https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5042

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT** **AT KILGORIS** **ELC PET. E008 OF 2021** **(Formerly Narok ELC Petition No. E003 of 2021)** **PAUL LETIM SAIYUAH………………………………………………….…………...PETITIONER** **VERSUS** **COUNTY GOVERNMENT OF NAROK…………………………….……......1ST RESPONDENT** **NATIONAL LAND COMMISSION………………………………….……….2ND RESPONDENT** **THE LAND REGISTRAR TRANSMARA……………………………………….3RD RESPONDENT** **BOARD OF MANAGEMENT KARDA PRIMARY SCHOOL………………..4TH RESPONDENT** **JUDGMENT** 1. Vide his Petition dated 24th March 2021, the Petitioner Paul Letim Saiyuah through his Advocates Messrs Tobiko, Njoroge and Co. Advocates sued the County Government of Narok, the National Land Commission, the Land Registrar Narok and the Board of Management of Karda Primary School; and sought as against the Respondents, the following reliefs; 2. A declaration that the Respondents breached and/or infringed and violated the Petitioners fundamental right to fair administrative action and the freedom to protection of right to property. 3. A declaration that the 1st Respondent holds a portion of the parcel of land measuring approximately Eight decimal nine five (8.95) Hectares compromised in L.R No. Transmara/Olontare 37 in trust for the Petitioner. 4. An order of permanent injunction restraining the Respondents either by themselves, agents, servants and/or anyone claiming under the said Respondents from entering upon, trespassing onto, taking possession, building on or in any other way interfering with the Petitioners right over the suit land. 5. A mandatory injunction do issue to compel the Respondents by themselves, their servants or agents or otherwise howsoever and unconditionally release and handover the possession and ownership of the portion of parcel No. Transmara/Oloontare/37 measuring approximately Eight decimal nine five (8.95) Hectares to the Petitioner herein. 6. A mandatory injunction do issue to compel the Respondents by themselves, their servants or agents or otherwise howsoever to release to the Petitioner, the original tile deed for parcel of land measuring approximately Eight decima nine five (8.95) Hectares compromised in plot No. Transmara/Oloontare/37 and a duly executed transfer form with all necessary documents for the transfer of title in favour of the Petitioner. 7. In the alternative an order directing the Deputy Registrar to sign the transfer documents in the event that the 1st Respondent fails to surrender the original title and duly signed transfer documents. 8. Costs of the Petition. **The Petition** 1. It is averred that; - 2. The Petitioner was a member of the Oloontare Adjudication Section, in which members were allocated parcels of land. Then the demarcation officer illegally and wrongly allocated himself parcel of land No. 37 thereof through his son (a minor) one Humprey Mwole Egosagwa which led to objection proceedings No. 40/1988 which resulted to the land to revert to the school and the Petitioner. 3. That there was a common intention arrangement or understanding actually reached between the Petitioner and the 4th Respondent as well as Residents of Karda Oloontare Adjudication Section that being his customary land the Petitioner was to be allocated a portion of parcel known as Transmara/Oloontare/37 and be issued with title thereafter. 4. Each party had been utilising their portion at the time of demarcation in 1988. 5. Ruling on the arrangement the Petitioner has been living on the portion of land since 1988 having built structures and farms thereon. 6. That the objection proceedings were altered so as to give the entire parcel to the school measuring about 20 acres. The judgment of the objection proceedings was not made public until after the lapse of 60 days hence the Petitioner did not Appeal to the Minister. 7. As a result of the skewed objection proceedings the 3rd Respondent registered the 1st Respondent as sole proprietor for the entire Transmara/Oloontare/37 in Trust for the 4th Respondent. 8. That all registered land is subject to overriding interests not noted in the register and the registration of 1st Respondent could not be used to defeat any right that existed prior to the creation and registration of this title. Tracing is an equitable remedy and equity shall trace the suit property for ends of justice to be served. 9. All registered land is subject to overriding interests, without being noted in the register as per section 28 of the Land Registration Act 2012, and that the suit property is thus held in Trust for the Petitioner and having been in occupation since 1970’s a constructive trust was thus created. 10. It is further averred that by virtue of actions of the Respondents the Petitioner stands to suffer irreparable loss and damage. 11. The Petition is founded on the following constitutional provisions Article 1, 2, 3, 4(2), 10, 19(1), 19(3)(a), 20(2), 20(4), 21(1), 22, 23, 24, 25, 27(1), 232, 258, 259(1), while the statutory foundation of the petition includes section 28 of Land Registration. 12. The Petitioner pleaded violations of constitution and statutes in that the Respondents actions violated Articles 1, 2, 3, 10, 19(1)(G) and 20(2). 13. On Article 27, the Petitioner pleaded that there was a violation of the said Article by the Respondents who discriminated against the Kaptuiei Maasai to deny them their pre-emptive rights under the law to re-acquire the sheep and goat land for use strictly as a community conservancy. 14. Article 47, Article 73, Article 73(2) (b) and (d) Article 129; as well as Section 28 of Land Registration Act; and the provisions of Administrative Action Act (2015). 15. In support of the Petition the Petitioner deponed a supporting affidavit in which he reiterated the averments of the Petition as his deposition and annexed a copy of the title deed of Transmara/Oloontare/37, a certificate of official search for the parcel, objection proceedings No. 40/1988, copy of a letter dated 23.02.2006 and a list of signatories, letter dated 12.10.2011, letter dated 12.04.2016, letter dated 14.04.2016 letter dated 23.06.2016, letter dated 24.03.2017, copy of official search dated 02.05.2017, letter dated 13th October 2017, letter dated 21.03.2018. 16. On the strength of the above the Petitioner sought for orders set out at paragraph 1 of this judgment. **Respondents’ case** **1st Respondent’s case** 1. The 1st Respondents filed a Replying affidavit deponed by Elizabeth Lolchoki who was described as the County Secretary, in respect of an interlocutory application by way of Notice of Motion dated 22nd of July 2021. 2. The 2nd Respondent filed a Response to the Petition vide the Response to the Petition vide the Replying affidavit of Susan Kidemi, the county coordinator of NLC, Narok county. She deposed generally on the constitutional and statutory Roles of NLC; and deposed specifically on the issues in controversy hereon as follows. 3. That Kadra/Oloontare Adjudication Section underwent Land Adjudication procedures under Cap 284 Laws of Kenya, and process finalised and registered in 1997. Land rights were determined and both private and public land allocated. 4. The petitioner filed an objection being Objection No. 40/1988 between himself and Mr. Humphrey Mwole Egosagwa which objection was determined on 14.09.1988 in favour of Narok county council and reserved for Karda primary school; following which an adjudication record (AR) was prepared in favour of Karda primary school for parcels 37 and 40, and hence the same was public land. 5. No appeal to the Minister was filed in respect of the decision of the Land Adjudication officer in respect of the objection proceedings until in 2016, May when the 2nd Respondent office in Narok wrote to the NLC chairperson. 6. The NLC chair referred matter to the coordinates office so as to liaise with the 1st Respondent and other public officials to resolve the whole issue; whereafter the petitioner was ordered to vacate the suit parcel, which he had now laid claim to a portion thereof, and vacated suit parcel in 2021. 7. That the petitioner had been allocated another parcel being plot 120 in the same scheme, hence the petitioner had no reasonable cause of action and the petition ought to be dismissed with costs as it was frivolous baseless and lacked merit. 8. In support of the depositions above, the deponent annexed copies of the following documents. Objection proceedings No. 40/1988 in respect of plot No. 37, a copy of the demarcation Book, a copy of green card for parcel No. 51 in Transmara/Oloontare. 9. There was initial consensus that the matter would proceed by way of written submissions however on 26.05.2022, this court (E. Washe J.) directed the matter to proceed by way of viva vole evidence. The petition proceeded party before E. Washe J, and proceedings were typed and directions taken for it to proceed from where it had reached. **Petitioner’s Evidence** 1. The Petitioner Mr. Paul Letim Saiyuah, testified in support of his petition as P.W.1. It was his testimony while adopting his affidavit dated 24.03.2021 as part of his evidence in chief that; he was denied his rights of ownership of the suit property known as Transmara/Oloontare/37 in which he has lived on since 1985 and during the adjudication done in 1986 and 1987. 2. At time of adjudication the parcel was allocated to a 8-year-old son of the Adjudication officer which necessitated him to file objection proceedings. The objection was allowed but suit property was registered in favour of 4th Respondent. The objection filed was personal in nature due to his occupation and not for purposes of the school which was not in existence on the ground. The school did not file any objection that he convened the meeting with area chief and elders and they endorsed that he be granted 50 acres out of the 70 acres of Karda primary school. At demarcation he was allocated 20 acres and the school processed the whole title, hence his rights to own the 20 acres. The witness produced the following documents in support of his petition. P.Exhibit 1 (a) and (b) – Copy of title deed of L.R No. Transmara/Oloontare/37 and copy of search dated 02.05.2017 P.Exhibit 2 – Copy of objection proceedings of No. 40 of 1988. P.Exhibit 3 – Letter from the Transmara District Land Registrar dated 23.02.2006. P.Exhibit 4 – Letter dated 12.10.2011 to Lands Dispute Tribunal. P.Exhibit 5 – Letter from Petitioner to Chairman NLC dated 12.04.2016. P.Exhibit 7 (a) and (b) – letter from Land Registrar to NLC dated 23.06.2016 together with the application for consent. P.Exhibit 8 - letter from NLC to the County Coordinator NLC (Narok) dated 24.03.2017. P.Exhibit 9 – letter dated 26.04.2017 from Karda primary school to the Coordinator NLC Narok County, including a search dated 2nd May 2017 and certificate of Registration of title and sketch map. P.Exhibit 10 - A letter dated 13.10.2017 from NLC Coordinator Narok to Karda primary school. P.Exhibit 11 ` - Letter dated 19.03.2018 for DCC Transmara to NLC. P.Exhibit 12 - Letter dated 21.03.2018 from Coordinator NLC (Narok) to Karda school Petitioner and Paul Ole Saiyuah. P.Exhibit 13 – Letter from DCC Transmara to headteacher Karda primary school. P.Exhibit 14 - photograph of suit properties mfi.16 marked for identification surveyors Report dated 15.02.2021. 