Olonje & 2 others v The County Government Of Homabay & 4 others

1. The Petition violates the principles of constitutional avoidance whe n it stipulates that the Court should only interpret the Constitution when absolutely necessary, as articulated in the judgment of the Hi gh Court in Petition No. 455 of 2018, Consumer Federation of Keny a v Toyota Motors Corporation & 4 Others. 2. The Petition is a simplistic claim for land encroachment, alleging ill egality of trespass, yet it is camouflaged as a Constitutional Petition. 3. The Petition lacks the essential articulation of a genuine, earnest an d crucial dispute between the involved parties necessary for resolut ion. 4. The Petition is inherently flawed and constitutes an abuse of the leg al process. DIRECTIONS OF THE COURT 3. On 27/11/2025 directions were given and the Court gave the parties 14 d ays to submit on the same. SUBMISSIONS BY THE PARTIES 4. Having gone through the CTS I note that the 1st Interested Party filed sub missions on 2/3/2026 while Counsel for the Petitioner filed his on 5.3.202 6. 5. This was done in violation of the Court's directions, which is extremely o utside the stipulated 14 days. 6. However, in the interest of justice, I will overlook the said violation and proceed accordingly but parties are reminded that parties and their counsel should be reminded that compliance SUBMISSIONS BY THE 1ST RESPONDENT HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 2

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7. The 1st Respondent states that the Petition has raised two crucial issues w hich, in the opinion of Counsel, fulfil the requirement of pure points of l aw, as established in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 8. The two tests are the test for [a] Constitutional Petition, and(b)the principl e of constitutional avoidance. Counsel expounds on the 1st test by stating that the main dispute is a simplistic claim for land encroachment, allegin g illegality of trespass, which should have been submitted as an ordinary plaint; that, in that respect, the Petitioners provided little or no particulars as to the allegations, and the manner of the alleged infringement, and, on that issue, the Petitioners should have seen the need to amend the Petition so as to provide sufficient particulars to enable the Respondents to reply. On that score ,Counsel relies on the decisions of Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154, and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012, [2013] eKLR. 9. On the Second limb, Counsel relies on the case of Communications Com mission of Kenya & another v Nairobi City Water and Sewerage Co. Lt d & Several Others [2015] eKLR . On the above, he states the principle of constitutional avoidance dictates that where a dispute is one which can be determined under another area of law other than the Constitution, then it is best that it be so determined, and pure constitutional issues be left and that that there is no documentary evidence to demonstrate the alleged vio lations of the Petitioner's right, as required under Section 107(1) and other relevant provisions of the Evidence Act. 10.Counsel concludes by saying that justice requires that the Court cannot be compelled to warrant implementation of prayers in a factual vacuum. SUBMISSIONS BY THE PETITIONERS HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 3

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11.The Petitioners' rejoinder to the 1st Respondent's submission is that the Pe titioner should have instituted their complaint by way of a plaint; that A rticle 159(2) is clear that justice should be administered irrespective of sta tus; he justifies this position by saying that the issue of boundary and en croachment into private property can only be heard by the Environment and Court, that it is only through the filing of this Petition that the Petitio ners can be compensated, and lastly ,that any delay in this Petition, as anti cipated by the 1st Respondent, will cause the more suffering to the Petitioners . No authorities were cited by the Petitioners’ counsel. DETERMINATION 12.The issue for determination is whether the Petition is properly before a nd whether it meets the threshold of a Constitutional Petition. 12.The suit herein was originated by a Petition dated 17th April, 2025, in wh ich the Petitioners have sued the County Government of Homa BayLavin Contractors ,the Attorney general , NEMA and the Chairperson, National Land Commission. 13. They have set out the facts of the Petition and, in paragraph 10, they state that the 1st Respondent has encroached and wilfully trespassed on land pa rcels number Kanyada /Kalanya /4169, Kanyada/Kahyango/4170 and, 5002 and by creating an access road and shifting boundaries on their parc els of land, destroyed their trees and different types of fruits in the middl e of their parcels, putting the parcels to public use without their consent o r authority; that the same act is a wilful trespass on public land, and that the same was done in violation of the Petitioners' equal right to equal prot ection and enjoyment of the law, and that the Petitioners have never been contacted and have a legitimate expectation. HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 4

