Naikuni v Chairman Board of Trustee Purko Development Trust Seleila Ole Mwanik & 3 others (Environment and Land Petition E013 of 2025) [2026] KEELC 5167 (KLR)

DEVELOPMENT TRUST JOSEPH NKAIWUATEI ……. 2 ND RESPONDENT PURKO DEVELOPMENT TRUST …………..……………..3RD RESPONDENT FRESHCROP LIMITED …………………………….……….3RD RESPONDENT JUDGMENT 1. The Petitioner herein, DR. NCHORIRA NAIKUNI, instituted the instant Petition against the Respondents alleging violations of the Constitution, the Fair Administrative Action Act, the Public Procurement and Asset Disposal Act, the Crops Act and the Community Land Act. 2. The Petitioner describes himself as a resident of Narok North Sub-County, a member of the Purko Community, and a member of the Purko Development Trust General Assembly. He avers that the Purko Community is the ancestral owner of land known as CIS-MARA/ENTIANI/1, which constitutes community land within the meaning of Article 63 of the Constitution. 3. It is the Petitioner’s case that the 1 st, 2nd and 3rd Respondents unlawfully commenced the process of leasing approximately 500 acres of the said community land to the 4 th Respondent for commercial exploitation without obtaining the approval of the Purko Development Trust General Assembly, without public participation and without the informed consent of the community. NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 2 of 33

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4. The Petitioner further contends that the intended lease contravened Article 227, of the Constitution and the Public Procurement and Asset Disposal Act, as the procurement process was neither fair, equitable, transparent nor competitive. He further alleged that no valuation of the land was undertaken to determine the suitability and legality of the proposed transaction. 5. The Petitioner also alleges that the Respondents failed to comply with the provisions of the Community Land Act, the Crops Act and the Fair Administrative Action Act, by failing to involve the community in the decision-making process, failing to undertake the requisite statutory approvals and environmental assessments and denying members of the community an opportunity to participate in matters affecting their proprietary interests. 6. According to the Petitioner, the Respondents acted beyond the powers conferred upon them under the Purko Development Trust Deed by advertising and processing the lease of the suit property without the approval of the General Assembly, thereby violating the constitutional protections accorded to community land under Article 63 of the Constitution. 7. The Petitioner further avers that the Respondents infringed the community’s constitutional rights to fair administrative action, access to information, equality, dignity and public participation by failing to accord affected members notice, reasons and an NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 3 of 33

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opportunity to be heard before undertaking the impugned actions. 8. Consequently, the Petitioner seeks the following reliefs: i. A declaration that the actions of the Respondents are unconstitutional, illegal, null and void. ii. A declaration that the land in question is community land and cannot be lawfully disposed of or leased without full compliance with the Constitution and the Community Land Act. iii. An order cancelling and/or voiding any agreement, lease or transaction between the 1st, 2nd, 3rd and 4th Respondents in relation to the land. iv. An order of permanent injunction restraining the Respondents from further interference with the land without the approval of the Purko Development Trust General Assembly. v. General damages for constitutional violations. vi. Costs of the Petition. vii. Any other relief that this Honourable Court may deem fit. 9. The Petition was supported by the Affidavit of the Petitioner, DR. NCHORIRA NAIKUNI, sworn on 26th September 2025, in which he reiterated the averments contained in the Petition and averred as follows: 10. That he is a member of the Purko Community and the Purko Development Trust General Assembly, and had instituted NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 4 of 33

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the Petition both in his own interest and on behalf of members of the Purko Community pursuant to Articles 22 and 258 of the Constitution. 11. He further averred that the Chairman of the Board of Trustees unlawfully advertised a tender for the lease of 500 acres of community land known as CIS-MARA/ENTIANI/1, without the approval of the Purko Development Trust General Assembly, as required under the Trust Deed. Further, that the impugned procurement contravention Disposal process was undertaken of the Public Procurement Act, and without conducting and the in Asset requisite environmental impact assessment. 12. The Petitioner further averred that the suit land constitutes community land protected under Article 63 of the Constitution, and that the Respondents failed to undertake public participation or involve the General Assembly before initiating the lease process. He asserted that despite raising concerns and issuing demand letters, the Respondents failed to respond or disclose information relating to the proposed transaction. 13. Further, that the Respondents failed to convene the Purko Development Trust General Assembly for approval of the proposed investment, acted contrary to the provisions of the Trust Deed, failed to ensure transparency and accountability in the procurement process, and unlawfully awarded the tender to the 4th Respondent without a competitive process. NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 5 of 33

