that the Petition be dismissed with costs. Submissions 7.The preliminary objection was canvassed by way of written submissions. The 1st and 2nd Respondents filed their submissions dated 8th December 2025. The identified two issues for determination, that is, whether the Preliminary Objection raised is sustainable; and whether the Petition invokes the Principle of Constitutional Avoidance. 8.As to whether the preliminary objection was sustainable, the 1st and 2nd Respondents relied on the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 to submit that a preliminary Objection consists of a point of law which has been pleaded or one that arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit. 9.The 1st and 2nd Respondents maintained that the preliminary objection was sustainable it met the threshold established in the Mukisa Biscuits case (supra), that is, it only raises pure points of law. 10.As to whether the Petition meets the test of constitutional Petition, the 1st and 2nd Respondents answered this question in the negative. They submitted that the dispute at hand was a simple matter of trespass to lad which ought to have been brought through an ordinary plaint. 11.Moreover, the 1st and 2nd Respondent/applicants submitted that the Petition did not show how the Respondents violated the Petitioner’s rights. They maintained that despite the Petitioner outlining several articles of the constitution that were allegedly violated, he provided little or no particulars as to the allegations and the manner of the alleged infringements. They relied on Anarita Karimi Njeru case as well as Mumo Matemo v Trusted Society of Human Rights Alliance Civil APP. 290/2012 (2013) eKLR to support the argument that precision is needed when demonstrating violation of constitutional rights. 12.On whether the Petition invokes the doctrine of constitutional avoidance, the 1st and 2nd defendants begun by stating that the doctrine of constitutional avoidance requires that, courts should avoid determining a matter as a constitutional issue, when a matter may properly be decided on another basis. They cited the supreme court decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014) eKLR, the South African decision in S v. Mhlungu, 1995 (3) SA 867 (CC) and Uhuru Muigai Kenyatta vs Nairobi Star Publications Limited (2013) eKLR to support their arguments on the meaning and application of the doctrine of constitutional avoidance. 13.The 1st an 2nd Respondents submitted that the claim is one of trespass and /or encroachment and as such, the same ought to have been bought as an ordinary civil suit. 14.The Petitioner filed his submissions dated 29th January 2026. He identified one issue for determination, being whether the preliminary objection is merited. He relied on the test established in the Mukisa Biscuits case (supra) to submit that a preliminary objection must be on a pure point of law, which is argued on the assumption that all facts pleased by the other party are correct. As such, a preliminary objection does not require the ascertainment of facts or the exercise of judicial discretion. 15.The Petitioner submitted that the preliminary objection invites the court to interrogate evidence and draw factual inferences at the preliminary stage. he maintained that the Petition discloses arguable constitutional issues and that the same ought to be allowed to proceed to hearing and determination on merit. 16.On whether the Petition violates the doctrine of constitutional avoidance, the Petitioner relied on CURRIE & J De WAAL’s Bill of Rights Handbook (2013) 72 to set out the exceptions to the doctrine of constitutional avoidance in the following circumstances:a.Where the Constitutional violation is so clear and of direct relevance to the matter.b.Absence of an apparent alternative form of ordinary relief.c.Where it is found that it would be a waste of effort to seek a non-Constitutional resolution of the dispute. 17.The Petitioner submitted that issues in his Petition involves right to property and fair action. He added that the Respondent acquired his land compulsorily without prompt and just compensation as provided for in the law relating to compulsory acquisition. He maintained that the issue is about the violation and not the land. As such, he seeks declaration that the Respondents' action violated the constitutional provisions. The Petitioner clarified that he is contesting the unconstitutional action by the County Government and not a determination of ownership of land or trespass. 18.Further, the Petitioner submitted that the 1st Respondent is a Government entity that exercises public authority, and the complaint relates to abuse of power and violation of constitutional protections. He maintained that declarations that he seeks are therefore not available in ordinary civil suit. He also maintained that the ownership of land is obvious and that the issue of trespass is apparent and contended that instituting a suit to litigate over obvious issue would amount to waste of time. 19.The Petitioner also submitted that his Petition raises public interest and systemic constitutional breached by county governments. He particularized the said constitutional breaches as violations of rights to property, fair administrative action and protection from arbitrary county government action. The Petitioner contended that existence of alternative remedies does not automatically bar one from approaching the court via a Petition, more so where the actions of the Respondents are unconstitutional, illegal and procedurally unfair. 