https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2971

Turkana Indigenous People Action for Development (TIPD) v Turkana County Government & 5 others (Environment and Land Petition E001 of 2025) [2026] KEELC 2971 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELC 2971 (KLR) Republic of Kenya In the Environment and Land Court at Lodwar Environment and Land Petition E001 of 2025 CK Nzili, J May 15, 2026 IN THE MATTER OF ARTICLES 1(1), 2(1),3(1), 19(1)&(2),20(1) &(2),21(1), 22(1)&(2),23(1) AND 258 OF THE CONSTITUION AND IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10(1)(a),(b),(c)&(2)(a),(b),27(1), 40,47,60,63(1)&2 AND 73 OF THE CONSTITUTION AND IN THE MATTER OF THE CONTRAVENTION OF SECTIONS 4(1), 15,17,27,28,30,31,32,35,36,37 AND 38(2) OF THE COMMUNITY LAND ACT CHAPTER 287 LAWS OF KENYA AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS)PRACTICE AND PROCEDURE RULES,2013 Between Turkana Indigenous People Action for Development (TIPD) Petitioner and The Turkana County Government 1st Respondent Hon. Jeremiah Ekamais Lomorukai Napotikan,Governor Turkana County Government 2nd Respondent Hon Faith Aletea Akuwam County Executive Committee Member,Ministry Of Lands, Housing and Urban Areas Management 3rd Respondent Dr Michael Eregae, County Executive Committee Member, Ministry of Finance and Economic & Planning, Turkana County 4th Respondent National Land Commission 5th Respondent Tullow Oil Plc 6th Respondent Judgment 1.What is before the court is a petition dated 24/6/2025, brought by Turkana Indigenous People Action for Development (hereinafter TIPD), a registered community group under the Community Groups Registration Act, Cap 108A, Laws of Kenya. 2.TIPD describes itself as a community group focusing on the rights, interests, and development of indigenous peoples, with its operations based within Turkana County, to empower and support the Turkana community, a pastoralized community that practices sustainable farming and livestock production, and to advocate for their rights. 3.The petitioner seeks:a.Declaration that the respondents violated the rights of Nakukulas, Kasuroi Kapese, and Lomunyenkurat communities' property rights under Articles 40, 60, and 63 of the Constitution, and Sections 4, 6, and 17 of the Community Land Act Cap 287 Laws of Kenya.b.A declaration that the Kshs. 258,000,000/= so received by the 1st respondent from the 6th respondent was an amount receivable on account of a lease agreement as between the 1st and 6th respondents herein over community lands aforementioned and not taxes and levies as alleged by the 6th respondent herein.c.A declaration that the 1st, 2nd, 3rd, and 4th respondents abused their trust duties over community land and thus violated Articles 47, 60, and 73 of the Constitution and Section 6 of the Community Land Act, by receiving and converting Kshs. 258,000,000/= being proceeds from the lease over community land in favour of the 6th respondent.d.A declaration that the 1st respondent violated Article 63 of the Constitution and Section 6 of the Community Land Act by refusing and or declining to recognise the formal registration of Nakukulas and Parere as registered communities under the Community Land Act and handing over the management duties to their Community Land Management Committees.(e)Declaration that the 5th respondent violated Article 67 of the Constitution by initiating and or commencing compulsory acquisition processes over the community lands aforementioned and failing to complete the process within 24 months as by law required.(f)An order compelling the 1st, 2nd, 3rd, and 4th respondents to surrender and or transfer all the Kshs. 258,000,000/= received and accrued from the lease agreement over the community land through the respective Community Land Management Committees.(g)An order compelling the 6th respondent to cease remitting all and any monies receivable and accruing from the lease, and or any other contracts over community land to the relevant Community Lands Management Committee as per the Community Land Act.(h)Any other relief as the court may deem fit to grant in the circumstances of this case. 4.The facts relied upon by the petitioner are that the 6th respondent, over the years, has been involved in oil prospecting, exploration, and operation in Turkana County since 2010, and has a total of six oil fields sitting in vast community lands adjoining Turkana South and Turkana East, now under the control and management of the 1st respondent. 5.The petitioner avers that the community lands upon which the 6th respondent’s oil fields are located in the South and East of Turkana County belong to the Nakukulas, Kasuroi, and Lomunyenkupurat communities, and as such, they are community land owned, managed, and used as community properties for community benefits for all the members of the aforementioned communities. 6.The petitioner avers that whereas Nakukulas and Kapese communities are duly registered as per the Community Land Act and have title deeds to the effect’ 7.The title deeds are described as Turkana/Nakukulas Community Land/1 in favour of Nakukulas Community and Turkana/Kapese Community Land/2, in favour of Kapese Community. Kasuroi and Lomunyenkupurat communities are yet to be furnished with title deeds despite numerous and unrelenting follow-ups with the Community Land Registrar, and as such, they currently hold Form CLA-4 pending issuance of their respective title deeds. 8.The petitioner avers that given the 6th respondent herein was granted prospecting and mining rights over the lands in South and East of Turkana County, many legal issues that affects the rights of the petitioner communities over their community land erupted thus inviting the 3rd respondent herein to invoke its mandate as under Article 67 2(a) of the Constitution and Section 5 of the National Land Commission Act with a view of initiating compulsory land acquisition process. 9.The petitioner avers that by Gazette Notice No. 2060 of 2022, the 5th respondent published a notice of intention to acquire land for the Project Oil Kenya-upstream project and later in April 2023, vide Gazette Notice No. 4384 of 2023, the 5th respondent herein published a notice that initiated an inquiry into the proposed compulsory land acquisition of land for the construction of the LAPSSET corridor and associated facilities. 10.The petitioner avers that the two proposed processes never took off, and in a letter to the chairperson of the 5th respondent received on 4/2/2025, Turkana Extractives Consortium (TEC) and Turkana Community Land Alliance (TUCOLA) sought to know whether the 5th respondent was still keen on proceeding with the two processes of compulsory acquisition, which letter was never responded to. 11.The petitioner avers that pending the registration of Kasuroi, Nakukulas, Kapese, and Lomunyenkupurat, the 1st respondent under the leadership of the 2nd respondent assumed the management, control of and usage of community lands as per Section 6 of the Community Land Act, and being the custodian of the said lands in trust for the respective communities, entered into a lease agreement with the 6th respondent on the premises that the 6th respondent shall for all intents and purposes remit the proceeds obtaining from the said lease agreement to the 1st respondent, who shall then hold the same in trust for the Kasuroi, Nakukulas, Kapese, and Lomunyenkupurat communities in a manner consistent with Sections 6(2), (3), (4), and (5) of the Community Land Act. 12.The petitioner avers that the said lease agreement has never been made public, and the concerned communities are not aware of its terms. 13.In their endeavor to effectuate the rights to access to information, the petitioner avers that calls by members of the aforesaid communicated to the 1st, 2nd, and 3rd respondents to make the lease agreement available, for scrutiny and general knowledge, the 1st, 2nd, and 3rd respondents have adamantly ignored and washed away such calls by a simple wave of the hand. 14.The petitioner avers that on 5/2/2025, a joint formal letter by Kapese CLMC, TUCOLA, and TEC to the 3rd respondent to request a copy of the lease agreement was not acted upon. Meantime, the petitioner avers that the 6th respondent continues to remit Kshs. 1,000,000/= per year, for 20 acres in Turkana East and South, and on or before May 2024, the 1st respondent had received from the 6th respondent a total of Kshs. 280,000,000/= being proceeds obtained from the lease over the community land so leased to the 6th respondent for purposes of the Tullow Oil Project. 15.The petitioner avers that on or about 29/5/2024, TEC wrote a letter to the 4th respondent, being the CEC Member, Ministry of Finance and Economic Planning, seeking to know why the 1st respondent's Fiscal Strategy Paper 2025/2025 did not disclose revenue from the oil fields as income for the 1st respondent. 16.By a response letter dated 20/6/2024, it is averred that the respondents acknowledged in express terms receipt of Kshs. 258,000,000/= and said that such monies indeed were applied and regarded as the 1st respondent’s revenue and reported as such in the 2024/2025 budget estimates. 17.The petitioner avers that in a letter dated 14/10/2024, in response to the inquiries by the Ombudsman, the 6th respondent, shockingly, denied having leased community land from the 1st respondent and said that it had been operating under a license issued to it by the national government and that Kshs. 280,000,000/= was payment to the 1st respondent in respect to levies, rates, and taxes in respect of the period between 2011 and 2023, a statement that is a sharp contrast with the 6th respondent’s letter dated 20/6/2024, wherein the 5th respondent acknowledged that the 1st respondent had indeed leased 20 acres of community land to the 6th respondent in Turkana East and Turkana South Sub-counties. 18.The petitioner avers that whereas in the 1st respondent’s 2024/2025 budget estimate, the said amount of Kshs. 258,000,000/= was reported as the 1st respondent’s revenue, and in a letter dated 16/8/2024 by TUCOLA, a clarification was sought from the 1st respondent in terms of the breakdown of the Kshs. 258,000,000/=. 19.It is averred that the respondents were asked to clarify whether the said sum constituted the full and final payment of the community-leased land to the 6th respondent, which elicited no concrete response contrary to Sections 9 and 35 of the Access to Information Act and Section 4(2) and (6) of the Fair Administrative Action Act. 20.The petitioner avers that on 3/6/2025, a letter was written to the 6th respondents by the Kapese (CLMC) to inform them of its registration under the Community Land Act and subsequent issuance to it with a Community Title No. Turkana/Kapese Community Land/4, and as such, the management of Kapese community land from then on vested in the community through their Community Land Management Committee (CLMC), and also highlighting the pertinent issues central to the said community vis-à-vis the activities of the 6th respondent, as well as the termination of the trusteeship of the 1st respondent over its parcel of land, following issuance of the Community Land Title. 