Mwaura & 4 others v Cabinent Secretary Ministry of Land, Public Works Housing and Development & 3 others

3. A declaration that titles resultant from all subsequent sub-divisions on Muguga/Gitaru 382 be and are hereby revoked. The title be reverted to mother title Muguga/Gitaru 382. The Registrar, Kiambu Land Registry to eect the revocation and the reversion. 4. A declaration that the actions by the Respondents are un-procedural, illegal and unconstitutional for want of compliance under Article 63 of the Constitution and Community Land Act, 2016 and all other enabling laws. 5. A declaration that all the actions taken by the Respondents in contravention of the Community Land Act, 2016, Article 40 of the Constitution and Article 26, 32 (1) and (2) of the UN Declaration of Rights of indigenous people are unconstitutional and therefore null and void ab initio. 6. A declaration that the failure by the Respondent to comply with mandatory provision of Public private partnership Act and National Environmental Management Act is unlawful and illegal. 7. A declaration that all the actions taken by the Respondents procedural, illegal, null and void ab initio for want of compliance with provisions to the Public private partnership Act and National Environmental Management Act, Environmental (impact assessment and audit) regulations, Community Land Act, 2016 and Land (assessment of just compensation) rules 2017 and all other enabling laws 8. A declaration that the failure by the Respondents to comply with the mandatory provisions of the Fair Administrative Action Act No. 4 of 2015 is unlawful and thereby null and void 9. A declaration that the all the actions taken by the Respondents in contravention of the Fair Administrative Act oends Article 10, Article 35 (1) and (3) 26, 28, 42, 227 of the Constitution and Article 26, 32 (1) and (2) of the United Nations Declaration of Rights of indigenous people are unconstitutional and therefore null and void ab initio. 10. An order of permanent injunction restraining the Respondents or their agents jointly, severally, restraining them whether by themselves, their agents, servants, representatives, assignees and/ or whosever acting under their instructions/directions from entering, mapping surveying, subdividing and delineating carrying out excavation or constructions on community land, land parcel land Muguga/Gitaru 382. 11. Costs of this Petition. 2. Briey, the facts leading to this dispute as averred in the Petition, are that on 9th, 11th, 14th and 16th February, 2024, the 1st Respondent without any approval or authority or consent from Mbari ya Mutego or without any Court Order invaded the suit property which is ancestral community land belonging to Mbari ya Mutego and the 1st to 4th Petitioners and started demolishing homes on the suit land, surveying and subdividing the community land, fenced o the community land and commenced excavating the community land. 3. That the community namely Mbari ya Mutego and the Petitioners were not involved and they have not given consent, authority or approval in alienation, surveying, sub-dividing and/or conversion of Mbari ya Mutego and the Petitioner’s ancestral community land to public/private land by the Respondents. At the same time there was no public participation as required under Article 10 of the Constitution and Article 32 (1) and (2) of the United Nations declaration of rights of indigenous people. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 2

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4. The Petitioners’ rights to property, right to be consulted and to give informed consent under Article 40 of the Constitution and Article 26 and 32 of United Nations declaration of rights of indigenous people has been violated. 5. The Petitioners were aggrieved by the said actions thus led the present Petition claiming ancestral rights to the suit property and infringement of their rights guaranteed under Article 26, 32, 40 of the Constitution. 6. The Petition is opposed. The 3rd Respondent led a Replying Adavit sworn by Patrick Mbari on 15/11/2024, the Land Administrator in charge of Kiambu Sub-County. 7. He averred that historically the entire public land known as Muguga/Gitaru 382 the suit property was earmarked as a Native Land and several families/mbaris were settled on the government land in a village known as Cura. That during the period of demarcation and adjudication each family nearby contributed land to be preserved as public utility which gave rise to the trust land. So therefore, the suit property was contributed by various families and therefore does not belong to the Petitioners. 8. The suit property was subsequently mapped and referred to as Kiambu Trust Land or Kikuyu Trust Land which term would be used interchangeably in the maps. And that the suit land hosted some government facilities such as the colonial African Court and the cells, Ministry of Transport, Public Works, and Housing and civil servant government houses. However, the colonial African Court and other facilities were demolished in 2008 paving way for the construction of the new Ministry of Interior National Coordination oces headquarters and two acres was fenced remains unoccupied. 9. Other government oces were built on a ½ acre of Muguga/Gitaru 486. That the National Land Commission, the 4th Respondent recently revoked all titles emanating from the suit property vide Gazette Notice Number 4274 dated 17/07/2017 as per annexure PM1. 10. It is the averment of the 3rd Respondent that the suit property Muguga/Gitaru 382 referred to as Kiambu Trust Land was reserved for purposes of public utilities and social amenities having been rst sub-divided into 6 (six) portions i.e Muguga/Gitaru 482-487 in the year 1977 and the Muguga/Gitaru 482 was subdivided into another 5(ve) portions being Muguga/Gitaru 501-505 in 1978 and other numerous subdivisions followed the latest being Muguga/Gitaru 1644-1659 in 2001. 11. The resultant sub-divisions and titles have all been cancelled and restrictions placed. However, that in reference to the Petitioner’s Supporting Adavit particularly annexure LRA2 A and 2 (8) the letter dated 5th October 1932 from the Oce of the Secretary to the Land Enquiry Commission, the Mbari ya Mutego as a clan never submitted memoranda to validate their claim over the suit land and therefore the Petitioners have no claim over the public land and neither have they lived on the suit property. 12. That the Petitioners did not produce the green card or search because they have no interest in the suit property and that the extracts attached to the Supporting Adavit at paragraph 17 appear not to be factual. 13. The 3rd Defendant avers that the process of conversion from community land to public land of the suit property does not apply in this matter since the suit land has always been vested with the National and County Government. That the Petitioners have not demonstrated any trust that exists between the Petitioners and the 3rd Respondent and the claim should be dismissed. Since granting the orders sought would occasion an injustice to the public and would be contrary to the public interests. 14. Further that the Petitioners have moved the Court with unclean hands, seeking justice for the benet of a few individuals who cannot be veried as the Mbari ya Mutego clan and whether they are the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 3

