REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MERU PETITION NO. EOO1 OF 2020 IN THE MATTER OF ARTICLES 40 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND IN THE MATTER OF VIOLATION AND/OR INFRINGEMENT OF THE PETITONERS CONSTITUTIONAL RIGHTS UNDER ARTICLE 19, 20, 21, 22, 23, 35, 40, 47 AND 165 PF THE CONSTITUTION OF KENYA 2010 BETWEEN SIMON MURUNGI ............................................................. 1 ST PETITIONER LIVINGSTONE MAWIRA................................................. 2 ND PETITIONER PURITY NGAITI .................................................................3 RD PETITIONER HARMSHELD MUTHOMI ............................................... 4 TH PETITIONER OWEN MUGAMBI ............................................................. 5 TH PETITIONER ANTHONY MURIITHI........................................................6 TH PETITIONER PURITY MWENDWA..........................................................7 TH PETITIONER KELVIN GIKUNDI ............................................................ 8 TH PETITIONER WITHFORD MWIRIGI .................................................... 9 TH PETITIONER PHYLIS GATWIRI ...........................................................10 TH PETITIONER NONFACE GITUMI ........................................................ 11 TH PETITIONER ARMSTRONG KIOGORA.............................................. 12 TH PETITIONER ERA KIARUTHI .............................................................. 13 TH PETITIONER
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PATRICK MWENDA........................................................14 TH PETITIONER CUTIS BUNDI ...................................................................15 TH PETITIONER PHINEAS KITHINJI ..................................................... 16 TH PETITIONER VERSUS THE LAND ADJUDICATION OFFICER RUIRI/RWARERA .......................................................... 1 ST RESPONDENT COUNTY GOVERNMENT OF MERU ........................2ND RESPONDENT HON. ATTORNEY GENERAL.......................................3RD RESPONDENT JAPHET KAII ............................................................ INTERESTED PARTY RULING 1. By a notice of preliminary objection dated 12.10.2020, the 2nd respondent attacks the petition dated 30.8.2020 first for misjoinder, and secondly as an abuse of the court process and thirdly that it raises no reasonable cause of action against it. 2. The 2nd respondent is a creature of Articles 6, 186, 187, 188 Schedule I (1) of the Constitution. The roles and functions of 2 nd respondent are clearly spelt out in Schedule 4 thereof vis a vis those of the 1st respondent and the National Government. 3. The 1st respondent is described in paragraph 11 of the petition as an employee of the National Government and not of the 2 nd respondent. The petition at paragraph 11, 13, 14 is clear on the nexus between the petitioners and the subject in issue on one hand, and the alleged infringement of the petitioners’ rights and freedoms by the 1st, 3rd and the interested party on the other hand. 4. The nearest the petitioners have pleaded anything against the 2 nd respondent is in paragraph 35 of the petition alleging there has been compromise of the petitioners rights as to protection of private properties and fair administration. 5. Coming to the prayers, in the petition prayer 1 seeks a permanent injunction restraining the respondents and the interested party from hiving off the petitioner’s Parcel No. Ruiri/Rwarera/816 and allocating it to the interested party and secondly a declaration that the petitioners constitutional rights and freedoms have been contravened on account of collusion to subdivide the suit land into Parcels No’s 5254 and 5015. 6. As observed above, the power to adjudicate land is granted to the 1 st respondent as per the Land Adjudication Act Cap 284 and Land Consolidation Act Cap 283 Laws of Kenya. The 1st respondent is not an employee or agent of the 2 nd respondent. The 2nd respondent cannot therefore be held liable or answerable for alleged constitutional infringement of the petitioners land registration rights by the 2 nd, 3rd and the interested party. 7. Rule 5 of the Constitution of Kenya) Protection of Rights and Freedoms) Practice and Protection Rules 2013 grants the court powers to strike out parties who are wrongly joined to a petition. The petitioners have not particularized with a reasonable degree of precision their constitutional complaint against the 2 nd respondent as held in Anarita Karimi Njeru –vs- Republic No. (1) (1979) KLR 154 and Mumo Matemu –vs- Trusted Society of Human Rights Alliance (2014) eKLR. 8. In the premises I find the preliminary objection merited. The 2 nd respondent is hereby struck out of these proceedings. There will be no order as to costs. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 27TH DAY OF OCTOBER, 2021 In presence of: Miss Nyaga for the petitioners Maranya for 2nd respondent Kiety for 1st & 3rd respondents Court Assistant - Kananu
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HON. C.K. NZILI ELC JUDGE
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