21.The petitioner avers that whereas the Kapese and Nakukulas communities are duty registered and are organised as communities under the Community Land Act, the 1st and 2nd respondents herein have refused, declined, and or neglected to recognise that fact. 22.It is averred that the respondents have since declined to hand over the power that they hitherto were exercising in trust and on behalf of the Kapese and Nakukulas community before the issuance of the title deeds. 23.The petitioner, therefore, contend that the 1st, 2nd, 3rd, and 4th respondents have violated the said community's constitutional and fundamental rights and freedoms by:a.Purporting to enter into a lease agreement with the 6th respondent over community lands, in the absence of public participation and or involvement of the aforesaid communities, contrary to the communities' rights to property as set out in Articles 10, 60, and 63 of the Constitution and Sections 4, 6, 10, and 2 and 17, of the Community Land Act.b.By reporting and including Kshs. 258,000,000/= being proceeds from the lease agreement over community lands in favour of the 6th respondents as part of the revenue collection by the 1st respondent, the 1st, 2nd, 3rd, and 4th respondents violated Articles 47, 60, and 73 of the Constitution and Section 6 of the Community Land Act.c.By converting Kshs. 258,000,000/= to other use as opposed to holding it in trust for the communities, the 1st, 2nd, 3rd, and 4th respondents violated Articles 10 and 73 of the Community Land Act.d.Refusing, declining, and or omitting to share the said lease agreement constituted a violation of Article 35 of the Constitution and Sections 4 and 5 of the Access to Information Act.e.By initiating compulsory acquisition processes over the said community land vide a Gazette Notice No. 20260 of 2022 and Gazette Notice No. 4384 of 2024, but failing to complete it, the 5th respondent violated Articles 67(2) of the Constitution and Sections 3 and 5 of the National Land Commission Act and Section 5(1)(B) of the Land Value (Amendment Act.f.By failing to conduct public participation before the purported conversion of the proceeds of the lease agreement, the 1st, 2nd, and 3rd respondents failed to be guided by Article 10 of the Constitution. 24.The petition is anchored under Articles 1(1), 2(1), 3(1), 10, 19(1) and (2), 20(1), (2), 21(1), 22(1) and (2), 23(1), 27(1), 28, 35(1) and (b), 40(1), 47, 60, 63(1), (2), (3), and (4), 67, 73(1)(a), (b), (2), 258 and 259(1) of the Constitution, Sections 4(1), 6(1), (2), (3), and (4), 10, 15(3) and (4), 17, 28, 30, 31(1), 32, 35 and 36(1), (2), (3) and (4) of the Community Land Act, Sections 3 and 5(2) of the National Land Commission Act, Sections 37, Part V111, 110(1) and (2) of the Land Act and Section 5(1)(B) of the Land Value (Amended ) Act 2019, 25.The petition is supported by an affidavit of Ariong Geoffrey Lokol, sworn on 24/6/2025, a Chief Executive Officer of the petitioner, attaching copies of the Nakukulas, Kapese, and Lomunyenkupurat titles and Form CLA-4, as annexures marked GA-1(a), (b), and (c). 26.The petitioner relies on Copies of Gazette Notices Nos. 2060 of 2022 and 4384 of 2023 as GA-2(a) and (b), letters dated 4/2/2025 and 29/5/2024, 20/6/2024, extracts of budget estimate for the year 2024/2025, letter dated 14/10/2024, letter dated 16/8/2024, and letter dated 3/1/2025, as annexures marked GA-(3), (4), (5), 6(a) and (b), 7, 8, and 9, respectively. 27.Further, the 1st - 4th respondents oppose the petition through a response and a replying affidavit of Enkai Nabenyo, sworn on 27/8/2025. It is deposed that the petition does not meet the threshold of a constitutional petition, by showing the constitutional provisions violated, the manner of violation, and the nexus of the respondents' specific acts or omissions, lack, precision, clarity, and specificity in broad or generalised terms. 28.The 1st - 4th respondents depose that the petition does not raise constitutional issues, but contractual and administrative issues arising from alleged lease arrangements and revenue management, which fall under the Community Land Act, the Public Finance Management Act (PMFA), and the Access to Information Act. 29.The 1st - 4th respondents depose that the petition has failed to exhaust alternative statutory remedies contrary to Section 9(2) and (3) of the Fair Administrative Action Act. 30.Equally, the petition is termed as offending Sections 8 and 14 of the Access to Information Act, including appealing to the Commission on Administrative Justice before moving to court, rendering the petition premature, incompetent, and an abuse of the court process. The petition is termed as not exceptional in nature to be exempted under Section 9(2) and (3) of the Fair Administrative Action Act. 31.The 1st - 4th respondents depose that the petitioner failed to comply with Sections 8 and 14 of the Access to Information Act; otherwise, there is no formal request or an appeal under Section 14 thereof. The 1st - 4th respondents, while admitting the rule of the 1st respondent under Section 6 of the Community Land Act, it is pleaded that during the period of trusteeship, it acted within the statutes and the constitution and in particular under Article 60(1) of the Constitution and 6(1) of the Community Land Act to ensure that the land resources were utilized in a compliant manner, otherwise, the petitioner has not demonstrated how the 1st respondent acted ultra vires or contrary to the law. 32.The 1st and 4th respondents depose that the alleged “conversion” of community land is false, misleading, unsubstantiated, speculative, and intended to malign the integrity of the 1st respondent and its officers without any documentary proof, such as audit reports, bank statements, or official correspondence, indicating his appropriation. 33.The 1st - 4th respondents depose that all monies received from the 6th respondent were treated as lawful county revenue under the Constitution and Sections 149 and 114 of the Public Finance Management Act (PMFA), 2012, duly deposited in to the County Revenue Fund as mandated by law and subsequently appropriated through the County Fiscal Strategy Paper and the Appropriation Act for the relevant financial year in line with the PFMA and the County Governments Act. 34.The 1st - 4th respondents depose that the 1st respondent is subject to the constitutional oversight mechanism under Articles 201 and 279 of the Constitution, which require transparency, accountability, and annual audit by the Auditor General, the Controller of Budget, and the County Assembly, which the petitioner has not tendered evidence of such breach or personal benefits with the funds of any of the respondents. 35.The 1st - 4th respondents depose that all the received funds were duly classified and treated as lawful county revenue under Article 209(4) of the Constitution and Sections 109 and 116 of the PFMA and appropriated through the budgetary process. 36.Further, the 1st - 4th respondents term the prayers by the petitioner in essence as monetary and contractual in nature, and on any future lease payments to the CLMC. 37.The respondents maintain that the reliefs sought require no enforcement of any specific constitutional right but rather seek to determine alleged financial entitlement and contractual obligation arising from arrangements between the 1st and 6th respondents. 38.The 1st - 4th respondents depose that such contractual rights, accounting of funds, and distribution of revenue fall within the realm of private law remedies and administrative processes under the Community Land Act and PFMA and not within the jurisdiction of a constitutional petition, and as held in Uhuru Kenyatta -vs- Nairobi Star Publication Ltd (2013) eKLR. Constitutional litigation should not be used to enforce ordinary civil and commercial obligations. 39.The 1st - 4th respondents submit that granting the relief sought offend Anarita Karimi Njeru -vs- Attorney General [1979] eKLR, the doctrine of exhaust as held in International Centre for Policy & Conflict -vs- Attorney General & Another [2013] eKLR, would require the court to delve into complex factual questions such as the existence and terms of the lease agreement, nature of payments and the legal characterization, budgeting and appropriation process, which require evidence and contract interpretation, unsuitable in a constitutional petition, and lastly, shall undermine the statutory public finance architecture, shall disrupt county budgetary allocations. 40.The respondents state that such reliefs, if issued, offend the PFMA and cripple essential services, including health, education, and infrastructure, to the detriment of public interest, which demands that county operation and service delivery continue uninterrupted, and courts should avoid issuing orders that would paralyse governance and deprive residents of Turkana County of essential services. 41.There is no indication, despite service of the petition, that the 5th respondent filed a response. 42.By a supplementary affidavit sworn on 5/12/2025, the petitioner attached a copy of the registration certificate issued on 17/11/2023 as a Community-Based Organisation as annexure GAL-(1). It insisted that its petition meets the constitutional threshold as held in Geoffrey Muthinja & Others -vs- Samuel Muguna Henry & 1756 Others [2015] KECA 304 [KLR]. 43.The petitioner state that it has demonstrated sufficient violation of constitutional rights which have been violated such as the right to public participation, property, and fair administrative actions, which are clear constitutional questions seeking answers. 44.The petitioner deposes that the issues raised in paragraphs 9-10 transcend land and financial management; otherwise, the violations are not merely contractual or administrative but have a constitutional nature, whereby the respondents violated their fundamental rights, justifying a constitutional petition. 45.The petitioner depose that the doctrine of exhaustion is not absolute and cannot be invoked to bar access to justice where constitutional issues are raised; otherwise, Section 9(4) of the Fair Administrative Actions Act exempts a party in the interest of justice as held in Sukari Industries Ltd -vs- Ezra Ododi Adero [2020] eKLR. 46.The petitioner depose that reliance on the Access to Information Act does not oust the court’s constitutional jurisdiction as held in Katiba Institute -vs- Presidential Delivery Unit & Others [2017] KEHC 2183 [KLR]. 47.The petitioner deposes that procedural lapses or technicalities should not be invoked to bar the right to access to justice and in this case he mismanagement of community land and related resources by the 1st respondent in flagrant breach of Articles 10, 40, 60, and 69 of the Constitution and in contravention of Section 6 of Community Land Act on its arrangements with the 6th respondent undermined the community proprietary rights and violated the constitutional principles of transparency, accountability, and public participation. 