Ndungwa

MICHAEL KAVUVA NZUVE………………………... 15TH RESPONDENT SIMON MUTUNGI SILA………………………………16TH RESPONDENT JUDGMENT Introduction 1. The Petitioner filed an amended Constitutional Petition against the Respondents in which he sought the following reliefs: a. A declaration be issued that the Adjudication process regarding Plot Nos. 146, 147, 148, 149, 150, 151, 170, 169, 167, 168, 153, 154, 155, 156 and 157 Nduu Adjudication Section is unconstitutional, null and void. b. An order of certiorari do issue to bring to this honourable court for purposes of being quashed or to forthwith quash the Adjudication register regarding plot Nos. 146, 147, 148, 149, 150, 151, 170, 169, 167, 168, 153, 154, 155, 156 and 157 Nduu Adjudication Secton. c. An order of prohibition do issue against the 1 st – 4th Respondents preventing them from printing and processing title deeds for parcel Nos. 146, 147, 148, 149, 150, 151, 170, 169, 167, 168, 153, 154, 155, 156 and 157 Nduu Adjudication Section. d. An order of Mandamus do issue against the 1st – 4th Respondents compelling them to re-open Nduu Adjudication Section and demarcate the whole disputed parcel of land unto one (1) portion of land and process, print and issue one (1) title deed in the name of the Petitioner herein Stephen Kithuka Ndungwa. e. Alternatively an order of Mandamus do issue against the 1 st and 2nd Respondents compelling them to hear and determine the Petitioner’s appeal to the Minister vide Appeal Case No. 436 of 2021. 2|Page ELC PET. NO. E001 OF 2023

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f. An order of permanent injunction be issued against the 5 th – 16th Respondents by themselves, their agents and/or servants restraining them from practicing agricultural activities, interfering and dealing in any manner with the Petitioner’s and/or deceased’s land parcel in Nduu Adjudication Section. g. General damages h. An award for compensation and/or exemplary damages. i. Costs and interests of the petition. j. Any other relief this honourable court deems fit and just to grant. Background 2. The Petitioner is the legal representative of the estate of his grandfather Mbiva Nthele who had five sons from his first wife and one son from his second wife. The Petitioner is son of one of the six sons of Mbiva Nthele namely Ndungwa Mbiva. The Petitioner’s grandfather was son to Nthele Ndavi who was brother to Mukala Ndavi. The two brothers’ father was Ndavi Mbula who is great great grandfather of the Petitioner. 3. When Mukala Ndavi died, Nthele Ndavi doubled up as the Petitioner’s great grandfather and took care of both families. Before Nthele Ndavi died, he had subdivided the ancestral land into two portions. Mukala Ndavi’s family occupied the upper part of Nthunguli Hill while the family of Nthele Ndavi occupied the lower part of the hill. When Nthele Ndavi died, the Petitioner’s grandfather inherited the portion held by Nthele Ndavi as the two brothers of the Petitioner’s grandfather died before they had married. 4. The source of the Petition herein can be traced to the 13 th Respondent who is grandson of Mukala Ndavi. Petitioner’s Contention 5. The Petitioner’s contention is that on or about the year 2007, the 13th Respondent started encroaching into the Petitioner’s portion prompting the Petitioner to institute Makueni District Land Disputes Tribunal case No. 140 3|Page ELC PET. NO. E001 OF 2023

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of 2007 which was heard and determined in favour of the Petitioner in a ruling dated 16th July, 2007. The 13th Respondent was dissatisfied with the decision of 16th July, 2007. He appealed to the Eastern Province Land Disputes Appeal Committee vide case No. 125 of 2007. The appeal was heard and ended in favour of the Petitioner vide ruling delivered on 25 th March, 2009. 6. The verdict of the Eastern Province Land Dispute Appeals Committee was adopted as judgment of the court vide Kilungu RMCC No. 45 of 2007. The Judgment was subsequently implemented in favour of the Petitioner. It is the Petitioner’s contention that sometime in 2007, the 13th Respondent colluded with the 5th to 16th Respondents who filed Makueni Land Dispute Tribunal Case No. 22 of 2007 which was heard and determined in their favour vide ruling of 30th November, 2007. 7. The Petitioner being aggrieved with the ruling of 30 th November, 2007, filed an appeal to the Eastern Province Land Disputes Appeal Committee vide Appeal No. 22 of 2008 which appeal was determined in favour of the Respondents in a ruling delivered on 14th April, 2008. 8. The Petitioner filed Judicial Review Proceedings vide Machakos High Court Miscellaneous application No. 229 of 2011 but the application was struck out vide ruling of 19th December, 2014. The Petitioner filed Machakos ELC Appeal No. 125 of 2011 which appeal was transferred to Makueni where it became Makueni ELC Appeal No. 2 of 2020. This appeal was determined in his favour vide judgment dated 28th May, 2020. 9. The Petitioner lodged a complaint and objection before the Land Adjudication Committee, Arbitration Board and the Land Adjudication Officer but the verdicts at all the stages were against him. The Petitioner then lodged an appeal to the Minister vide appeal case No. 436 of 2021. On 12th May, 2022 he applied for adjournment due to non-availability of his witnesses. He later tried to fix the appeal for hearing by visiting the 1 st 4|Page ELC PET. NO. E001 OF 2023

