Kyoa & others v Director for Land Adjudication & Settlement & another (Environment and Land Petition 6 of 2018) [2026] KEELC 1965 (KLR)

4. The Petitioners claim is that during the land adjudication process in 1978, while they were residing on their respective parcels of land, the 2nd respondent, the Attorney General illegally and unlawfully issued letters of allotment in respect of their parcels of land to strangers who neither occupied nor resided within the environs of the suit land. They claimed that the 1st to 6th respondents illegally engaged in the registration of the 7th to 42nd respondents as owners of parcels of land and that on numerous occasions, these strangers had confronted the petitioners whenever they endeavoured to bury their dead relatives or otherwise develop their respective parcels of land. 5. The petitioners stated that their occupation had been peaceful and the government of the Republic of Kenya had created a location and sub-location with a Chief and Sub-chief in their area, who perform administrative matters. They averred that they were entitled to legitimate beneficial ownership of the land by virtue of occupation, habitation and bequest to them through successful inheritance from their forefathers. 6. The petitioners added that the government of Kenya has all along been aware of their resistance to eviction or interference with the petitioners’ respective parcels based on the fact there have been suits relating to the adjudication of the suit land, as well as other disputes relating to the parcels of land within the registration section. 7. The Petitioners urged that the respondents did not have any legal or moral authority to divest them of their rights over the land they occupy. They contended that the process of registration and issuance of titles to non-residents would lead to their eviction from the suit land, which is unlawful, illegal and ofiends Article 40 of the Constitution on the fundamental right to own property. Further, that if this court did not grant the orders sought, there was a likelihood that the petitioners’ rights would be infringed and they would be rendered homeless and destitute. 8. That despite the law granting the petitioners the right to enjoy and acquire property through Article 40 of the Constitution, the 2nd respondent had engaged in the registration of certificates of title in favour of persons other than the petitioners in respect of their parcels of land, which has threatened the enjoyment of their fundamental rights under Article 40. They argued that the 2nd respondent had abdicated the obligation to observe the natural values and principles of governance under Article 10 of the Constitution more so the rule of law, equity and social justice, in depriving the petitioners of their rights and failing to register them as owners of the parcels of land that they occupy. 9. The petitioners averred that in light of Article 2 (5) of the Constitution which recognises international law and Article 5 of UNDRIP, which prohibits the forceful removal from the land of indigenous people without prior consent, the registration and issuance of titles to outsiders who do not reside or occupy the suit land would lead to the eviction of the petitioners from the suit land and is unlawful, illegal and contravenes fundamental rights and freedom enshrined in the Constitution. 10. The petitioners sought a declaration that they are entitled to have their respective parcels of land in Wachoro Registration Section registered in their names. They sought a permanent injunction to restrain the respondents from interfering with their ownership, occupation and use and from registering or issuing certificate of title over the suit land in the names of persons other than the petitioners; or from evicting the petitioners and other residents from plot numbers 55, 1, 206, 103, 836, 838, 92, 817, 720, 871, 184, 822, 85, 88, 107, 183, 89, 277, 162, 55, 1000, 811, 65, 523, 42, 642, 599, 496, 148, 425, 355, 454, 392, 866, 506, 498, 489, 852, 42, 9, 839, 135, 134, 1107, 1151, 1490, 421, 419, 467, 15, 497, 502, 459, 446, 521, 465, 14, 452, 451, 464, 458, 147, 453, 447, 450, 16, 486, 349, 242, 562, 818, 10, 773, 781, 785, 236, 992, 991, 840, 355, 182, 90, 308, 343, 994, 1092, 1085, 1086, 804, 541, 54, 1325, 252, 935, 1064, 394, 1392, 1598, 380, 249, 1620, 1326, 1009, 425, 1537, 882, 854, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 2

