Karanja & 29 others v Cabinet Secretary, Ministry of Lands & 3 others (Environment and Land Constitutional Petition E003 of 2021) [2026] KEELC 1988 (KLR)

DAVID NYAGA MUGO ................................................................ 18TH PETITIONER NORMAN KINYUA ...................................................................... 19TH PETITIONER JOSEPH MUKUNDI MURIUKI .................................................. 20TH PETITIONER PETER NYAGA MURIUKI ........................................................... 21ST PETITIONER JOSIA NJIRU NYAGA .................................................................. 22ND PETITIONER HANDERSON MURATHI WANJA ............................................ 23RD PETITIONER LEONARD KINYUA NJUE .......................................................... 24TH PETITIONER KELVIN MUTUIRI KARIUKI .................................................... 25TH PETITIONER BENSON KITHAKA NYAGA ...................................................... 26TH PETITIONER PAUL NJERU NJUKI .................................................................... 27TH PETITIONER KINYUA MACHARIA .................................................................. 28TH PETITIONER SAMUEL KIARAGO ..................................................................... 29TH PETITIONER JOSEPH MIKUNDI NJUE ............................................................ 30TH PETITIONER AND CABINET SECRETARY, MINISTRY OF LANDS ..................... 1ST RESPONDENT NATIONAL LAND COMMISSION ............................................ 2ND RESPONDENT COUNTY GOVRNMENT OF EMBU ......................................... 3RD RESPONDENT HON. ATTORNEY GENERAL .................................................... 4TH RESPONDENT JUDGMENT 1. The Petitioners filed the petition dated 14/9/2021 seeking various declarations against the Respondents, who play difierent roles in land adjudication, management and registration. Their claim is that the Respondents caused the demarcation, alienation and allocation resulting in the issuance of titles to strangers who were not entitled to the land known as Kagaari/Weru/309 (the suit land) without conducting meaningful and qualitative public participation or respecting the property rights of all the communities and beneficiaries resident on the land. They urged that the titles arising from that fiawed exercise were processed and issued with resultant subdivisions being parcel numbers Kagaari/ Weru/10433 to 10499. 2. The Petitioners averred that there was a real and serious threat to the security, peace and stability of the area if the issuance of title deeds in the scheme was not stopped and if the titles issued were not cancelled or revoked since it was of necessity going to involve the uprooting, movement and displacement of people who had been in occupation and possession of the land for decades. They pointed out that Article 10 of the Constitution required public authorities to carry out public participation before the demarcation and allocation of the land in question. They claimed that the Respondents prepared a fiawed and incomplete list of beneficiaries without conducting any public participation that would have allowed everyone with a claim to the land in question whether current or historical, to be heard. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1988/eng@2026-02-19 2

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3. Further, that the Respondents refused to release documents pertaining to the allocation process on grounds that the documents could only be issued after the titles had come out. They contended that the list of beneficiaries prepared by the Respondents, which favoured some members of the community who were not entitled to the land, had been adopted by the Commission as the authentic list of all beneficiaries of Igandu Clan. 4. It was contended that some of the members of the Igandu Clan presented themselves as the elders and represented a section of the clan members and together with the elite, schemed to rob members of their whole community. That the elite in Igandu Clan did not consult other communities resident in the area before submitting the list of beneficiaries yet Kagaari/Weru/309 is occupied by a cosmopolitan community consisting of Kamba, Mbeere and Embu Communities who were allowed by the clan to be on the land and were referred to as squatters. 5. The Petitioners stated that Kagaari/Weru/309 measures approximately 81.532 hectares yet there is no evidence on the ground that the survey process was undertaken. They challenged the process that the Respondents used to ascertain the list of beneficiaries. They maintained that if there was a list of beneficiaries acted upon by the Respondents, then it was based on a backroom deal between the interested parties and the Respondents and was not refiective of the owners and the current inhabitants of the land. They urged that a significant number of the beneficiaries in the list were brought from other places for political mileage and the land was being used for campaign rewards and patronage. 6. They urged that only a small percentage of the Igandu Clan members were allocated land in the list. Further, that the National Land Commission (NLC) and the County Government Embu allocated many large pieces of land from Kagaari/Weru/309 to persons who were not members of the Igandu Clan most of whom are small-scale farmers and whose property rights were disregarded. 7. The Petitioners contended that some of the persons in charge of the land allocation had allocated themselves and their close family members large pieces of land without seeking to find out the true owners or the locals with legitimate claims to the land allocated. They added that the list contained numerous instances of double allocations of land to the same persons and in other instances, allocations were made to dead people because there was no public participation conducted. 8. The Petitioners contended that since the land was community land and the occupants were well known because their families had lived on the land for decades, they were entitled to the land as of right. They argued that the sensitive nature of the land issue was compounded by the varying historical claims by the clan members and other persons living on the land as well as those who claim to have been forcibly pushed out of the land. 9. The Petitioners emphasized that NLC was under an obligation to investigate historical land injustices as part of its constitutional mandate and that it had ignored its duty in its rush to alienate, demarcate and allocate titles with the Cabinet Secretary for Lands to persons who were not entitled to the land. The irregularities led to the filing of Nyeri High Court Civil Case No. 19 of 1973 by the Igandu Clan members against the County Council of Embu. The case was dismissed after the parties disowned it. 10. The Petitioners argued that the suit land was unregistered community land and that by the time the Respondents demarcated and allocated the land, the Community Land Act had not been enacted. They argued that without its enactment as the law envisaged by Article 63 of the Constitution, no allocation of unregistered community land could have taken place. They argued that allocation of Kagaari/Weru/309 should not have been done and titles should not have been issued and they invited the court to give directions on how another process will be conducted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1988/eng@2026-02-19 3

