Yenko & 2 others v Kenya Wildlife Service & 5 others (Environment and Land Petition E003 of 2025) [2025] KEELC 8646 (KLR)

RULING 1. The matter for determination is a Notice of Motion Application dated 25th February 2025, filed by the Petitioners/Applicants herein, which Application is brought under Rules 3, 4, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 Articles 1, 3, 21, 23 and 165(3) (b) of the Constitutional of Kenya seeking for the following orders; i. Spent ii. Spent iii. The Respondents be restrained by interim conservatory orders whether by themselves, their servants, agents, or anyone authorized on their behalf from entering onto, alienating, or interfering with the petitioners' ownership, possession, and use of LR Number Narok/CISMara/Olokurto/1091, pending the hearing and determination of this Petition and or for further orders of this court iv. That costs be provided for. v. For further orders as the court may deem fit and just to grant. 2. The Application is premised on the grounds stated on its face and the Supporting Afidavit of Maripet Ole Yenko, the 2nd Petitioner/Applicant herein. 3. Among the grounds in support of the Application are; the Petitioners/Applicants were lawfully allocated the suit property (LR NO.Narok/Cis Mara/Olorkuto/1091), after observing all the legal procedures and were issued with a Title Deed which was duly registered in accordance with the Land Registration Act (No.3 of 2012, section 108);that before the Title Deed was issued by the Land Registrar Narok, the suit property was surveyed and a Deed Plan was issued by the Director of Surveys; there was no encroachment to any public utility and/or Way Leave; the title deed was issued to the Petitioners/Applicant free from any encumbrances. 4. In the Supporting Afidavit, Maripet Ole Yenko, which he swore on his behalf and on behalf of the other Petitioners/Applicants, he outlined the Petitioners/Applicants' claim as registered co-owners of LR Number Narok/CIS-Mara/Olokurto/1091. He emphasized the indefeasibility of their title under Article 40 of the Constitution and also detailed the events of 10th February 2025, wherein he alleged that the agents of the 1st, 2nd and 3rd Respondents acting on the request of the other Respondents allegedly trespassed onto the suit property in company of hirelings and wantonly, damaged crops, and planted beacons without notice to the Petitioners/Applicants, causing significant losses and distress upon the Applicants herein. 5. The Petitioners/Applicants further averred that the Respondents acted arbitrarily and unlawfully, denying the Petitioners/Applicants their constitutional rights to property, and fair administrative practices. He further claimed that the Respondents have not initiated any legal process for compulsory acquisition of the suit property nor provided any notice or compensation. He annexed photographs and documents to support their claim, and requested urgent intervention to prevent further dispossession and to uphold their constitutional rights. 6. The application is opposed through the Grounds of Opposition filed on 20th March 2025, by Diana Sigei Advocate, on behalf of the 1st Respondent, Kenya Wildlife Service. The 1st Respondent argued https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 2