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bona de allottees as they claim. The 3rd Respondent has asked the Court to dismiss and strike o the Petition with costs to the 3rd Defendant. 15. In response the Petitioners led a Supplementary Adavit sworn by Julius Kiiru Mwaura sworn on 8/04/2025 where he averred that he was a Petitioner and member representing Mbari ya Mutego Clan and that he reiterated the entire contents of his Supporting Adavit stated that the parcel of land Muguga/Gitaru 382 is and was at all material times a community land owned by Mbari ya Mutego Clan and its sub-clans namely Mbari ya ltugi, Mbari ya Mbebe, Mbari ya Mungara and Mbari ya Ngware. 16. It is his averment that the suit land was time memorial a grazing zone for the Mbari ya Mutego community and that their elders acquired the land in colonial era way before 1930 and were even buried on the suit property and that the Respondent has not provided any evidence to show that Muguga/ Gitaru 382 was set apart as public land as alleged in compliance with statutory provisions of Section 7, 13 of Trust land Act Cap 288, Section 117 of Constitution of Kenya (Repealed), Section 21, 22, 23 of Community Land Act and Article 63 of the Constitution of Kenya, 2010. 17. Following the fact that the said community land Muguga/Gitaru 382 was registered as Trust land by the then Defunct Kiambu County Council for the benet of the Community. This is clear demonstration of Trust created between the Kiambu County Council and Mbari ya Mutego community. To date, the subject land is still held as Trust land. 18. He reiterates that Muguga/Gitaru 382 is a community land and has never been allocated or surrendered to any Government institution by Mbari ya Mutego Clan and that the 3rd Respondent has not provided any evidence to prove such allocation or setting apart as alleged. 19. That the response of the 3rd Respondent in Paragraph 10 - 19 of the Replying Adavit only goes to show how the community land Muguga/Gitaru 382 was secretly and illegally subdivided on paper by individuals without the Consent or approval of the Petitioners and entire Mbari ya Mutego clan and its sub-clans who own and are residing on the subject land. 20. He avers that to reserve the community land, Land Registrar Kiambu, restricted access to the said land le and prohibited all transactions relating to the said community land including search. The Petitioners reiterate the entire content of Supporting Adavit and wish to state that the Mbari ya Mutego and its sub clans namely Mbari ya Mungara, Mbari ya Itugi, Mbari ya Mbebe and Mbari ya Ngware has been utilizing the communal land Muguga/Gitaru 382 for their own benets and they were in the process of commencing registration of the said land under Community Land Act, when the 1st Respondent invaded the suit land in February 2024. 21. He contends that the Respondent’s allegation that the Petitioners have no interest in the suit property is highly injudicious since the suit property is a community land owned and utilized by the Petitioners, Mbari ya Mutego and its sub-clans. Further that at no time did the Community Mbari ya Mutego clan or its sub-clans surrendered or allocated the said community land Muguga/Gitaru 382 to be vested to either County or National Government. 22. According to the Petitioners, the National Land Commission, County Government of Kiambu or its Predecessors holding the said land under trust has no legal right, mandate or authority to vest or allocate the said Community land Muguga/Gitaru 382 to any Government or Government institution or undertake any re-planning without the consent, approval and authority of owners, Mbari ya Mutego and its Sub-clans. Since the Petitioner and Mbari ya Mutego clan has been in possession and occupation from colonial period and hence has acquired the Customary Land rights over the suit land. These Customary land rights subsisted before independence, at independence and continue to subsist to date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 4