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11. The Petitioners urged that any attempt by the list of members issued with title deeds to occupy the land will trigger insecurity problems in the region because many beneficiaries were dissatisfied with their impending disenfranchisement. They argued that the process needs to start afresh so that allocations can be done in an open, peaceful and fair way bringing all the members on board. 12. The Petitioners claimed that the Respondents failed to conduct meaningful and qualitative public participation before demarcating, alienating and allocating titles to the land comprising Kagaari/ Weru/309 in contravention of Article 10 of the Constitution. They urged that the exclusion of members of the clan and communities with current or historical claims in the allocation of the land amounted to discrimination contrary to Article 27(4) of the Constitution. They urged that the rights of genuine squatters guaranteed by Article 28 of inherent dignity and the right to have that dignity respected and protected had been violated. 13. They urged that their right not to be deprived of property under Article 40(3) of the Constitution had been violated by the Respondents. Further, their right under Article 47(2) had been violated by the Respondents’ failure to provide reasons for the exclusion of persons with current or historical land rights from the allocation of the land. They also argued that to the extent that the Respondents demarcated, alienated, allocated and issued titles to a group of persons of the land comprising Kagaari/ Weru/309 before the enactment of legislation on community land violated Article 63(4) of the Constitution which provides that community land shall only be disposed of in terms of legislation specifying the nature and extent of rights of the members of the community both individually and collectively. They also faulted NLC for not initiating investigations into present or historical land injustices and recommending appropriate redress. 14. The Petitioners sought various declarations; that the Respondents were bound by the key national values under Article 10 and the duty not to discriminate under Article 27(4); that the Respondents are bound to respect and protect the dignity of all persons occupying the suit land and that pursuant to Article 35(1) the Respondents are bound to release all documents pertaining to the demarcation, alienation and allocation of the land comprising Kagaari/Weru/309. They also sought a declaration that within the intendment of Article 40(3), the Respondents could not exclude members with current or historical land claims in the allocation of the disputed land. Further, that the Respondents are bound by Article 47(1) to provide administrative action that is lawful, reasonable and procedurally fair. In addition, that they are bound to provide reasons for failing to include all the members of the clan and persons with current and historical land rights in the suit land. 15. The other reliefs sought are a declaration that under Article 63(4) and (5), the Respondents could not demarcate, alienate and issue titles to community land before the enactment of legislation on community land and a declaration that the NLC is bound to investigate all complaints relating to historical injustices referred to it. They sought a declaration that the demarcation, alienation, allocation and issuance of titles over the land comprising Kagaari/Weru/309 was inconsistent with Article 10, 27(4), 28, 35(1), 47, 63(4) and (5) as well as 67(2) (f) of the Constitution was null and void and an order of certiorari to quash the titles comprising Kagaari/Weru/309. 16. Paul Kilonzo Runyenze , the 12th Petitioner swore the supporting afidavit. He deponed that he had authority from his co-Petitioners to swear the afidavit on their behalf. He averred that he was a member of the Igandu Clan and reiterated the averments set out in the petition. He attached copies of searches for Kagaari/Weru/10433 to 10499. He also attached copies of the minutes of the meeting held on 11/8/1972, register for parcel number 309 and photographs to his afidavit. 17. I. M Muange, the Land Registrar Embu swore the replying afidavit on behalf of the 1st an 4th Respondents. He averred that the suit property was registered in the name of the Trust Land Board, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1988/eng@2026-02-19 4

