https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3743

Ruto & 67 others v Attorney General & 2 others (Environment and Land Petition E004 of 2025) [2026] KEELC 3743 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3743 (KLR) Republic of Kenya In the Environment and Land Court at Kilgoris Environment and Land Petition E004 of 2025 MN Mwanyale, J June 18, 2026 Between Francis Kipyegon Ruto & 67 others & 67 others Petitioner and Hon Attorney General 1st Respondent District Land Registrar, Transmara 2nd Respondent District Land Surveyor Transmara 3rd Respondent Ruling 1.This matter comes up for Ruling on the application dated 24.11.2025 which application seeks conservatory orders, restraining the 2nd and 3rd Respondents by themselves their servants, agents and/or any persons acting under their instructions from continuing with, executing, implementing or in any manner undertaking any excision, subdivision and/or resurvey of Angata Barigoi Adjudication section pending the hearing and determination of the petition. 2.This application was served upon the Respondents and there was appearance by about 3 different state counsels on three different occasions in this matter who sought for more time to file their responses but did not file any response rendering this application unopposed and the court shall now consider the said Application on its merits, in line with the holding in the case of Karugi and Others Vs. Kabiya and 3 Others 1983 (eKLR) where the court held interalia; -“the burden on a plaintiff to prove his case remains the same throughout the case even though the burden may become easier to discharge where the matter is not validly defended, the burden of proof is not way lessened because this is heard by way of formal proof…” 3.During the pendency of this application, the applicants filed another application dated 28.01.2026 which was similar to this application, the court noted the similarities of the applications in its directions issued on 6th day of February 2026 and on 16th of February 2026 Mr. Kipkoech learned counsel for the Applicant abandoned the application dated 28.01.2026, and the court therefore marked the said application as withdrawn with no orders as to costs, and granted an extension of time to the Respondents to file a Response despite strenuously opposition from the applicants Advocates. The Respondents did not file any Response to the application dated 24.11.2025 nor submissions which now comes up for Ruling. 4.The grounds in support of the application, are interalia,i.That on 14.10.2024 the parties in Jonathan Kiplangat Bor and 523 Others Vs. Angata Baragoi Co-operative Society Ltd and David Kiptanui Korir and 88 Others (Civil Appeal No. E025 of 2020) consolidated with Civil Appeal No. E022 of 2025) recorded a consent order before the Court of Appeal in the said matters, authorising the excision of a portion of a land measuring 1500 acres from Transmara/Moyoi/2.ii.The said consent included a provision that a subdivision of L.R No. Transmara/Moyoi/2 would be effected so as to excise the portions with valid title deeds in Angata Barigoi Adjudication Section.iii.That the 2nd and 3rd Respondents were actively undertaking an excision subdivision and/or resurvey of L.R No. Transmara/Moyoi/2 which exercise has encroached upon and interfered with sixty-one (61) valid and subsiting title deeds belonging to the petitioners all situated within the Angata Barigoi Adjudication section.iv.That the petitioners were not parties to Civil Appeal No. E025/2020 (consolidated with Civil Appeal No. E022 of 2025, before the Court of Appeal the 2nd and 3rd Respondents have acted ultra vires by extending the excision, subdivision and/or resurvey excise beyond the authorised portion of 1500 acres thereby unlawfully interfering with the petitioners’ valid titles within the Angata Barigoi Adjudication section.v.That the subject valid title deeds face an imminent risk of being annulled and/or cancelled through the unlawful actions and directives of the Respondents.vi.That the Honourable court ought to intervene so as to urgently stop the actions of 2nd and 3rd Respondents which actions will extinguish the petitioners’ proprietary interests and occasion grave injustice, including undermining the rule of law and the constitution as the Respondents action are contrary to the dictates 2, 10, 40 ad 47 of the constitution.vii.A supporting affidavit deponed by Julius Kipketer Cheruiyot, Julis Kipngeno Kirui and John Kipkemoi Langat was filed in support of the applications and it reiterated the grounds in support of the application and annexed thereto, an authority to act, a table of petitioners against their respective parcels, acreage and map sheet number; copies of title deeds and official search certificates, copy of the consent order in Civil Appeal No. E025 of 2020 (consolidated with Civil Appeal No. E022 of 2025); images of beacons, copy of letter dated 26.03.2025; copy of standard newspapers report on the incident, copies of death certificates, copy of letter dated 25.09.2025, copies of photographs of sugarcane. 