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Respondent’s office six times but he was not successful. In July, 2023, he discovered that the Appeal had been determined vide letter dated 25th October, 2022 in contravention to his right to fair hearing as enshrined in Article 25 (c) and 50 (1) of the Constitution. 10.It is the contention of the Petitioner that the Minister’s decision contravened his rights under Article 40 (1) & (b) of the Constitution. The Petitioner contends that the 1st to 4th Respondents are going on with printing of title deeds for the disputed properties and that the 5 th to 16th Respondents are going on with farming on the Petitioner’s land and if the reliefs are not granted, he will stand to suffer irreparably. 1st to 4th Respondents’ Contention 11.The 1st to 4TH Respondents contend that the Petitioner’s Petition is incurably defective, incompetent frivolous, scandalous and devoid of substance in law. The Respondents contend that this Petition has been brought to evade the time limitation placed on bringing of Judicial Review Application. 12.The Respondents further contend that there is no evidence which has been tabled to demonstrate that the 1st Respondent violated the rules of natural justice or that the Respondents were biased against the Petitioner or that there was a predetermined decision on the part of the Respondents. 13.The Respondents state that the issues being raised by the Petitioner cannot be determined by this court in a Constitutional Petition as once an area is declared an adjudication section, it falls under the provisions of the Land Adjudication Act. They further state that the Petitioner has failed to state with precision how his Constitutional rights were violated. It is the Respondents’ contention that the Petitioner is trying to usurp the role of the Respondents in determining the appeal to the Minister by seeking to enforce administrative functions in a particular way. 5|Page ELC PET. NO. E001 OF 2023

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14.Finally the Respondents state that all the procedures were followed which culminated in forwarding the adjudication register to the Chief Land Registrar to process titles. The 5th to 16th Respondents’ Contention 15.The Respondents opposed the Petitioner’s petition through a replying affidavit sworn on 23rd October, 2024 by the 9th Respondent who had authority of the other Respondent to swear the same. The Respondents contend that the Petitioner’s Petition is premature as he is seeking to enforce what is provided for under the Land Adjudication Act through this Petition. They further state that this Petition is a non-starter as the Petitioner did not seek the consent of the Land Adjudication Officer to pursue these proceedings. 16.The Respondents contend that the Petitioner lodged objection on the disputed parcels which objection was dismissed. He preferred appeal No. 436 of 2021 which appeal was dismissed due to his own non-cooperation and unwillingness to prosecute it. The Petitioner attended the hearing slated for 12th May, 2022 but he disrupted the proceedings forcing an adjournment. The Petitioner subsequently failed to honour summons leaving the 1 st Respondent with no option other than dismissing the appeal. 17.The Petitioner filed Appeal No. 436 of 2021 out of malice to deny the other family members to get titles when he had himself obtained titles for himself. 18.The Respondents further stated that it is the Petitioner who caused the confusion by asking for consolidation of appeal No. 125 of 2007 and Appeal No. 22 of 2008 which were incompatible. They go on to state that Makueni ELC Appeal No. 2 of 2020 neither conferred any interest over the suit properties to the Petitioner nor the estate of the deceased grandfather. The said judgment delivered on 28th May, 2020 merely reinstated the equal boundary as had been determined in Tribunal Case No. 140 of 2007. 6|Page ELC PET. NO. E001 OF 2023

