[2025] KEELC 2867 (KLR)

Yaa alias Bengi & 42 others v Ziro alias Kibogoyo & 18 others (Environment & Land Petition 11 of 2021) [2025] KEELC 2867 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEELC 2867 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Petition 11 of 2021

FM Njoroge, J

March 27, 2025

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 2 & 3 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE BILL OF RIGHTS, BEING CHAPTER FOUR OF THE CONSTITUTION OF KENYA, 2010 AND IN PARTICULAR, ARTICLES 19, 20, 21, 22, 23, 25, 27, 28, 29, 30, 39, 40, 43 AND 47. AND IN THE MATTER OF CHAPTER FIVE OF THE CONSTITUTION OF KENYA, 2010 AND IN PARTICULAR ARTICLES 60, 61 AND 64. AND IN THE MATTER OF THE COMMUNITY LAND ACT, 2016

Between

Elisha Yeri Yaa alias Bengi & 42 others & 42 others & 42 others & 42 others

Petitioner

and

Kambi Ziro alias Kibogoyo & 18 others & 18 others & 18 others & 18 others

Respondent

Judgment

1. By a Petition dated 10/6/2021 the Petitioners sought the following reliefs against the Respondents: -i.A declaration that he Petitioners’ rights and freedoms as envisaged and/or provided under the Constitution and in particular the aforementioned articles in paragraph 24, above have been violated and/or infringed by the Respondents.ii.A declaration that the Petitioners are lawful owners and/or occupants and beneficial owners of the suit premises, measuring approximately 100 acres on Plot No. Kilifi/Biryaa/38 and described as a parcel of land stretching from Midzichenda Uniform College to Opposite Kenya Women Finance Office on the North, to Kabelengani Primary School on the West, to Bimzhoga Dam on the South, to Katsungwani, next to Yeri Majuta’s home on the South- East, to Michael Ganje’s residence on the East, and back to Midzichenda Uniform College within Kilifi County.iii.A declaration that the Petitioners’ rights and freedoms have been violated and/or infringed by the Respondents by the unlawful and/or illegal claim on the suit premises and/or eviction of the Petitioners from the suit premises as mentioned in paragraph 24, above and consequently an order be made restraining the Respondents and/or their agents and/or relatives and/or employees and/or any other person acting on the Respondents’ behalf from demolishing and/or evicting the Petitioners and in particular the 1st to 37th Petitioners from the suit premises, being a parcel of land described as stretching from Midzichenda Uniform College to Opposite Kenya Women Finance Office on the North, to Kabelengani Primary School on the West, to Bimzhoga Dam on the South, to Katsungwani, next to Yeri Majuta’s home on the South- East, to Michael Ganje’s residence on the East, and back to Midzichenda Uniform College measuring approximately 100 acres within a parcel of land registered as Plot No. Kilifi/Biryaa/38. iv.A permanent injunctive order restraining the disposal of any portion(s) on the suit premises and/or construction of any structure(s) on the suit premises or the group ranch land based on any sale that was not sanctioned by two-thirds of the entire adult membership of the Birya Group Ranch.v.A mandatory injunction directing for the demolition of any structure(s) or house(s) erected by any person(s) who bought a portion(s) of land on the suit premises and/or group ranch land without the approval of two-thirds of the entire adult membership of the Biryaa Group Ranch.vi.A permanent injunctive order restraining the 11th to 13th Respondents from transacting any business and/or dealings that require the approval of two-thirds of the adult membership of the Biryaa Group Ranch.vii.A permanent injunction restraining the 14th to 18th Respondents from hearing and/or determining land cases within Biryaa Group Ranch.viii.An order(s) for compensation in form of punitive and/or exemplary and/or aggravated and/or general damages be made for the mental torture and/or anguish and/or psychological injury suffered by the petitioners as a result of the Respondents’ actions herein.ix.Any other relief and/or remedy the Honourable Court may deem fit and just to grant in the circumstances.x.Costs of the petition.

2. The Petition is supported by various affidavits. The first two were sworn by Elisha Yeri Yaa on 10/6/2021 and 11/3/2024 and other two by Kenga Yeri Randu and Rajab Menza Shikari on 11/3/2024.