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23. According to the Petitioners and Mbari ya Mutego clan community has indefeasible rights of ownership over their ancestraI land (the suit land) whether the land is registered in their name or not. The Petitioners and Mbari ya Mutego Community has sole rights to decide on usage and any development to be made on their ancestral land, the suit land. It is the Petitioner’s case that the Respondent has failed to undertake public participation before the conceptualization and construction of the 20 storey housing project for sale to private persons, before forceful privatization and conversion of community land to private/public land. 24. From the Petitioners’ stand point, the Respondent has neither undertaken environmental audit assessment before commencement of construction of over 700 units on the suit land, which project is a very high-risk project nor adhered to principles of sustainable development as guaranteed under Article 10 national values and principles of governance. 25. The Petitioners aver that the Respondents in forceful and illegal alienation of part of suit land, has failed to adhere to Constitutional provisions of Article 10, 42, 63 and 69(1) (g), 174 and the provisions of Section58, 59 Environmental Management and Coordination Act read together with Regulation 17, 21 of Environmental (Impact Assessment and Audit) Regulations, Section 15, 21, 22, 23 of the Community Land Act read together with rule 8, 9, 13 of Community Land Regulations. Further that the National Land Commission has no powers to convert Community land to Public land in 2017 without following due process as set under Section 21, 22, 23 of the Community Land Act. The Petitioner avers that until such a time when the suit land is registered in accordance with relevant laws, it remains to be unregistered land which is the position of the Law as specied under Section 10 (3) of the Community Land Act. 26. Since time memorial the suit property has been held in undivided shares by the sub-clans of Mbari ya Mutego clan and that Section 12 of the Community Land Act species community land may he held as communal, family, clan land or reserve land. The invasion by the Respondent on suit land does not preclude the suit land from the ambit of Article 63 of the Constitution, 2010. 27. The Petition was canvassed by way of written submissions. Submissions 28. 29. The Petitioner led their submissions dated 28/04/2025 and the Counsel identied four issues namely: i. Whether the suit land is ancestral community land with the Petitioners/Mbari ya Mutego having customary land rights and indefeasible ownership rights? ii. Whether the actions of the Respondents are in violation of Constitutional rights and laws relating to public participation, clean health environment, Community Land Management, Environmental Audit and Sustainable Development? iii. What’s the eects of Respondent non-compliance with Section 5 Oaths and Declaration Act? iv. Who bears the costs? The 3rd Respondent led their submissions dated 10/07/2025 the County Attorney identied three issues for determination, namelya. Whether the Petitioners have the locus to institute this Petition. b. Whether the suit property held in trust by the County Government of Kiambu can be classied as registered community land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 5

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c. Whether the Replying Adavit sworn by one Patrick Mbari on the 15th November 2024 for the 3rd Respondent oends the provisions of Section 5 of the Oaths and Statutory Declarations Act Cap 15. 30. On the issue of locus standi, the County Attorney submitted that the 5th Petitioner does not have the capacity to bring this claim through this Petition as the same is not a body corporate capable of suing and being sued, further the same violates Section 41 (1) of the Societies Act where a society can only sue and/or appear in a suit through an appointed representative acting on its behalf. He therefore submits that the Petitioners have no locus to institute this claim and further, they have no interest whatsoever in the suit property. The Court has been urged to consider that there is factual vacuum that exists in this Petition which burden the Petitioners have not discharged. 31. Therefore the 3rd Respondent has submitted that in light of the foregoing, the Petitioners having not submitted any proof of registration of the community or the land as such, so as to establish the root of their claim, it follows that the Petitioners have not demonstrated any proof of registration as a community to make a claim under the instant application. 32. On the second issue, the 3rd Respondent has submitted that the Petitioner’s annexure marked LRA 2 (A) and 2 (B) i.e. the letter dated 5th October 1932 from the Oce of the Secretary to the Land Enquiry Commission, the alleged Mbari ya Mutego clan never submitted memoranda as directed by the said oce and therefore no claim was ever registered in regard to the suit property in the colonial era. That the said letter in our view has been used as a decoy to mislead this Honorable Court. 33. Whereas the Petitioners herein have laid a claim to the suit property Muguga/Gitaru 382 referring to it as community land, however it is the Respondent’s submission that they have not met the evidentiary threshold outlined and provided for in Article 63 (2) of the Constitution. 34. Given that the Petitioners have also annexed maps marked as LRA 3(a), (b), (c) of the suit property to show the alleged demarcation and adjudication of the suit property. The Respondents contend that the same have not been authenticated or approved by the Director of Survey as contemplated in Section 32 of the Survey Act 2010. 35. That the fact that the allegations herein touch on alleged violation of constitutional rights, the burden of proof is extremely high given that the Government is being accused of this alleged breach. The said maps are not also legible in regard to identifying where exactly the suit property is and the resultant sub-divisions that were revoked by the National Land Commission vide the aforementioned Gazette Notice. These are elements that ought to have been brought out clearly by the Director of Survey given the public interest that it attracts. Nothing on these maps prove that the suit property is community land. 36. The 3rd Respondent in its submissions invited the Court to have a look at the Gazette Notice and nd that the complaint was raised by the national government since the reserved user was for public utility land for County Commissioner oces, roads and County Government of Kiambu. 37. Further the 3rd Respondent states that whereas it is not disputed that the 4th Respondent has not entered appearance nor led any response to the Petition, however, it is his averment that the Petitioners have never at any given time disputed the ndings on the grant review and disposition of titles pertaining to the suit property. So, the 3rd Respondent wondered aloud as whether this Court can admit this Petition as is without further prior contestation by the Petitioners? He states that if anything, the alleged Mbari ya Mutego was advised to submit memoranda in 1932 but they decided to be indolent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 6