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19.The Respondents state that the suit properties were found to properly belong to the persons for whom the adjudication Officer marked the same for registration in favour of them. The Petitioner exhausted the process by appealing to the Minister where he failed to co-operate and therefore this Petition is an abuse of the court process and this court has no jurisdiction to entertain it. 20.The Respondents finally contend that they have been residing on their respective portions for over 20 years and that if the prayers by the Petitioners were to be granted, that will not only affect the Respondents but also other people as the Nduu Adjudication Section covers a large area. The Petition is therefore lacking in specivity and ought to be dismissed. Petitioner’s Further Affidavit 21.In a further affidavit sworn on 26 th February, 2025, the Petitioner denied what was raised by the 5th to 16th Respondents particularly on what transpired on 12th May, 2022. He stated that contrary to the allegations by the Respondents that he refused to sign summons, he states that on 26 th April, 2022 he received summons and on 12th May, 2022, he attended the hearing of his appeal No. 436 of 2021. He applied for adjournment which was granted due to unavailability of his witnesses. He states that on that date, he was co-operative and was cool calm and collected. He further stated that on 7th August, 2023, he sought for consent to institute a suit but the consent was not granted. He therefore contends that lack of consent is not fatal where one is challenging the process of adjudication. Parties Submissions 22.The parties were directed to file written submissions. The Petitioner filed his submissions dated 27th February, 2025. The 1st to 4th Respondents filed their submissions dated 10th February, 2025. The 5th to 16th Petitioners filed their submissions dated 23rd October, 2024. Petitioner’s Submissions 7|Page ELC PET. NO. E001 OF 2023

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23.The Petitioner firstly submitted on the issue of jurisdiction of the court to entertain the Petition. He submitted that where a party is challenging the legitimacy of an adjudication process coupled with determination of interests and rights, the consent of the Land Adjudication Officer as envisaged under Section 30 of the Land Adjudication Act is not a mandatory pre-requisite and the court of law is normally the right forum to ventilate such issues. 24.Still on the issue of jurisdiction, the Petitioner submitted that in any case he applied for consent vide letter dated 7th August, 2023 but the consent was not given. He went on to submit that in any event it will be foolhardy to expect a Land Adjudication Officer to grant consent to attack the criminality or unconstitutionality of the Land Adjudication process simply because that would unearth and/or unravel the rot being administered in his office. 25.The Petitioner relied on the case of Moses Barkutwo & 3 others –vsDistrict Land Adjudication & Settlement Officer Elgeyo Marakwet County & Another; Moses Barmoto & 11 Others (Interested Parties) (2021) eKLR where Dr. Justice M. A. Odeny held as follows: “When a party is aggrieved and is challenging the legitimacy of the process, the court is the right forum for ventilating such matters. It would be moot to expect the Land Adjudication Officer to grant a consent to question a process which borders on unconstitutionality and or criminality as impunity. This would expose any rot or irregularity in the administration of the work at Land Adjudication Officer……. The Petitioners are complaining that there was no public participation, not notice was issued declaring the area an adjudication area and finally that the committee appointed were from one gender the male gender violating Article 27 of the Constitution. The Petitioners are within their right to question the legitimacy of the process by bringing this matter to court as the Land 8|Page ELC PET. NO. E001 OF 2023

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Adjudication procedures would not have the jurisdiction to deal with violation of rights as provided for in the Constitution. On the second issue as to whether the Petitioners have exhausted the laid down procedures under the Land Adjudication Act, having found that he Petitioners are challenging the legitimacy of the process of Adjudication, the Petitioner would not be required to use the process as laid down under Section 26 and 29 of the Act. Section 26 provides for an aggrieved person who feels that the register is incomplete or incorrect may file an objection within 60 days upon which the notice of completion was published. Once the objection has been considered by the Adjudication Officer and if a party is still aggrieved, then they have a right to appeal to the Minister within 60 days after the date of determination. The Petitioners have not reached the stage of ascertained of rights therefore, these provisions have not yet become available to them. Having said that, I find that the preliminary objection lacks merit and is therefore dismissed with costs”. 26.The Petitioner also relied on the case of Muthara Njuri Ncheke Council of Elders & another –vs- Committee of Ngaro Mara/Gambella Adjudication Section & 2 others (2019) eKLR where Justice L. Mbugua held as follows: “The preamble of the Land Adjudication Act provides as follows: “An Act of Parliament to provide for the ascertainment and recording of rights and interest in community land, and for purposes connected therewith and purposes incidental thereto”. Thus the dispute resolution mechanisms provided for under this Act are geared towards meeting the objectives and goals set out in the preamble. The issue as to whether the corrigendum notice was issued 9|Page ELC PET. NO. E001 OF 2023