5.As noted earlier in the Ruling the Respondents did not file a Response to the application neither did they file submissions. 6.The Applicants filed submissions in respect of the application which the court has considered, the submissions revolving largely on the issue on whether or not conservatory issues should issue, and cites interalia the decision in Gatirau Peter Munya Vs. Dickson Mwenda Kithinji and 2 Others 2014 eKLR, Board of Management of Uliuru secondary school Vs. City County Director of Education and 2 Others 2015 (eKLR), Kevin K. Mwiti and Others Vs. Kenya School of Law and Others 2015 (eKLR) and Bundid and Another Vs. Ministry of East Africa Community EAC, the Asals and Regional Development and 3 Others, all in support for issuance of the conservatory orders. Issues for Determination 7.Having analysed the Application and the affidavit in support, the submissions as well as considered the law, and noting that the Application are uncontroverted, the court frames the following as issues for determinationi.Whether or not the court has jurisdiction to hear and determine the application.ii.Whether the Application is merited?iii.What reliefs ought to issue?iv.Who bears the cost of the application? Analysis and Determination 8.The court has to determine its jurisdiction first before deciding on the other issues for determination as framed herein. 9.In deciding the issue of jurisdiction, the court is aware that without jurisdiction it cannot make one more step as was held in owners of Motor Vessel ‘Lilina S” Vs. Caltex Oil (Kenya) Ltd 1989 where it was stated interalia“jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before the moment it holds the opinion that is without jurisdiction.” 10.The dispute as pleaded in the petition invites this court to determine the petitioners’ proprietary rights vis-à-vis, a consent order recorded before the Court of Appeal in Civil Appeal No. E025 of 2020 (consolidated with Civil Appeal No. E022 of 2025) which allowed the excision of 1500 acres in Transmara/Moyoi/2 and in the implementation of the said order, the petitioners properties and/or title were extinguished thus provoking the petition before court and this application for conservatory orders. 11.The question is whether the ELC as a supervisor court, can make determination in respect of the dispute arising from the consent order recorded before the Court of Appeal, a higher court in hierarchy than itself? 12.The Supreme Court of Kenya had occasion to address a similar issue in its decision in the case of Kenya Hotel Properties Limited Vs. Attorney General and 5 Others (2022) KESC 62 KLR, where at paragraph 55 the court observed interalia; -“as was thus rightly noted by the High Court, and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdictions much less those court higher than themselves…” 13.Thus, follows from the said decision of the Supreme court that the ELC cannot reopen matters determined by a consent judgment of the Court of Appeal and as this is what the petition and the Application invite this court to do, the court respectfully declines the said invite. 14.The petitioners ought to have commencing this proceedings by way of an application joinder before the Court of Appeal so as to ventilate their issues thereat and not by way of this petition, as was in case of Rose Wakanyi Karanja and 3 Others Vs. Geoffrey Chege Kirundi and Another and Everton Coal Co. Ltd (2021 (KECA) where an application for joinder in the circumstances similar to the petition herein was allowed. 15.Thus, in answer to issue No. 1 the court therefore finds that it has no jurisdiction to hear and determine the petition as well as the Application herein. 16.Consequently, the Application dated 28.11.2025 as well as the petition dated 28.11.2025 are hereby dismissed with no orders as to costs. DATED AT KILGORIS 18TH DAY OF JUNE 2026HON. M.N. MWANYALEJUDGEIn the presence ofCA – SylviaMs. Mukundi h/b for Mr. Kipkoech for the PetitionerMr. Ranah for Respondent