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14. At paragraph 18 the Petitioners have pleaded compulsory acquisition an d have gone further to set down particulars of the violation. 15. Also, at paragraph 20 they pray for an order to the County Surveyor and County Land Registrar to visit the site and reinstate the boundary, and lastly, an order o f injunction to issue as well. 16. Other than the violations allegedly done by the 1st Respondent, the Petiti oners have not set down, pleaded or particularised the violations done by the other parties. The other parties seem to be joy riders at the instance of the Petitioners. 17. In the case of Anarita Karimi Njeru versus Republic Misc Criminal Application number (No. 4 of 1979)) (1979)KEHC 30154:] “ We would, however, again stress that if a person is seeking redress fr om the High Court on a matter which involves a reference to the Cons titution, it is important (if only to ensure that justice is done to his ca se) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the mann er in which they are alleged to be infringed. That, based on this holding, for the Petition to meet the threshold to b e entertained by the Constitutional Court, it must meet with a reasona ble degree of precision the three-tier test, that is: stating the one who c omplains of the provision said to be infringed, the provision said to b e infringed, and the manner in which they are alleged to be infringed.T hat although the Petitioner has enumerated Articles 28, 31 and 42 of the Constitution as Articles that have been infringed, no pa rticulars are pleaded with reasonable clarity on how they are violated or the extent of the violation.The Petitioner has not demonstrated HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 5

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how the respondent who is not the State has failed to support or infringed a right under Article 40(5) of the Constitution, when the said right is the responsibility of the State. 18. Similarly, in the case of Mumo Matemu v Trusted Society of Human Ri ghts Alliance & 5 Others, Civil Appeal No. 290 of 2012, [2013] eKLR [20 13] KECA 445 (KLR), the Court held: ‘’23. It should be noted that the case of Anarita Karimi Njeru Republic (No. 1), [1979] KLR 154 (supra) has been relied upon from time to time to demonstrate the threshold of a Constitutional Petition. It should be appreciated that the requirement s for a successful Petition are simple, and they are thus: the Petitioner should set out th e constitutional provisions which he believes have been violated or thr eatened, and the manner in which the Respondents have violated those provisions. It is not enough for t he Petitioner to just list the constitutional provisions without demonstrating how they we re infringed upon.’’ 19. From the above, I gather that for a Constitutional Petition to be sustained, the following basic ingredients are mandatory, namely: (a) It must have a degree of precision. (b) It must identify the provisions of the Constitution that are violated. (c) It must bring out clearly the manner of violation. 20. It therefore goes without saying that a Petitioner cannot just throw a wrench in the works by being scanty in citing relevant constitutional pro HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 6

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visions and abdicate the residual responsibility to the Court to point ou t the violations allegedly committed by the respondents. 21. The purpose of precision is to enable the Respondent to respond to the all eged infringements and violations. If this has not been done, it would cre ate a Herculean task for the Court in engaging with the Petition before it. 22. On the doctrine ofconstitutional avoidance, the Supreme Court of India, i n Re: Application by Bahadur, (1986) LRC, stated thus at page 307: “Courts have said time and again that mere allegations that infringement of rig hts has occurred cannot be sustained as a claim unless founded on substantive la w. Of course, the proper course is to bring the claim under such law and not un der the Constitution.The case highlights the unwisdom of ignoring the advi ce that the Constitution sets out to declare in general terms the fundamental co ncepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might, in certain cases, give r ise to the redress provided for at Section 14, yet, as has been proclaimed by the hi ghest court in the land, it is not a general substitute for the normal procedures f or invoking judicial control of administrative action.” (See Harrikissoon v Attorney-General (1979) 3 WLR 62.) 23. The Court of Appeal in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others, Civil Appeal No. 10 of 2015, [2015] eKLR (neutral c itation [2015] KECA 304 (KLR)), made this crucial observation: “It is imperative that, where a dispute resolution mechanism exists outside cour ts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a stor m brews within churches, as is bound to happen. The exhaustion doctrine is a so und one and serves the purpose of ensuring that there is a postponement of judic HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 7