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in accordance with the law is one that cannot be resolved within the laid down dispute resolution mechanisms set out in the Act. The present dispute is challenging the legitimacy of the Adjudication process though there is a question for determination touching on the rights and interests of the parties. I therefore make a finding that the suit is properly filed before this court and that it was not necessary for the Petitioners to obtain the consent of the Land Adjudication Officer as the dispute is not purely that of ascertainment of rights and interests in land”. 27.The Petitioner further relied on the case of Mutisya (Suing on his own behalf and as administrator of the Estate of Samuel Mutisya Somba) – vs- Land Adjudication Officer, Makueni &11 others, Mutisya & Another (Interested Parties) Environment and Land Petition No. 13 of 2020 (2022) KEELC 15501 (KLR) where Mbogo J. held as follows: “I do agree with counsel for the Petitioner that the Petition herein raises issues with regards to the rights and interests of the Petitioner challenging the Adjudication process and more importantly the laidout process as provided under the Land Adjudication Act. A party has all the right to challenge the legality or otherwise of a process which has been laid down by statute where he feels that his rights and fundamental freedoms have been violated, threatened or infringed. I say so because the Petitioner in this case filed an objection in the year 2007 and no action has been taken so far. What other avenue or remedy was available to the Petitioner if the office mandated to do so has not taken any action to address his claims? In my view, the Petitioner is quite in order to file the instant Petition”. 28.On the right to fair hearing, the Petitioner submitted that his appeal to the Minister was slated for hearing on 12th May, 2022 when he successfully applied for adjournment on the ground of non-availability of his witnesses. 10 | P a g e ELC PET. NO. E001 OF 2023

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The case was adjourned to a date which was to be communicated. He submitted that despite visiting the 1st Respondent’s office six times to fix a hearing date, he was not given a date. He only came to learn later that his appeal had been determined vid letter of 25th October, 2022 in his absence. 29.The Petitioner relied on the case of Rahimkhan Afzalkhan Rahimkhan & 4 others –vs- Chief Land Registrar & 2 others (2017) eKLR where Justice Ogola held as follows: “It is declared that the Constitutional Rights of Daniel Mwangi, Pauline Mwongela, Afzalkham Rahimkha and Sayeed Mushtaq Hussain of Right to property, protection from discrimination, right to fair protection of the law, protection from inhuman treatment and right to human dignity, rights to fair administrative action and right to fair trial were violated. 1st to 4th Respondents’ Submission 30.The Respondents submitted that the Petitioner did not plead with specifity the Constitutional provisions alleged to have been violated. They relied on the case of Anarita Karimi Njeru –vs- Republic (1976 – 1980) KLR 1272 where it was held as follows: “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”. 31.The Respondents further submitted that it is the Petitioner who led to his appeal not being heard and cannot turn around and claim that he was not given a fair hearing. The 5th to 16th Respondents’ submissions 11 | P a g e ELC PET. NO. E001 OF 2023

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32.The Respondents submitted that this court does not have jurisdiction to entertain this Petition as the Petitioner did not seek consent of the Land Adjudication Officer to file the same as envisaged under Section 30 of the Land Adjudication Act. The Respondents relied on the case of Kalemuge clan being represented by the Representatives Hereunder named: James Kimisio & 2 others –vs- Director Land Adjudication & 5 others (2020) eKLR where it was held as follows: “When a dispute challenges the legitimacy of the process rather than an interest in land then there would be no need of obtaining a consent from the Land Adjudication Officer. The current suit faults both the process and seeks for a declaration of who is entitled to what portion of the land between the two clans. The pleadings also show that there was a High Court Civil Appeal No. 78 of 1997 which ruled that the two clans share the disputed land in equal shares. This further confirms that this Petition is about interest in land. It follows that it was mandatory for the Petitioners to seek and obtain a consent from the Land Adjudication Officer. The Petitioners averred that they had written a letter dated 17th October, 2019 to the Land Adjudication Officer but to date they have not received any response. The question is what is the legal position where a party requests for a consent and the same is either denied or the letter is not responded to? Where the consent is unreasonably denied it is my view that filing the petition would not have been a wise decision as the Petitioners had recourse to compel the Land Adjudication Officer to avail the consent to them. This makes it clear that the Petitioners did not obtain the requisite consent before filing this petition….” 33.The Respondents submitted that the Petitioner is the one who frustrated the hearing of the appeal to the Minister. He cannot therefore turn around and claim that he was not given a fair hearing. 12 | P a g e ELC PET. NO. E001 OF 2023