48.The petitioner deposes that its assertion on conversion of funds is well-founded, for the blanket denial by the 1st - 4th respondents does not negate the facts in the petition, and whether or not revenue was channeled through the county revenue fund remains a matter of evidence. Excluding the communities involved from decision-making and benefiting from sharing, it falls under Articles 10, 35, 201, and 227 of the Constitution. 49.The petitioner deposes that the petition is not solely on contractual or monetary in nature, but raises serious constitutional issues, including the property right, fair administrative action, public participation, and the right to equitable distribution of resources under Articles 10, 40, 47, 63, and 118 of the Constitution. 50.The petitioner deposes that it has pleaded the petition with sufficient precision linking the violated provisions of the Constitution with the respondents’ acts and omissions, where the reliefs sought are not limited to private contractual reliefs but are constitutional in nature. 51.The petitioner deposes that the granting of the prayers sought will not in any way impede county operations but rather ensure the legitimacy and integrity of public administration by safeguarding the communities’ constitutionally protected land rights. 52.The petitioner terms the assertion that granting the prayers sought will cripple county operations as speculative, bereft of factual foundation, and inconsistent with the provisions of the Constitution. 53.Following the closure of pleadings, directions were given on 11/3/2026 that this petition be canvassed by way of written submissions to be filed by 10/4/2026. The petitioner relies on written submissions dated 24/3/2026. It is the petitioner's submission that the 5th respondent has not been participating in these proceedings. 54.The petitioner submit that following the grant of prospecting and mining rights to Tullow Oil regarding the disputed land, several legal issues arose affecting the community's rights over community land, necessitating the intervention of the 5th respondent, invoking its mandate under Article 67(2)(a) of the Constitution and Section 5 of the National Land Commission Act, with a view to initiating compulsory acquisition processes through Gazette Notice No. 2060 of 2022 and No.4 384 of 2023, during also the pendency of the lease agreement between the 1st respondent while exercising its trusteeship duties under Section 6 of the Community Land Act, it has failed to disclose the terms and conditions of the lease and account for the remittances, or apply the funds in accordance with Section 6 of the Community Land Act. 55.To the contrary, it is submitted that the 1st- 4th respondents have diverted the proceeds to their county budgetary allocation, other than the acknowledgement on 20/6/2024 of receipt of Kshs. 258,000,000/= in the 2024/2025 budget estimates. 56.The petitioner submits that despite the registration of Kapese and Nakukulas communities and the pendency of the full registration of the Kasuroi and Lomunyenkupurat communities under Section 1(1) of the Community Land Act, and the issuance of a title deed to the former, for the land title No. Turkana/Nakukulas/Community Land/1 and Turkana/Kapese County Land/2, the 1st and 2nd respondents have refused, declined, and or neglected to recognise their legal status, and have failed to transfer management and control of the community land to the respective Community Land Management Committees as required by the law. 57.The petitioner submit that the jurisdiction of this court is properly invoked under Article 162(2) of the Constitution, to redress violations of constitution rights in matters falling under its jurisdiction and that it had met the threshold set in Anarita Karimi Njeru (supra) and in Attorney General & Others -vs- Okoiti & 14 Others [2020] KECA 30 [KLR], by setting out with a reasonable degree of precision justifiable complaints of violation and threatened violation of constitutional rights. 58.The petitioner submits that the provisions said to be infringed and the manner in which they are alleged to have been infringed or perpetrated by the respondents are clearly set out in Parts B, C, and D of the petition. 59.The petitioner submit that they have also proffered sufficient information forming the constitutional rights so violated by the respondents herein, by entering into a lease agreement under Section 6 of the Community Land Act over the community lands belonging to the communities, absent of public participation contrary to Article 10 of the Constitution on national values and principles of governance, which in effect violated communities rights to property under Articles 40, 60, and 63 of the Constitution and Sections 4, 6, 10(2) and 17 of the Community Land Act. 60.The petitioner submits that the 1st, 2nd, 3rd, and 4th respondents knowingly converted the proceeds obtained, namely the admitted Kshs. 258,000,000/= from the said lease agreement over community land into county revenue, and in so doing, to other uses, rather than holding it in trust for the communities, the 1st, 2nd, 3rd, and 4th respondents violated Articles 10 and 73 of the Constitution and Section 6 of the Community Land Act. 61.The petitioner submit that the above, together with the violations detailed in the petition, constitute sufficient information regarding the community's rights that have been violated, and that this court should prioritize substantive justice over procedural technicalities, so long as there is sufficient information as to the constitutional right violated with particulars supplied in the spirit of right-centric constitutional dispensation, and to take the matter, investigate and provide redress or relief, if not merited and be careful not to defeat substance at the altar of procedures as held in Geoffrey Muthinja & Another -vs- Samuel Muguna Henry (supra). 62.The petitioner submits that Article 40(1) of the Constitution guarantees property rights to any person either individually or in association with others, in relation to acquiring and owning property in any part of the republic, hence the right protects not only individual but also collective and communal property interests, including community land. 63.The petitioner submits that this constitutional protection is therefore not limited to registered title holders but extends to communities such as Nakukulas, Kasuroi, Kapese, and Lomunyenkupurat, whose proprietary interests are from their shared identity, occupation, and customary tenure. 64.Stemming from the foregoing, the petitioner submits that Article 40 of the Constitution safeguards the property right and prohibits arbitrary deprivation thereof without due process, prompt, and just compensation. Therefore, the petitioner submits that the 1st respondent’s actions in leasing and dealing with the suit community land without the proper participation or consent of the affected communities amount to an unconstitutional deprivation of the aforementioned communities' property rights. 65.The petitioner submits that the issue is further aggravated by the fact that the respondents not only interfered with the land but also appropriated the economic benefits arising from it, thereby depriving the communities of both their land and the benefits obtained therefrom. 66.The petitioner submits that the principles of land use under Article 60(1) of the Constitution are not merely aspirational but also binding constitutional obligations and hence, the manner in which the respondents unilaterally handled the suit land, concealed vital information regarding the lease agreements, and excluded the communities from decision-making processes, stands in direct contradiction to the transparency, equity, and accountability envisaged under Article 60 of the Constitution. 67.The petitioner submits that the constitutional protection flowing from Article 63(1) of the Constitution states that community land is not ownerless, nor subject to arbitrary state/county government control, and instead is vested in identifiable communities whose rights cannot be overridden by administrative conveniences or executive action, and is also reinforced by Section 6(1) of the Community Land Act, which established that county government hold unregistered community land strictly in trust for the respective communities. 68.The petitioner submits that the kind of trust created by Section 6(1) of the Community Land Act is fiduciary in nature and imposes a duty of utmost good faith upon the county government, obligating it as a trustee to act solely in the interest of the beneficiary communities, to preserve the land, and to account for any benefits derived therefrom. 69.Further, the petitioner submits that the Community Land Act is explicit that any monies payable in respect of such land must be held for the benefit of the community, and upon registration of the land, the trustee role of the county government ceases. It is submitted that the Community Land Act prohibits the county government from selling, disposing of, or otherwise dealing with community land for its own purposes. 70.The petitioner submits that though Article 64(3) of the Constitution, as read together with Section 10(2) of the Land Community Act recognizes that community land may remain unregistered, and in its view, non-registration does not diminish or extinguish community rights, nor does it convert such land into public land and therefore the respondents cannot rely on the absence of registration as a basis to appropriate or deal with the land as if it were vested in them. Reliance is placed on Lorunyei & Another -vs- Attorney General & Others Petition No. 1 of 2023 [2025] KEELC 3053 [KLR], where the court held that:“The Constitution made participation in decision-making an imperative, besides incorporating the right to access information (Article 35) and access to justice (Article 48), where it was alleged that a community’s rights to property or protection from non-discrimination had been violated. Discriminating against an already marginalised community by taking away its land, to which their economic and social life was closely linked, would curtail their development and marginalise the members of that community further.” 71.The petitioner submits that the evidence on record demonstrates that the respondents dwelt on the suit community land without public participation and consent of the Nakukulas, Kasuroi, Kapese, and Lomunyenkupurat communities. 