3. The Petitioners described themselves as male and female adults and citizens of the Republic of Kenya. The 1st to 10th Respondents are described as male adults residing and working for gain in Bamba area within Kilifi County. The 11th to 13th Respondents are described as officials of Biryaa Group Ranch, registered under the Land (Group Representatives) Act, Cap 287, now repealed by the Community Land Act, 2016. The 14th to 18th Respondents are described as provincial administrators in charge of Bamba division and/or locations being areas that are situate within the Biryaa Group Ranch. The 19th Respondent is the chief legal advisor of the government and is sued as such for and on behalf of the 14th to 18th Respondents.

4. The facts leading to institution of this petition were pleaded therein as follows: - In the year 1899, one Kombe Karezi described as the 1st -37th Petitioners’ forefather, settled on a parcel of land measuring approximately 100 acres and described as stretching from Midzichenda Uniform College to Opposite Kenya Women Finance Office on the North, to Kabelengani Primary School on the West, to Bimzhoga Dam on the South, to Katsungwani, next to Yeri Majuta’s home on the South- East, to Michael Ganje’s residence on the East, and back to Midzichenda Uniform College, within a parcel of land registered as Plot No. Kilifi/Biryaa/38 (‘the suit property’), now communally owned by members of the Birya Group Ranch (the Group); that without any justification, the 1st to 10th Respondents through themselves and/or kinsmen laid a claim on the suit property prompting the 4th Petitioner to file a Claim No. 6 of 2003 at the Bamba Lands Dispute Tribunal against one Michael Ganje (said to be the 1st-10th Respondents’ kinsman), which claim was determined against him. Consequently, an appeal was filed but later terminated following a letter written by the 11th Respondent on 5/5/2009, stating that the dispute ought to be referred to internal dispute resolution within the group.

5. Resultantly, the 11th Respondent convened a meeting between the 4th Petitioner and the said Michael Ganje. The former represented the Amwangari family (alias Kombe Karezi family) while the latter the Amwaziro family (on behalf of the 1st -10th Respondents). The 11th Respondent ruled in favour of Michael Ganje despite recognizing that the 1st -37th Petitioners had resided on the suit property from the year 1975.

6. Following that decision, the 1st -10th Respondents started selling portions of the suit property including the homesteads of the 1st- 37th Petitioners, without involving the membership of the group as is required. According to the Petitioners, they are members of the group thus entitled to equal protection against infringement of their rights.

7. The Petitioners pleaded that the 1st -10th Respondents were only invited to the suit premises in 1939 through one Masha Wa Mbinu who was married to one Nyevu Randu, a daughter of Randu Kithi said to be the brother of Kombe Karezi. The purpose of the invite was only so that the said Masha could cultivate 2 acres of the suit property; that the said Michael Ganje came to be on the suit property because his father moved therein in 1940 to live with Masha, said to be his step-father.

8. The Petitioners accused the 11th-13th Respondents of discrimination against the Petitioners and claimed that the 1st -37th Petitioners are bona fide members of the group entitled to reside within the suit property. They also accused the 14th -18th Respondents for interfering with the affairs of the group by posing as kangaroo courts and soliciting bribes from members of the group.