1. The witness further stated that his rights had been denied in respect of Transmara/Oloontare/37 where he had been since 1985 and throughout the adjudication process in 1986 and 1987; where the property was allocated to a 8-year-old son of the Land Adjudication officer; whereafter he raised an objection through the Land Adjudication Committee. He learnt that he had won the objection by which time the land had been registered to 1st Respondent for purposes of the 24th Respondent. 2. The Objection he had filed was personal in nature and not for the purpose of the school which was not in existence on the ground or anywhere. 3. The 4th Respondent had been allocated plot No. 40 for its use. The witness stated that he called community elders so that he could be compensated with 50 acres and the school be given 20 acres. He had been demarcated about 20 acres which he accepted and lived thereon but was prohibited by an order of court to access the suit land after harvesting his crops. 4. On cross-examination by Advocates for 1st and 4th Respondents, the witness stated that he began his occupation in 1985, and in 1988 he was already in occupation, he had built a house, fenced the same, planted trees and sisal so as to demarcate the boundary P.Exhibit 15 is the house he had constructed in 1984. The witness confirmed that the trees on the photographs that he had planted the trees, during his occupation, and the sisal he had planted. The witness stated that he took part in objection proceedings but was not aware of the outcome as the outcome was not communicated to him, hence the 60 days Appeal period lapsed. 5. The objection proceedings awarded the parcel to him, yet the proceedings and decision did not award the suit property to HIM. the objection proceedings were not factual as the witness was not raising the objection of behalf of the school. 6. The witness stated that he raised the issue of allocation of 2o acres to himself with the committee. 7. On further cross-examination on behalf of the 2nd Respondent, the witness denied voluntarily moving out of the suit property and that the school had taken possession of suit land. 8. He stated that he had obtained proceedings in 2023, when he learnt of the misrepresentation. 9. On cross-examination on behalf of the 3rd Respondent, the witness stated that he never acquired parcel No. 37, yet he was living thereon, as this was community land and parcel No. 37 was created during adjudication when he took the objection the school was not there. 10. On cross-examination, by the 1st and 4th Respondent, PW2 stated that the petitioner has been in occupation since 2004, and that he had relied upon maps from the subcounty surveyor which maps were not attached. 11. During his visit, he did not call the 4th Respondent or the 1st Respondent, which he described as an oversight. He stated that it was also strange that the petitioner did not mention the shopping centre. 12. On further cross-examination, the witness stated that he could not view the satellite images as the technology was not advanced, the witness did not attach an official search of the suit property, yet he was aware that the property was registered in the name of the 1st Respondent and he conceded that his entry on the suit property was without the consent of the owner. 13. On further cross-examination by Mr. Nderitu for the 3rd Respondent, The witness stated that he did not have a CR 12 for his company and did not remember the date of his visit. He had seen three land uses of suit property, he did not measure the boundaries occupied. 14. On re-examination the witness stated that he lived on parcel No. 37 until 2022. He indicated that he had filed the objection on his own behalf, there were no verbal instruction nor letter of instruction to show that he was acting on behalf of the community. He was a member of the adjudication section hence he was to be allocated land. the objection proceedings were altered, and Ruling delivered without his knowledge, and only learnt of the outcome in 2003. The title was issued when the land had a dispute and, in the meeting, there was no representative of the 1st and 2nd Respondent. 15. P.W.2, Charles Lwanga a licenced surveyor testified, he produced a report dated 15.02.2021 as P.Exhibit 16 which he had prepared at the request of the petitioner. In the said report the parcel has 3 land uses Portion A – 8.21 Ha, petitioner had planted sugarcane. Portion B – Kanda 11.71 Ha Portion C – Shopping 11.71 Ha The said parcels had been properly demarcated, and it historical view of usage was from 2004 by the petitioner, he could not tell whether the trees planted by the petition in 2004 could be seen. 1. On re-examination, he stated that the survey was a spatial survey as opposed to a subdivision survey. There was no need to have an official search in a spatial survey. They were sisal plants between the portion A and B. 2. P.W.3, Muindi Ole Sire, testified and stated *interalia*; that the petitioner was his neighbour who was allocated the suit property as he was a resident of the Area, and that the suit property involved two parcels. First parcel was demarcated to the school while 2nd parcel was demarcated to the son of the adjudication officer leading to an objection by the petitioner and the parcel was then registered in the name of the school as opposed to the petitioner, and the community passed a resolution to allocate the petitioner a portion of the 2nd parcel which had been allocated to the school. 3. After the resolution which was made in the presence of about 50 people including the chief and representatives of the school, the petitioner took possession, until he was evicted, the title is in the name of the 1st Respondent. 4. On cross-examination by the Advocate for 1st and 4th Respondent, the witness indicated that the names he has were given to him; that the petitioner was allocated the property during adjudication. The witness did not have the adjudication record or area list to confirm the same. The witness stated that the petitioner had won the objection proceedings but the property allocated to the school. That a baraza comprised of chief and Assistant chief and school representative and members of the community was called but the chief and Assistant chief did not sign the minutes, while the school representative Mr. Daniel Mointet signed the same, as a village elder. There were no lands official, the witness could not remember the acreage. The witness confirmed writing a witness statement but denied the signature on the statement. 5. The witness confirmed that his name is Muindi Ole Sire also known as Paul Sire, the witness did not have any evidence that the Petitioner has been in occupation or lives on ancestral land, the witness did not know where the petitioner was allocated. The witness stated that during the objection proceedings, the petitioner was claiming on his own rights and not for the school. 6. On cross-examination by Advocate for the 2nd Respondent the witness stated that he was 63 years old, though he could not remember when the baraza was held but he was present in the 2006 Baraza. In reference to P.Exhibit 2, he stated that it was him who filed the objection; and the ruling of the Objection proceeding were in favour of the 4th Respondent and not the petitioner. 7. The witness stated that he had not filed an Appeal against the decision of the objection proceedings; and the understanding was the understanding was that the petitioner had won hence there was no need to Appeal. He confirmed that the petitioner had been evicted. 8. On further cross-examination by the Advocate for the 3rd Respondent the witness stated that his name was Muindi Ole Sire and the statement and signature were his. He confirmed that the petitioner was his neighbour. 9. That his resident was his ancestral home, namely Transmara/Sikawa/198 and 1999. The suit property and his home were not far away. The witness stated that he met the petitioner on the suit property which has been developed with 2 houses. The petitioner was denied registration and filed the objections. **RESPONDENTS EVIDENCE** **4th Respondent case (D.W.1)** 1. Sambu Ole Lenkurriny appeared before this Honourable Court as D.W.1, he was sworn and testified in Kiswahili. In his statement, he noted that he’s a resident of Oloontare in Karda Location and a Board member of the 4th Respondent. 2. D.W.1 chose to adopt his witness statement dated 01.09.2024 as part of his statement. 3. D.W.1 testified that the 4th Respondent is the registered owner of LR. Transmara/Oloontare/37 and that during the Adjudication Section, the Adjudication Record was recorded in the name of an official from the lands department. To which the community objected and the Adjudication Record was amended and the said name of the official removed. The Adjudication record was then recorded in the name of the 1st Respondent. 