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that the instant Application and Petition do not disclose or raise any reasonable cause of action against the 1st Respondent. Further, the 1st Respondent asserted that it has no interest or claim over the suit property, which suit property does not fall within its mandate of conserving and managing National Parks, Wildlife Conservation areas, and sanctuaries. 7. The 1st Respondent further contended that the orders sought by the Petitioners/Applicants are not directed against it and that its presence in these proceedings is unnecessary for resolving the matter. Consequently, the 1st Respondent urged the Court to strike it out of the proceedings, as it is not a proper or necessary party to the case. 8. On 23rd March 2025, the Petitioners/ Applicants filed Certificate of Urgency, and alleged that the Respondents had unlawful interfered with their suit property by trespassing, planting beacons, and damaging crops, which has caused significant losses and distress to the petitioners. The certificate underscored the urgency of the matter, stating that immediate intervention was required to prevent further dispossession and irreparable harm to the petitioners' property rights. 9. The Application was canvassed by way of written submissions. The Petitioners/Applicants submitted that the instant Notice of Motion Application raises issues of interference of Petitioners’ ownership and use of the suit property which the 1st Respondent alludes to neither forming part of its property nor falling within its mandate of conserving and managing National park, Wildlife conservation areas and sanctuaries, and thus the 1st Respondent averred that it has no interest and/or claim over the suit property. 10. However, the Petitioners’ submitted that the employees of the 1st Respondent were involved in interference with the Petitioners’ property thus raising and/or disclosing a cause of action against the 1st Respondent. The Petitioners/Applicants raised the following issues for determination; i. Whether the 1st Respondent should be struck out of the proceedings ii. Whether the Petitioners’ Notice of Motion has merit 11. On whether the 1st Respondent should be struck out of the proceedings the Petitioners/Applicants submitted that the 1st Respondent is a necessary party to the proceedings, and its presence will enable the court efiectively and completely adjudicate over the matter. They further submitted that the merits and demerits of the claims against the 1st Respondent cannot be summarily decided through this application. Reliance was made in the case of DT Dobie and Company (K) Ltd vs Joseph Mbaria Muchina & Another (1982) KLR 1. 12. On whether the Petitioners’ Notice of Motion has merit the Petitioners/Applicants submitted that they are jointly registered proprietors and registered owners of all the property known as L.R. No. Narok/Cismara/Olokurto/1091 (the suit Property). 13. It was the Petitioners/ Applicants further submission that the Respondents have unlawfully interfered with their property rights by trespassing, planting beacons, and damaging crops without following due process or providing compensation. The Petitioners/Applicants also submitted that the Respondents' actions are arbitrary, illegal, and in violation of their constitutional rights, including the right to property and fair administrative action. 14. They further submitted that they have sought conservatory orders to prevent further interference and claim damages for the violation of their rights. The Applicants submitted on the importance of protecting their property rights under the Constitution and requested the court to uphold the rule of law by granting the orders sought in the instant Notice of Motion. Reliance was sought in cases of Maathai & 2 others vs City Council of Nairobi &amp 2 others (1994) 1KLR(E & https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 3

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amp;L), Zacharia Onsongo Momanyi vs Evans Omunwa Onchagwa [2014]eklr and provision of Land Registration Act 2012 Laws of Kenya Section 26,(1). 15. On its party, the 1st Respondent, Kenya Wildlife Service, filed its submissions dated 30th June 2025 through Diana Sigei Advocate. It submitted that it is a body corporate established under the Wildlife Conservation and Management Act, 2013, with specific functions related to wildlife conservation, including managing national parks, wildlife conservation areas, and sanctuaries. 16. The 1st Respondent raised one issue for determination being whether it should be struck out of the proceedings. It was its submissions that the suit property does not fall within its mandate, and that it has no interest or claim over the said property. It argued that the Petition does not disclose any cause of action against the 1st Respondent, and that the orders sought by the Petitioners can be enforced without its presence. 17. Further, the 1st Respondent urged the court to strike it out from the proceedings, as it is not a necessary party, and further emphasized that its inclusion in the case is improper and that the Petitioners have not demonstrated any direct or real interest in the reliefs sought against the 1st Respondent. 18. The 1st Respondent reiterated that it is not a proper or necessary party to the suit, and prayed for the court to strike it out from the proceedings with costs. It relied several decided cases among them being; Laisa Mpoye & 2 others vs Kajiado Central Milk Project “The Board” and 5 others (2012) eklr, Alumark Investment Limited vs Tom Otieno & 4 others ELC Civil Suit No. 119 of 2014 eklr and Elisheba Muthoni vs Nicholas Karani Gichoe and 2 others (2014) eklr. 19. The 2nd, 3rd 4th and 6th Respondents filed their submissions dated 8th October 2025, through Noele Kirwa Senior State Counsel, wherein they argued that the Petitioners' claims are speculative, baseless, and non-justiciable. It was submitted that the 2nd Respondent, Kenya Forest Service, acted within its mandate under the Forest Conservation and Management Act, 2016, which includes conserving and managing public forests. Two issues were raised for determination; i. Who is the owner of Narok/Cis-Maasai Mau Forest? ii. Whether Conservatory Orders should be granted? 20. On who is the owner of Narok/Cis-Maasai Mau Forest they submitted that the suit property, LR No. Narok/CIS-Mara/Olokurto/1091, falls outside the Maasai Mau Forest reserved land, and it does not claim ownership of the property. 21. On whether Conservatory Orders should be granted the Respondents argued that Conservatory Orders are unnecessary as the suit property is not part of the forest, and the Petitioners/Applicants have failed to demonstrate any violation of their constitutional rights. They urged the court to dismiss the instant application with costs, and emphasized that the Petitioners/Applicants have not provided suficient evidence to support their claims of constitutional violations or interference with their property rights. 22. The Respondents relied in the various decided cases among them; Platinum Distillers Limited vs Kenya Revenue Authority [2019] KEHC 9419 (KLR), Supreme Court in Gitarau Peter Munya vs Dickson Mwenda Kithinji & 2 others [2014] eklr and Anarita Karimi Njeru vs Republic (1979) KECA 12 KLR. 23. The 5th Respondent herein the County Government of Narok, did not Enter Appearance nor participate in the instant Application, and thus the court will determine the matter without its input. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 4