9. The Petitioners pleaded the particulars of violation of their fundamental rights and freedoms as follows: -i.Whereas the 1st to 10th Respondents are aware of the existence of Articles 19, 20, and 21 of the Constitution of Kenya, 2010, requiring them to respect, protect and fulfill the rights and fundamental freedoms under the bill of rights, the Respondents have unlawfully and/or illegally laid a claim over the suit premises and colluded with the 11th to 13th Respondents to have the 1st to 37th Petitioners evicted from the suit premises, notwithstanding the safeguards and/or guaranteed provided for under Section 5 of the Community Land Act and Article 40 of the Constitution of Kenya;ii.Whereas the 1st to 10th Respondents are aware of the existence of Article 25 of the Constitution, forbidding torture and/or cruelty and/or inhumane or degrading treatment, the said Respondents have colluded with 11th to 13th Respondents by their actions as they have treated the Petitioners cruelly and/or inhumanely by selling and/or permitting to be sold their homesteads and/or portions of land on the suit premises, thereby causing mental torture and anguish to them as they are now about to be rendered homeless. This violation of the Petitioners’ rights is also forbidden under Section 14 of the Community Land Act;iii.Whereas the Respondents are aware of the existence of Article 27 of the Constitution, requiring equal protection and benefit of the law, including full and equal enjoyment of all rights and fundamental freedoms, the Respondents have deprived the Petitioners of these rights and freedoms by unlawfully and illegally causing them to be evicted from the suit premises and causing other people to erect structures therein, including within the homesteads of the 1st to 37th Petitioners, notwithstanding the provisions of section 30 as read with section 36 of the Community Land Act, 2016;iv.Whereas the Respondents are aware of the existence of Article 28 of the Constitution, providing for inherent human dignity which includes respect and protection, the Respondents have by their actions lowered and/or degraded the Petitioners’ dignity and more so by handling them as homeless individuals, notwithstanding the fact that they are bonafide and legitimate members of the group ranch as well as lawful occupants of the suit premises, having lived thereon for decades, burying their relatives on the said land and carrying out various activities, including farming for their subsistence;v.Whereas the Respondents are aware of the existence of Article 29 of the Constitution forbidding any kind of torture whether physical or psychological and/or cruel or inhumane or degrading treatment, the Respondents have by their actions, treated the Petitioners cruelly and/or inhumanely by threatening to evict the petitioner from the suit premises with the involvement of the Provincial administration and further by preventing them from erecting more structures on their homesteads and at times using guns in the process, thereby causing mental torture and anguish to them;vi.Whereas the Respondents are aware of the existence of Article 30 of the Constitution, forbidding slavery and/or servitude, the Respondents have by their actions subjected the Petitioners to slavery by unlawfully and/or illegally forcing them out of the suit premises and/or selling their portions of land to other people who have now embarked on erecting structures on the suit premises, including the homesteads of the Petitioners. By virtue of section 43 of the Community Land Act of 2016, all structures and/or houses built on the suit premises based in sale that was not sanctioned by membership of the group ranch is deemed to be unlawful occupation and punishable under the law and as such an order for demolition and eviction of such unlawful occupation is deserving in the circumstances;vii.Whereas the Respondents are aware of the existence of Article 39 of the Constitution, providing for the right of movement and residence, the Respondents have by their actions, prevented the Petitioners from residing on the suit premises, yet they are entitled in law to reside thereon peacefully and without any interference from anybody;viii.Whereas the Respondents are aware of the existence of Article 40 of the Constitution, providing for the right to property in that any person can acquire or own property in Kenya without any arbitrary deprivation and/or limitation and/or restriction, the Respondents have by their actions, permanently prevented the Petitioners from owning and/or acquiring and/or residing on the suit premises as the 11th Respondent’s decisions, evicting the 1st To 37th Petitioners from the suit premises at the instance of the 1st to 10th Respondents is a deprivation of the Petitioners’ rights under the Constitution. Equally, the selling of portions of land on the suit premises to 3rd Parties without the involvement of the membership of the group ranch, including the Petitioners herein is a violation of the said article. This violation is also forbidden under Section 15 (5) as read with Section 31 of the Community Land Act of 2016 which does not permit disposal and/or alienation of any portion of land within a group ranch unless the said decision is made by two-thirds of the registered members of the group ranch community and as such all structures built on the suit premises or on the group ranch land as a result of sale are illegal and/or unlawful.ix.Whereas the Respondents are aware of the existence of Article 43 of the Constitution, providing for economic and social rights, the Respondents have by their actions, prevented the Petitioner from enjoying adequate housing as the Petitioners have been prevented from expanding their homesteads, forcing them to share rooms with their parents, yet the same is against the African traditions and culture.x.Whereas the 11th to 13th Respondents, being the officials of the group ranch are aware of the existence of Article 47 of the Constitution, providing for fair administrative action, the said Respondents have by their actions violated the said right by failure to recognize and/or consider the Petitioners as lawful occupants of the suit premises as well bona fide members of the group ranch as they have ordered for the 1st - 37th Respondents’’ eviction which said decision was not sanctioned by the membership of the ranch, neither do they have the powers to evict the petitioner from the suit premises and thus their action was unlawful and/or unreasonable and by extension lacked procedural fairness. By virtue of Sections 16 and 17 of the Community Land Act, the Petitioners are absolute owners of the group ranch and therefore the eviction order against the 1st -37th Petitioners is in violation of the law.xi.Whereas the 14th to 18th Respondent, being Provincial administrators, are aware of the existence of Article 47 of the Constitution, providing for fair administrative action, the said Respondents have by their actions violated the said right by hearing and/or determining land disputes within the group ranch, yet they have no powers whatsoever to deal with land cases, making decisions that have led to deaths of various members of the group ranch, including the late Kombe Tsiki, acts that are unlawful and/or unreasonable and/or procedurally wrong or unfair and as such they should be restrained from such unlawful processes.

