Mutwiri (Suing as the Legal Representative of the Estate of M’Mwitari M’Kiaira – Deceased) v District Land Settlement Officer Ruiri/Rwarera Adjudication Section & 12 others (Environment and Land Petition E004 of 2023) [2026] KEELC 3730 (KLR)

SAMUEL PARTY KITHINJI M’MUNGANIA….....3RD INTERESTED MUTHAMIA…………...4TH INTERESTED DORCAS PARTY KENDI…………………………....5TH INTERESTED PATRICK PARTY KATHURIMA………………......6TH INTERESTED SARAH PARTY NKIROTE……………………….….7TH INTERESTED RAPHAEL PARTY KITHINJI…………………..…..8TH INTERESTED RUTH GACHERI PARTY JUDGMENT Introduction 1. Through this petition, the estate of the late M’Mwitari M’Kiaira [hereinafter referred to as “the deceased”] seeks an order declaring that the proceedings and the decisions in Objection Nos 1183, 5082 and 5083 relating to land parcel numbers 1018, 3400 and 4229 in Ruiri Rwarera Adjudication Section were unconstitutional, null and void. The estate also seeks an order annullying the Cabinet Secretary’s decision in Appeal No. 47 of 2019 relating to land adjudication in the same Adjudication Section. Thirdly, the estate seeks an order awarding land parcel numbers 1018, 3400 and 4229 within the said Adjudication Section to the deceased. Two of the key issues to be determined in this Judgment are: (i) Whether the proceedings and the decisions in the said Objections were unconstitutional; and (ii) Whether the proceedings and the Cabinet Secretary’s decision in the said Appeal ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 2

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were unconstitutional. Before I analyse and dispose all the key issues that fall for determination, I will briefly outline the parties’ respective cases. Case of the Petitioner 2. The case of the petitioner is contained in the petition dated 17/10/2023; the supporting affidavit sworn by Paul Mutwiri on 18/10/2023; the supplementary affidavit of Paul Mutwiri sworn on 16/2/2026; the written submissions dated 11/11/2025; and the rejoinder submissions dated 23/12/2025 both filed by M/s M. G Kaume & Company Advocates. The case of the petitioner is that vide a limited grant issued to him by the Chief Magistrate Court at Meru on 25/9/2023, he was authorized to initiate this petition on behalf of the estate of the deceased. deceased settled on some Rwarera in 1972. The 15 acres of land within Ruiri Upon commencement of land adjudication in Ruiri Rwarera Adjudication Section, the deceased was demarcated as the owner of parcel number 969, comprising of 15 acres. Around 1990, the 1st and 2nd interested parties built shanties on part of the 15 acres. This prompted the deceased to “lodge an objection” to an unspecified organ. Subsequently, the deceased discovered that his 15 acres had been reduced to 10 acres and the names of the 1st - 3rd interested parties had been inserted in the adjudication register. 3. The petitioner alleges that the deceased subsequently lodged Objection Nos 1183, 5082 and 5083 to challenge the decision that had awarded the three interested parties portions of the land. The ELCL PETITION NO. E004 OF 2023 – JUDGMENT three objections were Page 3

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subsequently heard in 2018 at a time when the deceased was admitted in hospital and quite ill. 4. The petitioner adds that the estate of the deceased was aggrieved by the proceedings and the decisions made in the said Objections and filed Appeal No 47 of 2019 to the Cabinet Secretary Minister”]. [hereinafter referred to as “the The estate adds that because the deceased had already died, he never appeared before the Minister’s delegatee during the hearing of the appeal. He adds that through a decision dated 17/12/2020, the Minister upheld the decision of the Land Adjudication Officer. 5. The petitioner contends that the hearings relating to the three objections and to the appeal to the Minister were arbitrary, flawed, unfair, irregular and illegal, hence the suit parcels should be registered in the name of the deceased. Case of the Respondents 6. The respondents opposed the petition through a replying affidavit sworn on 12/3/2025 by Mary Maina [The Land Adjudication and Settlement Officer in charge of Ruiri Rwarera Adjudication Section] and written submissions dated 6/11/2025, filed by Ms Esther Wairimu, a Senior State Counsel in the Office of the Attorney General. Their case is that, according to the land demarcation book, parcel number 969 was demarcated and surveyed in the name of Muthamia Mungaine and measured 2 acres. The said parcel was the subject matter of Objection No 1206 filed by Stephen Gitari in objection to the adjudication register. The objection was dismissed for non-attendance. ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 4