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14. The Petitioner further averred that the Respondents’ actions violated his constitutional rights and those of the Purko Community, including the rights to public participation, access to information and fair administrative action, and unless restrained, the Respondents would proceed with the impugned lease to the detriment of the community. 15. The 4th Respondent opposed the Petition through the Replying Affidavit of Gasperi M. Christopher, a Director of the 4th Respondent, sworn on 12th March 2026. He deposed that the Petition was misconceived, frivolous and an abuse of the court process as it failed to disclose any constitutional violation warranting the intervention of the Court. 16. The deponent averred that the Petition did not satisfy the threshold for constitutional Petitions as set out in Anarita Karimi Njeru v Republic (1979), contending that the Petitioner failed to plead with precision the constitutional provisions allegedly violated and the manner of their violation. 17. He further averred that the lease of the suit property was undertaken lawfully and within the applicable legal framework governing land administration. According to the deponent, the lease agreement was voluntarily entered into following a competitive tender process, was duly approved by the Board of Trustees of the Purko Development Trust, and did not contravene either the Constitution or any statutory provisions. 18. The deponent denied that the Respondents had violated the constitutional rights pleaded by the Petitioner, maintaining that NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 6 of 33

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the lease enhanced rather than infringed the community’s interests. He further contended that the dispute concerned an ordinary contractual or land dispute that ought to have been pursued through ordinary civil proceedings rather than by way of a constitutional petition. 19. Further, that the 4th Respondent lawfully leased 207 acres, and not 500 acres, of land known as CIS MARA/ENTIYANI/1, for a period of one year, leaving substantial acreage available for community use. The deponent further asserted that the Board undertook public consultations, publicly advertised the leasing opportunity and conducted a competitive bidding and evaluation process before awarding the lease. 20. The deponent also averred that the Petitioner lacked the requisite authority or resolution from members of the Purko Community to institute the Petition on their behalf, and therefore lacked the necessary capacity to maintain the proceedings. 21. The deponent further averred that the Chief Executive Officer merely discharged his administrative responsibilities and that approval of the lease was within the mandate of the Board of Trustees under the Purko Development Trust Deed. He maintained that the Board acted within its powers in approving the tender and the resultant lease. 22. Lastly, the deponent asserted that the Petition was speculative and intended to frustrate a lawful investment project that would create employment opportunities, generate revenue for the NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 7 of 33

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community and promote socio-economic development. Consequently, he urged the Court to dismiss the instant Petition with costs, for failure to establish any constitutional or statutory violation. 23. The Petition was canvassed by way of written submissions. The Petitioner filed his written submissions dated 14th December 2025, in support of the Petition, and reiterated that the suit land, namely CIS MARA/ENTIANI/1, constitutes community land within the meaning of Article 63 of the Constitution, and that the Respondents had unlawfully initiated the process of leasing the land to the 4 th Respondent without the approval of the Purko Development Trust General Assembly, and without meaningful public participation. 24. Further, that the Respondents violated Articles 10, 47, 63 and 227 of the Constitution, the Community Land Act, the Fair Administrative Action Act, the Public Procurement and Asset Disposal Act and the Environmental Management and Co-ordination Act, by failing to involve the community in the decision-making process, undertaking a procurement process that lacked transparency and competitiveness, and proceeding with the lease without conducting an Environmental Impact Assessment. 25. The Petitioner further submitted that under the Purko Development Trust Deed, the approval of the General Assembly was mandatory before any major investment or lease of community land could be undertaken and that the NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 8 of 33

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Chairman acted ultra vires by advertising the tender without such approval. It was contended that the Respondents’ actions amounted to a breach of their fiduciary obligations under the Trust Deed. 26. On public participation, it was submitted that the Respondents failed to conduct adequate consultations through appropriate forums despite knowing that many members of the community were illiterate. Reliance was placed on British American Tobacco Ltd v Cabinet Secretary for Health & 5 Others [2017] eKLR, for the proposition that public participation must be real, meaningful and inclusive rather than a mere formality. 27. On the legality of the procurement process, it was submitted that the tendering Procurement and competitiveness, process Asset contravened Disposal transparency and Act, the as Public it fairness, lacked involved undisclosed evaluation criteria and excluded members of the local community. Reliance was placed on Kenya Pipeline Company Ltd v Hyosung Ebara Co. Ltd [2012] eKLR. 28. Further, that the Respondents violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution by failing to issue notices, provide reasons for the intended lease and furnish the requested information. In support of this argument, the Petitioner cited Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR. 29. On the prayer for conservatory orders, the Petitioner submitted that he had satisfied the applicable legal principles by NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 9 of 33