4. To support his evidence, D.W.1 presented the following documents; DW1- Exhibit 1- Certified proceedings of Objection No. 40/1988 before Land Adjudication Office in respect of Plot No. 37 within Oloontare Adjudication Section. DW1 - Exhibit 2 - Copy of Official Search of LR. Transmara/ Oloontare/37 dated 02.05.2017. DW1 - Exhibit 3 -Copy of letter dated 18.09.2017 from area chief Oloontare location to the petitioner. DW1 - Exhibit 4 - Copy of the certificate of Registration of the 4th Defendant dated 26.02.2014. DW1 - Exhibit 5 - Copy of a letter dated 14.03.2018 from area chief Oloontare addressed to Sony Sugar Company on behalf of 4th Defendant. DW1 - Exhibit 6 - Copy of letter dated 02.03.2012 addressed to the Area Chief from ACC Keiyan Division. DW1 - Exhibit 7 - Copy of letter dated 21.21.03.2018 from the 2nd Respondent to the 4th Respondent and Petitioner. DW1- Exhibit 8 - Copy of letter dated 13.10.2017 from 2nd Respondent to the 4th Respondent. DW1 -Exhibit 9 - Copy of letter dated 26.02.2018 from 4th Respondent to DCC. DW1 -Exhibit 10- Copy of letter dated 20.09.2018 from 4th Respondent to CC Narok. DW1- Exhibit 11 - Copy of letter dated 13.07.2018 from 4th Respondent to 2nd Respondent. DW1 -P Exhibit 12 - Certified copy of Spadial Development Plan by the District Surveyor Transmara for 1st Defendant. DW1 - Exhibit 13 - Minutes of the 4th Defendant to the dispute of L.R Transmara/Oloontare/37 against the petition. 1. The witness also testified that during the Objection, the Petitioner was to represent the 4th Respondent and community and not himself. Further, the Petitioner was not in occupation of the suit property and the witness was not aware of the Petitioner’s reason for vacating. 2. When shown P.Exhibit 5, the witness claimed not to know the house pictured. 3. During cross-examination by the 1st Respondent, the witness referred to P.Exhibit 2 that the objection was on behalf of the 4th Respondent and the outcome was in favour of the 4th Respondent. 4. The witness also maintained that the petitioner was never recorded as the owner of the land referring to Petition Exhibit 3, a letter dated 23.02.2006. The witness was also aware of the meeting and the resolution therein but that no member of the 4th Respondent attended this meeting. Further, if the agenda was the ownership of the land recorded to the school, then a representative should have attended the meeting. 5. The witness also testified that the 3rd Respondent had never communicated to the 4th Respondent regarding the sub-division of the school property and was not aware that the suit property was in dispute with the 2nd Respondent. The witness also averred that he has not seen any determination from the 2nd Respondent and Transmara/Oloontare/37 still belongs to the 4th Respondent. 6. On cross-examination by the 2nd and 3rd Respondents, the witness stated that he was born in 1966 within Karda area of Oloontare Location and was a minor during the Adjudication. Further, that the Petitioner has land within Karda which he uses but doesn’t live there. 7. The witness averred that he was not aware of any resolution that a portion of Transmara/Oloontare/37 should be hived off and allocated to the petitioner. 8. When referred to P.Exhibit 2, the witness stated that the objection was lodged by the community and the petitioner was one of them. The reason for the objection was that the land was to be used for a school. The determination was that the land belonged to the school and no portion was granted to the petitioner. 9. The witness further stated that the petitioner was not in occupation of the suit property in 1988 and was not a resident of Oloontare/37 and that he owns property away from Oloontare/37. 10. The witness further averred that the school has been developed and there’s a portion of Oloontare/37 that’s not in use because of this petition where the school used to farm sugar cane. 11. The witness also testified that the petitioner had earlier complained that he wants half of the school land and in his opinion, the petitioner wants to grab the disputed portion. 12. The witness also stated that he’s aware of the 2nd Respondent, however, he’s uncertain whether the 2nd Respondent visited the disputed land. Further, he has not seen the 3rd Respondent of the District Surveyor. 13. The witness also states that the 4th Respondent cannot subdivide the title in favour of the Petitioner and the title is in the name of the 1st Respondent. Also, that he has not had a meeting with the 3rd Respondent. 14. On cross-examination by the Petitioner, the witness confirmed that he’s a BOM member of the 4th Respondent, elected 1 year ago but previously acted in the BOM about 7 years ago and served for 2 years and his current role in the BOM is a member. 15. The witness testified that he was a member of Oloontare Adjudication Committee, the petitioner was not a member of the 4th Defendant and did not have children in the 4th Respondent. That the petitioner filed the objection on behalf of the community and on his own volition. 16. The witness further testified on cross-examination by the Petitioner that the land belongs to the government, the community protects the land and it is the government who should object if the Adjudication Record was not proper. 17. The witness testified that he did not attend the objection proceedings, cannot tell how the objections were undertaken or the parties, or if the Land Adjudication Officer is the one that determined the Objection. 18. When referred to P.Exhibit 3, the witness stated that he did not know the participants, but the author was a village elder. 19. When referred to P.Exhibit 2, the witness stated that he was not in the meeting, the committee members of the 4th Respondent were absent, and he cannot tell who they were and whether they attended. 20. The witness also testified that he was born in Karda and lives within 1KM. That the Petitioner has never lived in Oloontare/37 and is older than the witness. 21. When referred to DW1 Exhibit 3, the witness testified that the petitioner used to cultivate but not reside in the disputed land. 22. Referring to DW1 Exhibit 5, the witness stated that the Petitioner was still cultivating but not ready. 23. Referring to DW1 Exhibit 6, the witness testified that the letter was to stop the Petitioner from use of the land. 24. Referring to DW1 Exhibit 9, the witness testified that the petitioner was using the land but not residing. Further, that the petitioner has been farming on the disputed land for about 3 sessions and the witness can’t state the actual date the petitioner started using the land. 25. Referring to DW1 Exhibit 13, the witness testified that he cannot tell when it was written as he was not in the 4th Respondent’s BOM. 26. The witness also testified that he has never attended a case before the DC or NLC and can’t tell what was dismissed therein. 27. Referring to Petitioner Exhibit 15, the witness testified that he did not know the owner of the land, that every letter to the 4th Respondent is received by the head teacher and only he can tell if it was received or not. 28. Referring to DWI Exhibit 2, the witness testified that the title was issued on 29.09.2015 which is 7 years ago. 29. When referring to DW1 Exhibit 4, the witness testified that the 4th Respondent was registered on 26.02.2014. 30. Closing the cross-examination, the witness testified that he was a Board Management Member in 2014 and the 4th Respondent had not been registered in 1988. 31. During re-examination, the witness referring to Petitioner’s Exhibit 3 testified that the list of attendants was not properly signed but he was not in attendance. 32. The witness also reiterated that he has not seen any minutes from the 4th Respondent accepting to hive off the 4th Respondent’s land. 33. The witness also testified that they have not seen any letter authorizing the assistant chief to testify in this matter. 34. Referring to DW1 Exhibit 1- the witness reiterated that he cannot tell the reason why the petitioner objected but the determination was in favour of the 4th Respondent. 35. Finally, in closing his testimony, the witness noted that there is no resolution that has been requested by the Petitioner and refused. **1st Respondent’s Evidence** 1. Moses Naitole Magiro appeared before the court as D.W.2 and was duly sworn in. He stated that he is the ward administrator of Keyian ward where he also lives and is appearing in court on behalf of the County Government. 2. As a witness, DW2 chose to adopt his witness statement dated 24.09.2022 as part of his evidence in chief. 3. DW2 testified that the school has a title deed held by the County government titled Transmara/Oloontare/37 and sought to produce the following documents as evidence; DW2- Exhibit 13 - Copy of the Title deed for Transmara/Oloontare/37. DW2 - Exhibit 14 - Copy of the Official Search for Transmara/Oloontare/37 1. The witness testified that during demarcation of the area, one surveyor named Javan allocated the parcel of land to his son, Humphrey and when this came to the fore, one community member namely Paul Saiyua, the Petitioner herein, filed an objection before the committee and it was ruled in favour of the school. This determination reserved the parcel to Karda Primary School and the name of Humphrey was deleted. 2. The witness testified that the judgment did not mention the parcel of land being allocated to the Petitioner and no appeal was filed against the decision. 3. The witness produced the following documents to be marked for identification stating that there’s no portion in the judgment that entitles the petitioner to a portion of the suit property reserved for Karda Primary School; DW2 - Exhibit 2 - The handwritten proceedings and judgment of the Objection Proceedings. 1. On cross-examination by the Advocate for the 4th Respondent, the witness reiterated that he was appearing in court on behalf of the 1st Respondent, he’s a member of the community around Oloontare and the demarcation was done when he was young. 2. The witness testified that he was aware of the objection proceedings which was number 40/1988 and done on behalf of the community and that there were no other objections that the objector filed in his personal capacity. Further, that there was no consent given to gift the petitioner. 3. The witness also testified that neither the Petitioner nor his family lives on the suit property. 4. It was the witness’ testimony that the defunct Narok County Council has no minutes to award the Petitioner a portion of land and none was given during the judgment. 5. The witness further testified that the land is still public land and no historical land injustice claim has ever been filed. 6. The witness stated that the land belongs to the Government and there is no violation of the Constitution as alleged. 7. During cross-examination by the Advocate for the 2nd Respondent, the witness maintained that he has not seen any document suggesting an appeal from the decision of the objection proceedings. 8. He reiterated that the land is public land held in trust by the county government (1st Respondent) for the school. 