72.It is submitted that the 1st- 4th respondents have failed to disclose material information relating to the lease and use of the land, and proceeded to treat both the land and proceeds arising therefrom as county assets, and even more egregiously, the 1st respondent has continued to exercise control and management over the land, even after some of the committees underwent formal registration thereby extinguishing any residential trustee role. 73.The petitioner submits that the respondents have not only exceeded their mandate as trustees, but also fundamentally undermined the constitutional framework governing community land, contrary to Articles 40, 60, and 63 of the Constitution as read together with Section 6 of the Community Land Act, hence the court should find that conduct unconstitutional, unlawful, and in blatant disregard of the rights of the Nakukulas, Kasuroi, Kapese, and Lomunyenkupurat communities over their land. 74.The petitioner submits that the 1st respondent has abused its fiduciary and constitutional duties over community land by receiving and converting Kshs. 258,000,000/= in breach of Articles 47, 60, and 73 of the Constitution, and Section 6 of the Community Land Act, by seeking to portray these funds as taxes or levies, yet the evidence on record, including the existence of the lease arrangement over the suit community land, demonstrates that the said sums were in fact proceeds arising directly from the use and occupation of the community land. 75.Further, the petitioner submits that such proceeds under Section 6 of the Community Land Act, unregistered community land as held by the 1st respondent in trust on behalf of the communities and critically any monies payable in respect of such land must be held for the benefit of the community and subsequently transferred to the community upon registration, which statutory framework leave no room for doubt regardless of whether any financial benefit derived from the community land is styled as rent, fees, or otherwise, due to the doctrine of trust. 76.The petitioner with respect to paragraph 116 of the supporting affidavit sworn by Enkai Nyabenyo, the same cannot stand for the 1st respondent has only chosen to misapply the provisions of Section 6(2) of the Community Land Act, since it ought to have held such monies in trust for the aforementioned communities in a separate interest-earning account, by dint of Section 6(4) of the Community Land Act and to release them to the respective communities as per Section 6(3) of the Community Land Act. 77.As to the classification of the received monies as lawful county revenue under Article 209(4) of the Constitution, and Sections 109 and 116 of that PFMA, and its appropriation through the county budgetary process subject to audit by the Auditor General, pursuant to Articles 229 of the Constitution, the petitioner terms the argument pedestrian. 78.The petitioner submits that whereas the 1st respondent has a duty to establish the County Revenue Fund under PFMA Cap 412A, the proceed obtaining from the lease agreement cannot be classified as such, because under Section 6 of the Community Land Act, there is a clear framework for the use of such monies, requiring them to be used to effect benefit sharing among community members, hence the respondents cannot justify breach of their fiduciary duty to the aforementioned communities in such a pedestrian way. 79.The petitioner submits that the 1st respondent having received substantial sum from Tullow (K) Oil, arising from the use of the suit community land, the suit funds were not general taxes imposed under any statutory taxation framework, but rather were considered for the grant of right over specific parcel of land belonging to the communities, hence any attempt to re-characterize these payments as taxes or levies is a deliberate misdescription aimed at defeating the clear fiduciary obligations imposed by law. 80.The petitioner submits that by receiving and retaining the aforesaid sums without remitting them to the beneficiary communities, the 1st respondent acted in breach of trust and in violation of both the constitution and the statute, since the sums constitute lease proceeds which despite registration under Section 6(5) of the Land Community Land of the respective communities, the 1st respondent has deliberately refused to recognise them with the intention not to devolve proceeds obtained from the lease arrangement over the community land as required by law. Reliance is placed on Bahola Mkalindi Rhigho & Others -vs- Michael Seth Kaseme & Others [2016] eKLR, where the court held that:“For as long as a trust land remained un-adjudicated and un-registered, it belonged to the local tribes, groups, families, and individuals of the area (emphasis ours). Once adjudicated and registered, trust land was transformed into private land … indeed, Section 115(2) of the repealed Constitution provided that trust land could only be dealt with in accordance with the African Customary Law…The Constitution also provided that the only way trust land could be legally removed from the purview of communal ownership of the people was through adjudication and registration (emphasis ours) or setting apart ...” 81.The petitioner relies on the court’s finding in County Government of Tana River -vs- Farah Ali Ibrahim & Others [2022] KEELC 1928 [KLR, that upon registration, the trustee role of the respective county government shall cease. The petitioner submit that upon the registration of the title in favour of Nakukulas and Kapese communities, it terminated the trusteeship which the 1st respondent has unlawfully refused to acknowledge, or transfer management and administrative duties to the respective Community Land Management Committees, hence continuing to usurp the authority of the communities in direct contravention of Article 63 of the Constitution as read together with Section 6(7) of the Community Land. 82.The petitioner submits that by initiating a compulsory land acquisition under Article 67 of the Constitution as read together with Section 107 of the Land Act, and failing to complete the process within the prescribed timelines of 24 months, contrary to Article 67 of the Constitution and Section 5(1)(B) of the Land Value (Amendment) Act, the notice of intention to acquire the land, acquisition shall lapse, constitutes an abuse of power and makes their actions unlawful. Reliance is placed on Harp Investco Ltd -vs- National Social Security Fund (NSSF) Board of Trustees & Others [2022] KEELC 2024 [KLR]. 83.The 1st, 2nd, 3rd, and 4th respondents rely on the written submission dated 10/4/2026. It is submitted that the petition fails to meet the threshold set in Anarita Karimi Njeru (supra) The 1st, 2nd, 3rd, and 4th respondents submit that the petition also contravenes the principles of the constitutional avoidance, as the matter can be resolved through the ordinary statutory framework, raises contractual and administrative issues, which are not constitutional in nature, arising out of lease arrangement and revenue management, which fall under the Community Land Act, the PFMA, and the Access of Information Act. 84.Therefore, the 1st - 4th respondents submit that the petitioner have failed to exhaust alternative statutory remedies contrary to Section 9(2) and (3) of the Fair Administrative Action Act Sections 8 and 14 of the Access to Information Act, and the Commission of Administrative Justice, before moving to court, rendering the petition premature, incompetent, and an abuse of the court process. Reliance is placed on Speaker of the National Assembly -vs- Karume [1992] eKLR, and Geoffrey Muthinja (supra). 85.The 1st - 4th respondents submit that during the period of trusteeship, it acted strictly within the confines of the constitution and relevant statutes to ensure that land resources were utilised in land with Articles 60(1), 201, and 229 of the Constitution and Section 6(2) of the Land Community Act, Sections 109 and 116 of the PFMA. 86.The 1st - 4th respondents submit that the reliefs sought are in essence monetary and contractual in nature, which do not seek to enforce any specific constitutional right but seek to determine alleged financial entitlement and contractual obligation arising from arrangement between the 1st respondent and Tullow Oil (K), and therefore fall within the realm of private law remedies and administrative processes, hence outside the jurisdiction of a constitutional petition. Reliance is placed on Uhuru Muigai Kenyatta (supra), that a constitutional petition should not be a substitute for ordinary civil suits, and also in International Centre for Policy and Conflict -vs- Attorney General & Another [2013] eKLR, where the court cautioned against using constitutional litigation to bypass statutory mechanisms. 87.The issues calling for my determination are:1.If the petition meets the threshold of a constitutional petition.2.If the petition suffers from non-exhaustion and the constitutional avoidance doctrine.3.If the petition raises a constitutional question.4.If the petitioner has pleaded and proved breach of constitutional rights and freedoms5.(If the petitioner is entitled to the reliefs sought.(6)What is the order as to costs? 88.A party seeking constitutional relief for breach of constitutional rights and freedoms must meet the threshold set in Anarita Karimi Njeru -vs- Republic [1979] eKLR, and Mumo Matemu -vs- Trusted Society for Human Rights Alliance & 5 Others [2013] eKLR, by stating with precision the specific rights violated and the manner of violation. 89.The parameters were also expounded in Communications Comissionn of Kenya & Others -vs- Royal Media Services (K) Ltd & Others [2014] eKLR. The court said that a party introducing proceedings under Article 22(1) of the Constitution has to show the right said to be infringed, the basis of his grievances, the linkage between the aggrieved party, the provisions of the Constitution alleged to have been infringed, and the manifestation of the contravention or infringement. Vague or generalised allegations are therefore insufficient to invoke the court’s constitutional jurisdiction. 90.In this petition, the capacity of the petitioner has been set out in the factual background, the nature of the rights infringed, the manner of infringement, specific instances of breach, particulars of breach, the conduct of the respondents said to have amounted to breach, and the connection between the petitioner’s alleged violation and the respondents having been pleaded. See Leonard Otieno -vs- Airtel (K) Ltd [2013] eKLR. 91.The respondents were also able to extensively respond to the petition while seeking better particulars. I think the petition satisfied the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2023. (Mutunga Rules) as well as the case law cited. 92.The next issue is whether the petitioner has failed to exhaust alternative statutory remedies. In Mwakaneno -vs- Registrar of Titles Mombasa & Others Civil Appeal No.E104 of 2022 [2026] KECA 296 [KLR] (20th February 2026) (Judgment), the court termed the petition as failing to connect the elements with the level of clarity and specificity demanded in a constitutional litigation. The court observed that the prayers sought were not authored on precisely pleaded violations, demonstrating how the factual allegations satisfied the constitutional standards required to justify such reliefs. 93.The court said that the petition failed to set out with reasonable precision the exact constitutional rights infringed, the specific act or omission complained of, the particulars of respondents responsible for the violation, and the manner in which the alleged violation occurred, and whether the court should exercise constitutional avoidance. 