Joshua Kathawe & 150 others v Cabinet Secretary Ministry of Lands & 4 others; National Land Commission (Interested Party) [2022] KEELC 2281 (KLR)

ROSE KINYA TOMA .................................................................6 TH PETITIONER STEPHEN MUNGANIA ............................................................7 TH PETITIONER FLORENCE K. KAUYURI .......................................................8 TH PETITIONER STEPHEN LIMBERE ...............................................................9 TH PETITIONER JULIUS KARITHI ...................................................................10 TH PETITIONER GODFREY MITHIKA .............................................................11 TH PETITIONER JULIUS KABIRA …................................................................ 12 TH PETITIONER FRANCIS MWENDA .............................................................13 TH PETITIONER GERALD TULATIA ............................................................... 14 TH PETITIONER JOHN M’ITABARI ELONGI ................................................ 15 TH PETITIONER STEPHEN LAIBUNI ...............................................................16 TH PETITIONER JOHN KUBAI ..........................................................................17 TH PETITIONER JAMES M’IMANYARA ........................................................ 18 TH PETITIONER MERCY MAKENA ................................................................ 19 TH PETITIONER M’MAERIA IMAU …............................................................ 20 TH PETITIONER OSMAN DIMA DUBA .............................................................21 ST PETITIONER ALIOW HASSAN ALI .......................................................... 22 ND PETITIONER ABDI M. JUKA .........................................................................3 RD PETITIONER HUSSEIN GOLICHA GODANA ......................................... 24TH PETITIONER ADAN HASSAN …..................................................................25 TH PETITIONER ADAN BIDO KULA …........................................................... 26 TH PETITIONER ADAN GALMA WAQO ..........................................................27 TH PETITIONER MOHAMED ALI ILMI ..........................................................28 TH PETITIONER ADAN MAMO ELEMA .........................................................29 TH PETITIONER JOEL MUTUKU NDUNDA ...................................................30 TH PETITIONER SHUKRI DENGE KARA ........................................................31 ST PETITIONER MOHAMED BONAYA RACHA...........................................32 ND PETITIONER JAMILA ALI GALGALO ....................................................33 RD PETITIONER DABASO BORU DILA......................................................... 34 TH PETITIONER ABEY ENOY GUYO ............................................................. 35 TH PETITIONER

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MAHAD ADAN SHONE .......................................................36 TH PETITIONER SHARIFF MOHAMED RASHID.......................................... 37 TH PETITIONER BORU ABDI HASSAN .......................................................... 38 TH PETITIONER ADAN GUOY KOTILE ........................................................39 TH PETITIONER ZAINAB ROBA .................................................................... 40 TH PETITIONER YUSSUF WAKO DOGO .......................................................41 ST PETITIONER IBRAHIM KHALIF ALI .....................................................42 ND PETITIONER HALIMA FOFLE HAYOTA ................................................43 RD PETITIONER HUSSEIN KURAA ADANO .................................................44 TH PETITIONER ADAN TARI SASURA .......................................................... 45 TH PETITIONER ABDURAZAK A.W. BONAYA .............................................46 TH PETITIONER ZEINAB ISMAIL SHEIKH ................................................. 47 TH PETITIONER QULAY MOHAMED .............................................................48 TH PETITIONER ADLAY ADAN ........................................................................49 TH PETITIONER MIMINA IBREIN MAALIM............................................... 50 TH PETITIONER SADIA MAALIM HASSAN ..................................................51 ST PETITIONER HAJIRA HASSAN .................................................................52 ND PETITIONER SULTANI ALI .........................................................................53 RD PETITIONER AMINA MOHAMED..............................................................54 TH PETITIONER ISSACK ABDULLAHI ...........................................................55 TH PETITIONER KALTUMA MAALIM ALIOW............................................. 