9. During cross-examination by the 3rd Respondent, testified that he has been the ward administrator from 2017 and is an employee of the 1st Respondent who is the registered owner of the suit property and they have a title deed dated 29.09.2015 issued by the Land Registrar. The County council holds the title but the land is reserved for Karda Primary School. 10. The witness testified on Part B, proprietorship was registered on 10.09.1997 in favour of Narok County Council. 11. The witness also testified that the Petitioner is a resident of Oloontare but does not live on the suit property. The witness claimed to live next to the suit property in his ancestral land Transmara/Oloontare/36 where he shares a common boundary with the school. 12. The witness also stated that the suit property has permanent buildings which occupy a portion of the property but also utilizes the entire property. 13. The witness testified that there was a meeting held in respect of the school but he was not in attendance. However, he has not seen any claim by the petitioner in respect of the parcel. 14. Referring to DW1 Exhibit 12, the witness reiterated that the Objector is Paul on behalf of the school committee of Karda Primary School versus Humphrey Mwoli Egosagwa (a minor of 17 years), sued through his father Javan Egosagwa and that the judgment was entered in favour of Narok County Council on behalf of Karda Primary School. It is from this objection that Humphrey’s name was removed from the record. 15. During cross-examination by the Advocate for the Petitioner, the witness testified that he moved to parcel No. 36 in 2001 during which time the Petitioner occupied a portion of Parcel No. 37 having been given to him by the community from the school. A boundary was placed by community elders and a portion was given to the Petitioner, 16. The witness testified that he has access to land records in his capacity as a ward administrator and that the Title Deed was issued on 29.09.2015. 17. The witness also reiterated that he was young during the Objection Proceedings and is only relying on official records. 18. The witness also testified that the Petitioner is not and has never been a committee member of Karda Primary School. 19. The witness testified that he has not seen documents appointing the Petitioner to commence the objection proceedings on behalf of the school. 20. The witness also testified that the Objection proceedings were against the demarcation officer and the objection officers who heard and determined the matter were colleagues with the demarcation officer. He also referred to Page 26 of P Exhibit 2. 21. The witness testified that an appeal was allowable within 60 days of the decision but there was no service by the petitioner. 22. The witness also testified that the last paragraph of the judgment noted that both parties were absent and ought to be informed in writing. 23. The witness testified that in 2001, the Petitioner was living on part of parcel 37 around 10 Acres. That, Karda Primary School has two parcels of land Transmara/ Oloontare/37 and Transmara/Oloontare/40. The school buildings are on Parcel 37. The witness acknowledged that the school is run by the Ministry of Education. 24. The witness re-stated that he moved into Parcel No. 36 in 2001, and during school days he would be away for 8 months from 2006. He also notes that the Petitioner moved out of the parcel around 2008 and was not living in the suit property when he became the ward administrator. That no one is currently utilizing the disputed portion. 25. The witness also testified that he’s not aware that the NLC visited the parcel of land and he saw a sisal boundary that demarcated the parcel into the area occupied by the Petitioner, which is not in use. 26. On re-examination, the witness testified that he didn’t know the wazees who attended the meeting. That the suit property was registered on 10.09.1997 and was issued in the name that had been registered in 1997. 27. The witness further testified that the Petitioner filed the objection on behalf of the school committee and he was under oath when he testified. **2nd Respondent's Case (D.W.3)** 1. Sussy KidemI was sworn to testify before the court. She was the National Land Coordinator, Narok County managing public land on behalf of NLC. In her testimony, she opted to adopt her Replying affidavit dated 16.04.2025 as her evidence in chief. 2. The witness testified that Transmara/Oloontare/37 is public land registered under Karda Primary School. 3. The witness testified that the Petitioner had reached out to NLC claiming a portion of the suit property and her predecessor had visited the suit property. However, she stated that she had visited the suit property herself. 4. The witness testified that the communication on record indicates that the Petitioner had requested for a portion of the suit property to be allocated to him but the NLC did not commit the same and it was referred to the necessary authorities. 5. The witness testified that she had the Adjudication record which shows that the process was finalized in 1988 and registration of land rights were determined under Cap 284 Laws of Kenya and all rights were determined and title deed issued. 6. The witness also testified that on 12.04.2016, the petitioner wrote to the chairman NLC seeking for review of his request for sub-division of the suit property. The land was never sub-divided and it is still public land. 7. On cross-examination by the 4th Respondent, the witness testified that the letter dated 23.02.2006, the school is Karda Primary School while the letter dated 23.02.2006 was in respect of Karda Secondary School. 8. The witness testified that the judgment for Objection Proceedings No. 40/1988 were made on 14.09.1988 and the suit herein was filed on 24.03.2021. 9. The witness testified that in 2014, there was an Amendment in NLC Act that allowed cases of historical injustices but couldn’t recall whether the petitioner filed such a historical claim. 10. The witness also testified that on the complaint letter dated 21.03.2018, the commission was undertaking a fact finding and no determination had been made then nor any final determination made in respect of the complaint. 11. Further, the witness testified that she filed a Replying Affidavit and annexed a green card for Transmara/Oloontare/41 measuring 5.0 Ha title deed issued to the Petitioner on 22.06.1998, indicating that the petitioner had another parcel allocated in the same adjudication area. 12. The witness also testified that on a letter dated 21.03.2018, Paragraph 3, NLC was to make a Ruling after the due process. That in 2018, NLC was given a window of 5 years which is now closed and that the case is still pending since the lapse of the 5 years had lapsed when the matter was filed in court. 13. During cross-examination by the Advocate for the 3rd Respondent, the witness testified that NLC has a register which they keep updating and manage public land shared by community for public use like schools, roads, water, and land owning by public authorities. 14. The witness testified that Transmara/Oloontare/37 is registered in favour of Narok County Council, reserved for Karda Primary School and it became public land after the adjudication process and recorded in the Adjudication record. There was also an objection filed as No. 40/1988 and amended pursuant to the determination of the objection case. The title was registered on 10.09.1997 in accordance with a search dated 08.02.2024 and the title issued on 29.09.2015. 15. The witness testified that the letter dated 12.04.2016 and presented as P Exhibit 5 does not bear a received stamp. The title of the letter was subdivision of Transmara/Oloontare/37 and NLC was not mandated to sub-divide public land. 16. The witness also testified that the NLC had not been established in 1996 but in 2010 and started operations in 2013. That she has never visited the suit property but her predecessor did and did not file any report. 17. During cross-examination by the Petitioner, the witness testified that she was aware that objection proceedings related to a son of a demarcation officer, the petitioner was said to be suing on behalf of Karda school during the proceedings and she’s not aware whether the determination was served upon the petitioner. 18. The witness testified that the basis of allocation is to ascertain natives who live in the land and show their boundaries. In adjudication, land is allocated to public utilities and private land. The basis of allocation ought to be occupation. In Transmara, the process was an adjudication and not a consolidation. Further, the Act does not indicate the limit of a parcel of land and that Karda primary school owns two parcels. 19. The witness testified that on the first paragraph of the objection proceedings, it shows the area was small and no other public land for secondary or polytechnic. Parcel No. 40 measures 8.9Ha and it was uncommon for individuals to be allocated twice. The county commissioner acted administratively. Further, she has no knowledge of how the petitioner left the suit property. She also stated that she didn’t know why the petitioner filed the matter but the matter was not conceded at NLC. 20. The witness also testified that on the letter dated 12.04.2016, the sub-division was the genesis of the complaint. In the said letter, reference is made to a letter dated 12.10.2011 addressed to the chairman Land Disputes Tribunal Transmara District. On 14.04.2016, the Chairman NLC wrote to the Land Registrar to process the claim as per laws of procedure. The Land Registrar vide letter dated 23.06.2016 responded to the Chairman Land Commission. The commission did not execute the transfers but wrote a letter dated 21.03.2018 referring to the letter dated 24.03.2017. It was to make a decision after following the due process. 21. The witness testified that the status quo was not indicated by the then coordinator, but there was a complaint from the school. She also stated that she wasn’t aware of a court order issued on 09.11.2023. 22. The witness testified that the petitioner was justified to file the petition and that parcel No. 37 was private land because it was under an adjudication process; the land was private before it became public land. The petitioner is not entitled to pursue rights since the land had been converted into public land and wasn’t available for conversion to private land. Further, the NLC leaves the court to make its determination. 