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658, 517, 520, 239, 898, 136, 58, 817, 842, 108, 121, 62, 70, 474, 594, 540, 15, 536, 607, 571, 400, 238, 422, 383, 41, 564, 762, 463, 1715, 162, 305, 42, 518, 515, 42, 171, 227, 1760 & 439 in Wachoro Registration Section, within Mbeere South Registration unit or in any other way or issuing title deeds or in any other way alienating the same to persons other than to the Petitioners and their families. 11. They sought an order cancelling the titles issued to the 7th to 42nd Respondents amongst other persons with respect to the petitioners parcels of land known as 55, 1, 206, 103, 836, 838, 92, 817, 720, 871, 184, 822, 85, 88, 107, 183, 89, 277, 162, 55, 1000, 811, 65, 523, 42, 642, 599, 496, 148, 425, 355, 454, 392, 866, 506, 498, 489, 852, 429, 839, 135, 134, 1107, 1151, 1490, 421, 419, 467, 15, 497, 502, 459, 446, 521, 465, 14, 452, 452, 451, 464, 458, 147, 453, 447, 450, 16, 486, 3492, 42, 562, 818, 10, 773, 781, 785, 236, 992, 991, 840, 355, 182, 90, 308, 343, 994, 1092, 1085, 1086, 804, 541, 54, 1325, 252, 935, 1064, 394, 1392, 1598, 380, 249, 1620, 1326, 1009, 425, 1537, 882, 854, 658, 517, 520, 239, 898, 136, 58, 817, 842, 108, 121, 62, 70, 474, 594, 540, 15, 536, 607, 571, 400, 238, 422, 383, 41, 564, 762, 463, 1715, 162, 305, 42, 518, 515, 42, 171, 227, 1760 & 439 in Wachoro Registration Section, within Mbeere South Registration Unit. 12. The Petitioners also sought a declaration be made that the act of registration in favour of persons the interested parties 7th to 42nd Respondents herein amongst other persons other than the Petitioners in respect of the parcel numbers 55, 1, 206, 103, 836, 838, 92, 817, 720, 871, 184, 822, 85, 88, 107, 183, 89, 277, 162, 55, 1000, 811, 65, 523, 42, 642, 599, 496, 148, 425, 355, 454, 392, 866, 506, 498, 489, 852, 429, 839, 135, 134, 1107, 1151, 1490, 421, 419, 467, 15, 497, 502, 459, 446, 521, 465, 14, 452, 451, 464, 458, 147, 453, 447, 450, 16, 486, 349, 242, 562, 818, 10, 773, 781, 785, 236, 992, 991, 840, 355, 182, 90, 308, 343, 994, 1092, 1085, 1086, 804, 541, 54, 1325, 252, 935, 1064, 394, 1392, 1598, 380, 249, 1620, 1326, 1009, 425, 1537, 882, 854, 658, 517, 520, 239, 898, 136, 58, 817, 842, 108, 121, 62, 70, 474, 594, 540, 15, 536, 607, 571, 400, 238, 422, 383, 41, 564, 762, 463, 1715, 162, 305, 42, 518, 515, 42, 171, 227, 1760 & 439 in Wachoro Registration Sections, within Mbeere South Registration unit, in violation of the Petitioners rights under Article 40,47 and is unfair, unreasonable, illogical and in violation of Article 61 of the Constitution of Kenya. 13. The Petitioners sought an order directing 4th, 5th and 6th Respondents to immediately survey adjudicate land registrars in the Petitioners’ names and proceed to issue certificates of titles to the Petitioners and residents Wachoro registration Section in terms of the current settlement pattern. 14. They sought an order cancelling the titles issued to the 7th to 42nd Respondents herein amongst other persons other than the Petitioners in respect to parcels of land held and/or occupied or claimed by the petitioners being parcels of land known as 55, 1, 206, 103, 836, 838, 92, 817, 720, 871, 184, 822, 85, 88, 107, 183, 89, 277, 162, 55, 1000, 811, 65, 523, 42, 642, 599, 496, 148, 425, 355, 454, 392, 866, 506, 498, 489, 852, 429, 839, 135, 134, 1107, 1151, 1490, 421, 419, 467, 15, 497, 502, 459, 446, 521, 465, 14, 452, 452, 451, 464 ,458, 147, 453, 447, 450, 16,486, 349, 242, 562, 818, 10, 773, 781, 785, 236, 992, 991, 840, 355, 182, 90, 308, 343, 994, 1092, 1085, 1086, 804, 541, 54, 1325, 252, 935, 1064, 394, 1392, 1598, 380, 249, 1620, 1326, 1009. 425, 1537, 882, 854, 658, 517, 520, 239, 898, 136, 58, 817, 842, 108, 121, 62, 70, 4 74, 594, 540, 15, 536, 607, 571, 400, 238, 422, 383. 41, 564, 762, 463, 1715,162, 305, 42, 518, 515, 42, 171, 227, 1760 & 439 in Wachoro Registration Section, within Mbeere South Registration unit. 15. A declaration was sought that the petitioners are the rightful and legal owners of all the parcels of land known as 55, 1, 206, 103, 836, 838, 92, 817, 720, 871, 184, 822, 85, 88, 107, 183, 89, 277, 162, 55, 1000, 811, 65, 523, 42, 642, 599, 496, 148, 425, 355, 454, 392, 866, 506, 498, 489, 852, 429, 839, 135, 134, 1107, 1151, 1490, 421, 419, 467, 15, 497, 502, 459, 446, 521, 465, 14, 452, 451, 464, 458, 147, 453, 447, 450, 16, 486, 349, 242, 562, 818, 10, 773, 781, 785, 236, 992, 991, 840, 355, 182, 90, 308, 343, 994, 1092, 1085, 1086, 804, 541, 54, 1325, 252, 935, 1064, 394, 1392, 1598, 380, 249, 1620, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 3

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1326, 1009, 425, 1537, 882, 854, 658, 517, 520, 239, 898, 136, 58, 817, 842, 108, 121, 62, 70, 474, 594, 540, 15, 536, 607, 571, 400, 238, 422, 383, 41, 564, 762, 463, 1715, 162, 305, 42, 518, 515, 42, 171, 227, 1760 & 439 in Wachoro Registration Sections, within Mbeere South Registration unit, having acquired the land through adverse possession. The Petitioners also sought costs. 16. Octavian Ndambiri Kamwaru swore the replying afidavit in response to a further amended petition as the 2nd respondent. He averred that he was registered as the proprietor of Mbeere/Wachoro/1598 on 20/1/2012 and was issued a title deed on 20/4/2017, a copy of which he exhibited. He stated that before being issued the title, he obtained a letter of confirmation of ownership from the District Land Adjudication and Settlement Oficer, Mbeere South District dated 16/3/2011. 17. He was emphatic that he legally acquired his title after the adjudication process hence the 98th petitioner, Anna Wanjiru Ndabu had no proprietary rights over his land. He instructed his lawyers to issue a notice under Section 152E of the Land Act on 23/4/2022. He received a response from the 98th petitioner’s advocate on 18/5/2022 stating that she was one of the petitioners in this claim. He maintained that the adjudication process was conducted properly and that the petitioners did not raise any issue with the process or file objections as stipulated in the Land Adjudication Act. He urged that the petition was geared towards his constitutional rights over his parcel of land and that no constitutional issues were raised in the present petition. 