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38. Further, that in the new dispensation, the Petitioners exercised further indolence and opted not to submit their claim to the 4th Respondent pursuant to Section 15 of the National Land Commission Act. Given this state of things the 3rd Respondent, is of the view that equity aids the vigilant and not the indolent. 39. Be it as it may to the foregoing, in the advent of the Land Registration Act 2012, customary trusts, pursuant to Section 25 of the Act may be noted in the register, however, the Petitioners have not proven that they were ever in occupation of the suit property and further the customary trust that they are relying on, was never noted in the register. 40. In conclusion the 3rd Respondent contests the following: - 41. i. The registration of the Petitioners as a community group and/or representative group. ii. The root of registration of the suit property as community land pursuant to Section 6 & 7 of the Community Land Act. iii. The registration of customary trust pursuant to Section 25 of the Land Registration Act. iv. Any claim registered as directed by the Oce of the Secretary of the Land Enquiry Commission vide a letter dated 5th October 1932, and further, any claim registered with the 4th Respondent herein pursuant to Section 15 of the National Land Commission Act. v. Proof of Bonade allotees pursuant to the decision in Gazette Notice No. 4274 dated 17th July 2017, table number 14. The 3rd Respondent relied on the cases of Kiebia M’inanga versus Isaaya Theuri M’intari & Another (2018), Obiero versus Opiyo (1972), Esiroyo versus Esiroyo (1973), and Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 6 Others [2013]eKLR. Determination 42. Having perused the Petition, the responses and the submissions of the 3rd Respondent, this Court nds that the issues that arise for determination in the present Petition are as follows: a. Do the Petitioners have locus standi to bring this action? b. Have the Petitioners established that their rights under the Constitution have been or are about to be infringed? c. Whether the Petitioners are entitled to the declaratory orders sought? 43. Regarding the rst issue which is raised by the Attorney General, he claims that the basis for raising it is that the Petitioners do not have any demonstrable legal or benecial title/interest to the suit property, and they have not informed the Court the full physical extent of the suit land, and so they lack right to le the present Petition. 44. It is the case that a person must have suciency of interest to sustain his standing to sue in a Court of law as held in the LSK v Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000. But it must also be remembered that locus in the present constitutional dispensation has been expanded by Article 22 to unprecedented lengths. That Article states as follows: “ 22. Enforcement of Bill of Rights- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 7

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45. (1) Every person has the right to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. (2) In addition to a person acting in their own interest, Court proceedings under clause (1) may be instituted by(a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.” The Court when approached by a litigant in a Constitutional Petition is enjoined to consider the Constitution as a living document which encourages the growth and development of law rather than the stymying of the same. Consequently, it ought to give a broad denition of locus standi within the outline given in Article 22. In Republic Vs County Government of Mombasa, Ex Parte Outdoor Advertising Association of Kenya [2014] eKLR the Court held as follows: “ On locus standi, as a constitutional principle of public law and for promotion of access to justice, the law makes generous provisions on standing over and above personal standing interest in interest of enforcement of public law duties. That is clear from Articles 22 and 258 of the Constitution of Kenya. the Constitution thus recognizes the right of association to litigate questions of fundamental human rights, and interpretation of the Constitution on behalf of its members.” 46. In Mumo Matemu Vs Trusted Society of Human Rights Alliance & Others [2013] eKLR the Court of Appeal held as follows: “ Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the Courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the Courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process …. It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reason of poverty helplessness, disability or social-economic disadvantage, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution.” 47. I have perused the Petition and the supporting documentation. This is not a hypothetical case. The Petitioners claim that the right to ownership by holders of fraudulent titles was extinguished under Article 40 (6) of the Constitution of Kenya 2010. This being the case, the unregistered Community Land is therefore held in trust by the County Government of Kiambu for the benet of the Mutego https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 8