94.The doctrine of constitutional avoidance and non-exhaustion was discussed in William Odhiambo Ramogi & Others -vs- Attorney General (MuHuRi) IP [2020] eKLR. 95.The court said that the doctrine of exhaustion serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of their own interests within the mechanism in place, and resolution outside the courts. The court cited Speaker of the National Assembly -vs- Karume (supra), that where there is a clear procedure for redress outside court under the constitution or statute, it must strictly be adhered to. 96.In Geoffrey Muthinja (supra), it was said that a court ought to be the forum of last resort and not the first port of call the moment a storm brews. In this matter, the 1st - 4th respondents term the petition as raising contractual issues which are not constitutional in nature, and which fall under the PFMA, Access to Information Act, and the Community Land Act. The 1st - 4th respondents relied on Uhuru Muigai Kenyatta (supra), International Centre for Policy and Conflict -vs- Attorney General & Another [2013] eKLR, that constitutional petitions are not substitutes for ordinary suits, or a route to bypass statutory mechanisms. 97.In Nicholas (supra), the court emphasised that where the reliefs under the alternative mechanisms are not adequate, effective, or efficacious, then there is nothing that precludes an unacted approach. The court said that what matters at the end of the day is that a path is chosen that safeguards a litigant’s right to access justice while also recognising the efficiency and specificity that established alternative dispute resolution mechanisms can offer. 98.In this petition, the petitioner displayed letters dated 5/2/2025, 29/5/2025, 14/10/2024, 20/6/2024, and 16/8/2024, showing the efforts that they made to access information from the respondents in vain. In the reply by the 1st - 4th respondents, they do not expressly deny receiving those requests from the petitioner. The respondents, unlike in Khalif & Another -vs- PS Ministry of Transport & Others, Katiba Institute & Another Constitutional Petition No. E023 of 2019 has not invoked any of the restrictions on information set out under the law. 99.In Albert Chaurembo Mumba & 7 Others -vs- Maurice Munyao & 148 Others [2019] eKLR, the court held that even if superior courts have jurisdiction to determine questions of law, the first opportunity had to be given to alternative bodies established by statute to handle such matters. 100.Looking at this petition, the issues raised and the reliefs sought are incapable of being granted under the alluded statutory frameworks. 101.The next issue is whether the petition raises constitutional questions or issues. In NGO’s Coordination Board -vs- Attorney General & Others [2023] KESC 17[KLR], the court held that a provision requiring the complaint relating to a decision by the NGO, Coordination Board, first be decided by a Cabinet Secretary, did not apply because the complaint concerned the constitutional question of whether the right to freedom of association had been violated. 102.In Nicholas -vs- Attorney General (supra), the question was whether one had to exhaust an administrative action before raising a constitutional claim before a court. The appellant had filed a petition before the Environment and Land Court (ELC), challenging the National Environment Management Authority’s (NEMA) decision to allow an organisation to open a gold mine on his property and the Kenya Power and Lighting Company's (KPLC) decision to erect electrical poles on his property without permission. He had claimed that the decision violated his fundamental rights and freedoms. 103.NEMA and KPLC had objected to the petition for non-exhaustion of administrative mechanisms before filing the petition. The court held that the petitioner's fundamental rights and freedoms had been violated and that the ELC had original jurisdiction to hear claims regarding fundamental rights and freedoms, which jurisdiction is not donated to any other forum, amounts to what constitutional questions, issues, or matters were discussed in M. Fredrick & Others -vs- MEC for Education & Training Eastern Cape & Others [2001]. The court stated:10.As this court observed in S. vs Beosak [2001] SA 912 CC [2001] BCLR 36 [CC] at para 12, the constitution does not define “constitutional matter”. What is a constitutional matter must be gleaned from the reading of the Constitution itself….Constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the statutes, powers, and functions of an organ of state……interpretations, applications and upholding of the Constitution are also constitutional matters……purport and objections, allocation of powers to various legislatures, and structures of government, the jurisdiction vested in the constitutional court to determine constitutional matters and issues connected with decision on constitutional matters ...” 104.A constitutional question is one above resolution requires the interpretation of a constitutional rather than a statute, as held in Minister of Safety and Security -vs- Hunters [2007] 28 ILJ 133 [CC]. The court said that in determining whether an argument raises a constitutional question or issue, the court is not strictly concerned with whether the argument will be successful, but whether the argument forces the court to consider constitutional rights or values. See in the matter of the Detention of Motor Vehicle KBN 969 Toyota Fielder Station at Kabete Police Station, Constitutional Petition No. 278 of 2014. 105.In Nicholas (supra), the court cited Peter Oduor Nyoga -vs- Francis Ole Kaparo & Others [2012] eKLR and John Florence Maritime Service -vs- C.S. for Transport & Infrastructure & Others [2019] eKLR, that in evaluating whether a matter raises a constitutional issues of interpretation and or application, the court should not be harrow-blinded in its inquiry and the quest for discovery should not start and stop with a determination of whether or not there is a specific provision of the Constitution hat was at issue before the superior courts, but instead, have a holistic inquiry of all the various facets of the law as pleaded by the parties if they do indeed raise a constitutional question. 106.Looking at the pleadings before the court, the petitioner complain that after the prospecting and mining rights over community lands in South and East Turkana County were given to Tullow Oil (K) BIV, a lease agreement was entered into between the developer and the 1st respondent, who held the suit land in trust for them, but has failed, neglected, or refused to disclose, or make them aware of its terms and conditions, contrary to their right to access to information, despite notices to that effect; it is further pleaded that the developer has been remitting Kshs. 1,000,000/= per year per 20 acres payments as consideration for the lease, which the 1st, 2nd, 3rd, and 4th respondents have elected to channel to other uses than as stipulated under Section 6 of the Community Land Act, which, as of March 2024, totaled Kshs. 258,000,000/=, as acknowledged by a letter dated 20/6/2024. 107.The petitioner avers that in a letter dated 14/10/2024, the developer averred that it had been operating under a license granted to it by the national government and thus Kshs. 258,000,000/= was payment to the 1st respondent in respect of levies, rates, and taxes in respect of the period 2011 and 2023, which contrasts with the letter dated 20/6/2023, where indeed the 1st respondent had admitted leasing 20 acres of county land to the investor. 108.The petitioner terms the entry into a lease agreement over county land by the 1st respondent as in contravention of Article 10 of the Constitution on public participation, violation of community land rights under Articles 40, 60, and 63 of the Constitution, collection, reporting and use of the fund out of the lease as revenue and on other uses as contrary to their user rights under Articles 47, 60, and 73 of the Constitution. 109.The petitioner urges the court to find the conversion of the funds to other use as opposed to holding it in trust for the communities, without public participation before conversion, as contrary to Articles 10 and 73 of the Constitution, as read together with Section 6 of the Community Land Act. 110.Further, the petitioner avers that the respondents, by initiating compulsory acquisition processes over community land as per Gazette No. 2060 of 2022 and No. 4384 of 2024, but fail to complete it, violated Article 67(2) of the Constitution, Sections 3 and 5 of the National Land Commission Act, and Section 5(1)(B) of the Land Value (Amendment) Act. In my view, the three issues or questions amount to constitutional matters for the determination of the court. 111.The next issue is whether the petitioner has proved breach of constitutional right to equal protection and benefit of law; have their dignity respected and protected, to acquire and own the property as individuals or in association with others; to administrative action and public participation. 112.A party that approaches a court through a constitutional petition bears the burden of proof of all the elements pleaded. A constitutional petition must be based on factual material and evidence, as provided in Rules 10 and 11 of the Mutunga Rules. 113.Once a court has given directions on the mode of hearing and especially through written submissions, Rule 22(3) requires that written submissions contain a brief statement of facts with reference to exhibits, if any, attached to the petition, issues arising for determination, a concise statement of argument on each issue incorporating the relevant authorities referred to, and copies of the authorities to be relied upon. The facts relied upon are Part C of the petition, starting with paragraphs 60-80. 114.Briefly, the petitioner admits that oil prospecting and exploration in Turkana County has been going on for many years and that the Investor has been in operation since 2010 with a total of six oil fields. 115.The said six fields are sitting in vast community land adjoining Turkana South and East within Turkana County, now under the control and management of the 1st respondent, which land belongs to Nakukulas, Kasuroi, Kapese, and Lomunyenkupurat communities, which land is community-owned, managed, and used for the community benefit of all members of the aforesaid communities. 116.It is deposed that after the investor was granted prospecting and mining rights over lands, many legal issues that affect the communities' rights over their community land exempted them, inviting the 5th respondent to invoke Article 67(2)(5) of the Constitution and Section 5 of the National Land Commission Act with a view of initiating compulsory acquisition process to which vide Gazette No. 2060 of 2022, published a notice of intention to acquire land for project oil (K) - upstream project. 