18. Margaret M. Mutai, the principal Land Registrar, Kiritiri Land Registry, swore the replying afidavit on behalf of the 1st to 6th respondents. She gave the names of 36 persons who were registered as absolute owners and who are recognized by the lands department. She clarified that land adjudication can only be done on land which has not been adjudicated and that in this case, the adjudication process ended when the titles were registered in the names of the rightful owners. She averred that the petitioners were not the rightful owners of the land they claim and that they did not have any proof to support their claim. 19. She added that the petitioners could not claim adverse possession of the suit land because titles in Wachoro were issued in 2018, which means the 12-year statutory period had not lapsed. She maintained that any person claiming ownership of the suit land must prove ownership and how they acquired it. She averred that the petitioners illegally occupied land belonging to the registered persons and terrorized them with threats thereby depriving them of their right to ownership. 20. Mrs. Mutai deponed that she declined to cancel the titles already registered since there was insuficient proof of ownership of the land by the petitioners. In her view, the legally registered owners of the land could not be restrained from occupying or using their property and the petitioners should vacate the land and allow the rightful owners to enjoy their rights as legal owners. She urged the court to dismiss the petition. 21. The petition was canvased through written submissions. The petitioners gave a background to the petition. They indicated that the 1st respondent averred in the replying afidavit dated 17/2/2025 that she received her title on 9/3/2022 but there were strangers occupying the land. That the 5th respondent stated in the replying afidavit that he did not own any parcel of land and that he had not infringed on the petitioners’ constitutional rights. The 7th respondent filed a replying afidavit on 7/9/2023 stating that he was issued a letter of allocation of land and was legally registered as the owner of the land. The 34th respondent filed a replying afidavit dated 10/12/2022 and stated that the 145th petitioner had no interest or claim over Mbeere/Wachoro/1760 and that the land had a title deed and could not be the subject of land adjudication and demarcation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 4

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22. The petitioners summarised three issues for determination, that is, whether the petition raises constitutional issues for determination by this court; whether the adjudication process was legally carried out and lastly, whether the petitioners are entitled to the reliefs sought in the Further Amended Petition. The petitioners submitted that the petition raises constitutional issues because the reliefs sought are based on constitutional rights. 23. According to them, the doctrine of constitutional avoidance did not apply in this scenario because the issues to be determined were based on the rights in the Constitution relating to the Bill of Rights under Article 23, the right to property under Article 40 and the obligation of the State not to deprive a person of their right to property unless as provided under Article 40 (3) of the Constitution. 24. They cited Communication Commission of Kenya and 5 others v Royal Media Services Limited and 5 Others [2014] eKLR where the Supreme Court stated that constitutional avoidance entailed the principle that a court should not determine a constitutional issue when the matter could be properly determined on another basis. They added that the Court of Appeal relied on that Supreme Court decision in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR and stated that where the subject matter before a court was not a constitutional issue and a petition does not disclose a cause of action anchored on the Constitution, the doctrine may be invoked. 25. The petitioners submitted that the adjudication process was not legally carried out and that it was done in a manner which ofiends the Land Adjudication Act. Moreover, that the adjudication process ofiends Article 60(d) of the Constitution which gives one of the principles of land policy as transparent and cost efiective administration of land. They submitted that the adjudication process was carried out without informing the petitioners who were living in the land yet Section 5 of the Land Adjudication Act requires that a notice be given by the adjudication oficer of the intended adjudication area so that any person with an interest in adjudication area can make a claim to the recording oficer under Section 13 of that Act. 26. The petitioners claimed that they knew of the process after it was completed and title deeds had been issued to the 7th to 42nd respondents. The respondents used those titles to lay claim to the land occupied by the petitioners. They urged that Section 14 of the Land Adjudication Act was not complied with and that the demarcation oficer did not give warning of the intended demarcation and recording of the claims of the time and place it all begun. They maintained that the petition raised constitutional issues for determination by this court. 