56 TH PETITIONER ADAN AHMED .......................................................................57 TH PETITIONER MOULID ALI DIBA ...............................................................58 TH PETITIONER SOMO BORU ......................................................................... 59 TH PETITIONER HALAKE TADICHA .............................................................60 TH PETITIONER HANA ADAN SAHEY ...........................................................61 ST PETITIONER HAWA ISSAK ABDI ............................................................62 ND PETITIONER HADIJA ALI HASSAN ........................................................ 63 RD PETITIONER FATHUMA ABDI ABDULLAHI ..........................................64 TH PETITIONER ABDI ALLIOW BULLE........................................................ 65 TH PETITIONER

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IBRAHIM ADOW ...................................................................66 TH PETITIONER HAWA ABDULLA ...................................................................67 TH PETITIONER FATUMA IBRAHIM ...............................................................68 TH PETITIONER HALKANO HADHESA........................................................... 69 TH PETITIONER ADANO SALAD KADUBO .....................................................70 TH PETITIONER ABDI WARIO ........................................................................... 71 ST PETITIONER HASSAN ALI BILA ................................................................ 72 ND PETITIONER ALI ABDI....................................................................................73 RD PETITIONER ABDIRAHIM IBRAHIM............................................................74 TH PETITIONER BIDU IBRAHIM BIDU ..............................................................75 TH PETITIONER YUSSUF MOHAMED GALGALO ..........................................76 TH PETITIONER HASSAN MOHAMED ..............................................................77 TH PETITIONER ABDULLAHI MOHAMED GALGALO .................................78 TH PETITIONER MOHAMED HASSAN HUSEEIN ............................................79 TH PETITIONER AMINA MOHAMED WARIO ...................................................80 TH PETITIONER ADAN MOHAMED OSHOW ....................................................81 ST PETITIONER ADEI MOHAMED OSHOW .................................................. 82 ND PETITIONER MADINA WAKO KUTU ...........................................................83 RD PETITIONER MOHAMED ABDI SHUKRI ....................................................84 TH PETITIONER STEPHEN KUBANIA .............................................................. 85 TH PETITIONER KIIYA MBEU ............................................................................ 86 TH PETITIONER STEPHEN GAING’A ............................................................... 87 TH PETITIONER MARTIN LARUI ...................................................................... 88 TH PETITIONER STANLEY KARITHI ...............................................................89 TH PETITIONER MOSES MWONGELA ........................................................... 90 TH PETITIONER FRANCIS MUKARIA ..............................................................91 ST PETITIONER JOHN M’ITABARI .................................................................92 ND PETITIONER DAVID MBURUGU ................................................................. 93 RD PETITIONER FRANCIS MUCHIRI ITHANG’ATHA ..................................94TH PETITIONER KALAINE KACHIUKI ........................................................... 95 TH PETITIONER

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JOSEPH M’TUAILANDU .......................................................96 TH PETITIONER LUCY KANANU...................................................................... 97 TH PETITIONER MARTIN MUTABALI .............................................................98 TH PETITIONER ANN GAITI ...............................................................................99 TH PETITIONER HENRY MUTWIRI CHABARI ...........................................100TH PETITIONER SAMUEL MUTHEE ............................................................. 101 ST PETITIONER M’MUTURA IKURI .............................................................102 ND PETITIONER PETER MWENDWA ........................................................... 103 RD PETITIONER MWETI NGERA .................................................................. 104 TH PETITIONER M’MUIORIA M’IMALANYI .............................................105 TH PETITIONER JEREMIAH LINTARI ........................................................ 106 TH PETITIONER M’ITABARI M’MUTEA ..................................................... 