23. During re-examination, the witness testified that NLC did not participate in the adjudication process. In adjudication, an adjudication area is declared vide a Notice and advertised. The trust is usually trust land now community land. All land under community land is held by the County government in trust of people. Notice is given so as to ascertain the rights, which rights are recorded in a demarcation Book including sizes of land and names of individuals, household head is the owner of piece of land for every family. From the demarcation Book, informing is transferred to the adjudication record, which entails the data of individuals plus the map. Once adjudication record is complete, the section is closed & individuals given an opportunity to peruse the record, any person whose details are not correct is entitled to raise an objection case. The adjudication officer hears the cases in a public hearing and determination is made. Any dissatisfaction is allowed to file an appeal to the minister who would delegate someone to hear and determine the case. One copy of the adjudication register goes to the chief Land Registrar for preparation of Green Cards and the other is retained by the Director of Land Adjudication. Restriction is placed by the Director of Land Adjudication in case of an appeal to the minister. 24. The witness reiterated that Parcels 40 and 37 are owned by Karda Primary School and the Petitioner was allocated parcel No. 51. **3rd Respondent’s Evidence** 1. Tom Chepkwesi was sworn in as D.W.4. He is the Land Registrar Transmara Land Registry for the past 3 years. 2. He testified that he has the records in respect of the parcel and a certified copy of Adjudication record, as well as a copy of the register, and the green card. The Adjudication record was issued to Narok County Council on 10.09.1997 in respect to Transmara/Oloontare/37 and was signed by officials of Adjudication committee and an official of Narok county council. There was an Objection No. 40/1998 by the petitioner. After the determination of the Adjudication process, a Green card was opened on 10.09.1997 and a title deed issued on the same date. The third (3rd) entry of re-issue of title was on 29.09.2015. The approximate area of the land is 27.7 Ha. 3. The witness testified that the Land Registrar does not participate in the Adjudication process and does not have powers to amend. The source of the adjudication record is the Director of Land Adjudication based in Nairobi. 4. The witness testified that the land registered in the name of Narok County Council is public land, and Narok county council was replaced by Narok County Government. Public land is under the custodianship of the NLC. 5. On P Exhibit 3 letter dated 23.02.2006, the witness noted that it was signed by a village elder, and by the time it was written, the land was already registered in the name of Narok County Council. 6. The witness testified that he’s not aware of proceedings in respect to plot No. 37 and does not have the mandate to subdivide the property. That it’s the mandate of the District surveyor Transmara and the proprietor of the land is the one who initiates subdivision. 7. He also testified that he’s not aware of the meeting that led to the letter dated 23.02.2006 as whether the proprietor was present or an official from the Land Registry. 8. Referring to PExhibit 5, he notes that the letter was addressed to the Chair NLC since it was public land. 9. Referring to PExhibit 6, he noted that it was a letter dated 14.094.2016 by the Chairman NLC to Land Registrar to proceed per law & procedure. 10. Referring to PExhibit 7 (A), he testified that the letter dated 23.06.2016 was written by Mr. Githinji his predecessor which adduces the NLC to execute the Transfer Documents as per the LCB application forms. He stated he’s not aware whether the NLC executed the documents. Further, he would ideally rely on the Mutation form from a licensed surveyor and/or the District Surveyor because it shows the resultant acreage. They also require LCB Consent for subdivisions and surrender of the original title by the proprietor, application to LCB and resulting consent. The said documents were not presented to the registry. For transfers, there ought to be application to the LCB, consent thereof, duly executed transfer forms, stamp duty as well as registration forms. He notes that he did not see the documents and they are usually presented by the beneficiary. 11. He also testified that he’s not aware of any demand letter before the matter was filed and the portion of land the petitioner claims he’s entitled to. 12. The witness testified that there was an Objection No. 40/1998 and if dissatisfied, there’s an appeal process to the minister and in respect to this parcel, none was filed. 13. Referring to P.Exhibit 3, the witness testified that the letter confirms that the parcel was registered in the name of Karda Primary School. 14. The witness entered the following documents as evidence; DW4 - Exhibit 15 - Copy of Adjudication Record Transmara/Oloontare/37. DW4 - Exhibit 16- Copy of Green card. 1. During cross-examination, referring to P Exhibit 3, the witness testified that the letter exists in the parcel file and he would not have acted on it since the request was not from the proprietor of the parcel, it was wrongly allocated, and an objection should have been filed as an appeal to the minister. The suit property was public land managed by the NLC. 2. Referring to P.Exhibit 7, the witness confirmed that the signature in the said letter dated 23.06.2016 and the one on the title deed had a slight variation. The letter was not in the parcel file. 3. The witness testified that he was not aware of any orders issued by the NLC and he had no capacity to subdivide property and there were no documents indicating that the suit property should be shared between the petitioner and the school. 4. During cross-examination, the witness testified that certificates of search dated 02.05.2025 and 02.05.2019 did not have a receipt and noted it as an error. 5. The witness also testified that the petitioner’s parcel referred to on Page 40 of the Bundle was registered on 10.09.1997. 6. Referring to P Exhibit 3, the witness testified that no government body appears in the said letter and there’s no title for Karda Secondary School, only Karda Primary School. 7. Further, the witness testified that the application for LCB consent to subdivide the parcel is not complete and the document might not have originated from his office. There was no decision from the NLC in respect of the property and he had not seen any appeal to the minister. He also noted that the Attorney General was not party to the case on behalf of the minister. 8. On cross-examination by the petitioner, the witness noted that the source of the adjudication record is the Director of Lands Adjudication who did not sign the documents but doesn’t have to in practice. The petitioner was the objector and signed as the claimant and there’s no mention of suing on behalf of the school. An official of Narok County Council signed the adjudication record, though the name and signature are missing and he couldn’t see a copy of the objection proceedings and wasn’t aware of when and how they were determined. The petitioner could only file an Appeal after he received the decision. 9. Regarding Gazette Notice on D Exhibit 16, the witness testified that it relates to a re-issue of title either through loss or destruction. The search at Pg 33 of the Bundle is indicated as having issues and not re-issued. He has no powers to change substantive ownership, only errors. The NLC is the custodian of Public land and has powers to do reviews. 10. He testified that the petitioner was right to do a review before the NLC. That the land was community/trust land before the adjudication process where it was converted to public land. The letter from Karda Primary School to NLC was received on 10.05.2017 but he was not sure whether the letter dated 10.05.2017 has an attachment. 11. The witness testified that he did not have a letter dated 23.06.2015 in his parcel file and would not have acted on the letter dated 23.02.2006 and has not seen a response to the letter dated 23.02.2006. The letter was responded by his predecessor, Mr. Githinji, in a letter dated 23.06.2016 and the NLC was to process the subdivision and transfer and he’s not sure whether a decision was reached regarding this. 12. He testified that Portion A indicates that the proprietor has been in occupation from 2004 from satellite imagery. That parcel Transmara/Oloontare/51 measuring 5HA belongs to the petitioner, and the first proprietor was Singo Ole Shai registered on 10.09.1997, same date as Narok County Council by transfer. 13. During re-examination, the witness testified that he was not involved in the adjudication process, the adjudication record is issued by the Director of Adjudication, and the suit property is public land owned by Narok County Council. 14. The witness testified that on Pg 31 of the Bundle the certificate of official search was re-issued on entry No. 3. 15. Referring to P Exhibit 1, he noted that the date is 2015 a year of issue, and he has powers to rectify an error in the form of typographical errors but not alter ownership. There was no reason to amend. He also stated that he’s not aware of any decision by NLC that required him to implement. 16. Justus Levu was sworn as D.W.5 and stated that he’s in charge of Land Adjudication, Transmara East, West, and South. He came to Transmara in May of 2024 and has the demarcation book of Oloontare Adjudication section and a copy for parcel No. 37 where the name of the land owner is Narok County Council. The remarks section shows that the initial name of Humphrey Mwole Egosangwa was changed through an objection No. 40/1988. The interest is that the plot is reserved for Karda Primary School. The column for sketch neighbours parcels 40 and 41 on the upper side and neighbours 36 on the lower side. 17. The witness produced into evidence; D.W.5- Exhibit 17- A copy of the extract demarcation book. 1. The witness stated that entries in the demarcation book are made by the demarcation officer and are a final document for demarcation exercise. Adjudication records are thereafter raised from the demarcation records. An adjudication record in respect of parcel No. 37 was raised (D Exhibit 15). 