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7. The respondents add that according to the demarcation book, parcel number 1018 measured 3.6 acres and was demarcated and surveyed in the name of Ernest Nabea Mwongera and was subsequently recorded in the name of Julius Muthama Mugwika. A portion measuring 2 acres was hived out of the said parcel to create parcel number 4229 which was recorded in the name of Joyce Karambu Ringera [the 1st interested party]. They state that, pursuant to the award in Objection No 5525, parcel number 1018 was further subdivided to create parcel numbers 8426, 8427, 8428, 8429 and 8430. They further state that Objection Nos 1965 and 1183, which similarly related to parcel number 1018, were dismissed. 8. It is the respondents’ case that Objection Nos 1183, 5082 and 5083 which the deceased lodged in relation to parcel numbers 1018, 3400 and 4229 were all dismissed on 12/20/2018 by the Land Adjudication and Settlement Officer who noted that the objector [the deceased] had been summoned several times and did not appear for the hearing of the objections. 9. The respondents further state that parcel number 3400 measured 1 acre and was demarcated and surveyed in the name of Charles Kimaita who subsequently transferred the parcel to Samuel Kithinji M’Mungania. 10. They add that parcel numbers 1018, 3400 and 4229 were affected by Land Appeal Case No 47 of 2019 to the Minister, filed by the deceased against Julius Muthamia, Samuel Kithinji M’Mungania and Joyce Karambu Ringera. They state that the said Appeal was dismissed. ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 5

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11. The respondents further state that parcel number 969 is not related to the other mentioned parcels, adding that ownership of parcel number 969 is different from what is alleged by the petitioner. Interested Parties’ Case 12. The interested parties opposed the petition through a replying affidavit sworn on 24/6/2024 by Joyce Karambu Ringera and written submissions dated 5/11/2025, filed by M/s Mwirigi Kaburu & Co Advocates. The case of the interested parties is that the 1st and 2nd interested parties are the original demarcated and registered owners of parcel numbers 1018 and 4229 within Ruiri Rwarera Adjudication Section. The 4th – 8th interested parties got their titles by way of an award as children of the 1st and 2nd interested parties. 13. The interested parties state that M’Mwitari M’Ikiara filed Objection Nos 1183 and 5083 relating to the said parcels and the said objections were dismissed by the Land Adjudication Officer on 12/10/2018, adding that the objector subsequently filed Appeal No 47 of 2019 to the Minister and the Appeal was dismissed in a decision rendered on 17/12/2020. The interested parties fault the petitioner for failing to exhibit evidence showing that the objector was ill and admitted in hospital and could not attend the hearing of Objection Nos 1183 and 5083 before the Land Adjudication Officer. ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 6

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14. The interested parties state that in February 2020, the petitioner (Paul Mutwiri) destroyed a fence in the neighbourhood and subsequently apologized and made a formal commitment to desist from similar destruction but reneged and subsequently destroyed the 1st and 2nd interested parties’ fences in 2022, prompting them to make a report to the Police. Upon investigations, the petitioner was charged with the offence of malicious damage to property in Meru CMC Criminal Case No 1052 of 2022. They add that following the actions of the petitioner, the 1st and 2nd interested parties filed Meru CMC E & L Case No. E054 of 2023 against the petitioner. They urge the court to dismiss the petition. Analysis and Determination 15. The court has considered the petition, the responses to the petition and the parties’ respective submissions. The court has also considered the relevant legal frameworks and jurisprudence. The following are the key issues that fall for determination in the petition: (i) Whether the petition meets the threshold of a constitutional petition under the law; (ii) Whether the proceedings and the award in Adjudication Register (A/R) Objection Nos 1183, 5082 and 5083 relating to land parcel numbers 1018, 3400 and 4229 in Ruiri Rwarera Adjudication Section were unconstitutional; (iii) Whether the proceedings and award of the Minister in Appeal No 47 of 2017 relating to the above parcels were unconstitutional; (iv) Whether the petitioner is entitled to the reliefs sought in the petition; and (v) What order should be made with regard to costs of the petition. I will analyse ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 7

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and dispose the four issues sequentially in the above order. 16. Does this petition meet the threshold of a constitutional petition under the relevant law? Prior to the promulgation of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (the Rules), the threshold of the basic/essential elements of a constitutional petition was outlined in the famous case of Anarita Karimi Njeru v Republic (1979) eKLR. The above rules provide a legislative framework on the essential elements of a petition brought to court to enforce a provision of the Bill of Rights. Rule 10 provides as follows: “10. Form of petition (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary. (2) The petition shall disclose the following— (a) the petitioner’s name and address; (b) the facts relied upon; (c) the constitutional provision violated; (d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community; (e) details regarding any civil or criminal case, involving the petitioner or any of the ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 8