107 TH PETITIONER STANLEY KILINGO ...........................................................108 TH PETITIONER JOHN M’IMUTI ...................................................................109 TH PETITIONER HENRY MUTHOI ................................................................. 110 TH PETITIONER MIKWA MURUNGA ............................................................. 111 TH PETITIONER SIMON THURANIRA............................................................112 TH PETITIONER PETER MUTHEE ................................................................113 TH PETITIONER AGNES NTHAMA ................................................................114 TH PETITIONER WILSON IGWETA ................................................................115 TH PETITIONER SABINA KOBIA ................................................................... 116 TH PETITIONER IRENE NKATHA .................................................................. 117 TH PETITIONER DORCUS KANONGOE ........................................................ 118 TH PETITIONER JAMES KATHAWE................................................................ 119 TH PETITIONER PATRICK MUCHUI ...............................................................120 TH PETITIONER AGNES INO KOBIA ...............................................................121 ST PETITIONER PETER MUGAMBI ............................................................... 122 ND PETITIONER REBECCA KARIMI ...............................................................123 RD PETITIONER JOYCE MAINGI .....................................................................124 TH PETITIONER CHARLES NJILATHIA...........................................................125 TH PETITIONER

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NICHOLAS MWENA ............................................................ 126 TH PETITIONER FRIDAH KARAMBU .............................................................127 TH PETITIONER STEPHEN MURIIRA ............................................................ 128 TH PETITIONER STEPHEN MBERE .................................................................129 TH PETITIONER ANDREW KOBIA .................................................................... 130 TH PETITIONER JAMES KANAKE ......................................................................131 ST PETITIONER JULIUS MURIKI .......................................................................132 ND PETITIONER DANIEL KOBIA ....................................................................... 133 RD PETITIONER HALLARIA MWARI ................................................................ 134 TH PETITIONER MARGARET MWONJARU .....................................................135 TH PETITIONER MOSES THAMBURA............................................................... 136 TH PETITIONER SAMUEL MUTHEE ...................................................................137 TH PETITIONER JAMLICK MUTUA................................................................... 138 TH PETITIONER DAVID MURIRITHIA .............................................................. 139 TH PETITIONER JOSHUA MURITHI ................................................................. 140 TH PETITIONER STEPHEN MBAABU ................................................................ 141 ST PETITIONER JAMES MBIWA......................................................................... 142 ND PETITIONER PETER MUTHEE ......................................................................143 RD PETITIONER JOSPHAT M’MWETI ................................................................144 TH PETITIONER JOSEPH KARANKI .....................................................................145 TH PETITIONER MARTIN LARUI M’ITUMBIRI ................................................146 TH PETITIONER FRANCIS MUTHURI .................................................................147 TH PETITIONER ALAN NDIRITU ..........................................................................148 TH PETITIONER MWATHWANA M’ABURUKI................................................... 149 TH PETITIONER PETER LABUTANI .....................................................................150 TH PETITIONER LUKE MUNGANIA INEBU ........................................................151 ST PETITIONER AND THE CABINET SECRETARY MINISTRY OF LANDS ..............1ST RESPONDENT THE CABINET SECRETARY MINISTRY OF DEFENCE ........2ND RESPONDENT THE CHIEF OF THE KENYA DEFENCE FORCES...................3RD RESPONDENT