10. The 19th Respondent filed a Replying Affidavit sworn by Francis Mgandi Mambo, the 14th Respondent, the Assistant County Commissioner for Bamba Division since 2016, which he swears on his own behalf and on behalf of the 15th -18th Respondents. The said affidavit is undated, but it was filed on 1/9/2021. According to the 14th Respondent, Bamba area has experienced long inter-clan disputes over land especially that which is adjacent to the Mariakani-Bamba tarmac road ever since the road was upgraded, as all the clans involved- the Amwandundi, the Amwangari, the Amwakithi, the Amwangoa, the Akiza, the Amwakombe and others - have been rising against one another claiming the said adjacent land. He stated that the resolution of conflict with regard to the group ranches was handled by the group ranches committees assisted by the various land tribunals; that the government administration played a role when consulted by the said committees and tribunals for technical guidance where the disputes involved far-reaching security implications. He also added that the disputes did not commence with the construction of the road and averred that when the KETRACO developed the 2009 major power transmission line cutting across the division all the way to Lamu, several group ranches were affected and the project proponent purported to pay all the affected land owners through their group ranches management committees but the committees squandered the compensation monies which infidelity or breach of trusts placed them at loggerheads with their members and at that point security became a critical issue. The 14th -18th respondent were only concerned with security when members approached their offices for resolution of disputes arising from that mistrust. Members would be referred to the group ranch management committees and would refuse to refer their disputes there and resorted to use of brute force thus compelling the 14th -18th respondents to intervene. The clamour for the appropriation of more land by clans led to formation of clan based cartels, eg, the Amwakithi Osi Nzoni formed by the 40th and the 43rd petitioners, based in a place called Mwakwala, the Bamba Amwangari Association, and others. The 14th Respondent deposed that the 14th -18th Respondents’ only mandate was to protect property and human life since the land disputes had escalated due to mistrust between the committees and its members. He stated that the said groups contributed immensely to insecurity within the area, thus necessitating the intervention of the administration by way of banning all group meetings and activities in 2019 and 2020. To him, this ban did not sit well with the Petitioners thus they filed the present petition.

11. He further deposed that the 1st -21st Petitioners have on various occasions sought the intervention of the administration in their conflict with Michael Ganje’s family; that the administration has never interfered with the disputes save for situations where the security is threatened.

12. The Petition was canvassed by way of written submissions.

Petitioners’ submissions 13. Mr. Kenga, counsel for the Petitioners filed submissions dated 23/1/2025 wherein he reiterated the background and evidence in support of the Petition. Counsel submitted that the Petition is premised on different Articles of the Constitution, including Article 19 which provides for social, economic and cultural policies. He urged that Article 19(2) provides for recognition and protection of human rights and fundamental freedoms so as to preserve the dignity of individuals and communities and by so doing, promoting social justice and the realization of the potential of all human beings. He argued that the Petitioners are bona fide members of Biryaa Group Ranch and residents on a parcel of land owned by the said Ranch and as per Section 5 of the Community Land Act No. 27 of 2016, and that the Petitioners are entitled to acquire and own properties in Kenya, either individually or in association with others.

14. Counsel added that Article 19(3) further recognizes the applicability of other rights which are not included in the Bill of rights but are recognized or conferred by other statutes, which include the Community Land Act, being a replacement of the repealed Land (Group Representatives) Act (Cap 287), the then Laws of Kenya.

15. He further submitted that Article 20 of the Constitution binds State organs and all persons in that no state organ or any person has the right to curtail the enjoyment of any right and fundamental freedoms in the Bill of rights. If the threats of eviction are occasioned by the 1st to 10th Respondents who have pushed the 11th to 13th Respondents to evict the Petitioners from the suit premises, their legal and/or lawful status as bona fide members of the Group Ranch notwithstanding, then the said Respondents are guilty of violating the Constitution as the said article binds not only government institutions but all persons.