117.It is averred that pending registration of the four communities, the 1st respondent assumed the management, control of the usage of community land, under Section 6 of the Land Community Act, which it hold in trust for the communities, and entered into a lease agreement, which has not been made public and as a result has received funds, on their behalf, which it has converted to other sues than holding them in trust for the communities. 118.According to the petitioner, the suit lands fall under the definition of community land as defined in Articles 63(2),(3), and (4), of the Constitution as read together with Sections 4(1), 6(1), (2), (3), (4), (10), (15) (3), (4), (17), 28,(30), 32, 35, 36(1),(2), (3) and (4) of the Community Land Act. 119.The starting point in this petition is to establish whether the petitioner’s communities, who it brings the petition, have the capacity to acquire, own, and demand the communities' rights or interests over the said land. In the letter dated 14/10/2024, written by Tullow Kenya BV to the Commission on Administrative Justice, it confirms at paragraph 1 that Kshs. 258,000,000/= released by it to the 1st respondent relates to levies, rates, and taxes chargeable by the county government of Turkana under both the Constitution and relevant Statutes. 120.The Investor says that it has not leased any community land but was only licensed and permitted to access land to conduct operations by the national government under Section 9(3) of the Petroleum Act 2019, 10BB and 13T, covering 407.69 acres, for the three blocks. The Investor termed Kshs. 258,000,000/= as full and final settlement of accrued levies, rates, and charges payable under the transaction provision of the repealed Local Authorities Act, before the enactment of the Turkana Finance Act. The Investor said that the compulsory land acquisition for the project was currently being spearheaded by the National Land Commission, the State Department for Land and Physical Planning, and the State Department for Petroleum. 121.Article 61 provides that all land in Kenya belongs to the people of Kenya, collectively as a nation, as communities, and as individuals. Land in Kenya is classified as public, community, or private. Article 62(1)(f) defines all minerals and minor oils as defined by law as public land. Public land under Article 61(a)(f) to (m), which includes minerals and mineral oil as defined by law, shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on its behalf by the National Land Commission. 122.Article 62(4) of the Constitution provides that public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use. Community Land, as defined under Article 63(2) of the Constitution, does not include any public land, held in trust by the County Government under Article 62(2) of the Constitution, namely, land which was unalienated, government land, land transferred to the state by way of sale, reversion, or surrender. 123.Article 260 defines land to include the surface of the earth, and the subsurface rock, natural resources, completely contained on or under the surface. Natural resources are defined as the physical non-human factors and components, whether renewable or non-renewable, including rocks, minerals, fossil fuels, and other sources of energy. 124.Property is defined as any vested or contingent right to or interest in or arising from land or a permanent fixture on or improvement to land. The petitioner holds the view that the communities in which the six oil fields fall own the land, individually and collectively. 125.In Leonard Otieno -vs- Airtel (K) Ltd [2013], the court held that a decision on constitutional violation cannot be made in a factual vacuum and that unsupported hypotheses cannot grant constitutional reliefs, without documentary evidence or proof of violation. 126.In Joseph Letuya & Others -vs- Attorney General & Others [2014] eKLR, the court held that legal and equitable property rights under Kenyan Law depend upon formal processes of allocation, transfer, and registration, and that long occupation alone does not confer ownership. A petitioner is required to adduce evidence to prove its case to the required standards, as held in Daniel Kibet Mutai & Others -vs- Attorney General [2019] eKLR. 127.In Mwakaneno -vs- Registrar of Titles Mombasa (supra), the court cited Gwer & 5 Others -vs- Kenya Medical Research Institute & Others [2020] KESC 66 [KLR], that the burden of proof lies with the party alleging constitutional violation and that a litigant who fails in the absence of evidence bears the obligation to place sufficient proof before the court. 128.The court also cited with approval Wamwere & Others -vs- Attorney General [2023] KESC 3 [KLR], citing with approval Deynes Muriithi & 4 others -vs- Law Society of Kenya & Another [2016] eKLR. the 1st appellant to adduce sufficient evidence to demonstrate that firstly, she owned or erected or lived in the alleged properties, and secondly, that state agents interfered or deprived her of the subject properties. 129.The court said that without a factual foundation upon which it would determine or interrogate the alleged constitutional violation, the petition rested entirely on an unsubstantiated allegation contained in the pleadings without any scintilla of evidentiary support. 130.In Monica Wangu Wamwere & Others -vs- Attorney General, Petition No. 26 of 2019 consolidated with Petition Nos. 34 and 35 of 2019, the court said that even where a respondent does not file or adduce evidence to counter the petitioner’s case, the petitioner still bears the burden of establishing his or her allegations on a balance of probabilities, and that as to whether such evidence is met will depend on whether a court, based on the evidence, is satisfied that it is more probable that the allegations in issue occurred. 131.The court cited Lord Denning, Jin Miller -vs- Minister of Pension [1947] AA ER 373, that:“This proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough, so in any case in which the tribunal cannot decide one way or the other, which evidence to accept… the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 132.The petitioner invokes the public trust doctrines since the community lands are held in trust by the 1st respondent. The public trust doctrine as discussed in by Simon T. Whiteman: Extending the Public Trust Doctrine: A Framework for Protecting Culturally Significant Work of Art [2026], University of Chicago Law Review, February 27th 2026, states that property ownership can be a source of conflict, especially when dealing with finite natural resources, and hence the doctrine steps in to safeguard these type of resources for future generations to enjoy. 133.He states that the doctrine is a constitutional law principle that protects the private exploitation of certain natural resources, which the owner holds in trust for the people, and therefore, the resources do not grant owners the same rights as other general or real property does. 134.The article opines that, generally, public trust resources must be held available for general public use, may not be sold, and must be maintained for certain types of uses. 135.It is stated that the role of the doctrine, therefore, is to incorporate limits and duties on the owner in the stewardship of natural resources. The doctrine is traced to Roman, which understood access to natural resources as an inalienable right, intrinsically valuable to the public, and which concept appeared in the Magna Carta, King Henry 111 Charter of the Forest, and in early cases in English Law. 136.The Public Trust Doctrine (PTD) has now expanded and constitutes a legal precept that mandates the state to safeguard specific resources, such as water, air, forest, control zones, etc., for a critical function or an instrument for reconciling public entitlements, private interest, government interests, fostering sustainable development, and ensuring intergenerational equity. 137.In Anish Abraham -vs- The District Collector, the court cited M.C. Mehta -vs- Kamal Nath & Others [1997] 1 SEC 288, that common properties such as rivers, seashore, forests, and air are held by the government in trust for the free and unrestricted use of the general public, importing the doctrine of public trust. 138.Joseph L. Sax; “Public Trust Doctrine in Effective Judicial Intervention” in Natural Resources Law Vol. 68 Part 1 Michigan Law Review P 473, says that such resources like air, sea, waters and forests, have such a great importance to the people as a whole that it would be wholly unjustified to make them as subject of private ownership, and that being a gift of nature, they should be freely available to everyone irrespective of status in life. 139.The Professor says that the doctrine mandates the government to protect the resources for the enjoyment of the general public rather than permit private use or ownership for commercial purposes. The doctrine is anchored in Article 69 of the Kenyan Constitution. It emphasises the duty of the state to ensure sustainable exploration, utilisation, management, and conservation of the environment and natural resources. 140.In Okiya Umtatah Okoiti -vs- Attorney General & Others [2012] eKLR, the court emphasised the government’s duty to protect public resources and the environment for the benefit of present and future generations. In Samuel Kazungu & Others -vs- County Government of Kwale & Others [2018] eKLR, the court reaffirmed the application of the PTD in safeguarding public access to natural resources. 141.In Kithoko -vs- Wangari & Others Civil Appeal No.155 of 2020 [2026] KECA 255 [KLR] (13th February 2926) (Judgment), the court emphasized that Article 40 of the Constitution protects property or right or interest in property in the broadest terms possible to extend to property of any description and for a constitution that is transformative and rooted in the quest for social justice, a narrow interpretation is not only contrary to the black letter of the document but also its spirit. 142.Applying the foregoing case law to the instant suit, the parties in this suit do not dispute that prospecting and exploration of fossil fuels in the Lokichar Basin preceded the 2010 Constitution, and its subsequent statutes were put in place to align with its provisions. Article 259 of the Constitution mandates the court to interpret it in a manner that promotes its purposes, values, and principles, advances the rule of law, human rights, and fundamental freedoms in the Bill of Rights, permits the development of the law, and contributes to good governance. 143.The 4th Schedule to the Constitution distributes functions between national and county governments. General principles of land planning, protection of the environment and natural resources, including energy police fall within the functions of the national government. 144.The 6th Schedule deals with transitional and consequential provisions. Rule 6 thereof provides that any rights, duties, and obligations of the state subsisting immediately before the effective date shall continue as rights and obligations of the national government. 