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Analysis and Determination 34.I have carefully gone through the Petitioner’s petition, the opposition thereto by the Respondents as well as the submissions by the parties and the authorities cited. This is one petition which shows the extent to which people can go to claim what they perceive as their right to own a piece of land. The Petitioner is fighting for his grandfather’s land. The grandfather is said to have died in the 18th century that is about four centuries ago. The Petitioner has traced his family lineage to his great great grandfather Ndavi Mbula who may have lived 600 years ago. This is because his grandfather whose land he is fighting for died on unknown dates in the 18 th century according to the limited grant he obtained for purposes of filing this petition. 35.The Petitioner started off his quest for his grandfather’s land by filing Makueni Land Disputes Tribunal case No. 140 of 2007 (Stephen Kithuka Ndungwa –vs- Kilokwe Nthale). In this case, the Petitioner had wanted the boundary to the land of his great great grandfather Ndavi Mbula marked so that the descendants of Nthele Ndavi and Mukala Ndavi could know the extent of their land. The tribunal ruled in the Petitioner’s favour. 36.The 13th Petitioner who was the objector in Tribunal case No. 140 of 2007 appealed to the Eastern Province Land Dispute Appeals Committee vide appeal case No. 125 of 2007. The appeal was dismissed vide ruling dated 25th March, 2009 as the appeal had been filed prematurely before the boundary to the land of Nthele Ndavi and Mukala Ndavi could be fixed by the Makueni Land Dispute Tribunal. 37.The decision of the Eastern Province Land Disputes Appeal Committee was adopted as judgment of the court vide Kilungu RMCC No. 45 of 2007 and the judgment was implemented. After implementation of the award which was adopted, the 5th to 16th Respondents excluding the 13th Respondent filed Makueni District Land Disputes Tribunal case No. 22 of 2007. Vide a verdict delivered on 30th November, 2007, the Tribunal found that there were 13 | P a g e ELC PET. NO. E001 OF 2023

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fourteen (14) parcels which should have been set aside before the boundary of the land of the family of Nthele Ndavi and Mukala Ndavi could be marked. 38.The Petitioner was aggrieved by the decision of 30 th November, 2007 and he filed an appeal to the Eastern Province Land Disputes Appeals Committee vide appeal No. 22 of 2008. When the appeal was set down for hearing on 6 th July, 2011, the Petitioner declined to participate in the appeal arguing that he did not see the need why he was undergoing a hearing for a second time in a case which had been determined before. The Petitioner’s appeal was thus dismissed as he had refused to participate. 39.The Petitioner filed Judicial Review application No. 229 of 2011 challenging the decision of the Eastern Province Land Disputes Appeals Committee of 6th July, 2011. The notice of motion in this Judicial Review dated 21 st October, 2011 was struck out with costs based on a preliminary objection dated 8th May, 2012 which was allowed. 40.The Petitioner filed Machakos HC Appeal No. 125 of 2011 which was later transferred to Makueni where it became Makueni ELC Appeal No. 2 of 2020. A judgment was delivered on 28 th May, 2020. This judgment set aside the decision in appeal No. 125 of 2008 and appeal No. 22 of 2008 and substituted the same with the decision in appeal No. 140 of 2007. 41.In the judgment delivered on 28th May, 2020, the judgment besides restoring the decision of the Appeals Committee in Appeal No. 140 of 2007 recognized the existence of the 14 ancestral lands which he decreed should be shared equally in the following terms: “39. In the circumstances thereof, the 14 ancestral lands should be shared equally by both parties in the sense that, their acreage should be determined, curved out of the suit land and the balance of the suit land divided equally between the appellant and 3rd Respondent”. 14 | P a g e ELC PET. NO. E001 OF 2023