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Clan. That the National Land Commission has no powers to convert the Community Land to Public Land without following due process set under Section 22 of the Community Land Act. 48. The Petitioners allege that Section 117(4) of the repealed Constitution addressed the issue of setting apart of trust land and stated that prompt compensation of any resident of the land set apart is compulsory. That the Respondent has not shown compliance with mandatory provision of Section 117(4) of the repealed constitutional provision and mandatory provisions under Section 7 and 13 of the Trust Land Act Cap 288. 49. The Petitioners are of the position that the setting apart or alienation of the suit land by the Respondent is illegal, null and void. Whether or not they will be able to prove that claim as we progress with the Petition is another issue. What matters is that the 4th Respondent is said to have enabled the acquisition of the Petitioners land by the 3rd Respondent and national government represented by the 2nd Respondent on the basis of which the Petitioners have been evicted by the Respondents from land they believe is ancestrally theirs. 50. However, while the 3rd Respondent claimed that the 4th Respondent, National Land Commission did a grant review and disposition of titles of the entire suit property where a determination was made to the eect that all titles emanating from the suit property were revoked vide a Gazette Notice No. 4274 dated 17/07/2017 as per annexure PM1, the Petitioners aver that the allocation was null and void ab initio since the land belonged to Mbari ya Mutego and was not available for allotment to the County and or National Government. 51. Infact it is the Petitioners’ position that the County Government being the Agency that took over from the defunct County Councils and Municipalities, was holding the suit in trust for the Mbari ya Mutego as a Community Trust. 52. Ancestral claims are unregistered interests, just as many other interests in land are. It is for the Respondents to demonstrate that their registered title defeats any claimed interests of the Petitioners. In the circumstances this Court is unable to nd that the present litigation is hypothetical, abstract or is an abuse of the judicial process or that the Petitioners have no capacity to institute it, and the 3rd Respondent’s position that the Petitioners lack locus standi is hereby dismissed. 53. As to the second issue, Counsels for the 3rd Respondent contend that the Petitioners have not set out with precision the constitutional rights they allege to have been infringed as required by the law and as was observed by the Court in the case of Anarita Karimi Njeru v Republic [1979] eKLR where the High Court held: “ We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 54. Various paragraphs of the Petition have highlighted the infringement of the Petitioners’ rights. The Petition enumerates the manner in which and the instances when the Petitioners consider their constitutional rights to have been infringed upon. They have alleged violations of Articles 2, 10, 22, 23, 35, 40, 43, 47, 48, 50, 61, 63, 165, 227, 258 & 259 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 9

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55. The Court of Appeal in the case of Mohamed Fugicha v Methodist Church in Kenya (suing through its registered trustees) & 3 Others [2016] eKLR stated with regard to consideration of formalism in constitutional Petitions that: “ We are quite clear in our minds that whereas the Hon. the Chief Justice in making the Rules did set out what a Petition ought to contain, it cannot have been his intention, and nor could it be, in the face of express constitutional pronouncement, to invest those rules with a stone cast rigidity they cannot possibly possess. It seems to us unacceptable in principle that a creeping formalism should be allowed to claw back and constrict the door to access to justice ung open by the Constitution when it removed the strictures of standing and formality that formerly held sway. We apprehend that the primary purpose of pleadings is to communicate with an appreciable degree of certainty and clarity the complaints that a pleader brings before the Court and to serve as sucient notice to the party impleaded to enable him to know what case to answer. Within that general rubric of notication to Court and Respondent, the Constitution, if it says anything at all on this subject, clearly does not lionize form over substance. Thus, while ANARITA and other cases decided prior to the Constitution of 2010 were decided correctly in their context with their insistence on specicity, the constitutional text now doubtless presents an epochal shift that would preserve informal pleadings that would otherwise have been struck out in former times. We are satised that there was no doubt at all as to what Fugicha’s complaints were, against whom they were, and the provision of the Constitution he alleged had been violated or contravened.” 56. The Petitioners have invoked the specic constitutional provisions they consider to have been infringed upon. They have also given details of the Respondents’ acts they consider to constitute constitutional violations. From a general reading of the Petition and the Supporting Adavit, the Court is satised and has no doubt at all as to what the Petitioners complaints are, against whom the complaints are, and the provision of the Constitution they allege were violated or contravened. Whether or not the stated violations have been proved are the subject of this Petition and will be discussed in the course of this Judgement. 57. On the third issue, the Petitioners argue that the suit parcels of land were previously held by the defunct County Council of Kiambu of whom the 3rd Respondent is a successor in trust for the community in this case Mbari ya Mutego and the other surrounding clans ordinarily resident in the area and are not public land. The Petitioners claim that the 3rd Respondent is under a misconception that it owns the parcels of land together with the National Government. 58. This history of how the suit property came to be declared public land is contested from the position of the 3rd Respondent and the Petitioners. Its however not in dispute that it dates back to 1932. 59. The Petitioners contend that Mbari ya Mutego during adjudication and demarcation, since they owned the ancestral land, contributed part of the ancestral land to be preserved as Community utility land for us by various sub-clans of Mbari ya Mutego as grazing area and the reserved area was registered as Muguga/Gitaru 382. It was measuring 23.4 acres and held as trust land by the then defunct Kiambu County Council for the benet of the Mbari ya Mutego Community. 60. On their part the 3rd Respondent aver that the suit property was earmarked as a Native Land where several families/mbaris were settled on the government land and during demarcation and adjudication each family contributed to be preserved as public utility land which gave rise to the trust land and so it is not true that the land belongs to the Petitioners since it involved many families. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 10