2. The witness also testified to having handwritten proceedings for the objection proceedings where the petitioner sued on behalf of the school and the objection was allowed and orders issued and the land registered in the name of Karda Primary School. The orders were effected and recorded in the demarcation book and subsequently the adjudication record and the Adjudication register. 3. The witness produced into evidence; D.W.5 - Exhibit 18- Extract of Objection Proceedings 1. No objection was filed in respect of Parcel 37. The objector only filed one objection and not two and did not indicate that he had an interest in the suit property. Any charge as a result of the Appeal would be reflected in Part 6 of the Adjudication record. 2. During cross-examination by the petitioner, the witness testified that he reported to Kilgoris in May 2024 and was entirely relying on documents. The adjudication records pre-date the objection proceedings. Objection proceedings are heard by an adjudication officer, demarcation officer is the surveyor who records interest and they are usually colleagues. Though the demarcation officer was in the wrong in registering the parcel of land in his son’s name, the land adjudication officer was not conflicted in the matter. That the petitioner was suing on behalf of the school and only the parties and the adjudication officer present at the time can ascertain this position. The decision in the objection proceedings were not granted and the petitioner had a right of Appeal and was to be informed of the outcome of the decision. He stated that he had not seen any letter informing the petitioner that the decision had been made. The petitioner did not appeal because he was not aware of the outcome and the failure meant that the land went to the school. 3. The witness also testified that the green card refers to Transmara/ Oloontare/51 measuring 5 HA with a single entry of transfer from Singo Ole Shai who was registered from the adjudication register. 4. During re-examination, the witness testified that he only has prayers from the objection proceedings for the future of the children. The petitioner did not raise any objections to the suitability of the Adjudication officer. Transmara/Oloontare/51 was registered to the petitioner who acquired it from Singo Ole Shai and the witness didn’t know how he acquired it. After 60 days lapse, an appeal can be applied for a late appeal to the Director of Land Adjudication, and he wasn’t aware if the process was done. 5. The witness reiterated that the objection by the petitioner was on behalf of the school and not on his own behalf. 6. The defence closed their case. **Petitioner’s Submissions** 1. The Petitioner framed and submitted on three (3) key issues in their submissions. 2. On issue no. 1, whether the Petitioner has established a right over the suit property, the Petitioner submits that the grounds of the petition form a legally protectable proprietary interest. The petitioner submits that his occupation and investment in the property created a constructive and/or customary trust which is not dependent on formal transfer or written agreement but it is implied from the conduct of the parties as described in **Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & 5 Others [2015] KECA 713 (KLR)**. The petitioner also based his submissions on **Section 28 of the Land Registration Act, 2012, M’thiringi v District Land Adjudication and Settlement Officer-Karama & Another [2022] KEELC 2814 (KLR), Kimechwa V County Land Adjudication & Settlement Officer, Trans Nzoia & 3 Others; Simeon (Interested Party) [2025] KEELC 1042 (KLR), Dina Management Ltd v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), Kiptanui & another (Suing as the Administrators of the Estate of Abraham Kipsang Kiptanui - Deceased) v Ngetich & 3 Others [2025] KEELC 8014 (KLR), Articles 40, 47, and 63 of the Constitution**. 3. On issue No. 2, whether the Respondents’ actions and/or omissions amounted to a denial, infringement and/or interference with the right established by the Petitioner, the petitioner submits that the deliberate withholding of the judgment from the Petitioner until the appeal period lapsed violated his right to fair administration action under **Article 47 of the Constitution of Kenya, 2010**. The petitioner’s submissions reiterated the matters of **Kimechwa v County Land Adjudication & Settlement Officer, Trans Nzoia & 3 Others; Simeon (Interested Party) [2025] KEELC 1042 (KLR), Dina Management Ltd v County Government of Mombasa & 5 Others (Supra)**, and **Jacqueline Resley v Nairobi City Council [2002] KEHC 242 (KLR)**. 4. On issue No. 3, whether the Petitioner is entitled to the reliefs sought in the Petition and any other reliefs the Honourable Court deems fit, the petitioner contends that his constitutional and equitable rights were violated and/or infringed by the Respondents and therefore entitled to the declaratory, injunctive and mandatory orders. To support his claims, the petitioner relied on the holding of the courts in **Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR), Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR)C,** and **Kimechwa v County Land Adjudication & Settlement Officer, Trans Nzoia & 3 others (Supra).** 5. The Petitioner’s submissions implore this Honourable Court to allow the Petition and grant the orders sought and award costs to the Petitioner as a vindication of his rights and a reaffirmation of the constitutional principles of fairness, justice, and due process. **1st Respondent’s Submissions** 1. The 1st Respondent’s submissions submit on seven (7) issues for determination by this Honourable Court. On issue No. 1, **whether Parcel No. Transmara/Oloonyare/37 was lawfully recorded in the name of Narok County Council**, the 1st Respondent submits that the parcel of land was lawfully reserved and recorded in the name of the then Narok County Council as per the outcome of the objection proceedings under the Land Adjudication Act (Cap 284). 2. Further, the 1st Respondent submits that the Petitioner failed to file an Appeal within the statutory period provided under **Section 29 of the Act** once the adjudication process was completed. The 1st Respondent relied on the decisions in the cases of **John Mugo Gachuki v Attorney General & Others [2012] eKLR and R V Minister for Lands & Others ex Parte James Mugo Njeru [2014] eKLR**. 3. On issue No. 2, whether Petitioner has any lawful or equitable interest in the suit property, the 1st Respondent’s submissions submit that the alleged occupation by the Petitioner before adjudication does not confer proprietary rights capable of protection under **Article 40 of the Constitution.** The 1st Respondent also relied on the matters of **Wreck Motors enterprises v The Commissioner of Lands & Others [1997] eKLR** and **Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others [2012] eKLR**. 4. On issue No. 3, whether the Petition discloses any cause of action against the 1st Respondent, the 1st Respondent submits that a cause of action arises where there is a violation of a right or breach of duty owed by the Respondent to the Petitioner and yet the Petitioner has disclosed no cause of action against the 1st Respondent and therefore fatally defective. The 1st Respondent leaned on the cases of **Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1** and **Francis Kariuki Muruatetu v Republic & Others [2016] eKLR**. 5. On issue No. 4, whether the Petitioner’s rights were infringed, the 1st Respondent submissions submit that the Petitioner has failed to prove on a balance of probabilities that any of his constitutional rights were infringed placing reliance on **Anarita Karemi Njeru v Republic [1989] eKLR** and in **Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR**. 6. On issue No. 5, whether the Objection/Appeal was done before the Land Adjudication Committee in the Petitioners own capacity or on behalf of the school community, the 1st Respondent’s submissions submit that the Petitioner’s involvement with the land was in the context of Karda Primary School, a community/public institution and courts in the matter of **Isaac Gathungu Wanjohi v AG [2012] eKLR**, have held that persons acting in leadership or representative roles do not acquire personal proprietary. 7. On issue No. 6, whether the Petition establishes the set criteria in Anarita Karimi case, the 1st Respondent submits that the petition does not meet the precision and pleadings standards required in the Anarita Karimi case and must fall. To buttress this, the 1st Respondent leans on the matter of **Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR**. 8. Further, the 1st Respondent submits that the Petitioner violated the ***Doctrine of exhaustion*** recognized in **Speaker of the National Assembly v Karume [1992]** by failing to exhaust the statutory dispute resolution mechanism under the Land Adjudication Act before rushing to file a constitutional petition. 9. On issue No. 7, who should bear the costs of the Petition, the 1st Respondent submits that costs follow the event as reaffirmed in **Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers (KUDHEIHA) v Kenya Revenue Authority [2014] eKLR**. 10. Based on the strengths above, the 1st Respondent prays that the petition be dismissed with costs and this Honourable Court to uphold the title of Narok County Council (now County Government of Narok) as the lawful trustee of the property reserved for Karda Primary School. **3rd Respondent’s Submissions** 1. The 3rd Respondent’s submissions frame three (3) key issues for determination. On issue No. 1, whether the Petitioner has established a right over the suit property, the 3rd Respondent contends that he is a stranger to the said “**common intention, arrangement or understanding**” that bestowed the Petitioner with a right over the suit property which can only be established through the provisions of **Part III of the Land Adjudication Act (Cap 284), and Section 9(1)** thereof. This is also supported by the courts in **Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 Others [2023] KECA 1280 (KLR) and Tobias Achola Osindi & Others v Cyprian Otieno Ogalo & 6 Others [2013] eKLR**. 