16. Counsel added that Article 21 of the Constitution mandates the State and its organs, including the judiciary to ensure there is observance, respect, protection, promotion and fulfilment of all rights and fundamental freedom of all rights; that the said provision also places a duty on all state organs and public officers to ensure that there is no discrimination; that the above notwithstanding, the 14th to 18th Respondents, by their own conduct of interfering with the management of the group ranch through hearing of land disputes within the ranch, which led to murder(s) and injury of some of the members of the ranch, have failed to address the needs of the members of the ranch as their decisions have created hatred and/or animosity and/or breach of peace and thus violated the rights of the Petitioners.

17. Counsel argued that Article 25 of the Constitution provides for fundamental rights and freedoms which are not capable of being abridged. Freedom from torture, cruelty, inhumane or degrading treatment or punishment is one of them. He argued that if the Petitioners are to be evicted by the 11th to 13th Respondents at the instance of the 1st to 10th Respondents, yet there are bonafide members of the group ranch, it would amount to torture, cruelty, inhumane or degrading treatment as the Petitioners have nowhere to call home, other than the parcel of land they are occupying within the ranch, which is also their ancestral land and recognized as such under Section 2 of the Community Land Act. Counsel added that no dispute regarding occupation and/or possession of the suit premises has risen, calling for a hearing and determination of such a dispute and if there is any, warranting eviction threats, then the Petitioners should be accorded a right to be heard. To counsel, any failure to observe this particular provision of the law is a serious violation of the Constitution and also in violation of Sections 39 to 42 of the Community Land Act on dispute resolution.

18. Counsel explained that the dispute which arose between the 4th Petitioner and Michael Ganjedid not involve the other Petitioners herein but assuming that there was any connection, the relevant statute, The Land (Group Representatives) Act, applicable during the existence of the dispute provided a proper procedure to be followed. That the Act gave powers to the management committee of the Group Representatives to hear disputes but their decision was subject to ratification by the Group Representatives who were supposed to be three to ten members through a vote of not less than 60% of the members. The Group Representatives if so agree would then allow anaggrieved party to appeal to them and if they do not agree to allow the party appeal to them, such a person would appeal to the Registrar of Group Representatives, and that the Court would intervene in case of an appeal from the committee of the group representatives or from the Registrar of group representatives with the consent of the Registrar. To counsel, this procedure was not followed at the time of the dispute between the 4th Petitioner and the said Michael, therefore that decision cannot be said to be valid to warrant the eviction threats.

19. Counsel further submitted that the Group’s Constitution (see page 179 of the Petition bundle) clearly provides that removal of a member requires a vote of 75% of the members present. If the Petitioners are evicted from the suit premises without such proof of a vote, it would amount to a violation of the Constitution on non-discrimination. Counsel asserted that Article 27 of the Constitution as read with Section 30 of the Community Land Act forbids discrimination; that the Petitioners are entitled to a right of equal benefits of the community land by virtue of being bona fide members of the Biryaa group ranch; that they are also entitled to full and equal enjoyment of rights of use and access to the community land, and cannot be evicted from the suit premises as that would not be in violation of Article 27 only but also Section 30 of the Community Land Act.

20. To counsel, the intended eviction would be in violation of Articles 28, 29, 30, 39, 40 and 43 of the Constitution. He explained that Article 40 of the Constitution gives any person the right to acquire and own land anywhere in Kenya; that such a right should be protected. Counsel argued that the Petitioners’ rights over the portion of land they reside or occupy within the Ranch relates to occupation and use of the land as the law does not allow issuance of title deeds to members, unless the Group ranch is dissolved. That being so, the possessory and/or occupation rights of the Petitioners needs to be protected in line with Sections 5 and 14 of the Community Land Act. To him therefore, eviction of the Petitioners from their land within the Ranch is arbitrarily deprivation of the Petitioners’ rights to property as provided under the Constitution.

21. Counsel further argued that the Petitioners are by virtue of Article 43 of the Constitution entitled to work and earn a living and since they are villagers, they need to till their land for subsistence farming. Thus, eviction in this case would infringe on that right.

22. It was counsel’s argument that the Community Land Act through the provisions of Sections 39 to 42 provides for dispute resolution mechanism if at all there is any dispute, warranting eviction of the Petitioners from the suit premises, Article 47 of the Constitution ought to be complied with. Anything short of that is unconstitutional.