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61. That later the families which had settled on the suit property were requested to relocate to pave way for the utilization of the public utility land and they moved to nearby villages as mentioned hereabove. That the land was then mapped and referred to as Kiambu Trust Land or Kikuyu Trust land. 62. That it hosted some government facilities during colonial time and in 2008 these were demolished paving way for the construction of the new Ministry of Interior National Coordination oces headquarters and others including Ministry of Transport which host KERRA oces and a laboratory built within ½ acre of Muguga/Gitaru 486. 63. Following a review and disposition of titles recently by the 4th Respondent all titles emanating from the suit property were revoked vide Gazette Notice No. 4274 dated 17/07/2017. 64. The 3rd Respondent therefore concluded that the process of conversion from community land to public land of the suit property does not apply in this matter since the suit land has always been vested with the National and County Government. That the Petitioners have not demonstrated any trust that exist between the Petitioners and the 3rd Respondent. 65. The legal regime for regulation of trust land at the time when the leases to the two suit lands was the Repealed Constitution of Kenya, the Land Adjudication Act CAP 283 and the Repealed Trust Land Act CAP 290 Laws of Kenya. Section 114 of the Repealed Constitution dealt with trust land and describes what trust lands are. Section 115 provides that; “ (1) All Trust Land shall vest in the County Council within whose area of jurisdiction it is situated. 1. Each County Council shall hold in trust land vested in if for the benet of the persons ordinarily resident on that land and shall give eect to such rights, interests and other benets in respect of the land as may, under the African Customary Law for the time being in force and applicable thereto, vested in any tribe, group, family or individual. Subject to this chapter, provision may be made by or under an Act of Parliament with respect to the administration of Trust land by a County Council.” 66. The Court agrees with the submission by the Petitioners’ Counsel that under the repealed Constitution under which the leases in the suit parcels of land were issued, trust land was vested in the County Council in trust for the people ordinarily resident on the land. Section 116 of the Repealed Constitution provides for application of the Land Consolidation Act and Land Adjudication Act on trust land and specically states that when the said acts are applied to any specic land the said land shall cease to be Trust land. 67. The legal regime for setting apart of trust land under the repealed Constitution starts with Section 117 of the repealed Constitution of Kenya. The said Section deals with setting apart of trust land by County Councils and reserving the same for use and further provides the formal process. The said process ends up creating new rights and extinguishing the rights and interests of the occupants of the land and any other persons with rights and interest in the land proposed to be set apart. The said process was strictly regulated and controlled by Statute. The entire Section states as follows; “ (1) Subject to this section, an Act of Parliament may empower a County Council to set apart an area of Trust land vested in that County Council for use and occupation – https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 11

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a. by a public body or authority for public purposes; or b. for the purpose of the prospecting for or the extraction of minerals or mineral oils; orc.by any person or persons for a purpose which in the opinion of that County Council is likely to benet the persons ordinarily resident in that area or any other area of Trust land vested in that County Council, either by reason of the use to which the area so set apart is to be put or by reason of the revenue to be derived from rent in respect thereof, and the Act of Parliament may prescribe the manner in which and the conditions subject to which such setting apart shall be eected.” 68. Where a County Council has set apart an area of land in pursuance of this section, any rights, interests or other benets in respect of that land that were previously vested in a tribe, group, family or individual under African Customary Law shall be extinguished. 69. Where a County Council has set apart an area of land in pursuance of this Section, it may, subject to any law, make grants or dispositions of any estate, interest or right in or over that land or any part of it to any person or authority for whose use and occupation it was set apart. 70. No setting apart in pursuance of this section shall have eect unless provision is made by the law under which the setting apart takes place for the prompt payment of full compensation to any resident of the land set apart whoa. under the African customary law for the time being in force and applicable to the land, has a right to occupy any part of the land; or b. is, otherwise than in common with all other residents of the land, in some other way prejudicially aected by the setting apart. 71. No right, interest or other benet under African Customary Law shall have eect for the purposes of Subsection (4) so far as it is repugnant to any written law. 72. Pursuant to the provisions of Section 117 of the repealed Constitution, Section 13 of the repealed Trust Land Act provided for the detailed and elaborate procedure for setting apart land which involves notication to persons in the areas concerned and recording representations of concerned persons. The Section provided that Gazette Notice was published specifying the boundaries of the land required to be set apart and the purpose for which the land is required to be set apart, and also species a date before which applications for compensation are to be made to the District Commissioner. 73. Further, the law provided for compensation to be paid to any resident of the area of land set apart and the procedure for such compensation was clearly set out including appeals against a decision rejecting an application for compensation or quantum of any compensation awarded. Section 8 of the repealed Trust Land Act provided that; “ (1) Where land is set apart under Section 7 of this Act, full compensation shall be promptly paid by the Government to any resident of the area of land set apart who— a. under African customary law for the time being in force and applicable to the land has any right to occupy any part thereof; or https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 12