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which became the County Council of Embu and was reserved for Igandu Clan hence it was public land. He argued that the Petitioners should liaise with the County Council of Embu to obtain the documents used to allot the suit land. He urged the court to dismiss the petition. 18. He exhibited a copy of the register which was opened on 17/4/1962. Entry number 1 dated 17/4/1962 gave the proprietor as the Trust Land Board, Municipal County Council of Embu. Entry number 2 dated 23/10/2017 reads (mutation: title closed on subdivision as per the area list number 10433 – 10499.) 19. The other Respondents did not respond to the petition despite being served. The petition was canvased through written submissions. The Petitioners submitted that sometime in 2018, they realised that the Respondents caused demarcation, alienation and allocation of the suit land, which resulted in the issuance of titles to strangers not entitled to the land without conducting meaningful and qualitative public participation. They claimed that the Respondent’s actions discriminated against some rightful members who were left out of the list of beneficiaries. 20. Further, they submitted that they tried to seek information on the process from the Respondents and sought documents but these were not furnished to them. They argued that there was a real serious threat to security, peace and stability in the area unless the issuance of titles was stopped and the titles already issued were cancelled or revoked because they would afiect people in occupation of the land for decades. 21. The Petitioners relied on Article 63 of the Constitution and Section 6(1) of the Community Land Act. They pointed out that it was unfortunate that by the time the Respondents demarcated and allocated the suit land in 2015, the Community Land Act had not been enacted. They cited Sections 6 and 7 of the Community Land Act as well as Regulations 13 and 25 of the Community Land Regulations of 2017. The Petitioners submitted that they had not been registered as a community under the Act and that the suit land had not been registered as community land under the Act and for that reason it was therefore unregistered community land and vested in the 3rd Respondent by virtue of Article 63. 22. The Petitioners argued that the Respondents had violated the rights of some of the members of the clan under Articles 10, 27(4) 47, 63 and 67 of the Constitution. 23. The 1st and 4th Respondents submitted that they undertook reasonable steps to ensure public participation including notices, barazas and the opportunity to lodge claims and objection under the Land Adjudication Act. They urged that the Petitioners did not provide evidence of ethnic or other discrimination. They submitted that they conducted the process in a respectful and inclusive manner and that they followed due process. 24. Regarding access to information, the Respondents argued that the Petitioners had not shown that they made a formal request for documents, which was denied. They denied that any party was deprived of legally registered land while emphasizing that the allocation process followed the law. Further, that those with no titles did not have provable claims under adjudication and that the Respondents acted within the legal framework. They urged that the Petitioner’s claims were unsubstantiated. 25. The Respondents cited Section 26 of the Land Registration Act on the point of a certificate of title being conclusive evidence of ownership unless it is shown that the title was acquired through fraud, misrepresentation or other unlawful means. Regarding Article 47, they maintained that the land adjudication process included mechanisms for hearings, objections and appeals, which satisfy the threshold for procedural fairness. They added that the Petitioners had opportunities to participate and contest decisions, which they did not fully utilize. They argued that the Petitioners had not proved that they made a request for reasons and there was a failure to respond regarding the administrative action. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1988/eng@2026-02-19 5

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26. The Respondents cited Isiolo County Government vs Attorney General and 3 Others [2022] eKLR where the court held that land that was under adjudication before the enactment of the Community Land Act of 2016 would not be retrospectively categorized as community land subject to that Act. The 1st and 4th Respondents contended that the suit land had been under adjudication long before the Community Land Act came into force and that Articles 63(4) and (5) could not be applied retrospectively. 27. Regarding Article 67 of the Constitution on NLC’s duty to investigate historical injustices, they urged that NLC’s mandate to investigate must be triggered by a formal complaint and that NLC does not act suo moto. Further, that the mandate is exercised in accordance with the law and a complainant must comply with the prescribed procedures. They urged that the Petitioners did not submit a complaint in accordance with Section 15 of the NLC Act and that they had not exhausted other remedies before seeking redress from this court. 28. Regarding the issuance of titles, they urged that no fraud or fundamental illegality had been shown by the Petitioners. They maintained that the adjudication process was conducted under the Land Adjudication Act and titles were issued after that. They urged that the process was constitutional and valid., and concluded that the Petitioners were not entitled to the reliefs they seek. 29. The issue for consideration is whether the Petitioners have proved that their constitutional rights were violated in the manner pleaded and whether this court should grant the reliefs sought in the petition dated 14/9/2021. 30. The 1st and 4th Respondents contended that the adjudication process was conducted according to objective legal criteria and that the allocation process followed the law. They argued that they undertook reasonable steps to ensure public participation including notices, barazas and the opportunity to lodge claims and objections under the Land Adjudication Act. This was only brought out in the submissions. Further and better particulars of this contention were not included in the 1st and 4th Respondents’ replying afidavit. 31. I. M. Muange, the Land Registrar, Embu stated in the Replying Afidavit that the suit land was reserved for the Igundi Clan hence it was public land. The Land Registrar directed the Petitioners to liaise with the County Council of Embu for provision of the documents that were used to allot the suit land. The entity known as County Council of Embu does not exist under the current legal framework. The Respondents did not ofier more details on the adjudication process which is under challenge. 32. Regarding the application of the Community Land Act, the Respondents submitted that Kagaari/ Weru/309 was under adjudication before the Community Land Act came into force. The court agrees with the Respondents that Article 63 of the Constitution and the Community Land Act would not apply to the suit land if indeed the land was adjudicated and registered before Article 63 of the Constitution and the Community Land Act came into efiect. The copy of the register which they exhibited to the Replying Afidavit of I. M. Nyange shows at entry no. 2 that titles were issued after subdivision on 23/10/2017. 33. The 1st and 4th Respondents were closely involved in the adjudication and allocation process if indeed the procedures laid down in the Land Adjudication Act were followed. That Act provides for the ascertainment and recording of rights and interests in community land and connected purposes. The Act outlines the role of the Cabinet Secretary for Lands, adjudication oficers, adjudication committees and boards. Part II outlining how adjudication oficers are appointed, their powers and procedures in the hearing of objections. It also provides how adjudication sections are established. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1988/eng@2026-02-19 6