23. Counsel added that Section 15 of the Community Land Act, 2016 provides the manner in which the affairs of a Group ranch should be handled and that arbitrary management and decision-making processes can lead to serious violation of the Constitution, which the management in this case has occasioned. He added that the said section provides that all adult members of a registered community shall constitute a community assembly and from the said assembly members, 7 to 15 members shall be elected to form a Community Land Management Committee. The said committee shall be in charge of the affairs of Group ranch but any decision shall require a quorum of not less than two-thirds of the community assembly; that despite the Respondents being aware of the said provisions, they decided on their own to lease or rent out the community land as evidenced vide PEx-9, PEx-10 and PEx-12.

24. In support of the arguments above, counsel relied on the cases of Wilfred Juma Wasike & 11 others -v- Ministry of Interior and Co-ordination and another, being ELC Petition No. 2 of 2020 (Kitale) and the case of Kariobangi Sewerage Group -V- Sanitation & Irrigation & 7 others -ELC Petition No. 11 of 2020 [2023] KEELC 18586 (KLR).

14th -19th Respondents’ submissions 25. Mr. Gabriel Ojwang, Senior State Counsel filed submissions dated 11/2/2025 wherein he identified the following issues for determination: -a.Whether the Petition raises any issue on violation of the Constitution to meet the threshold of constitutional petitions;b.Whether the 14th - 18th Respondents have violated any of the Petitioners rights;c.Whether Alternative Dispute Resolution Mechanisms applies in resolving community land disputes;d.Whether the supporting affidavit, further affidavits and annexures thereto offends the provisions of Rule 9 of the Oaths and Statutory Declarations Rules; ande.Whether the Petitioners are entitled to the reliefs sought.

26. In relation to the first issue, counsel submitted that while the Petitioners have cited Articles of the Constitution as having been allegedly contravened by the 14th to 18th Respondents, they have only mentioned Article 47 of the Constitution and failed to give sufficient particulars of the said contraventions within the body of the Petition. He added that the Petitioners further allege violation of their constitutional rights under various articles in the Constitution and seek specific orders in the Petition yet the same is not averred with specificity and particulars given on how the Respondents violated the said rights. To counsel, the Petitioners have failed to satisfy the threshold of specificity as espoused in the celebrated case of Anarita Karimi Njeru v Republic (No.1) (1979) 1 KLR 154 as restated in the case of Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No.290 of 2012 (2013) eKLR.

27. Regarding the second issue, counsel submitted that the Petitions failed to demonstrate how the 14th - 18th Respondents have violated any of their rights on fair administrative action. Counsel reiterated that the 14th -18th Respondents would only be involved when consulted by the Petitioners, that is the group ranches committees and the local land tribunals for technical guidance if the land disputes had a far-reaching security implication. Counsel argued that though Article 47 is alleged to have been violated by the Respondents, failure on the part of the petitioners to particularize the manner in which, and the specific part of that constitutional clause that has been violated, renders it a mere allegation; further to that argument, Mr Ojwang urged that no evidence has been tendered to support the same. He relied on the case of Consumer Federation of Kenya v Toyota Motors Corporation & 4 others [2022] KEHC 15459 (KLR) to support this argument.

28. On whether Alternative Dispute Resolution Mechanisms apply in resolving community land disputes, counsel submitted that the Petitioners are seeking a permanent injunction restraining the 14th to 18th Respondents from hearing and/or determining land cases within Biryaa Group Ranch. To counsel, this prayer is an impracticable one in the given circumstances considering the existence of the Alternative Dispute Resolutions Mechanisms in the Community Land Act No. 27 of 2016, under Section 39 thereon.

29. In relation to the fourth issue, counsel submitted that Rule 9 of the Oaths and Statutory Declarations Rules requires that annexures should be sealed and stamped. Counsel argued that the purported annexures in the supporting affidavits do not comply with this rule hence should be expunged from the record for not being marked or commissioned by a Commissioner for oaths. To buttress this point, counsel relied on the cases of Jeremiah Nyangwara Matoke v Independent Electoral And Boundaries Commission & 2 others [2017]; Francis A. Mbalanya vs. Cecilia N. Waema [2017] eKLR; and Solomon Omwega Omache & Another v Zachary O Ayieko & 2 others [2016] eKLR which was cited with approval by this court in Komora & 8 others (On their own behalf and on behalf of 9 Waata Families) v Cabinet Secretary Lands and Physical Planning & 13 others [2023] KEELC 15723 (KLR).