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24. The above are the grounds for and against the instant Application and the objection to the inclusion of 1st Respondent as a party to this court. The court has considered the rival written submissions and finds the issues for determination are; 25. The issues for determination are; i. Whether the 1st Respondent should be struck out of the proceedings; ii. Whether the Petitioners/Applicants Application is merited. I. Whether the 1st Respondent should be struck out of the proceedings. 26. This is Constitutional Petition and the provisions of the Civil Procedure Act and Rules do not apply. Therefore, in determining this issue the court will not consider the principles for striking out as set out in Order 2 Rule 15 of the Civil Procedure Rules. 27. However, the court will be guided by established legal principles and rules of procedure, while exercising its discretion judiciously to ensure the fair administration of justice. This rules of procedures and principles are set out in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules). 28. Further, the court will bear in mind that the power to strike out a party is a drastic measure or is considered to be draconian, and is used sparingly, only in clear and exceptional cases where the court is convinced that the case cannot succeed or is an abuse of the court process. 29. The court has discretion to strike out a party to a Petition as provided by Section 5(d) of Part II on the Procedure for instituting Court proceedings, if the court is convinced that such a party was wrongly joined in the Petition. 30. The said section states as follows; The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just— 31. i. order that the name of any party improperly joined, be struck out; and ii. that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added. Further the said section sets the principles to be considered while determining whether or not to strike out a Party from the proceedings being; The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties— a. Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties. b. A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute. c. Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 5

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32. Courts have expounded on the above principles, and the main principles that guide courts while considering whether to strike out a party from the proceedings or nor are; i. Necessity of the party's presence: would the presence of the party be necessary for "efiectual and complete adjudication of the dispute? Would such presence enable the court to settle all questions involved in the matter”? If the court would determine that such party’s presence is not necessary for the just and complete determination of the case, the court may struck it out. ii. Misjoinder or non-joinder of parties: The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules) provide that a Petition shall not be defeated merely by reason of the misjoinder or non-joinder of parties, and the court may order the name of any party improperly joined to be struck out at any stage of the proceedings. iii. Reasonable cause of action: The court has a duty to assess whether the petition discloses a reasonable cause of action against the said party. If the averments in the petition do not show any liability or claim against that particular party, or if the case is "manifestly hopeless" and unarguable, that party may be struck out. iv. Scandalous, frivolous, or vexatious proceedings: The court has the power to strike out a party if their inclusion in the suit is scandalous, frivolous, or vexatious, or if it may prejudice, embarrass, or delay the fair trial of the action. v. Abuse of court process: If the inclusion of a party is an attempt to use the court for an ulterior motive not recognized as legitimate by law, the court will not allow its process to be wrongly used, and may strike out the party. vi. Overriding objective and access to justice: The court will exercise its discretion while taking regard to the overriding objective of the legal process, which includes facilitating the just, proportionate, and timely resolution of cases. The court will also consider the constitutional right to access to justice and the need to ensure that litigants are not driven away from the seat of justice without a full hearing except in very exceptional circumstances. vii. Availability of alternative remedies: The court will also consider whether the issues raised against a specific party could be more efiectively dealt with in another forum or under a difierent legal regime. Where there exists a suficient and adequate alternative avenue to resolve the dispute, the court may decline to entertain the matter in a constitutional Petition. 33. It is trite that a decision on whether to strike out a party or not, is a matter of the court's discretion, which discretion must be exercised judiciously, based on sound legal principles and the specific circumstances of each case to ensure justice is served. See the case of Kingori vs Chege & 2 Others 2002 2 KLR 243. 34. This court will consider all the above principles, and the argument of the parties to arrive at its determination. It is the averments and submissions of the 1st Respondent that the Petition herein discloses or raises no cause of action against it, as it has no interest over the suit property and there ID no issue for determination between the 1st Respondent and the Petitioners/Applicants. 35. The Petitioners submitted that the 1st Respondent is a necessary party to the proceedings, and in asking the court to strike it out, then the court is called out to go into the rigorous exercise of trying to determine whether the Petitioners have a proper case against the Respondents, by assessing the available evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 6