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ial consideration of matters to ensure that a party is diligent in, first of all, putti ng in place their own interest-protection mechanism for resolutions outside Cou rt. This accords with Article 159 of the Constitution, which commands the Cour t to encourage alternative means of dispute resolution.” 24. The policy of constitutional avoidance finds its genesis in a concurring op inion in the United States case of Ashwander v Tennessee Valley Authority. In his concurren ce,Justice Louis Brandeis set forth the now-famous seven pillars (formula tion) of judicial review: 1. “The Court will not pass upon the constitutionality of legislation in a frien dly, non-adversary proceeding, declining to decide such questions ‘is legiti mate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.’” 2. “The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.” 3. “The Court will not formulate a rule of constitutional law broader than is r equired by the precise facts to which it is to be applied.” 4. “The Court will not pass upon a constitutional question, although properl y presented by the record, if there is also present some other ground upon which the case may be disposed of.” 5. “The Court will not pass upon the validity of a statute upon complaint of o ne who fails to show that he was injured by its operation.” 6. “The Court will not pass upon the constitutionality of a statute at the insta nce of one who has availed himself of its benefits.” HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 8

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7. “When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that t his Court will first ascertain whether a construction of a statute is fairly p ossible by which the question may be avoided”. 25. I have considered the submissions filed, and the authorities referred to, b y the Petition itself and, having analysed all relevant issues carefully, I no w move to determine the issues that are pertinent to the proceedings herein. 26. The Petition[er's case against] the 1st Respondent emanates from its creati ng an access road on parcel numbers Kanyada/Kalanya/4170, Kanyada/ Kahyago/5002 and 4169 27. The Petitioners allege that the encroachment was done in contravention o f the Petitioners' right to equal protection and enjoyment of the law as pr ovided for in Article 27(1) and Article 40 of the Constitution of a party fo r whose benefit the statute was enacted. 28. At paragraph 15, the Petitioners say that the law is clear that the rightful and legally registered owner of property is entitled to peaceful and quiet possession, and ought to be consulted and adequately compensated befo re compulsory acquisition. 29. Lastly, they say that the impugned compulsory acquisition failed to adhe re to the mandatory prescribed procedure. 30. The first issue to consider is whether the petition as drafted meets the test laid down in the case of Anarita Karimi Njeru (supra). HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 9

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31. The Petition has set out the facts and, in so doing, pleaded trespass, comp ulsory acquisition, and violation of physical planning procedure, EMC A, and other relevant laws. 32. They also seek an order for stay, an order for reinstatement of the bounda ry, and an injunction to issue. 33. Hon. Justice Nyagaka in Awino v County Government of Homa Bay & 5 Others; Environment and Land Petition No. E001 of 2021 [citation partiall y illegible] KEELC […] (KLR), 16th March 2026 [ 2026] eKLR, the Court held: “In the instant Petition, the allegations that the Respondents encroached into th e land and destroyed his property and, by so doing, violated his constitutional ri ghts. The Petitioner also seeks to rely on constitutional violations in order to fou nd his claims for compensation herein. We have stated above that, while there m ay be damage to properties that called for compensation, the remedy was sufficie ntly and appropriately provided for in the resolution of the same through ordina ry civil claims or plaint. There was a right to property violated when the acts all egedly committed were on a parcel of land whose boundary was not determined yet to form the claim of government (respondents)taking the Petitioners land without due process , which would have translated to a violation of Article 40(1) of the Constitution .For parties to turn every breach or violation of any right into a constitutional violation or breach would trivialize the constitution and clog the courts with unnecessary and uncalled for pronouncements on constitutional interpretation where there is basically none. 34. I have looked at the constitution of Kenya (Protection of rights and fundamental freedoms) Practice and Rules LN 117 of 2013 Rule 8(2) form of Petition Rules provide that the Petition should disclose the following: HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 10