30. Counsel finally submitted that while Article 23 (3) provides the reliefs a court may grant in constitutional petitions, the Petitioners are not entitled to the reliefs sought, for failure to provide material proof/evidence on the alleged threat or actual violation of their rights.

Analysis And Determination 31. This court has considered the petition, the affidavits in support thereof, the replying affidavits in opposition thereto and the submissions of the parties whose submissions were on record. The following issues arise for determination: -i.Whether the Petition meets the threshold of a Constitutional Petition;ii.Whether the disputed land is Community Land;iii.Whether the intended eviction of the 1st -37th Petitioners is unconstitutional;iv.Whether the Petitioners’ right to fair administrative action under Article 47 of the Constitution was violated by the 14th -18th Respondents;v.Who shall bear the costs of the Petition?

32. The Petitioners herein have procedurally approached this honourable court under Articles 22, 23 and 258 of the Constitution of Kenya, 2010, seeking redress for the alleged violation and threat of violation of their constitutional rights. The Petitioners aver that he Respondents’ actions have infringed upon their fundamental rights and freedoms enshrined under Articles 25, 27, 28, 29, 30, 39, 40, 43 and 47 of the Constitution of Kenya, 2010. The threshold for the admission of a constitutional petition is well established in law. This court is therefore tasked with determining whether the Petition meets the requisite legal standards.

33. The guiding principles for a constitutional petition are set out in of Anarita Karimi Njeru -v- Republic [1979] KLR 154, where the Court held that a party alleging a constitutional violation must set out with reasonable precision the provisions allegedly infringed and the manner in which they are infringed. This principle was later affirmed in Mumo Matemu -vs- Trusted Society for Human Rights Alliance & 5 Others [2013] eKLR where the Court of Appeal emphasized that vague or generalized allegations do not meet the constitutional threshold. Similarly, in Trusted Society of Human Rights Alliance v AG & 2 Others [2012] eKLR, the Court stated that a petition must be drafted with clarity and precision to enable the court to determine the issue in controversy. Therefore, in assessing the present petition, I shall consider whether the Petition pleads with specificity the constitutional provisions alleged to have been infringed; whether the Petitioners have demonstrated an actual of threatened violation of rights; and whether the Petition discloses a justiciable cause of action within the scope of constitutional litigation.

34. The petitioners pleaded with specificity the provisions of the Constitution alleged to have been infringed and the particulars thereof. I have already stated them above. On the issue of justiciability, a constitutional petition must be ripe for determination, meaning that the alleged violation must not be speculative or premature. This doctrine was explained in International Centre for Policy and Conflict & 5 Others v AG & 4 Others [2013] eKLR, where the Court stated that a petition must disclose a real and present dispute for adjudication. The present Petitioners pleaded that they are at the verge of being unlawfully evicted from their homes by the actions of the Respondents. In my view, the issues raised are real and not speculative. Applying these principles to the present petition, and based on the pleadings, this court finds that the Petition satisfies the threshold test outlined in the Anarita Karimi case (supra). As to whether the alleged violation or threat of violation has been demonstrated, that will be determined hereunder.

35. The Petitioners’ grievance is that the 1st -10th Respondents, despite being mere licensees, have unlawfully laid claim to ownership of the land, thereby depriving the Petitioners of their constitutionally protected rights. The Petitioners further argue that the Respondents’ actions contravene the Community Land Act, 2016, which governs the management and protection of community land.

36. Article 63 (2) of the Constitution of Kenya, 2010 defines community land as consisting of:(a)land lawfully registered in the name of group representatives under the provisions of any law;(b)land lawfully transferred to a specific community by any process of law;(c)any other land declared to be community land by an Act of Parliament; and(d)land that is—(i)lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;(ii)ancestral lands and lands traditionally occupied by hunter-gatherer communities; or(iii)lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62(2).

37. It is undisputed that the suit property is registered in the name of Biryaa Group Ranch, a group ranch registered under the Land (Group Representatives) Act Cap 287 (repealed). The certificate of title exhibited establishes as such. I am therefore satisfied that the suit property falls within the definition of community land.

38. Section 39 of the Community Land Act, 2016 which deals with dispute resolution mechanisms under the said Act stipulates at its Section 39(2) as follows: -“Any dispute arising between members of a registered community and another registered community shall at first instance, be resolved using any of the internal dispute resolution mechanism set out in the respective community by-laws.”