2. On issue No. 2, whether the Respondents’ actions and/or omissions amounted to a denial, infringement and/or interference with the right established by the Petitioner, the 3rd Respondent submits that the Petitioner failed to provide a nexus between the alleged violations of his Constitutional rights and the specific acts of omission and/or commission which constitute a violation of his rights together with the required supportive evidence. The 3rd Respondent relied in the courts’ decisions in **Anarita Karimi Njeru V Republic [1979] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] KECA 875 (KLR)**, and **Chief Land Registrar & 4 Others v Nathan Tirop Koech & 4 Others [2018] eKLR**. 3. On issue No. 3, whether the Petitioner is entitled to the reliefs sought in the Petition and any other reliefs the Honourable Court deems fit, the 3rd Respondent submits that the Petitioner is not entitled to any of the prayers sought having failed to establish a right over the suit property and urges this Honourable Court to dismiss it with costs to the 3rd Respondent. **4th Respondent’s Submissions** 1. The 4th Responded framed four (4) issues for determination in their submissions. 2. On issue No. 1, whether the Principle in Annarita Karimi Njeru case requiring that constitutional petitions be pleaded with reasonable precision has been met, the 4th Respondent’s submissions submit that the petition is not proper since the petitioner fails to plead their case with precision as provided in the case of **Annarita Karimi Njeru v Republic [1979] 1 KLR 154** and **Bunge Mashinani Initiative v County Governor of Kiambu & 2 others [2023] KEHC 18671 (KLR)**. 3. On issue No. 2, whether the petitioner has proved violations of Article 47 and 40 of the Constitution, the 4th Respondent’s submissions submit that the petitioner never took any action to recover the entire suit property despite being aware of the adjudication until 2006 when he started his misplaced claims. Relying on **Section 119 of the Evidence Act** to buttress their submissions, the 4th Respondent urges the court to make a presumption that the petitioner was notified of the verdict of the adjudication committee. Also, the 4th Respondent notes that the petitioner has failed to prove violation or infringement of his constitutional rights. 4. On issue No. 3, whether there arose/exist a constructive trust in favour of the petitioner, the 4th Respondent submits that no constructive trust arose/exist in favour of the petitioner in this case and as such the 1st Respondent does not hold any portion in trust for the petitioner. In support of these submissions, the 4th Respondent relied on the cases of **Lloyds Bank Plc v Rosset, (1991) 1 AC 107, 132, Baron Mathenge Munyoki v Dedan Mbangula Kithusi [2022] eKLR, Steadman v Steadman (1976) AC 536.540,** and **Maina & 87 Others v Kagiri [2014] KECA 880 (KLR)**. 5. On issue No. 4, whether the petition is merited, the 4th Respondent submissions submit that the petition was lodged as the last and desperate attempt by the petitioner to legitimize his treacherous claim over public land. 6. The 4th Respondent submits through their submissions that the suit property was allocated to the school in 1988, the school took possession and obtained registration which is protected under **Section 24 to 26 of the Land Registration Act**. 7. Before framing the issues for determination, the court notes the following undisputed facts in relation to this matter, which it summarizes; 8. That the Petitioner filed and Objection No. 40/1988 against the demarcation of the suit parcel Transmara/Oloontare/37 to Humprey Mwole Egosangwa. 9. That the said Objection No. 40/1988 was heard and determined and the suit property pursuant to the award allocated Karda Primary School herein represented by the 4th Respondent, but registered in name of the 1st Respondent **Issues For Determination** 1. The court upon analysis of the Petition, the evidence adduced in support and in opposition thereto, the submissions and authorities cited by the parties and consideration of the law frames the following as issues for determination. 2. whether or not the petition meets the test in Annarita Karimi Njeru. 3. Whether or not the petitioner has established proprietary interest over Transmara/Oloontare/37 and 4. Whether his Constitutional rights were violated? 5. What reliefs ought to issue. 6. Who bears the cost of the Petition? **Analysis and Determination** 1. The first issue is a jurisdictional issue raised in the grounds of opposition, filed by the 3rd Respondent and must be determined first. 2. The Annarita Karimi Njeru Vs. Republic decision laid the principles that constitutional petitions must be pleaded with a degree of reasonable precision of the alleged infringed provisions and the complaint and manner of infringement. Has the petition met this? The 3rd Respondent submits that the petition does not. The same position has been taken by the 1st Respondent, who both submit that the petition did not plead with precision the complaint and the provisions that were infringed. The 4th Respondent equally associates itself with the submissions of the 1st and 3rd Respondents on this issue that the petition does not meet the threshold of petitions as set out in the Annarita Karimi Njeru decision. 3. The petitioner’s submission were silent on this aspect. 4. The nature of the petition has been set out at paragraph 2, 3, 4, 5, 6, 7 and 8 of this judgment and is pleaded from paragraphs 10 to 38 of the petition. 5. The facts in support on the petition have been pleaded at paragraphs 10 to 26 of the petition, while the legal foundations from paragraph 27 to 38 of the petition. In the said paragraphs the petitioner detailed his, the infringements and the provisions of the constitution which were infringed. In a nutshell from the petition, the court was able to discern the grievance by the petitioner as the same was pleaded with precision and clarity to issue number 1 the court finds that the petition has substantially conformed to the threshold of a petition under the Annarita Karimi Njeru, decision. 6. It is common ground that the suit property Transmara/Oloontare/37 was within an Adjudication section hence the provisions of the Land Adjudication Act were applicable to the suit property in the ascertainment of the rights. 7. It is also common ground that the suit property was initially demarcated through the demarcation committee to one Humprey Mwole Egosangwa who was a minor and a son of the Adjudication officer prompting the petitioner to lodge an objection No. 40/1988. 8. What is now in issue is whether the said objection proceedings were filed for his benefit or on behalf of Karda Primary School. 9. The petitioner contends in his petition and evidence that he filed the objection proceedings on his behalf and not on behalf of the Karda primary school. 10. The copies of the objection proceedings were produced as P.Exhibit No. 2 which relates to objection No. 40/1988. The Respondents equally relied on the certified objection proceeding of objection No. 40/1988 and produced the same as D.W.Exhibit 1. 11. I have perused the objection proceedings; the same indicate as follows; ***“The objector as Paul ole Saiyaah on behalf of the school committee Karda primary school*** ***Vs.*** ***Humprey Mwole Egosagwa (Minor 17 years) – His father Javan Egosagwa. He defends his son’s case.*** ***Both are conducting case on behalf of others…”*** 1. The objection proceedings further reveal as follows; ***“Plaintiff sworn and states, an adjudication officer Mr. Javan demarcated a school land which he subdivided a former school land and he made it his. The school compound is very small for there is no room for extension in future (3) the Land Adjudication Committee did not allocate or subdivided the land but the demarcation officer marked the boundaries and plotting consent from them on the map without any prior consent from the committee. This the ciliation to given local elders in National exercise. 4. No other P.P were left for public use e.g polytechnic – secondary school etc.5. The area for public utilities were not considered by the said committee.6. It should be noted that the Demarcation officer of Oloontare Adjudication section was or has another land which was accorded on his relative’s name Anthony Jay P/No.106.*** ***Anthony to be taken as a Government witness. I pray for my objection to be considered for the future of our children with Education rules a school compound should not be less than 8 acres No. more.*** **Signed.”** 1. The verbatim account reproduced above was the statement given by the petitioner before the Adjudication officer in support of the objection. 2. From the said statement, it is clear that the petitioner was acting on behalf of the school. The petitioner contends however that he had filed the petition for his objection and that the proceedings were altered to reflect otherwise. 3. In response the 3rd Respondent submits while placing reliance on the decision in the case of Kibos Distillers Ltd and 4 Others Vs. Benson Ambuti Adega on the doctrine of presumption of regularity. The Evidence Act has provided for presumption as to genuinity of documents issued public land. 4. The court is unable to agree with the petitioner, that he was acting for his benefit and not for the school in view of the verbatim extract of the objection proceedings at paragraph 213 above and because the objection proceedings were conducted by an adjudication officer who is a public officer, the objection proceedings (P.Exhibit 2) being public documents is considered under section 84(a), (b) and (c) of the Evidence Act to be genuine, and true. The said sections provide as follows: “84. **Whenever any document is produced before any court, purporting to be a record or memorandum of any evidence given in a judicial proceeding or before any officer authorized by law to take such evidence, and purporting to be signed by a judge or magistrate or any such officer as aforesaid, the court shall presume-** **(a)that the document is genuine;** **(b)that any statements as to the circumstances in which it was taken, purporting to be made by the person signing it, are true;** **And (c)that such evidence was duly taken”** 1. Equally under section 83 of the Evidence Act the objection proceedings (P.Exhibit 2) have been proven produced by certified copies thereof, are still presumed to be genuine, and the contention that the objection proceedings were altered cannot be upheld. The said section provides as follows: **“83. Certified documents.