27. The petitioners submitted that they could not raise objections under Section 26 of the Land Adjudication Act because they were not aware that the adjudication process was taking place and could therefore not take part in a fictitious adjudication process. They argued that the land adjudication process was not valid because the petitioners’ rights over the suit land were not ascertained before title deeds were issued to the respondents. They relied on Joyce Nkatha Musa v Samwel Kaumbutu M’ayoia and others [2012] eKLR where the court observed that proceedings under the Land Adjudication Act were special in nature because the land being demarcated was still under customary law and it is those rights that should be ascertained before registration is efiected and titles issued under the Registered Land Act. 28. They urged that although a title deed is prima facie evidence of ownership of land, Article 40 (6) of the Constitution removes the protection of title to property found to have been unlawfully acquired. Further, that under Section 20(1) (a) and (b) and Section 80 of the Land Registration Act, the court could order that the registration of the fraudulent owners who obtained titles without following due process, be cancelled and for the register to be rectified. They cited several court decisions on this. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 5

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29. They maintained that the 7th to 42nd respondents obtained titles to land in a fraudulent manner and as such the court had power to cancel those titles and rectify the register. They added that a certificate of title can be challenged if it was acquired illegally, unprocedurally or through a corrupt scheme. They cited Pauline Muia, Maingi and 3 others v Attorney General and 3 others [2013] eKLR in which the court allowed registration of titles in favour of the petitioners against the respondents because the adjudication process had ignored prior customary rights. They urged that they should be issued with titles to prevent further disputes over the suit land. They submitted that the adjudication process was unconstitutional and urged the court to grant the orders sought in the petition. They also sought a permanent injunction. 30. The 11th respondent was previously the 5th interested party and the 40th respondent who was previously the 34th party submitted that the petitioners did not prove the allegations of violation of their constitutional rights. Further, that they do not have any claim or remedy against the 11th and 40th respondents. They relied on Malonza v the Nairobi City County and 2 others (petition E027 of 2021) [2022] KEHC 13632 (KLR) where it was held that a party who alleges violation of his or her rights must plead with reasonable precision the manner in which the rights had been violated. 31. The 11th respondent adverted to his replying afidavit sworn on 16/6/2022 and argued that the petitioners had not stated the rights that he had violated. He maintained that he was wrongly and maliciously joined to this petition yet he does not own any of the parcels of land that form the subject of the petition. He claimed that he was made a party because he wrote a letter as an advocate on behalf of the 40th respondent. He emphasized that the petitioners had not specified the land they allege he owns and that no orders were sought against him. 32. The 40th respondent submitted that he was the registered proprietor of Mbeere/Wachoro/1760 and that the petitioners had not stated the specific constitutional rights and freedoms, which he had infringed. He stated that sometime in 2019, the 145th petitioner, Mary Wanjiku Murimi trespassed onto the 40th respondent’s parcel of land and when he approached her to inquire why she was developing his plots, she did not ofier any explanation. Later he was served with a letter dated 4/6/2019 for the 145th petitioner’s advocate demanding that he stops disturbing the 145th petitioner because according to that petitioner, parcel number 1760 was owned by Bernard Musili Mwose who was dead. 33. He maintained that the 145th petitioner had no claim over plot number 1760 and that prior to 2019 she did not occupy that land. He submitted that the petitioners cited various provisions of the Constitution but did not support them with evidence of the alleged breach or infringement of rights. He urged the court to dismiss the petition with costs to 11th to 40th respondents. 