39. Section 39 (3) also stipulates that where a dispute or conflict relating to community land arises, the registered community shall give priority to alternative method of dispute resolution.

40. The dispute between the 4th Petitioner and the said Michael Ganje, a representative of the Amwaziro family and the 1st -10th Respondents was procedurally adjudicated by the group representatives and determined in favour of the said Respondents, said to be members of the Amwaziro family.

41. The group representatives also found that the 4th petitioner, a representative of the Amwangari family and the Petitioners herein, was not on the membership register of the group. That was on 29/7/2011.

42. A perusal of the membership list exhibited by the Petitioners herein reveals that most of the Petitioners, and especially the 4th Petitioner, became members of the group on 21/4/2011, which raises doubt as to what is to be believed.

43. The Petitioners alleged that the Respondents have allowed non-members of the group to erect structures on the suit property and have continued to dispose the suit property without following the proper procedure under Section 15(5) of the Community Land Act; that the group representatives conducted themselves in a manner that was offensive to the law by soliciting bribes from members so as to rule in their favour. These allegations were however not substantiated with any evidence. The only attempt made by the Petitioners was the exhibition a copy of the sale agreement exhibited as EYY-9(b). This court does not attach any probative value to that document as it does not describe the property therein to mean a portion of the suit property herein.

44. It would appear then that the issue of the proper membership of the group, and the ownership of portions of the community land on the ground, require to be addressed and determined in substance. It must also be remembered that this court is sitting as a constitutional court and the issue of ownership cannot be determined herein. It cannot be understood by this court why so long after the land was registered on 25/9/1979 in the name of the Biryaa Group Ranch, no planning, demarcation and adjudication of individual or clan rights relating to the community by the relevant authorities has been undertaken thus leading to the present inter clan conflicts. It is also a wonder that despite admissions by the 14th -18th respondents of allegations of financial impropriety and lack of transparency and accountability on the part of the Group Ranch leadership none of the leaders have been demonstrated to have been brought to justice by the authorities and this neglect is what may be breeding lawlessness among the Group ranch rank and file. Matters such as those arising under exhibit 12 – the Birya Ranch Management agreement with KICHAPA- require not only transparency as to how the proceeds of charcoal production are applied or distributed among members, but also the application of abundant caution under the Environmental Management and Co-Ordination Act 1999 to avert the bequest of degraded and barren landscapes to some group members when demarcation and subdivision into individually held titles is eventually conducted. However, these are not the issues for determination before this court, and the sole duty of this court is to determine whether the Petitioners’ rights have been infringed or threaten to be infringed by the Respondents and I find that the Petitioners have done little in their attempt to demonstrate the allegations that their rights under Articles 25, 27, 28, 29, 30, 39, 40, and 43 have been infringed.

45. Article 47 guarantees the right to fair administrative action. It provides: -“47. Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.”

46. The Petitioners averred that by sitting to adjudicate on the dispute between the parties herein, the 14th -18th Respondents acted without jurisdiction; that these actions were in contravention with the right to fair administrative action. The 14th -18th Respondents responded by stating that they only had to intervene where the security of property and life was threatened.

47. Article 47 guarantees the right to fair administrative action, which must be lawful, reasonable and procedurally fair. Acting without jurisdiction violates this principle because any decision made without legal authority is null and void. Courts have consistently held that public bodies and officials must act within the scope of their legal powers, otherwise their actions can be challenged through judicial review.

48. The 14th -18th Respondents operate under the National Government Administration Officers (NGAO) framework and they primarily deal with administrative and community matters such as maintaining peace, resolving minor disputes and enforcing government policies. While it is true that land disputes are typically under the jurisdiction of courts or tribunals, I do think that the said Respondents merely facilitated dispute resolution and acted within the scope of their administrative duty. I say so because in all the instances exemplified by the Petitioners, there was a committee in charge. In view of the foregoing, I do find that it has not been demonstrated that the 14th -18th Respondents infringed the Petitioners’ rights under Article 47.

49. In the ultimate, I do not find any merit in this petition. It is hereby dismissed with no orders to costs.

DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 27TH DAY OF MARCH 2025. ****MWANGI NJOROGE****JUDGE, ELC, MALINDI.