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THE DISTRICT LAND AND SETTLEMENT OFFICER TIGANIA EAST DISTRICT ........................................................... 4 TH RESPONDENT THE HON. ATTORNEY GENERAL ............................................ 5 TH RESPONDENT NATIONAL LAND COMMISSION ........................................ INTERESTED PARTY RULING A. APPLICATION 1. The petitioners through an application dated 25.4.2021 brought the under Rules 3 (1), 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, ArticleS 22, 23, 40 and 165 of the Constitution pray for conservatory orders restraining the respondents and theinterested parties from evicting, acquiring, alienating, disposing and in any other way interfering with the petitioners peaceful possession and occupation of the parcel of land situate in Gambella/Ngaremara adjudication area Tigania East District pending the hearing of this petition. The application is supported by an affidavit sworn on 28.4.2021 by Joshua Kathawe. 2. The grounds are that the subject land was transformed from customary land to private land ownership through the declaration of Ngaremara/Gambella adjudication section; the respondents have illegally developed part development plans, deed plans and lease title No’s 27098 and 7019 over the land claiming ownership rights; the respondents have dug a continuous trench and cordoned over 17.535 acres to keep off the petitioners from the land; the respondents are in the process of forcefully evicting and or acquiring the land; there is an alternative land for the respondents vide Gazette Notice No. 3210 of 1977 which the respondents failed to occupy; there are exensive developments belonging to the petitioners and that the respondents are ill intentioned in illegally acquiring the land. 3. In the support of the application, the petitioners have attached annexture marked JK “2”, a letter dated 10.6.2009 requesting the defunct Nyambene County Council for the land and the objection thereof as JK “3”, copy of declaration of the adjudication section dated 11.3.2016 as annexture JK “4”, copy of map showing individual parcel numbers already recorded as JK “5”, respondents interests were also ascertained and noted as JK “6” as comprising 720 acres, gazette notice dated 31.10.1977 as annexture JK “7”. 4. Further, the petitioners rely on degazettement of the parcel the 2 nd and 3rd respondents declined to take up as per Gazette Notice No. 46 of 4.2.2021 as JK “8”, bundle of photographs showing the continuous deep trench as JK “9” and a copy of map showing the respondents earmarked area of influence as JK “10” B. RESPONSE 5. The 3rd respondent has opposed the notice of motion through a replying affidavit sworn by Captain Julius Meso on 28.5.2021. 6. The first reason was that Isiolo Barracks was alienated vide Gazette Notice No. 3210 of 31.10.1997 annexed as JM “1” based on coordinates therein. 7. Secondly, it is stated the 2 nd and 3rd respondents took over possession or occupation of the land in 1970 with 78 Tank Battalion headquartered there of the armored Brigade requiring vast land for training purposes. 8. Thirdly, that the land was surveyed in 2003 following which deed plans and a subsequent lease certificate was issued in favour of the 1 st respondent. He attached the same as anenxture JM “2”, JM “3” and JM “4” respectively. 9. Fourthly, it was averred that the process of constructing high level beacons was initiated and completed in 2019 eliciting no objection from the petitioners. 10. Fifthly, he stated the 2nd and 3rd respondents were aware of the attempts by the Coutny Government of Meru to declare an adjudication section allegedly dubbed Gambella/Ngaremara covering Isiolo Barracks land including the land titled to the 1 st respondent. That they raised an objection causing suspension of the process since it was not practically and legally tenable to do so over land already reserved for public purposes and in which a certificate of title already existed. 11. Sixthly, it was averred a purported land adjudication process could be a basis of the proprietary rights of the petitioners especially where it touches on land reserved for public purposes and which was already surveyed and titled. 12. Seventhly, it was averred the trenching process was for security purposes to deter the threat of Vehicle Borne Explosives Devices(VBEDs). 13. Lastly, the 2nd and 3rd respondents aver there was no fraud in acquiring the land, the setting apart, surveying and tilling was done lawfully and procedurally hence the petitioners had no proprietary worthy protecting by way of conservatory order’s since their alleged loss or damage was qualifiable and compensable in monetary terms notwithstanding the statistics given by the petitioners were not supported by any tangible evidence.