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42.The Petitioner having not been satisfied with the judgment of 28 th May, 2020, he lodged a complaint and objection before the Land Adjudication Committee, Arbitration Board and the Land Adjudication Officer but his complaints were all dismissed. He then filed an appeal to the Minister vide Appeal case No. 436 of 2021. When the case was set for hearing on 12 th May, 2022, the Petitioner attended but he disrupted the proceedings. Further attempts to have the matter determined turned futile. His appeal was dismissed vide letter dated 25th October, 2022. 43.Having set out the background of the dispute resulting in the filing of this petition, the following are the issues which emerge for determination. The first is whether this court has jurisdiction to hear this petition. The second is whether the petitioner was accord a fair hearing. The third is whether the Petitioner’s right to property has been violated. The fourth is whether the Petitioner is entitled to any of the reliefs sought in the petition. The fifth is which order should be made on costs. 44.On the first issue, there is no contention that as the dispute between the family of Nthele and Mukala was going on, the area was declared as Nduu Adjudication Section. This being the case no party was allowed to file a case before any court unless consent of the Land Adjudication Officer was sought as envisaged under Section 30 of the Land Adjudication Act. The Petitioner was a live to this fact that is why he applied for consent through his lawyer vide letter of 7th August, 2023. The consent was not granted and in his supplementary affidavit sworn on 26th February, 2025 he stated that he had been advised by his advocate that consent was not mandatory where a litigant is challenging the legality of the adjudication process coupled with determination of interests. 45.It is very clear from the petition that the Petitioner’s contention is the ascertainment of interest in land. The Petitioner is particularly concerned about the interest in land touching on 14 parcels which were recorded in the 15 | P a g e ELC PET. NO. E001 OF 2023

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register in favour of the 5th, 6th , 7th , 8th, 9th , 10th , 11th, 12th , 13th , 14th , 15th, and 16th Respondents. These were identified as parcel numbers 146, 147, 148, 149, 151, 170, 169, 167, 168, 153, 154, 155, 156 and 157. 46.This being the case, it was necessary for the Petitioner to obtain consent of the Land Adjudication Officer before filing of this petition. The case of Moses Barkutwo & 3 others (Supra) is distinguishable in that the case was filed before the Applicants had reached the stage of ascertainment of their rights and therefore the provisions of the Land Adjudication Act on filing of objections had not yet become available to them. This is unlike in the present case where the matter had gone all the way to an appeal to the Minister. 47.Equally, the case of Muthara Njuri Ncheke Council of Elders & Another (Supra) is distinguishable as the judge found that the dispute in the case not only touched or ascertainment of rights and interests in land but also the legitimacy of the adjudication process. The decision which captures the state of the petition herein is the case of Katemunge clan case (Supra). I therefore find that this court does not have jurisdiction to entertain this petition for lack of consent of the Land Adjudication Officer. However, this notwithstanding, I will proceed to deal with the other issues in case I am found to be wrong on this issue. 48.On the second issue, the evidence on record is that the Petitioner’s appeal to the Minister was set down for hearing on 12 th May, 2022. The Petitioner who had been summoned and had declined to receive summons appeared and he disrupted the hearing. The Petitioner annexed a copy of summons issued on 26th April, 2022 by the Deputy County Commissioner Kilungu subcounty to his supplementary affidavit. Those summons are not clear. The fact however remains that he disrupted the proceedings of that day. Further attempts to have the appeal fixed for hearing proved futile. 49.Though the petitioner claims that he visited the office of the 1 st Respondent six times to have the appeal heard in vain, there is no evidence that that was 16 | P a g e ELC PET. NO. E001 OF 2023

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the case. The Petitioner was given the opportunity to be heard but he did not want the appeal to proceed. He cannot therefore turn round and claim that he was not given a fair hearing. The Petitioner claims that on 12 th May, 2022, he applied for adjournment which was granted. There is no evidence to support this. 50.The Petitioner had a history of filing appeals and not prosecuting them. A case in point is Appeal No. 22 of 2008 which he had filed at the Eastern Province Land Disputes Appeals Committee. When the appeal came up for hearing on 16th July, 2011, he refused to proceed questioning the panel why he was undergoing a case which had already been determined. The appeal was dismissed as the petitioner had declined to participate in it. Though the decision was set aside later on 28th May, 2020 on appeal, this shows that the Petitioner was given opportunity but could not utilize it. 51.In a case where a litigant is given opportunity to be heard but he does not seize it, he cannot be heard to complain that he was not given a fair hearing. In the case of Musila –vs-Thengi & 2 others (Civil Appeal 607 of 2019) (2025) KECA 750 KLR (9 May, 2025) (Judgment), the Appellant had been served with a hearing notice for hearing of his case but he did not turn up. His case was dismissed. He filed a Constitutional Petition in which he alleged that he had been denied a fair hearing. His Petition was dismissed with costs. He filed an appeal to the Court of Appeal. The Court of Appeal dismissed the appeal holding that the Appellant had been given an opportunity but he did not utilize it. 52.The Court of Appeal in the Musila case (Supra) quoted from the case of Union Insurance Co. of Kenya Ltd –vs- Ramzan Abdul Dhanji, Civil Application No. Nai.179 of 1998, where it was held as follows: “Whereas the right to be heard is a basic natural justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the Applicant was 17 | P a g e ELC PET. NO. E001 OF 2023