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b. 74. is, otherwise than in common with all other residents of the land, in some other way prejudicially aected by the setting apart.” Section 12 provided for the right of access to High Court and stated that; “ Notwithstanding anything in this Act, any person claiming a right or interest in land set apart under this Act shall have access to the High Court fora. the determination of the legality of the setting apart; and b. the purpose of obtaining prompt payment of any compensation awarded.” 75. The Petitioners herein do challenge the position that the suit property has all along been public land stating that it belonged to Mbari ya Mutego who was holding in trust for the other mbaris. 76. The Petitioners claim that their constitutional rights. Land is categorized into public, private and community land in the constitution. Any nding by the Court either of violation or non-violation of the Petitioners’ rights shall be predicated on whether or not the Petitioners have established that the suit land is their ancestral land and that as such they own it, and/or whether it could be alienated, and further, whether the right process was applied in alienating it, in which case the Court would be able to decide whether the action of the 4th Respondent in cancellation of title of the suit property was proper. These issues are evident in the body of the Petition and the prayers sought at its end. In all this, establishing the proper category that the suit land fell into before cancellation and allowing the National Government to take the land over from the Petitioners, and the process employed in such acquisition, is of paramount importance in resolving the issue as to whether or not the rights of the Petitioners have been violated. 77. Further, the matters in the Petition are those that require evidence. The rules of evidence are very clear, that he who alleges must prove. Section 107 – 109 provide thus:“ 107. Burden of proof. (1) 78. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” It is a well settled principle that the Petitioners in any Constitutional Petition ought to demonstrate with some degree of precision, the right they allege has been violated, the manner it has been violated and the relief they seek for that violation (See Anarita Karimi Njeru vs Republic (supra) and Trusted Society of Human Rights Alliance vs Attorney General and Others Petition No. 229 of 2012). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 13

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79. This being a claim of violation of constitutional rights, it is also a matter of principle that one cannot claim to be deprived of that which he does not have rights over. In Veronica Njeri Waweru & 4 Others v City Council of Nairobi & 2 Others [2012] eKLR the Court observed: “ The Petitioners have readily conceded that they have been occupying public property, a road reserve, for the last ten years. They have licenses to operate businesses, but have no proprietary interest in the land. Clearly, therefore, their claim that their rights under Article 40 have been violated has no basis. They do not own the land, and they therefore cannot be deprived of that which they have no rights over. I therefore nd and hold that there has been no violation of the Petitioner’s right to property under Article 40.” 80. The pertinent question therefore would be whether or not the Petitioners are able to establish in a constitutional Petition that they have rights and interests over the suit land, or whether the Court is able to do justice in such a Petition. 81. Section 26 of the Land Registration Act is categorical that a Certicate of Title is prima facie evidence that the person named therein is the proprietor of the land but the same can be challenged where the Certicate of Title has been acquired fraudulently, unprocedurally or through corrupt practice. 82. Challenge to title to land on grounds of mistake, fraud, irregularity or illegality, corrupt scheme needs evidence to establish those grounds on a balance of probabilities in a Civil suit. Challenge to title to land on grounds of mistake, fraud, irregularity or illegality, corrupt scheme is therefore usually done through an ordinary Civil suit. That is the forum in which oral evidence can be taken and all evidence including documentary evidence regarding the process of alienation can be tested by way of physical examination of documents and cross-examination. 83. In Malindi ELC Petition No. 19 Of 2017- Likizo Ltd V Nasib Kashuru Mumbo & others the Court held as follows: “ Usually, the facts in a Petition are straightforward and undisputed and the Court is required to apply the constitutional provisions to the facts to come up with a determination. Petitions have been struck out in the past when the Court realized that they sought to litigate over contentious issues such as ownership of the land or validity of a disputed title, which issues by their very nature would be favoured by an ordinary trial by way of Plaint.” 81. In the case of Petro Oil Kenya Limited v Kenya Urban Roads Authority [2018] eKLR: “ A constitutional Petition is not an ideal forum for investigating and determining contentious issues of fact as oral evidence is rarely called like in this case. Whether or not the suit property was hived from a road truncation is not an issue which I can determine on the adavit evidence before me. If it is true that the suit property was hived from a road truncation, the title held by the Petitioner would not be valid since the property was not available for allocation to Wangs from whom the Petitioner purchased the suit property. Article 40 (6) of the constitution provides that the protection accorded to property does not extend to the property which has been acquired unlawfully. Whether or not the Petitioner acquired the suit property lawfully is an issue that can only be determined in a civil suit and not in a Constitutional Petition. The Courts have said over and again that the mere fact that constitutional rights are alleged to have been violated or are threatened does not make the dispute a constitutional one calling for the ling of a Petition under Article 22 of the constitution. The Court can still uphold constitutional rights in a normal civil suit… https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 14