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34. The Act applies to any area of community land if the CS considers it expedient that rights and interests of persons on the land should be ascertained and registered. It is the Petitioners contention that the land was not surveyed on the ground. Part III of the 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. 35. The adjudication oficer is required to have given notice of the establishment of an adjudication section and that interests in the adjudication section will be ascertained and recorded in accordance with the Act. This includes the period within which claimants can make their claims to the recording oficer. The Act gives the duties of the demarcation oficer, survey oficer and recording oficer. The adjudication committee plays a critical role that includes safeguarding interests of absent persons. 36. Part IV 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 not amounting 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 Petitioners under the Act during the adjudication of the suit land. 37. The Land Adjudication Act sets out the actions that follow after completion of the adjudication register and how objections to the register may be made. This is in recognition of the fact that the adjudication register is the basis for the issuance of titles by the Chief Land Registrar after persons afiected by the register who consider it to be incomplete or incorrect have had an opportunity under the Act to raise objections and lodge appeals with the CS. The Respondents did not present any evidence before the court that they followed and implemented this elaborate legal framework to the letter in the demarcation, alienation and issuance of titles to Kagaari/Weru/309. 38. The Land Registrar, Embu stated in the Replying Afidavit filed on behalf of the Respondents that the suit land was reserved for the Igundi Clan hence it was public land. This cannot be so because land belonging to a clan is not public land and the two fall under difierent legal regimes in terms of ownership and the process of allocation. The Constitution and land laws make clear distinctions on these difierent categories of land in terms of ownership and how the land is to be used and managed. 39. The 1st and 4th Respondents are directed to release to the Petitioners all documents pertaining to the adjudication and allocation of Kagaari/Weru/309 and the resultant subdivisions being Kagaari/ Weru/10433 to 10499 including the adjudication register, area list, allocation list and evidence of the public participation in terms of notices, barazas held and where these were held. 40. The Respondents were bound to carry out meaningful and qualitative public participation as enjoined by Article 10 of the Constitution in the demarcation, adjudication and allocation of Kagaari/Weru/309 and the resultant subdivisions being Kagaari/Weru/10433 to 10499. 41. The Respondents were bound not to discriminate against any person with an interest in Kagaari/ Weru/309 and the resultant subdivisions being Kagaari/Weru/10433 to 10499 as stipulated in Article 27. 42. A declaration is issued that the Respondents cannot exclude members or persons who have current or historic claims in the demarcation, alienation and allocation of titles to the land comprising and the resultant subdivisions being Kagaari/Weru/309. 43. The Respondents were bound by Article 47 of the Constitution to provide administrative action that is lawful, reasonable and procedurally fair and to give reasons for excluding the names of members of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1988/eng@2026-02-19 7

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Igandu Clan and other persons with current and historical land rights in the allocation and issuance of titles over the land comprising Kagaari/Weru/309. 44. The court declines to grant an order of certiorari to quash the titles issued over the land comprising Kagaari/Weru/309 owing to the fact that the current registered proprietors are not parties to this petition and it would be tantamount to their being condemned unheard. 45. The Petitioners are awarded the costs of the suit. DELIVERED VIRTUALLY AT BUNGOMA THIS 19TH DAY OF FEBRUARY 2026. K. BOR JUDGE In the presence of: Mr. Nicholas Mogaka for the Petitioners Mr. Kiongo Justin the Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1988/eng@2026-02-19 8

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