** **(1) The court shall presume to be genuine every document purporting to be a certificate, certified copy or other document which is—** **(a)declared by law to be admissible as evidence of any particular fact; and** **(b)substantially in the form, and purporting to be executed in the manner, directed by law in that behalf; and** **(c)purporting to be duly certified by a public officer.** **(2) The court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document”** 1. The contention by the petitioner that he acted for himself in the objection proceedings is also not admissible under section 97(1) and 98 of the Evidence Act as no oral evidence is admissible for purposes of contradicting, varying adding or subtracting from a document its terms. The said provision state as follows: **“97. Written contracts and grants.** **(1)When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act.”** While section 98 of the Evidence Act provides as follows **“98. Evidence of oral agreement.** **When the terms of any contract or grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to**[**section 97**](https://kenyalaw.org/akn/ke/act/1963/46/eng%402023-12-11#chp_III__part_VI__sec_97)**of this Act, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms”** 1. The court thus, finds that the Objection No. 40/1998 was filed on behalf of the school by the petitioner and not for the benefit of the Petitioner. 2. The award in respect of Objection No. 40/1998 was that the Objection was allowed and the suit property was regularly, procedurally and legally registered in the name of the 1st Respondent on behalf of the 4th Respondent. 3. The petitioner did not challenge the objection proceedings as through an Appeal to the Minister as provided for under section 26 of the Land Adjudication Act, hence the registration of the 1st Respondent in trust for 4th Respondent was final. 4. Having found that the allocation and registration of the suit property was procedural and in accordance with the Land Adjudication Act, hence legal could a Constructive Trust have been created thereon by the said Registration in favour of the Petitioner, due to his subsequent occupation on a portion thereof and having been “allocated” the said portion subsequent to its registration by a community meeting held on 23rd February 2006. 5. It is the Petitioner’s position that a Constructive Trust and/or a customary Trust was created in his favour and that the same is recognized under section 28 of the Land Registration Act; and that before registration of the suit property, to the 1st Respondent, the Petitioner had acquired equitable and customary interests. The petitioner asserts that his rights accrued before the registration. 6. In response to the issue of creation of Constructive Trust, the 4th Respondent submitted that Constructive Trust could be inferred when there was a wrong act or omission or commission in acquisition of the title to the detriment of a rightful owner. 7. The 2nd and 3rd Respondent did not submit on the issue. 8. The court agrees with the definition of a Constructive Trust that both the petitioner and 4th Respondent have cited. The said parties having drawn the said definition from Black’s Law dictionary as; ***“A Constructive Trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing.”*** 1. The Supreme Court of Kenya had occasion in Shah and 7 Others Vs. Mombasa Bricks and Tiles Limited to delve into the issue of Constructive Trust and held *interalia* as follows; ***“The Trustee Act defined a “trust” and “Trustee” as extending to implied and Constructive Trusts. A Constructive Trust was an equitable instrument which served the purposes of preventing unjust enrichment. Trusts were created either expressly where the trust property, its purpose and the beneficiaries were clearly stated or established by operation of law. Like in the instant case where it was not expressly stated the trust may be established by law.*** ***A Constructive Trust was a right traceable from the doctrines of equity. It arose in connection with the legal title to property when a party conducted himself in a manner to deny the other party beneficial interest in the property acquired.*** ***A Constructive Trust would thus automatically arise where a person who was already a trustee took advantage of his position for his own benefit…”*** 1. From the above definitions and having found the process leading to allocation and registration of the suit land to the 1st Respondent to have been in compliance with the Land Adjudication Act, there was no any wrong doing on the part of the Respondents so as to give rise to the claim of Constructive Trust by the Petitioner. 2. On whether a customary exists in favour of the Petitioner the supreme court in its decision in the case Isack M’Inanga Kiebia Vs. Isaaya Theuri Mlintari and Another 2018 eKLR, set out the following elements to be proven; in a claim for customary Trust. “***(a)The land before registration was family clan or group land.*** ***(b) The claimant belongs to such family clan or group.*** ***(c) The relationship between the claimant and the registered proprietor is not remote;*** ***(d) The claimant could have been entitled to be registered as owner or beneficiary but for some intervening circumstances and*** ***(e)The claim is directed against the registered proprietor who is a member of the family clan or group…”*** 1. The court has traced the suit property and finds that. The petitioner did not prove the existence of the said elements, of customary Trust since the claim ought to be directed against registered proprietor who is a member of the family, clan or group, and the property herein is public land. 2. The court therefore finds no existence of either a Constructive Trust or Customary Trust so as to have entitled the petitioner to allocation and registration of the suit property. 3. The petitioner alleged violations of his rights to own property under Article 40 of the Constitution. In respect of this right, the court finds no violation as he had no proprietary and/or beneficial interest in suit property capable of being infringed as he never owned and/or was entitled to the suit property, in answer to issue No. 2. 4. Consequently, the court finds that the freedom of protection of right to own property was not violated and/or infringed as the petitioner did not have beneficial interest on the suit land that he was denied so as to give rise to the issue of legitimate expectation and violation of Article 40 of the constitution. 5. The Petitioner contended that his right to fair administrative actions by the 2nd Respondents were violated as the said 2nd Respondent did not respond to his complaint that he had presented, to it as a public office, to consider this issue as a *historia/ injustice*, vide his letter dated 12.04.2016 (P.Exhibit 5). 6. D.W.2, Miss Susy Kedemi gave evidence and testified that the 2nd Respondent could not have determined the historical injustice although they had received a request from the petitioner to the chairman of the NLC, but the Petitioner did not file a historical injustice claim with the commission. That the commission made a site visit on a fact-finding mission but did not make any determination in respect of the complaint. 7. In cross-examination, the witness stated that by 2018, the NLC had no mandate to look into historical injustice claims and could not therefore determine the complaint. 8. The court finds that whereas NLC could not determine the complaint raised by the petitioner as the 5-year window period to entertain historical land injustice claims had lapsed. The NLC as a public organization ought to have communicated its decision on the inability to determine the matter to the petitioner. 9. The fair Administration Action Act defines an Administration Action vide section 2 to include ***“(i) the powers, functions and duties exercised by authorities or quasi-*** ***judicial tribunals or;*** ***(ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom action relates.”*** 1. The complaint made by the petitioner to 2nd Respondent thus constituted a request for administrative action under section 6 of the fair Administrative Action Act and the 2nd Respondent was under a duty to have communicated the reasons for its decision not to proceed with the complaint within 30 days under section 6(3) of the fair administrative action Act. 2. No reasons were given, and the court finds that the petitioners rights under Article 47(2) of the constitution as read together with section 6(3) of the fair Administrative Action Act were thus violated. 3. In reaching the above finding I’m persuaded by the decision in Kariuki (suing a member of and in the interest of a Group of persons going by the name Eiteren Association Vs. NLC Constitutional Petition No. E006/2024 2025 KEELC 8484 KLR; and guided by the court of Appeal decision in Judicial Service Commission Vs. Mutava and Another (Civil Appeal No. 52/2014) 2015 (KECA 74) where at paragraph 22 ***“the court observed interalia that the right to fair administrative action is a reflection of some of the national values in Article 10 such as rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative action of public officers, state orgs and other administrative bodies are now subjected to Article 47(1) to the principle of constitutionality rather than the doctrine of ultra vires from which administrative law was developed…”*** 4. In answer to issue No. 3 the court finds that the petitioner right to a fair administrative action were violated, by the 2nd Respondent who did not give reasons for its inability to determine the complaint. 5. On what reliefs ought to issue, the court has found that the petition partially succeeds in so far as the petitioner’s rights to fair administrative action is concerned against the 2nd Respondent but does not succeed in relation to the right to own a portion of Transmara/Oloontare/37, which shall remain public school registered in the name of the 1st Respondent a Trust for the 4th Respondent. 6. Having found that the rights to fair administrative action were infringed, the court General awards damages of Kshs.500,000 to be paid by the 2nd Respondents. 7. The other aspects of the petition having not succeeded and are dismissed and each party shall bear its own costs. Dated at Kilgoris this 30th day of July, 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Gilbert Mr. Sankale and Mr. Minik for Petitioner Ms. Mireri for 1st Respondent Mr. Ranah for 3rd Respondent N/A Mr. Nyambati for 4th Respondent