20.In addition to the above, the Petitioner relied on Article 159 (2) (d) to urge to court to ignore procedural technicalities and instead, consider article 48 of the constitution on access to justice. 21.Lastly, the Petitioner submitted that the issues raised by the Respondents/applicants can be cured by amendment Issues, analysis and determination 22.After analyzing the application, the notice of preliminary objection and the submissions of the parties, I have concluded that the issues for determination are whether the preliminary objection is merited; and who should bear the costs of the preliminary objection. 23.The 1st and 2nd Respondents’ preliminary objection is founded on the grounds that the Petition violates the doctrine of constitutional avoidance, that the issue at hand is a simplistic claim of encroachment that could have been instituted through a plaint as opposed to a Petition and that. It was also argued that the Petition at hand lacks the essential articulation of the genuine, earnest and crucial dispute between the involved parties necessary for its resolution. Consequently, the 1st and 2nd Respondents maintained that the Petition is flawed, constitutes abuse of court process and is a candidate for dismissal. 24.The principles that govern preliminary objections were articulated in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696. In this decision, the court determined that a preliminary objection should address pure points of law and not facts that are disputed by the parties. The court determined that:‘‘A Preliminary Objection consists of appoint of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as preliminary point may dispose of the suit. example is an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. A Preliminary Objection is in the nature of that used to be called a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’’ 25.The 1st and 2nd Respondents argued that the Petitioner’s Petition violates the doctrine of constitutional avoidance and that the issues raised therein ought to have been ventilated through ordinary civil litigation as apposed to a Petition. They called upon the court to dismiss the Petition with costs. 26.The doctrine of constitutional avoidance has been considered by the courts in various decisions. In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR, the Supreme court held that:‘‘The principle of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. It is a sound judicial practice for courts to decide cases on non-constitutional grounds if that course is available.’’ 27.I have considered the Petition filed by the Petitioner. His argument is that he is the registered owner of land parcel number. East Kasipul/ Kojwach Kawere/ 1028, which boarders the Respondents’ parcel of land, being land parcel No. East Kasipul/ Kojwach Kawere /460. The Petitioner maintained that the Respondents encroached and/ or trespassed into his parcel of land, fenced off, occupied and built on a portion of the said land. He further stated that the portion of land that had been alienated from him by the Respondents/applicants measures 0.44 hectares, the same having been confirmed by the survey report dated 8th august 2023 and filed in court in Oyugis SPMC Misc. Application No. 26 of 2020. 28.The Petitioner prayed for among other reliefs, a declaration that the encroachment by the Respondents onto his land without compensation is a violation of his fundamental right to property that is protected in the constitution. He also prayed for a declaration that the he is entitled to compensation by the Respondents at the market value of the portion of land acquired at the time of judgment and in default the Respondents do surrender vacant possession. 29.In his submissions, the Petitioner clarified that his claim was not about encroachment into his land as the same had already been established. Rather, he submitted that he was after compensation after a government agency took his land without following the laid down procedure for compulsory acquisition. 30.This Court observes that the 1st and 2nd Respondents did not deny the fact of the alleged encroachment and /or trespass to the Petitioner’s land. Rather, they argued that the issue should have been brought before this court as an ordinary civil matter and not a constitutional Petition. They also maintained that the Petition amounted to abuse of court process and called for its dismissal. 31.The Petitioner seeks compensation following an alleged acquisition of his land by a government entity. He is not seeking a determination of whether or not the said entity encroached into his land. 32.In the circumstances, I find and hold that the issue at and is not case of mere trespass and/or encroachment into land as alleged by the 1st and 2nd Respondents. Rather, the matter relates to an alleged violation of the Petitioner’s constitutionally guaranteed rights, including the right to property and the right to fair administrative action among others. 33.Accordingly, it is my finding that the preliminary objection is therefore unmerited and is hereby dismissed with costs to the Petitioner. 34.This Petition is to be mentioned on 1st July 2026 for further directions on Compliance with Order 11 of the Civil Procedure Rules, 2010. Before then, each of the parties are directed to file and serve all others their trial bundles if not before the mention date set above, then by close of business of 10th July 2026. 35.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 17TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence of,Mr. Achillah for the PetitionerMr. Odhiambo for the 1st and 2nd RespondentNo. Appearance for 3rd Respondent