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36. The court has considered the Petition herein and on Para 5, the Petitioners alleged that the Respondents herein without authority and in fiagrant breach of the constitutional rights of the Petitioners trespassed onto their property and planted beacons, and destroyed their crops thus causing colossal damage. 37. The Petitioners have collectively accused the Respondents of carrying out activities that have breached the constitutional rights of the Petitioners to own property and thus have interfered with their right to quiet enjoyment of the suit property. 38. At this stage, the court is not privy to the kind of evidence that the Petitioners will avail against the 1st Respondent, and cannot hold with certainty that the Petitioners have not disclosed any cause of action against the 1st Respondent. 39. The court concurs with the Petitioners that by asking the court to strike out the 1st Respondent from the proceedings, it is tantamount to asking the court to scrutinize the available evidence against the 1st Respondent, which is premature as such evidence can only be availed during the full trial. 40. This court will be guided by the holding in the case of D.T. Dobie & Company Kenya Limited versus Joseph Mbaria Muchina & Another [1980] eKLR, where the court held: “ No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.” 41. Considering the above principles that guides the court in considering whether to strike out a party or not, this court finds that it is not evident that the 1st Respondent was wrongly joined in the suit. striking it out at this stage is premature. The Petitioners should be given an opportunity to avail the evidence they have against the 1st Respondent, and thereafter, the court will determine whether the Petition is merited or not. 42. Therefore, the court declines to strike out the 1st Respondent from this proceeding. II. Whether the Petitioners/Applicants Application is merited? 43. The Petitioners/Applicants have sought for conservatory orders to restrain the Respondents from entering, alienating or in any manner interfering with the Petitioners ownership of land parcel No. Narok/Cis-Mara/Olokurto/1091, pending the hearing and determination of the Petition. 44. Conservatory orders are orders issued by the court for purposes of maintaining status quo of a matter to preserve the subject matter until a petition is heard and determined. These are judicial remedies granted to protect constitutional rights or prevent a case from becoming a meaningless exercise. In order to obtain such Conservatory orders, the applicant must demonstrate that it has an arguable case; demonstrate that it will likely to sufier prejudice if the orders are not granted, and that it's in the public interest. 45. Basically the purposes of conservatory orders are to preserve the subject matter of a case while it is being litigated. These Conservatory orders are a crucial tool for protecting constitutional rights and ensuring that the final outcome of a case is not rendered meaningless or nugatory. 46. The conditions to be considered while determining whether to grant or not to grant conservatory orders are; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 7