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In the case before me, I am of the view that due to the nature of the dispute which turned on whether the Petitioner holds a valid title, the ideal forum should have been a civil suit. In a civil suit, the Court would have been better placed to determine all the issues raised by the parties. The Court would also have been in a position to grant all the reliefs sought in the Petition herein if merited. It is my nding therefore that although the Petitioner had a right to invoke the jurisdiction of the Court under Article 22(1) of the constitution, that jurisdiction was not ideal for the determination of the issues at hand. As aptly put by the Respondent in its Replying Adavit, this Court in exercise of that jurisdiction is not possessed of the necessary tools to determine the validity or otherwise of the Petitioner’s title to the suit property.” 81. In the case of Kibos Distillers Ltd & 4 Others V Benson Ambuti Adega & Others (2020) eKLR it was held as follows:“ In the Lesotho case of Zwelakhe Mda v Minister of Home Aairs and Others (Constitutional Case No.4 of 2014) [2014] LSHC 30 (24 September 2014); it was expressed that where there is no real, substantial and material dispute of fact which makes it impossible to dispose of a matter without resort to viva voce evidence, the factual dierences can be decided on the papers by adavit evidence.” 81. As things stand now, the challenge to the validity of the land being public land through the present Petition is futile in that there is no prior civil judgment declaring the process of acquisition as illegal and also that there are no means in this Petition by which to test the authenticity of the claims of illegality, including whether the titles have been superimposed on the ancestral land of the Petitioners. 82. I have already stated that a Petition is not the appropriate suit for investigation as to authenticity or otherwise of title. In that case also, there is no basis upon which to investigate a claim of violation or threat of violation of constitutional rights of the Petitioners. 83. Therefore it is the Court’s view that the provisions of Article 22 of the Constitution are not intended to bypass or undermine the usual dispute resolution process and established procedures for ventilation of disputes. This position has been taken in various cases where it has been stated that Constitutional Petitions ought not to be used as a substitute for normal established procedure. This was held in the case of Industrial Court of Kenya at Nairobi Petition No 19 of 2014 - John Miriti Mbarire vs. The Attorney General where it was stated that; “ In the case of Kemraj Harrikissoon Vs the Attorney General of Trinidad and Tobago [1979] UKPC 3 the Court held that the value of the right for redress for breach of fundamental rights and freedoms is diminished when it is misused as a general substitute for the normal procedures for invoking judicial control of administrative action. I am persuaded that this is the correct interpretation of our jurisprudence even against the backdrop of the current Constitution which elevates labour rights to the Bill of Rights. I do not think that this elevation jettisons the applicable substantive and procedural law on employment and labour relations.” 81. Further, in the case of Tony Munene Commissioner of Lands & 5 Others [2012]eKLR the High Court stated that:“ It is correct and proper that every litigant is granted unhindered access to relief to protect guaranteed rights under the Constitution but it has been said time and again that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 15

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provisions of Article 22 are not intended to bypass or undermine the usual dispute resolution process and established procedures for ventilation of disputes.” 81. Therefore, it is the Court’s view that an ordinary suit would be the best manner of establishing whether the suit land is the Petitioners’ ancestral land and whether or not the alienation thereof to a section of the Respondents was legally done. On the basis of that nding this Court concludes that the jurisdiction of this Court has been improperly invoked and that the Petition herein is for striking out. I therefore issue the following nal orders:a. The Petition dated 7/5/2021 is hereby struck out. b. Leave is granted to the Petitioners herein to lodge their claim over the suit land by way of an ordinary suit within three (3) months from the date of this Judgment. c. The status quo regarding the suit land shall be maintained both on the land title register as well as on the ground during the three (3) months period provided for in (b) herein above. d. Each party shall bear its own costs. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 22ND DAY OF JULY 2025. MOGENI J JUDGE In the presence of:Mr. Mwaura for the 1st, 2nd, 3rd, 4th and 5th Petitioners Mr. Okello holding brief for Ms. Njuguna for the 1st and 2nd Respondents Ms. Muchiri for the 3rd Respondent 4th Respondent – Absent Melita – Court Assistant MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18660/eng@2025-07-22 16

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