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denied the right to defend itself. The Applicants were notified on every step the Respondents proposed to take in the litigation but on none of these occasions did their counsel attend. Clearly the Applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the Applicant will be such an arguable point in the appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given reasonable opportunity of being heard and once that opportunity is given and not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it”. (emphasis added). 53. The Petitioner was given an opportunity to be heard but he squandered it by disrupting the hearing of 12th May, 2022. Subsequent attempts to have the matter heard proved futile and the 1 st Respondent had no option other than dismissing the appeal. 54.On the third issue, the Petitioner had been given opportunity to ventilate his grievances in accordance with the provisions of the Land Adjudication Act. He followed the procedures until he messed up himself by disrupting the proceedings of 12th May, 2022. Had he not done that, the Minister would have listened to him to determine whether the decision by the Adjudication Officer was right or wrong. The interests of the 5 th to 16th Respondents had been ascertained. The Petitioner had the option of challenging what had been recorded in the register as per law established. He did not do this as he did not leave the process to run its course. He cannot therefore be heard to complain that his Constitutional rights under Article 40 of the Constitution were violated. 55.The Petitioner is the one who started the whole process of having the boundary between the family of Nthele and Mukala fixed. This was done. He even appealed against the decision recognizing the 14 parcels which he did 18 | P a g e ELC PET. NO. E001 OF 2023

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not want. When this appeal came up for hearing, he declined to participate. His appeal was dismissed. He filed an appeal at Machakos which appeal was transferred to Makueni. A judgment was delivered on 28 th May, 2020. Paragraph 39 of the judgment which has been quoted hereinabove recognized the existence of the 14 parcels and suggested the way out of dealing with them. The Petitioner seems not to have been contented with the judgment and went back to lodge a complaint to the Committee, Arbitration Board, Land Adjudication Officer all through to the appeal to the Minister which was not heard due to the conduct of the Petitioner. 56.On the fourth issue, the Petitioner is seeking a declaration that the Adjudication process regarding parcel numbers 146, 147, 148, 149, 150, 151, 170, 169, 167, 168, 153, 154, 155, 156, and 157 at Nduu Adjudication Section was unconstitutional, null and void. He did not state how this was so. He was given opportunity to state how the same should not have been recorded in favour of the 5th to 16th Respondents but he failed to do so. 57.The Petitioner is seeking an order quashing the adjudication register in respect of the aforementioned parcels. He has not demonstrated that the process leading to the recording of the said parcels in favour of the 5 th to 16th Respondents was not arrived in a proper procedure. 58.The Petitioner had moved to the Makueni Land Disputes Tribunal seeking to have the boundary between the land of Nthele and Mukala put in place. This was done. He cannot therefore come by way of a Constitutional Petition to seek that the process of adjudication of Nduu Adjudication Section be reopened and one title issued in his name. If the process of adjudication is complete, there is no basis of prohibiting the 1st to 4th Respondents from processing titles in the name of persons whose favour the parcels have been recorded. 59.No injunction can issue preventing the 5 th to 16th Respondents from enjoying their parcels when it has not been demonstrated that the adjudication process 19 | P a g e ELC PET. NO. E001 OF 2023

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was flawed. This being the case, the Petitioner is not entitled to any general damages be it special or exemplary damages. Disposition 60.From the analysis hereinabove, it is clear that the Petitioner’s petition is devoid of merit. The same is dismissed with costs to the Respondents. …………………………………… HON. E. O. OBAGA JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2025. IN THE PRESENCE OF: Mr. Mukula for Petitioners Mr.Mundia for Mr. Nzei for 5th to 16th Respondents. Mr. Kuria for 1st to 4th Respondents. Court assistant – Steve Musyoki 20 | P a g e ELC PET. NO. E001 OF 2023

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