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C. SUBMISSIONS 14. With leave of court, parties were directed to canvass the application through written submissions to be filed by 13.12.2021. It was only the petitioners who complied with the deadline, which submissions are dated 17.11.2021 and filed on 22.11.20221. 15. The petitioners submit they have demonstrated a prima facie case aimed at enhancing their constitutional values and objects of their rights if the reliefs are granted, and if the same are not granted, the substratum of the petition will be rendered nugatory and that it is in the public interest to grant the orders sought. 16. The petitioners rely on:a) Keroche Breweries Ltd & 6 Others –vs- Attorney General & 10 Others [2016] eKLR. b) County Government of Meru & another –vs- District Land Adjudication & Settlement Officer Tigania East Sub-County & 18 Others [2018] eKLR. c) Olympic Sports House Ltd –vs- School Equipment Centre Ltd [2012] eKLR. d) Payless Car Hire & Tour Ltd –vs- Imperial Bank Ltd [2012] eKLR e) Kanorero River Farm Ltd & 3 Others –vs- National Bank of Kenya [2002] 2 KLR 207. D. THE PETITION 17. The application is based on the petition dated 28.4.2021. At paragraph 8, the petitioners aver they are residents and land owners of land parcels within Ngaremara/Gambella adjudication section bringing the petition on their own behalf and on behalf of residents and land owners within Ngaremara/Gambella adjudication area occupying land measuring 17.537 acres since time immemorial which is described as private/individual land. 18. It is averred the land was initially held in trust but in 1972 it was leased to Meru Ranching Cooperative which belonged to the community through the petitioners for purposes of wildlife, cultural and tourism land use and promotion now transformed into an adjudication section with effect from 2016. It is averred the land was adjudication stage and the petitioners had already ascertained their rights, which are recorded and issued with individual parcel numbers, while awaiting the determination of objection if any before issuance of title deed. 19. It is averred the 2 nd and 3rd respondents with no colour of right, are claiming ownership of the entire land and have dug a deep continuous trench cordoning off over 15.535 acres so as to keep off the petitioners from accessing the land and that verbal and stern warnings had been given that they vacate the suit land immediately otherwise unknown consequence would occur to them. 20. The petitioner aver the respondents’ forcefully acquired the suit land, surveyors have been deployed to demarcate the land and that all this has been done without public participation, in total disregard of the private and public institutions and developments on the suit land by the petitioners and this amounts to breach of the petitioners’ constitutional and statutory rights. 21. The petitioners pray for: declaration the suit land comprising approximately 17,535 acres is private and individual land; declaration that acts of the 1st, 2nd and 3rd respondents’ of forceful eviction and entry and or setting up security equipments or facilities or interference with the petitioners peaceful occupation contravenes Article 40 of Constitution and national values and principles and the petitioners’ legitimate expectations; invalidation and nullification of the 1 st, 2nd and 3rd respondents lease titles L.R. No. 27098 and L.N No. 7019 part developments, plants and developments thereof; declaration that the actions and decisions of the 1 st, 2nd and 3rd respondents in respect of petitioner’s parcels of land within Ngaremara/Gambella adjudication area to move into the suit land are unconstitutional; consertatory order restraining the 1st, 2nd and 3rd respondents from evicting, entering into, remaining, acquiring, maintain possession, use occupation, alienating and or in any way interfering with the petitioners’ quiet possession and enjoyment of their properties; prohibition against the intended forceful acquisition and or dealing with the petitioners’ property and declaration that the process procedures and manner employed by the 1 st respondent to alienate the whole of the petitioners’ property in favour of 2 nd and 3rd respondents is contrary to law. E. ANSWER TOPETITION 22. In response to the petition, the 2nd and 3rd respondents have sworn a replying affidavit by Captain Julius Meso on 4.11.2021. 23. The first ground is that the issues raised by the petitioners are substantive issues of law and evidence regarding whether Part Development Plans, deed plans and title deed in respect to L.R No’s 27098 and 7019 were acquired lawfully which cannot be determined through a Constitutional Petition without occasioning miscarriage of justice and prejudice to the respondents. 24. The second issue is that the issues raised in paragraph 17, 19, 20, 21, 22, 23 (1), 33 (3) and 33(4) of the petition as to validity of titling Constitutional issues hence the petition are not an abuse of the court process. 25. The third ground is that the petition does not specify any alleged Constitutional provisions and the manner of breach hence greatly prejudices the respondents to offer a substantive response thereof.