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(a) The Petitioner's name and address. (b) The facts relied upon. (c) The constitutional provision violated. (d) Nature of [the] injury [and its] cause. 35. Rule 11(2) provides [that] if a party wishes to rely on any document, the document shall be annexed to the supporting affidavit, or to the Petition where there is no supporting affidavit. 36. In the case of Aisha Muray alias Jamal v Nation Media Group Limited & 6 Others (Constitutional Petition E666 of 2024 [2025] eKLR. Justice Bahati [Mwamuye/Kwanyuye?], while determining whether the Constitutional Petition was properly before him, held thus: “In the instant Petition, this Court considers the allegations raised mainly lie in civil claim of defamation. The Petitioner's cause of action would have adequately been remedied by conventional civil law, not as a constitutional grievance. In th e premises, to the extent that the Petitioners seek to vindicate the Petitioner's all eged defamation, it is misconceived. The jurisdiction of this Court was improper ly invoked and, therefore, the Court declines to deal with the Petition further.” Moreover, Petitioners have not adduced evidence to show the Responde nts' publications violated the Constitution, and has also not shown how t he information published was false and how the same is in violation his constitutional rights guaranted in the Articles of theConstitution cited. Guided by the above principles, the Court is satisfied that the grievances raised in the Petitioner's Petition are ordinary civil disputes that the Petit ioner is masking as constitutional grievances. Applying the doctrine of c HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 11

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onstitutional avoidance, his Court finds that it cannot consider the same as a constitutional petition. 38. In Japheth Ododa v Vice Chancellor, University of Nairobi, Academic Registrar and Another, Constitutional Petition No. E197 of 2023, Judgm ent, page 23 of 40, [2018] KEHC 486 (KLR), the Court discussed the issue of precision in pleadings as follows: “15. Precision in pleading is vital in Constitutional Petitions because it enables the opposite party to fully understand the case they face and be in a position to a dequately respond to it. It also enables the Court to decipher matters brought bef ore it for adjudication. It helps in avoiding surprises and ambiguities in litigatio n, but, more importantly, it shows the link between the aggrieved party,the litigation the constitutional provisions at play, and the possible infringement.Th is was well stated by the Supreme Court in the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Ot hers, Petition 14, 14A, 14B & 14C of 2014 (Consolidated), [2014] eKLR (ne utral citation [2014] KESC 53 (KLR)). 39. In the case of Mala v Attorney General & 2 Others, Constitutional Petitio n No. E009 of 2025, [2025] KEHC […] (KLR), Justice Kemei stated: “Being guided by the aforegoing authorities, as juxtaposed with the various clai ms raised by the Petitioner, it is clear that the Petitioner's Petition is a jumbledup mess wherein one cannot tell with as to which claims or rights have been inf ringed or violated. The Petitioner has simply thrown in all manner of accusation s without being clear and candid about the specific violations. That kind of scena rio is not tenable, as it denies the Respondents the opportunity to respond to the Petition appropriately. HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 12

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The Petition, in my view, can be summed up as, inter alia, that it is irremediabl y defective in both form and substance, lacking precision, clarity and coherence, rendering it ambiguous, speculative and incapable of being answered in any mea ningful way; that the 1st Respondent has been improperly included in the suit a s a party without clear allegations or legal justification, amounting to misjoinde r of parties.” 40. Being guided by the above, and more specifically the Constitution of Ke nya (Protection of Rights and Fundamental Freedoms) Practice and Proc edure Rules, which require precision, particularly in pleadings, I hold an d find that the Petition as drafted fails to properly plead the particulars of the rights [allegedly] violated, the constitutional provision[s], and the nature of the injury occasioned. 41. To borrow the words of Justice Kemei, the jumbled-up Petition also has a multiplicity of remedies as it relates to trespass, compulsory acquisition, and a boundary dispute, which matters the Petitioners want the Surveyo r and County Land Registrar to resolve and fix the boundaries aforesaid]. 42. As earlier noted, the petitioner[s] have enjoined several parties without p leading or stating the particular violations they are alleged to have com mitted against the Petitioners. The allegations are hollow, vague and ca nnot be properly identified. 43. The 2nd Respondent is a private entity, and the particulars of the case ag ainst it have not been stated or pleaded with precision. 44. I agree with the finding of Justice Ombwayo, in the case of Fairplay Ente rprises Limited v John Katana & Persons Unknown, ELC Petition No. E0 25 of 2024, [2026] KEELC [2115] (KLR), where he states thus: HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 13