34. The 1st to 6th respondents submitted that the petitioners challenge to the land rights of the registered proprietors was misplaced and without merit. It was their position that the adjudication process in Wachoro Registration Section was conducted lawfully, transparently and in strict adherence with the Land Adjudication Act. They urged that the adjudication process specifically undertook declaration of the adjudication section by the Cabinet Secretary, appointment of adjudication oficers and committees including the constitution of demarcation and recording teams; demarcation of boundaries; display of adjudication register for public scrutiny; certification of the adjudication register followed by publication and issuance of titles by the Land Registrar. 35. That following the completion of this lawful and multiple stage process, the respective landowners were issued valid and indefeasible title deeds in accordance with Section 30(1) of the Land Adjudication Act read together with Section 26(1) of the Land Registration Act. They maintained that the registered proprietors hold their titles legally, conclusively and in the manner that cannot be lightly challenged https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 6

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except where fraud or illegality is pleaded and proved to the required standards, which the petitioners failed to do. 36. They relied on Tobias Achola Osindi and 13 others v Cyprian Otieno Ogalo and 6 others [2013] eKLR where Okong’o, J, stated that once an area has been declared to be an adjudication area under the Act, the ascertainment and determination of rights and interest in land within the area was reserved by law for the oficers and quasi judicial bodies set up under the Act. Further, that the Act gave full power and authority to the Land Adjudication Oficer to ascertain and determine interests in land in an adjudication area prior to the registration of such interest. The court noted that the process was elaborate and inclusive in that it involved the residents of the area concerned. 37. That the court agreed with the submission that the land adjudication oficer could not transfer the exercise of that power to the court. Okong’o, J, found that the court had no jurisdiction to ascertain and determine interests in land in an adjudication area. Further, that the role of the court was only supervisory and the court could come in to ensure that the process was carried out in accordance with the law. The judge emphasized that the court could not usurp the functions and powers of the Land Adjudication Oficer or other bodies set up under that Act to assist in the process of ascertainment of the rights and interests in land. 38. The 1st to 6th respondents submitted that the petitioners were not entitled to the reliefs sought because ownership of the suit parcels of land already vested in lawfully registered proprietors whose rights were protected by law. They maintained that the petitioners neither pleaded fraud with particularity nor did they adduce evidence of impropriety in the registration of the suit land. That instead, they were asking the court to overturn the lawful government supervised land registration merely on the basis of unverified claims of occupation and entitlement. 39. They added that the petitioners failed to demonstrate any legitimate entitlement to the parcels of land in dispute. That despite alleging long-term occupation and informal claims of ancestral ownership, the petitioners did not table any documentary proof of allocation, customary or community ownership instruments, letters of administration, allotment letters or adjudication objection, maps, demarcation reports or records of historical occupation. They argued that the claims were vague and wholly unsupported. 40. They argued that in the absence of proof, the petitioners were asking the court to grant declarations and orders against legally registered owners purely on moral or sentimental grounds. They submitted that the petitioners’ occupation of the suit land was unlawful and amounted to trespass. They concluded that the petitioners had not demonstrated any lawful or equitable entitlement to the suit land and that the adjudication process was conducted lawfully following which titles were properly issued. Further, that the petitioners failed to prove any indigenous, ancestral or legal claim. They urged that the Further Amended Petition was a veiled attempt to disrupt settled land rights, overturn due process and reward illegal occupation. 41. The 7th respondent and 1st interested party relied on the replying afidavit opposing the petition. The 7th respondent stated that he was the registered proprietor of Mbeere/Wachoro/1598 and that he was registered after completion of the land adjudication process in Wachoro adjudication Section. He added that the 98th petitioner did not object to the adjudication process at any stage of the process, hence no constitutional rights had been infringed. The 1st interested party stated that the claim against her land parcel number 992 was dead because at the time of filing the petition, James Mailu Muthoka had died before on 10/10/1995. They submitted that he could not have resurrected to file the present petition against the 1st interested party who obtained a title on 10/3/2022 after he purchased that land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 7