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47. i. An applicant must generally show that: ii. There is an arguable prima facie case. iii. They are likely to sufier prejudice if the order is not granted. iv. The court considers the public interest. In the case of Board of Management of Uhuru Secondary School vs. City County Director of Education & 2 Others [2015] eklr, the court set out the principles as follows; i. The Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he/she is likely to sufier prejudice. ii. The Court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights. iii. Whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. iv. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion 48. It is therefore clear that a party seeking for conservatory orders has a duty is to demonstrate that should the court fail to grant a conservatory order, there is a high probability that he will sufier prejudice as a result of the violation or threatened violation of the Constitution. However, this must be weighed against public interest. 49. Have the Petitioners/Applicants satisfied the above conditions? From the available evidence, the Petitioners/Applicants are the registered owners of the Land Parcel No Cis Mara/Olokurto/1091 as is evident from the copy of the title deed attached thereto. Therefore, they are primafaciely the indefeasible and absolute owners of the said property. See section 26 of the Land Registration Act. 50. As the absolute owners, their right to own and enjoy the suit property can only be defeated by operation of law as provided by Section 25 of the Land Registration Act, which states; “ 1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever.” 51. The Petitioners/Applicants have averred and submitted that on 10th February 2025, the Respondents trespassed on their suit property and planted beacons and destroyed their crops thus infringing on their right to own property. 52. The Petitioners/Applicants also alleged that their suit property is not on any public utility and the Respondents have not compulsorily acquired it, and thus the actions of the Respondents was illegal and conservatory orders should be issued. 53. On their party, the Respondents submitted that the Petitioners/Applicants do not deserve the conservatory orders. the 1st Respondent did not deny the trespass, but just sought to be struck out of the proceedings as the Petition discloses no cause of action against them, which application has been declined by the court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 8

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54. The 2nd, 3rd, 4th and 6th Respondents submitted that the 5th Respondent was issued with a title deed for Narok /Cis Maasai Mau Forest/1, measuring 41,523.7651 Hectares. They further submitted that the Petitioners/Applicants Land parcel No Cis Mara/Olokurto/1091, according to the survey map falls outside Maasai Mau Forest reserve land. it was their submissions that the 2nd Respondent does not claim the Petitioners land, and is not break any law. 55. If that is the case, why did the Respondents plant beacons on the Petitioners/Applicants land? The Petitioners/Applicants have title deed for the suit property, which was issued on 7th May 2024. They have alleged that the Respondents have trespassed unto their suit land, and have planted beacons and prevented them from utilizing their parcel of land. 56. It is clear that the dispute herein is over the boundary of land parcel No. Cis Mara/Olokurto/1091, which is owned by the Petitioners/Applicants and Narok Cis Maasai Mau Forest/1, wherein the 2nd Respondent is engaged in the forest conservation. This boundary dispute needs to be resolved once and for all. 57. However, before the said boundary dispute is resolved, there is need to maintain the status quo, and the status quo is that the Petitioners/Applicants should continue utilizing the suit property as before, until the petition is heard and determined. 58. Bearing in mind the holding of the Supreme Court in the case of Gitarau Peter vs Dickson Mwenda Kithinji & others (2014) KESC 30 (KLR) 2ND April 2014) Ruling, that of Conservatory orders are granted on the inherent merit of the case, bearing public interest and constitutional values and the proportionate magnitude, this court finds that it is prudent to maintain the status quo pertaining before the alleged ofiensive actions of the Respondents herein. 59. Consequently, the court finds and holds that the Petitioners/Applicants are deserving of the t conservatory orders as sought in Prayer No.3 of the Notice of Motion dated 25th February 2025. Further, the Applicants are awarded costs of this Application. 60. On any other prayers that the court may deem fit to grant, the court finds that the Petitioners/ Applicants have a title deed issued on 7th May 2024, which has not been cancelled. It was issued by a government agent being the Ministry of land. There is also Title No Cis Maasai Mau Forest/1, which was issued on 3rd April 2025. 61. The Land Registrar and the County Surveyor are directed to visit the disputed area and prepare a report on the actual boundaries of the two titles. Was the area planted with beacons part of the land owned by the Petitioner herein? 62. In a nutshell, the court allows the Petitioners/Applicants prayer No 3, with costs to the Applicants. The County Land Registrar and County Surveyor to visit the disputed area and prepare a Report as directed above. It is so ordered DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 10TH DAY OF DECEMBER 2025 L. GACHERU JUDGE Delivered online in the presence of Elijah Meyoki - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 9

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Mr. Otieno for the Petitioners/Applicants M/s Sigei for the 1st Respondent N/A for 2nd, 3rd. 4th & 6th Respondents N/A for 5th Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8646/eng@2025-12-10 10

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