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“I have applied lifted the whole of Article 40 of the Constitution of Kenya, to de monstrate it does not envisage a violation of property rights of an individual by the State. The Court found that the Petition seeks to resolve a purely civil disput e between the Petitioner and the Respondents, and the same is actionable under civil law and not constitutional law, and, therefore, the Petition is unfounded. T he Petitioner ought to file a proper civil suit for eviction of the Respondents, as p rovided for by Section 152A of the Land Act.” 45. I find that the Petitioners are guilty of misjoinder, having improperly enj oined a private construction company — Lavin Contractors , a private l egal entity, to the Petition, without any basis whatsoever. 46. The Petitioners have filed the Petition in the guise of a civil suit/matter which they ought to have filed as such. 47. Regarding compulsory acquisition, the Petitioners have set the cart befor e the horse — a classic idiom used to describe doing things in the wrong order, or acting before following the proper procedure for planning. 48. The procedure for compulsory acquisition is now aptly provided for und er Part VIII of the Land Act and the Kenya Courts have made several pr onouncements enforcing the procedure as provided by the law. For insta nce, disputes arose during the acquisition of land for the Standard Gaug e Railway and in the decision of the 5-Judge Bench in Patrick Musimba v National Land Commission & 4 Others [2016] eKLR” the process was di scussed. The Judges noted that jurisdiction to inquire into such matters a nd to compensate is vested with the National Land Commission. 49. Upon acquisition there is a process of appeal to the Land Acquisition Tribunal established under Section 133A of the Act. This Tribunal has jur HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 14

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isdiction to hear and determine appeals from the National Land Commis sion. 50. Regarding the fixing of boundaries arising from a boundary dispute und er Section 18 of the Land Registration Act, 2012, it is the Land Registrar w ho has power to do so — (see Mwanahawa Anyona Chilayi & Another v [Musa?] Mdadiro[?] Mwachoholo[?] (2016) eKLR). 51. In Azzuri Limited v Pink Properties Limited, Civil Appeal No. 93 of 2017, [2018] eKLR (Court of Appeal at Malindi), the Court of Appeal held as f ollows regarding the application of Section 18 of the Land Registration Act, 2012: “[22] This means that, under the aforesaid provisions, boundary disputes pertaining to lands falling within general boundary areas must be referre d to the Land Registrar for resolution, while disputes pertaining to land s with fixed boundaries may be investigated and possibly resolved throu gh a surveyor.In this case, reference of the dispute to the Environment and Land Court at the first instance was proscribed by statute, and on that account alone appellant's case was a non-starter.’’ 52. The Court finds that the order for recovery is misplaced, as the Court lac ks jurisdiction to do so. 53. Applying the Constitutional Petition test, the doctrines of constitutional a voidance and exhaustion, I find that this Petition is one that tends to clog t he administration of justice by failing to meaningfully plead issues releva nt to the Petition, and by disguising a civil claim as a constitutional petitio n. 54. It is not certain what relief the Petitioners are seeking from this Court, as they have sought different reliefs without precision. HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 15

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55. I agree with Counsel for the 1st Respondent that the Petitioners’ case fails the constitutional test as well as the constitutional avoidance test, which i s akin to the constitutional exhaustion test. 56. The Preliminary Objection is, therefore, merited and is allowed as prayed. 57. In the result, I strike out the Petition with no order as to costs. 58. These are my Orders. Ruling, Dated and Delivered virtually via Teams Platform this 19th June of 2026 at 12:30 PM. In the Presence of; 1. Osoro for the Petitioner- Present 2. Odhiambo for the 1st Respondent – Present. 3. Ms. Awino, Court Assistant. JUSTICE, JOHN WALTER WANYONYI- JUDGE Preliminary Objection allowed. No orders as to Costs. File closed. Osoro: I request for a Copy of typed Ruling. Court: Same to be supplied through the portal. JUSTICE, JOHN WALTER WANYONYI- JUDGE HOMA BAY ELC EP PET NO. E002 OF 2025 , RULING D.O.D 19.6.2026 16

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