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26. The fourth response is that the respondents deny that the subject land has been private land since time immemorial and aver the petitioners have concealed the legal evolution of the land in that the land was by Gazette Notice No. 3210 of 31.10.1977 reserved for the Armed Forces with clear delineations and demarcations of the land as described in the Gazette Notice complete with coordinates and physical features ascertainable on the ground by the court. The notice is annexed as JM 1 A – E. 27. The fifth ground is that the Ministry of Defence has been in continuous use and occupation of the land since 1970, the first documentation of the land being the setting apart in 1977 and given that the interest in the parcels of land have been with the Armed Forces, by dint of reservation, use and occupation in 1970, it is apparent the alleged declaration for an adjudication section over the land in 2008 was void ab-initio and that the land could not possibly transform from customary land to private land as alleged in paragraph 15 of the petition. 28. The respondents continue to state the land, in view of the history above falls under Article 62 (1) (a) and 1 (b) of the Constitution as at the effective date of the Constitution, it was public land for all intentions and purposes. That when they became aware of the alleged efforts by the County Government of Meru to declare it an adjudication section, an objection was lodged resulting in the suspension of the process. Consequently the petitioners in law and in fact could not possibly allude to any proprietary rights from a process which never commenced and or was incomplete and which in any event was extinguished by operation of law and the Constitution. Therefore, it could not override pre-existing interests in land. 29. Further, the respondent’s aver the setting apart and the acquisition on their part was regular, lawful and the leasehold title 12 213242 for 99 years effective from 1.11.2000 over L.R 27098 for the land A.K.A. 78 Tank Battalion, measuring 8223 ha. and L.R No. 750 was issued regularly and that the ongoing survey, beaconing, fencing, tilling or otherwise regularization by the 1 st respondent came up at the wake of the realization that the suit property was at the verse of being illegally grabbed by intruders including the petitioners herein. 30. Similarly, the respondents aver the re-establishment of beacons and the construction of high level reference beacons was done in 2018 and there were no objections from any of the petitioners. 31. The respondents aver the use of the land is for purely public purposes being training for purposes of preparing the Defence Forces to execute their mandate of defending the sovereignty and territorial integrity of the Republic of Kenya as mandated under Article 341 of the Constitution contrary to allegation of private use in paragraph 26 of the petition. Additionally, the respondents aver the petitioners have no right of use and occupation of vacant land set aside for military use that they wrongly deemed abandoned or up for grabs. 32. It is averred the 2nd respondent has been in use and occupation and the petitioners and others have allegedly illegally occupied and used the suit property and now want to use the court’s intervention to divest the 1 st respondent of the right to and interest in the suit property, which attempts to put national security and safety in jeopardy as it will affect the critical military training and that, though to an ordinary citizen the land appears vast, the parcels are functionally small given the nature of equipments used for training on the respective parcels. 33. The respondents aver the title in favour of the armed forces cannot be invalidated on account of public participation since the interest of Ministry of Defence pre-existed the interest of allegedly conferred by the alleged adjudication process. Again the respondents state a false and fictitious data at paragraph 24 of the petition allude to grabbers who are encroaching public land to seek to reap where they have not sowed and have come to court with unclean hands. That there is nothing unlawful in the fencing and trenching in the interests of the larger public by preserving public land meant for use by the defence forces. F. ISSUES FOR DETERMINATION 34. The issue commending themselves for determination are:a) If the petitioners are entitled to conservatory orders. b) If the petition meets the threshold of a Constitutional Petition. G. COSNTITUTIONAL MANDATE 35. Article 165 2 (B) mandates a High Court the jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. 36. Articles 21, 22 and 23 grants the High Court powers and authority to implement, uphold and enforce the bill of rights and grant appropriate reliefs such as declaration of rights, injunctions, conservatory orders, declaration of invalidity of any law, order for compensation and orders of judicial review. 37. Article 22 (3) mandates the Hon. Chief Justice to make rules to guide courts proceedings under this Article. 38. Through L.N. 117/2013, the Hon Chief Justice passed the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. 39. Rule 10 requires a petition to disclose the name and address of the petitioner, facts relied upon, Constitutional provisionS violated, nature of cause or likely to be caused, details of civil or criminal cases pending; signatures and reliefs sought. 40. Rule 11 requires a party to support his petition through an affidavit and is mandated under Rule 11 (2) to attach any document(s) he may wish to rely upon.