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That it was only when she commenced the suit for eviction, Siakago PMC Misc. Application No. E021 of 2022, that she learned of this petition. 42. The 7th respondent and 1st interested party submitted that the land in question was the subject of the land adjudication process on or about 1978 following which the respective owners were issued title deeds. He pointed out that the Land Adjudication Act provided a mechanism for preparation of the adjudication register and room for objections to the adjudication register as well as he manner in which those objections were to be resolved. In addition, the Act provided for a no objection register when the time for objection has expired under section 26(i) which is delivered to the director of Land Adjudication and the register is finalized subject to appeals. Aggrieved parties are required to file an appeal to the Cabinet Secretary within 60 days after which a party can seek redress in a court of law through judicial review as provided under the Civil Procedure Rules. 43. They submitted that the petitioners had not demonstrated that they exhausted the avenues under the Land Adjudication Act and that after the close of adjudication process, the petitioners could only pursue their claim through judicial review proceedings. They cited Embu ELC Petition No. 54 of 2015 in which the judge found that the petition did not raise any constitutional issues for determination and that the petitioners failed to demonstrate any violation of the fundamental rights pleaded in the petition. They also cited Peter Muturi Njuguna v Kenya Wild Life Service [2017] in which the court noted that where there was a specific procedure regarding the redress of grievances it should be strictly followed. That the issue of exhausting specific procedure has been considered by courts and courts were of the view that that procedure should be strictly followed. 44. The main issues for determination are whether the petition raises constitutional issues for determination by this court and whether this court should grant the reliefs sought in the Further Amended Petition. The petitioners submitted that the petition raises constitutional issues because the reliefs sought are based on constitutional rights. The thrust of the petitioners’ claim is that the adjudication process in Wachoro was not legally carried out. 45. The petitioners contend that during the land adjudication process, which took place almost forty years ago in 1978, the 1st to 4th Respondents unlawfully issued letters of allotment in respect of the petitioners’ parcels of land to strangers who neither occupied nor resided within the environs of the suit land while the petitioners were residing on their respective parcels of land. They faulted the 1st to 6th respondents for registering the 7th to 42nd respondents as owners of parcels of land and mentioned that there had been confrontations between the registered owners and the petitioners when the petitioners tried to bury their dead relatives or develop their respective parcels of land. They claimed to be entitled to legitimate beneficial ownership of the suit land by virtue of occupation, habitation and successful inheritance from their forefathers. 46. The Petitioners alluded to the government of Kenya being aware of their resistance to eviction from the land they occupy based on the fact there had been suits relating to the adjudication and registration of the suit land. The petitioners did not give further details of the suits and what determinations were made in those suits. 47. The petitioners claimed that the 2nd respondent had issued titles in respect of their parcels of land to persons other than the petitioners, which threatened the enjoyment of the petitioners’ fundamental rights under Article 40. The Petitioners set out provisions of the Land Adjudication Act, which they claim were not adhered to during the adjudication of Wachoro Registration Section, within Mbeere South Registration unit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 8

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48. The court understands the petitioners to be challenging the manner in which the adjudication of land in Wachoro Registration Section was conducted. That process was governed by the Land Adjudication Act, which had inbuilt mechanisms for dispute resolution. Part III of the Land Adjudication Act is dedicated to ascertainment of interests in land. A person who has an interest within an adjudication section is required to make a claim to the recording oficer and point out his boundaries to the demarcation oficer. Part IV of that Act deals with the preparation of the adjudication record. The recording oficer determines a person or a group to be the owner of land if they have exercised rights in or over the land under recognised customary law. Rights that do not amount to ownership such as rights of occupation even if they are not by virtue of recognised customary law are to be ascertained as well. The Respondents and other ofices under the Act were required to ascertain the interests of the persons on the land during the adjudication of the suit land, which in this case is indicated to have occurred in 1978 although the impugned title deeds seem to have been issued in 2018. 