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petitioners, which is related to the matters in issue in the petition; (f) the petition shall be signed by the petitioner or the advocate of the petitioner; and (g) the relief sought by the petitioner. (3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom. (4) An oral application entertained under sub rule 3 shall be reduced into writing by the Court.” 17. The court has read and evaluated the petition in the context of the above legislated threshold. In its entirety, the petition does not disclose a single constitutional provision which was violated by the respondents. The above omission offends rule 10(2) of the above rules. For the above reason, the court agrees with the respondents and the interested parties that the petition does not meet the threshold of a constitutional petition under the law. 18. Were the proceedings and the award in Adjudication Register (AR) Objection Nos 1183, 5082 and 5083 relating to land parcel numbers 1018, 3400 and 4229 in Ruiri Rwarera Adjudication Section unconstitutional? Were the proceedings and award of the Minister in Appeal No 47 of 2017 relating to the above parcels unconstitutional? First, ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 9

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the petitioner failed to plead in the constitutional provisions that were violated. above mandatory pleadings, the petition the Without the respondents, the interested parties and the court do not know the provisions of the Constitutions that were allegedly violated. 19. What emerges from the general allegations that the petitioner made is that during land adjudication in Ruiri Rwarera Adjudication Section, the deceased was demarcated as the owner of parcel number 969 measuring 15 acres. The petitioner did not, however, tender any demarcation evidence to support the above allegation. On their part, the respondents tendered the demarcation records which show that parcel number 969 measured 2 acres and was demarcated and surveyed in the name of one Muthamia Mugaine. 20. The petitioners alleged that at the time the three objections were disposed by the Land Adjudication and Settlement Officer, the deceased was seriously ill and admitted in hospital. The petitioner did not, however, tender any evidence of the alleged illness or hospitalization. 21. The petitioner faulted the Minister for disposing Appeal No 47 of 2019 at a time when the late M’Mwitari M’Kiaira was deceased. I do not think the Minister violated the Constitution in disposing the appeal that was before him. I say so because it does emerge from paragraph 17 of the petition that the estate of the late M’Kiaira lodged the appeal. It brought the present petition only because it ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 10

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lost the appeal. I say so because the Land Adjudication Officer’s award 12/10/2018. is said to have been rendered on The estate states in paragraph 17 of the petition that they filed an appeal to the Minister against the award. Paragraph 17 reads thus:“That pursuant the committee decision (sic) an appeal to the Minister Appeal No. 47/2019 was lodged by M’Mwitari M’Ikiara who was deceased and who was indicated to have been present in the proceedings when he was already deceased.” 22. Having elected to take the above route of lodging a petition in the name of the deceased with a view to procuring a favourable verdict before the Minister, it is callous for the estate to complain that the Minister violated the Constitution in disposing the very appeal they had themselves filed. 23. That said, the court has looked at the adjudiciaotn evidence presented in this petition. The demarcation records which the respondents tendered show that parcel number 969 measured 2 acres and was demarcated in the name of Muthamia Mungaine. The petitioner did not tender evidence to support the allegation that parcel umber 969 measured 15 acres and was demarcated in the name of the late M’Kiaira. 24. Consequently, the finding of the court on the second and third issues is that, the petitioners did not prove a violation of the Constitution in the proceedings and the disposal ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 11

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decisions relating to the objection proceedings and the appeal to the Minister. 25. In light of the above three findings, it follows that the petitioner is not entitled to any of the reliefs that were sought in the petition dated 17/10/2023. 26. On the issue relating to costs, under rule 26 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, the award of costs in a petition is at the discretion of the court. In exercising the discretion, the court is required to take appropriate measures to ensure that every person has access to the court to determine their rights and fundamental freedoms. Taking the above into account, the court takes the view that it would be unfair to deny the interested parties’ costs of the petition, noting the unsubstantiated allegations that were made in the petition and the evidence that the respondents brought in relation to parcel number 969. Consequently, the petitioner will bear costs of the petition. 27. Lastly, in their submissions, the interested parties contended that Paul Mutwiri lacked the locus standi to bring this petition. The court record shows that the petitioner brought an application dated 20/1/2021 seeking leave to file a supplementary affidavit to exhibit copy of a limited grant. The application was allowed and the limited grant was exhibited through the subsequent supplementary affidavit. In the circumstances, the issue of locus standi is moot. ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 12

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Disposal Order 28. In the end, for the above reasons, this petition is rejected and dismissed for lack of merit. The petitioner shall bear costs of the petition. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF JUNE, 2026. B M EBOSO [MR] ELC JUDGE ELCL PETITION NO. E004 OF 2023 – JUDGMENT Page 13

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