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41. Rule 15 requires the Hon. Attorney General or any state organ within 14 days to respond by way of a replying affidavit and attach any documents to rely upon to the replying affidavit. 42. Rule 23 grants the court powers to issue conservatory or interim orders for an application made by way of notice of motion or by informal documentation. 43. The petitioners urge this court to issue conservatory orders. The threshold for conservatory orders was established by the Supreme Court of Kenya in Gatirau Peter Munya –vs- Dickson Mwenda Kithinji & 2 Others [2014] eKLR. “Conservatory orders be a more decided public – law connotation; for these are orders and facilitate ordered functioning within public agencies, as well as uphold the adjudicatory authority of the court, in the public interest. Conservatory orders therefore, are not, unlike interlocutory injunctions linked to such private – party issues as “the prospects of irreparable harm” occurring during the pendency of a case or high probability of success …….” Conservatory orders, consequently should be granted on the inherent merit of a case bearing in mind the public interest, proportionate magnitudes and priority levels attributable to the relevant causes.” 44. In Centre for Rights Education & Awareness (CREAW) and 7 Others –vs- Attorney General [2011] eKLR , the court held a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution. 45. In Board of Management of Uhuru Secondary School –vs- City County Director of Education & 2 Others [2015] eKLR , the court held it was not enough to show an arguable case for one to be granted conservatory orders but must go ahead and demonstrate evidence of likelihood of success beyond speculative basis frivolous, grumbles, fanciful, hopeless, offensive, lacking bona fides, embracing, ambiguous, unintelligible or states immaterial matters prejudicing fair trial. 46. Coming back to the petition, as stated above, the 2013 Rules provides for the format of a constitutional petition. 47. The petitioners to be entitled to a grant of conservatory orders must demonstrate that the substantive petition is hinged on a claim that a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened as held in Hon. Kanini Kega –vs- Okoa Kenya Movement & 6 Others [2014] eKLR. 48. The petitioners have raised issues that the respondents have embarked on the process of forcefully evicting and or cordoning of their parcels of land in Ngaremara/Gambella adjudication section with a view of alienating their parcels of land whose interests and rights have been ascertained and parcel numbers issued to them. 49. Other than a notice to establish Ngaremara/Gambella Adjudication Section in Gambella location Amuthumba Division, Tigania East Sub-County dated 24.2.2016 by the Sub-County Land Adjudication & Settlement Officer Tigania Sub-County and an unauthenticated map attached to the petition, the petitioners have not provided this court with any material to show when their alleged claims to land were recorded by the demarcation officer under Section 13, or a copy of adjudication register under Section 23, demarcation map under Section 24 and or a published notice of the process for objections under Section 3 (1) of the Land Adjudication Act Cap 284 Laws of Kenya. 50. The petitioners have annexed a letter dated 7.7.2008 relating to setting apart for military use PDP Ref. MN/2150/01/004 A and B. 51. The 1st , 2nd and 3rd respondents aver they lawfully and legally acquired the title to IR 213242 L.R 27098 dated 1.11.2000 which is attached as annexture JM “3” to the replying affidavit sworn by Captain Julius Meso on 4.11.2021. 52. The certificate of title was sealed on 14.10.2019 both under the Land Registration Act 2012 and the Land Act 2012. It was as a culmination of a process of setting apart in line with Sections 8, 9 and 69 of the Trust Land Act. The setting apart started with a by Gazette Notice No. 3210 dated 31.10.1977 under the Trust Land Act Cap 288 in favour of the 1st respondent. 53. Under Sections 24, 25 and 26 of the Land Registration Act, a certificate of title is to be taken by a court of law as a prima facie proof of ownership in favour of the designated proprietor except on account of fraud, illegality, mistake or misrepresentation. 54. The petitioners have not pleaded fraud, illegality, misrepresentation or mistake in the manner in which the respondents took possession, occupation and or acquired the land. 55. The petitioners seek for consertatory orders to stop the respondents from enjoying their rights as title holders which are protected under Sections 24, 25 and 26 of Land Registration Act, the Land Act and Article 40 of the Constitution. The petitioners have not adduced any evidence to show they have had their rights if any, ascertained and or recorded under the Land Adjudication Act Cap 284, if at all the notice to declare an adjudication section for Ngaremara/Gambella was legal and or valid. 56. In Mrao Ltd –vs- First American Bank of Kenya Ltd& 2 others[2003] eKLR, court held a prima facie case is established if on material presented before a tribunal a right is established to have been infringed so as to call the other party for a rebuttal. 57. The petition does not indicate the constitutional rights or freedoms which are denied, infringed, and threatened to the petitioners by the respondents