49. The Land Adjudication Act provided the steps to be followed once the adjudication register was completed and how objections to the register could be made. This is because the adjudication register is the foundation for the issuance of titles by the Chief Land Registrar after persons afiected by the register who considered it to be incomplete or incorrect had had an opportunity under the Act to raise objections and lodge appeals with the Minister. 50. The petitioners’ explanation for taking almost 40 years to challenge the adjudication process was that that they did not know about the land adjudication process until it was completed and title deeds were issued to the 7th to 42nd respondents. According to the documents presented to court, titles were issued to some of the respondents in 2018. That explanation is not plausible if the land in Wachoro Registration Section was adjudicated in 1978. The petitioners should have utilised the avenues prescribed under the Land Adjudication Act to pursue their claims to the land they claim to have occupied from time immemorial. Once title deeds were issued, the petitioners’ claim ceased to be about land adjudication and demarcation governed by the Land Adjudication Act and became a question of challenging the registration of the proprietors on the grounds stipulated under the Land Registration Act. 51. In this court’s view, a constitutional petition is not the proper forum for the petitioners to challenge the registration of proprietors of land in Wachoro Registration Section following completion of the adjudication process. This is because the Land Adjudication Act prescribed mechanisms for objecting to the adjudication register and lodging appeals to the Minister. The 1st to 5th Respondents did not place any materials before this court to show how the adjudication process was done. They merely mentioned that the process was done in accordance with the law. The Respondents did not ofier any explanation on how the 1st to 6th Respondents registered persons other than those occupying the land as the owners of those portions of land. 52. It is not the place of this court to determine the rights or interests of the petitioners to the suit land, as that was the preserve of the recording oficer and the demarcation oficer. Part III of the Land Adjudication Act required that a person who considered that he had an interest in land within an adjudication section was to make a claim to the recording oficer and point out his boundaries to the demarcation oficer. 53. The evidence adduced in this petition proves that some registered owners are unable to take possession of their land and that they have faced resistance when they attempted to occupy the land. Ownership of land encompasses the twin aspects of registration as a proprietor and possession or occupation of the land with the right to use the land. The situation obtaining is that some registered owners of land https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 9

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have been hindered from taking possession of the suit land. That is a matter which these respondents will eventually be forced to resolve, one way or the other to avoid bloodshed in the area. 54. In the Further Amended Petition, the petitioners pleaded that their descendants and forefathers had remained on the suit land since time immemorial. They included a schedule in the petition with names of the petitioners and the plot numbers they claim to occupy. They sought cancellation of almost 120 parcels of land and declarations that the petitioners own those parcels of land. They averred that the 2nd to 6th Respondents had engaged in the illegal registration of those parcels of land to the 7th to 42nd Respondents among other persons who are strangers, who had on numerous occasions confronted the petitioners when they attempted to bury their dead relatives on the suit land or develop it. 55. Some of the respondents claimed that they did not own land within Wachoro Adjudication Section. It is evident that some of the parcels of land that forms the subject matter of this dispute belong to persons who are not before this court. If the court were to cancel their titles, they would have been condemned unheard. The petitioners failed to prove the allegations of violation of their constitutional rights by the Respondents. 56. The court declines to grant the orders sought in the Further Amended Petition dated 9/5/2023. Each party will bear its costs for the petition. DELIVERED VIRTUALLY AT BUNGOMA THIS 24TH DAY OF FEBRUARY 2026. K. BOR JUDGE In the presence of: Ms. E. Ondisa holding brief for Mr. W. Nyamu for the Petitioners Mr. Gilbert Ombachi for the 7th Respondent and Interested Party Diana Kemboi- Court Assistant No appearance for the other Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1965/eng@2026-02-24 10

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