145.Rule 7 thereof provides that all laws in force immediately before the effective date shall continue in force and shall be continued with the alterations, adaptations, qualifications, and expectancies necessary to bring them into conformity with this constitution. The Clause says… concerning existing land holdings and agreements on natural resources. 146.Rule 8 provides that any freehold interest in land in Kenya held by a person who is not a citizen shall revert to the Republic of Kenya to be held on behalf of the people of Kenya, and the state shall grant a ninety-nine-year lease to the person at a peppercorn rent. 147.Article 71 of the Constitution relating to natural resources was as per Clause No. (8) suspended until the legislature contemplated under the Article is enacted. 148.Article 71 provides that a transaction is subject to ratification by Parliament if it involves the grant of a right or concession on behalf of any person, including the national government, to another person for the exploitation of any natural resource of Kenya and is entered into on or after the effective date. Parliament is mandated to enact legislation for the classes of transaction subject to ratification under Clause No. (1). 149.The issues raised by the petitioner are based on the misconception that the six oil fields fall under what is community land and therefore the 1st - 4th respondents have violated their constitutional rights as to land, fair administrative actions, human dignity, public participation, and use and enjoyment of benefits arising out of the proceedings from the leased land, more so after their two of the communities became registered holders of title deed under the Community Aland Act, hence extinguishing the trusteeship hitherto held by the 1st respondent. 150.From the reading of the Constitution, I think the petitioner has misconstrued the Constitution and the law. Once there was the discovery of fossil fuels in the said oil fields, the functions to regulate, lease, grant prospecting, and exploration rights then existing before the effective date transitioned to the national government. The land, on account of the discovery of fossil fuels, becomes public land, and not community land held by the county government by virtue of Article 63 (1)(8) of the Constitution. 151.As affirmed in Osman & 164 others -vs- Northern Rangelands Trust & 8 others [2024] KEELC 6554 (KLR), a registered community land management committee has powers to change and administer the registered land, including the power to dispose or alienate land, so long as it is supported by 2/3 of the registered adult members of the community, who comprise the county assembly. 152.The community land concept was introduced by the Constitution of Kenya 2010. Article 63 defines what community land is. It includes inter alia, land lawfully held as trust by the county governments. The question to answer, which the petitioner had to tender evidence on, is whether the defined six oil fields were indeed, as of 27/8/2010, held lawfully by the county government of Turkana, and secondly, whether, given that natural resources fall under public land, the county government could legally and constitutionally lease such oil fields. 153.The Community Land Act came into effect in 2016 to give effect to Article 62 of the Constitution. Section 2 of the Community Land Act sets out a modified definition of community land differing in certain aspects from the Constitution. 154.In Kelly Malenya -vs- Attorney General & another; Council of Governors(Interested Party) [2019] eKLR, the court held that the words include “means includes but not limited to”, while the text of the Constitution applied the phrase consists of. The court declared that the definition was unconstitutional. 155.The bundle of rights in community land has been said to consist of user rights, control rights, and transfer rights. See Prof. Kibugi 2021. Therefore, the effect of registration of community land under the Community Land Act sets in the obligations under Sections 13, 15, 27, 28, and 29 of the Community Land Act. 156.Decision-making under the Community Land Act takes the form of Free, Prior, Informed Consent (FPIC). Any investment in such land must be preceded by a free, open, and consultative process under Section 36 of the Community Land Act. An investment agreement must be supported by 2/3 members of the community to ensure that there is broad-based participation in decision-making by all members. 157.In the Osman & 164 others -vs- Northern Rangelands Trust (supra) case, the court addressed the issue of unregistered community land, delayed registration, and the trusteeship of the county government. The Constitution of Kenya 2010 has reaffirmed the close connectedness of land, natural resources, social and economic rights, community land rights, and the close relationship between the individual and communities within their land. 158.The Chapter of the Constitution had been informed by earlier studies, including the 2004 Ndungu Report, that land had been a source of conflict due to muddled policy from the colonial era into and after independence. Specifically, the Constitution has defined natural resources to include rocks, minerals, fossil fuels, and other sources of energy. 159.That is why Article 67 of the Constitution states that all land belongs to the people of Kenya, collectively as a nation, as communities, and as individuals. That Article has profound implications. It established both a declaration of a right and an establishment of a duty. It is the people who own the land in their various capacities and are entitled to a say on how it is used, managed, and utilised in an equitable, efficient, productive, and sustainable manner as per Article 60(1) of the Constitution. 160.The four parameters set under Article 60(1) of the Constitution have meanings: Equity means being fair to rectify past injustices and inequalities, including the local communities and their economies benefiting from land investments. Efficiency means using the resources in a non-wasteful way. Productivity means utilising the land in a manner that best fits its purpose and the needs of the community. 161.Sustainability requires the land to be managed in a way that conserves land and ensures it is not over-exploited or over-utilised. Natural resources must therefore be utilised to the benefit of the people of Kenya, and must be managed sustainably, and in a way that ensures that the benefits from the resources are shared equitably. 162.Article 69(2) is the law that the Constitution of Kenya places an obligation on the state to ensure sustainable exploitation, utilisation, management, and conservation of the environmental and natural resources, and ensure the equitable sharing of the accruing benefits, and to utilise the environmental and natural resources for the benefit of the people of Kenya. 163.Article 62(2) of the Constitution places a duty on every person to co-operate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. 164.Article 70 of the Constitution grants anyone the right to move to court to enforce environmental rights and grants the court powers to issue relief. In Friends of Lake Turkana Trust -vs- Attorney General & Others [2014] eKLR, the court, for instance, issued an order of mandamus directing the Government, KPLC, and Ken Gen to make a complete disclosure to the petitioner of every agreement or arrangement entered into or made with the government of Ethiopia relating to the proposed purchase of electricity from Ethiopia and or the Gibo 111 Project. 165.The court made the orders to ensure that the necessary steps and measures were taken to ensure that the natural resources of Lake Turkana are sustainably managed, utilised, and conserved in any engagement, with and in any agreements entered into or made with the government of Ethiopia, relating to the purchase of electricity. 166.The International Convention on Economic, Social, and Cultural Rights (ICESCR), which Kenya ratified in 1972, requires states to develop and utilise natural resources efficiently, for the most efficient development and utilisation of natural resources while at the same time improving all aspects of the environment and industrial hygiene. 167.Articles 42, 43, 44, and 45 of the Constitution recognise the right to a clean and healthy environment, social and economic rights, access to information held by the state, public participation, publications, and publication of important information affecting nature. 168.In Communications Commision of Kenya & Others -vs- Royal Media Services & Others [2015] eKLR, the court held that public participation calls for the appreciation by state government, and all stakeholders implicated in the appeal, that the Kenyan citizens is adult enough to understand what its right are and that public participation ensure that private “sweet heart deals, secret contracting processes, skewed sharing of benefits generally, a contract and investment regime enveloped in non-disclosure do not happen. 169.Exception to non-disclosure, include where it will undermine national security, impede due process of law, endanger safely health or life of any person, substantially prejudice commercial interest, involve unwarranted invasion of privacy of an individual, cause substantial harm to the ability of the government to manage the economy significantly undermine public or private entity’s ability to make a decision, damage a public entity’s position in legal proceedings or infringe professional confidentiality. 170.In Kenya, the Commission of Administrative Justice has prepared a guide on Proactive Disclosure for Public Entities, National and County Government Levels in Kenya 2019, and therefore, in this petition, I think the respondent has failed to do so and hence infringed on the petitioner’s right to the extent cited in this petition. 171.As regards public participation, the constitution requires the government to encourage public participation in the management, protection, and conservation of the land and its natural resources. 172.The government must also conduct its business openly and facilitate public participation. Equally, the government must conduct its finances in a way that is open, accountable, and includes public participation in financial matters. The 1st respondent under Sections 87-91 of the County Government Act is mandated to encourage popular participation in all its decision-making processes. 173.The guiding framework on public participation was set by the court in BAT (K) PLC -vs- Cabinet Secretary for the Ministry of Health & Others [2019] eKLR. The court said that:a.Public participation is a constitutional principle under Article 10(2) of the Constitution applicable to all aspects of governance.b.It is the duty of the officers and agencies tasked with coordinating public participation to ensure it is facilitated.c.It must be real and not illusory.