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58. Over and above that the petition does not give particulars of injury occasioned and or likely to be incurred at all as in Martin Nyaga Wambora –vs- Speaker of the County Assembly of Embu & 3 Others [2014] eKLR, the court held the danger must be real, imminent, evident, true, actual and not fictitious such that it deserves immediate remedial attention or redress by the court. The court held an alleged threatened violation that is remote or unlikely will not attract the court’s attention. 59. The petition is directed at the 1 st, 2nd and 3rd respondents as holders of title deeds issued by the Chief Land Registrar. The petitioners have not sued the issuer of the title deeds and perhaps questioned the manner or legality on which the titles were issued. 60. Having found the 1st and 2nd respondents have valid title deeds, the next question is under what basis the petitioners are occupying the land so as to allege that their rights have been infringed, violated and or threatened. 61. Sections 152 A and 155 of the Land Act prohibits any person from unlawfully occupying public, private or community lands. Sections 152 C and 152 D & E Land Act provides the manner of carrying out eviction from public, community and private land. 62. Under Section 152 any person served with a notice under the above Sections, has a right to seek relief in court. Similarly, under Sections 152 (G), there are mandatory procedures during the eviction. 63. As regards public land, the mandate to issue the notice is bestowed upon the National Land Commission under Section 152 (C) of the Land Act. Section 155 of Land Registration Act sets up an elaborate process to be undertaken before the court’s jurisdiction is invoked under Section 155 (10) of the Act. 64. Additionally, Rules 63, 64, 65, 66, 67, 68 and 70 of the Land Regulations 2017, the procedures and manner of eviction which have to be adhered to by any person(s) or bodies intending to evict illegal occupants from their parcels of land is set up 65. From the foregoing, it is evident the petitioners have not made any complaints as regards the alleged forceful eviction if any in so far as the statutory provisions above. There is no evidence presented before this court of any notice of eviction by the 1 st, 2nd and 3rd respondents. 66. Further, there is no evidence that the petitioners have any legal, valid or superior title over and above the ones held by the 1 st, 2nd and 3rd respondents. 67. Thirdly, there is no doubt whatsoever the land belonging to the Kenya Defence Forces falls under protected area as established under Article 241 of the Constitution whose responsibility is for defence and protection of the sovereignty and territorial integrity of Kenya. 68. Further, there is no material before the court that the petitioners have lodged a complaint with the National Land Commission over any alleged forceful eviction for investigations and reprieve. 69. In Centre for Rights Education & Awareness CREAW & Another –vs- Speaker of the National Assembly & 2 Others [2017] eKLR, the court held the purpose of conservatory orders is to prevent violation of rights and fundamental freedoms and to preserve the subject matter pending hearing and determination of the petition. 70. The respondents have valid title deeds unlike the petitioners who have nothing to show that they are entitled to the subject land. The legality of the title deeds has not been pleaded in terms of Section 24, 25 and 26 of the Land Registration Act. The mere fact that the petitioners have brought a petition does not entitle them conservatory orders as a matter of right. 71. On the issue of irreparable loss and damage, the petitioners have alleged undertaken developments on the suit land. Be that as it may, the developments therein if any are quantifiable and able to be compensated by way of damages. 72. The real damage or loss the petitioners’ are likely to suffer or prejudice must be balanced against the public interest and security implications pertaining to the respondents’ parcels of land. 73. Similarly, on the balance of convenience, I find the same tilts in favour of the respondents who have a superior title to the land. 74. In the premises, the application 25.4.2021 is dismissed with no orders as to costs. 75. Parties to comply with Order11 and list the matter for hearing within 45 days from the date hereof. Orders accordingly DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 9TH DAY OF FEBRUARY, 2022 IN PRESENCE OF: KIETI FOR 1ST, 4TH AND 5TH RESPONDENTS MISS GITONGA FOR PETITIONER

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MISS AYUMA FOR MUGIRA FOR 2ND AND 3RD RESPONDENTS COURT ASSISTANT – KANANU HON. C.K. NZILI ELC JUDGE

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