(d)It is not an abstract notion but must be purposive and meaningful.e.It must be accompanied by reasonable notice and a reasonable opportunity for stakeholders to become involved and make input before the final decision is made.f.It can take various forms.g.Allegation of lack of public participation must be considered within the particular circumstances of each case, including the mode, degree, scope, and extent of people on a case-by-case basis.h.Components of meaningful participation should include clarity of the subject matter, structure of processes of participation which are clear and simple, opportunity for balanced influence from the public in general, inclusive and effective representation, integrity and transparency of the process, and capacity to engage. 174.In determining what constitutes meaningful public participation, the principles and sustainability development established under EMID require that public participation be adhered to in the development of policies, plans, and processes for the management of the environment, with an understanding of the cultural and social principles of the community in issues. 175.In Mohamed Ali Baadi & Others -vs Attorney General & Others [2012] eKLR, the court emphasised that citizens must be active participants in environmental governance and that access to information, participation in decision making, and access to justice were necessary for meaningful participation in development programmes. 176.The court held that the principles of public participation in a culturally and socially relevant context must guide development projects; failure to adhere to statutory requirements of public participation, in and of itself, is a violation of a citizen's right to public participation as guaranteed by the Constitution. 177.The court also noted the importance of access to information on environmental governance. The court said that the right to access to information does not include only the right of citizens to request and obtain information from the government, but also the duty of the government, and at times, to provide parties with the ability to collect and share information without the public having to ask for it first. 178.In Save Lamu & 5 others -vs- National Environmental Management Authority (NEMA) & another [2019] KENET 98 (KLR), the court cited the Rio Declaration on Environment and Development, which emphasised the need for public participation of all concerned citizens. In Mui Coal Basin Local Community & 15 Others -vs- P.S. Ministry of Energy & Others [2015] eKLR, the court set standards that the government must adhere to when developing projects that affect the environment, that public participation must be meaningful, effective, and include access to information, be inclusive, accountable, and must operate in the context of technical expertise, all tailored to the specific project and also consider the circumstances of the local community. The court said that there is no one, size fits all checklist that can be followed. 179.Courts have also ordered the release of specific information in the case law of the Trusted Society of Human Rights Alliance & Others -vs- Judicial Service Commission & Another [2016] eKLR and Katiba Institute -vs- Presidential Delivery Unit (supra). A similar position obtains in Friends for Lake Turkana Trust -vs- Attorney General & Others [2012] eKLR, Andrew Ireri Njeru & Others -vs- County Assembly of Embu & Others [2014] eKLR, and Mui Coal Basin -vs- C.S. Ministry of Energy (supra). 180.Coming to Article 47 of the Constitution, courts have also pronounced themselves on the parameters to apply. In Millicent Wamuyu Ngatia -vs- Inspector General of Police & Others [2019] eKLR, the court held that before action is taken, notice must be given to the person likely to be affected, so that they have a chance to put their own case. 181.In MuHuRi & Another -vs- Inspector General of Police & Others [2015] eKLR, the court said adequate time must be given for a response. Similarly, in Maxwell Mwailongo Mwandawiro -vs- Kenya Ports Authority [2019] eKLR, the court said that reasons must be given for administrative actions. 182.Further, in Republic -vs- Firearm Licensing Board & Another; Ex parte Boniface Mwaura [2019] eKLR, the court held that administrative powers must be exercised in good faith for the purpose for which the power is given by law. Additionally, in the Republic -vs- County Director of Education, Nairobi & 4 others Ex parte Abdukadir Elmi Robleh [2018] eKLR, the court held that when making a decision, relevant factors only may be taken into account. 183.The law relating to the Mining Act Cap 306, the Petroleum Act Cap 308, the Mining (Licence and Permit) Regulation No. 87 of 2017, the Mining (Work Programmes and Exploration Reports Guidelines No. 85 of 2018, the Mining (Strategic Minerals) Regulation No. 149 of 2017, the Mining (Gemstones) Identification of Value Additional For) Regulation 2023, the Mining (Royalty Collection and Management Regulation 2024), the Mining (Award of Mineral Rights by Lender) Regulation No. 153 of 2017, the Mining (Community Development Agreement) Regulation No. 148 of 2017, the Mining (State Participation) Regulation No. 84 of 2017, the Mining (Reporting of Mineral Related Activities) Regulation No. 152 of 2017, the Mining (Mineral Royalty Sharing) Regulation No 3 of 2026, the Mining (Mineral Royalty Sharing) Regulation 2026, the Mining (Royalty Collection and Management) Regulation 2024. 184.The Mining Act 2016 is an Act of Parliament to give effect to Articles 60, 62(1)(5), 66(2), 69, and 71 of the Constitution, insofar as it applies to minerals, provide for prospecting, mining, processing, refinery, treatment, transport, and any dealings in minerals and for related purposes. 185.Mineral right is defined as a prospecting licence, retention licence, mining licence, prospecting permit, mining permit, or artisan permit. A mining area is defined as an area covered by the licence. 186.Section 6 of the Mining Act provides that every mineral is the property of the Republic and is vested in the national government in trust for the people of Kenya, despite any right or ownership of or by any person in relation to any land in, on, or under which any minerals are found. Surface of the earth, according to Section 6(4) and (5) of the Mining Act, is divided in accordance with the coordinates, represented in the official map, held at the Survey of Kenya, at the scale of 1:50,000 and a geometric section constitutes a block. 187.Section 8 of the Act provides that the state has a right of pre-emption of all strategic minerals raised, won, or obtained within the territory of Kenya. Sections 38 and 39 of the Mining Act deal with mineral rights, consent, and compulsory acquisition in community land, and the requirement for consent. 188.Coming to the Petroleum Act, block means an acreage as defined by specific geographic coordinates for purposes of upstream petroleum operations as provided by Section 15 of the Act. The Act provides for the framework for the contracting, exploration, development, and production of petroleum cessatives of upstream petroleum operations, to give effect to the relevant Articles of the Constitution insofar as they apply to petroleum operations, regulating midstream and downstream operations, and for connected purposes. 189.The Act gives the national government a mandate to come up with a national petroleum policy strategic plan, monitoring and implementation of the same, conduct of petroleum operations, promotion of petroleum investments, set up a petroleum institution, and deal with upstream petroleum rights and management of petroleum resources. 190.Section 14 of the Act provides that all petroleum existing in its natural condition in strata lying within the range and its continental shelf is vested in the national government in trust for the people of Kenya. It reserves the right to constitute blocks and licensing for exploration to the Cabinet Secretary in charge of petroleum. 191.Section 31 provides that within 30 days of the approval of a field development plan, the production sharing contract, together with the field development plan, be submitted to Parliament for ratification in accordance with Article 71 of the Constitution, who are also mandated to conduct public participation within 60 days. Part V11 of the Act deals with payment and revenues, such as taxes, fees, and levies, royalties, annual fees, and signature bonuses. 192.Section 58 provides that the national government shall share profits derived from upstream petroleum operations with the county government and the local community, with the county getting equivalent of 20% of the national government’s share, while the local community shall receive equivalent of 5% of the national government shall to be paid in a trust fund managed by a Board of Trustees established by the county government in consultation with the local community. 193.Section 155 of the Mining Act, provides that the Cabinet Secretary may inquire into and determine matters on disputes of the boundaries of an area held under a prospecting or mining right; any wrongful act committed or omitted in the course of prospecting and mining operations, by any persons against any other person; a claim by any person to be entitled to erect, cut, construct or use any pump, line of pipes, flume, race, drain, dam or reservoir for mining purposes; a claim to have any priority of water taken, diverted, used or delivered for mining purposes, as against any other person claiming the same; or assessment and payment of compensation where provided for under the Act. 194.It is the county government that has the mandate to legislate on the establishment of the Board of Trustees and the prudent utilisation of the funds received under this Section for the benefit of present and future generations. The Mining (Community Development Agreement) Regulation 2017 relates to Community Development Agreements between a holder and the local community regarding the benefits of mining. 195.From the foregoing, it is apparent that the 1st - 4th respondents have no obligation constitutionally or otherwise, on trusteeship regarding the six oil fields allegedly occupied by the petitioner’s communities. The Constitution and the law, as expounded above, do not place any constitutional duties and obligations upon the 1st - 4th respondents in relation to the petitioner fundamental rights and freedoms generally and in particular regarding oil prospecting, exploration, licensing, issuance of permits, allocation of blocks, constitution of blocks, acquisition of land for mining and petroleum operations, benefit sharing, payment of royalties levies, permits and or taxes, usage of the received levies, royalties, fees or profits. 196.The upshot is that the court finds the facts relied upon, cited constitutional provisions, statutory law, and the evidence tendered, unsustainable, irrelevant, and incapable of proving any constitutional breach concerning the alluded rights and freedoms. 197.The court finds the reliefs sought by the petitioner not only unmeritorious but also unmerited. The petition is dismissed with no order as to costs. 198.Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 15TH DAY OF MAY 2026.HON. C.K. NZILIJUDGE, ELC KITALE.In the presence of:Court Assistant - DennisNo appearance