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establishing a prima facie case, demonstrating the likelihood of irreparable prejudice should the lease proceed, and showing that the matter raised issues of overwhelming public interest concerning the protection of community land and constitutional governance. Reliance was placed on Centre for Rights Education and Awareness (CREAW) & 7 Others v Speaker of the National Assembly & 4 Others [2017] eKLR. 30. The Petitioner urged the Court to allow the Petition, declare the impugned procurement process and lease null and void, compel Development the Respondents Trust General to convene Assembly, the Purko issue the conservatory and injunctive orders sought, and award costs of the Petition. 31. The 1st and 3rd Respondents filed their written submissions dated 24th March 2026, through & Co Advocates, and identified the following issues for determination: i. Whether there was any infringement of the Constitution or any other law by the Respondents; ii. Whether the Petitioner had established a cause of action and possessed the requisite authority and locus standi to institute the Petition; iii. Whether the Petitioner had established a prima facie case with a likelihood of success; and iv. Who should bear the costs of the Petition. 32. On whether there was any infringement of the Constitution or any other law, the 1st and 3rd Respondents submitted that the NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 10 of 33

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Petitioner had failed to demonstrate how the cited constitutional provisions had been violated. They argued that the lease of a portion of the suit property was undertaken transparently after public advertisement, and competitive bidding, in compliance with the Constitution, the Community Land Act and the Purko Development Trust Deed. Further, they maintained that the lease promoted the socio-economic interests of the Purko Community, that only a portion of the land had been leased, and not disposed of, and that the Petitioner had failed to prove any breach of the Public Procurement and Asset Disposal Act or the Trust Deed. 33. Further, that the burden of proving the alleged constitutional violations rested upon the Petitioner pursuant to section 107 of the Evidence Act. Reliance was placed on Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others [2014] eKLR, where the Supreme Court emphasized that a party alleging infringement bears the legal burden of proving the facts relied upon. 34. On whether the Petitioner had established a cause of action and possessed the requisite locus standi, it was submitted that the Petition was speculative, generalized and failed to identify the specific acts or omissions constituting the alleged constitutional violations. Further, that although the Petitioner purported to act on behalf of the Purko Community, he had not demonstrated that he possessed the authority or mandate to institute the proceedings on behalf of the community. NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 11 of 33

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35. On whether the Petitioner had established a prima facie case, it was submitted that the evidence placed before the Court did not disclose any infringement of a legally protected right or any unlawful conduct on the part of the Respondents. Reliance was placed on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR on the principles governing the establishment of a prima facie case, and it was submitted that the Petitioner had failed to satisfy that threshold. 36. On costs, it was submitted that the Petition was devoid of merit and ought to be dismissed with costs to the 1 st and 3rd Respondents, as the Petitioner had failed to establish any constitutional or statutory violation against them. 37. The Petitioner filed written submissions dated 6th July 2026, and identified the following issues for determination: i. Whether Land Parcel No. CISMARA/ENTIANI/1 constitutes community land within the meaning of Article 63 of the Constitution; ii. Whether the Respondents acted ultra vires the Purko Development Trust Deed by advertising and awarding the lease of 500 acres without the approval of the Purko General Assembly; iii. Whether the procurement process complied with the Constitution and the Public Procurement and Asset Disposal Act; whether the Respondents violated the constitutional principles of public NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 12 of 33

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participation, fair administrative action and breached the environmental rights; iv. Whether Community the Respondents Land Act, the Environmental Management and Co-ordination Act and the Purko Development Trust Deed; and v. Whether the Petitioner was entitled to the reliefs sought in the Petition. 38. On whether the suit property constituted community land, the Petitioner submitted that Land Parcel No. CISMARA/ENTIANI/1, was community land protected under Article 63 of the Constitution and the Community Land Act, 2016. Further, that the land had always been held for the benefit of the Purko Community and was administered through the Purko Development Trust. The Petitioner also submitted that the Respondents had not demonstrated that the land had ceased to be community land, or had been lawfully converted into either public or private land. That Sections 32, 37 and 38 of the Community Land Act prohibit the lease or other disposition of community land without meaningful participation and approval of the community. 39. In support of the foregoing submission, the Petitioner relied on Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (Communication No. 276/2003), wherein the African Commission on Human and Peoples’ Rights held that indigenous communities possess NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 13 of 33

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collective rights over their ancestral lands, and that governments must ensure effective consultation and obtain the free, prior and informed participation of affected communities before undertaking activities affecting such land. The Petitioner submitted that the decision affirmed that failure to involve the affected community constitutes a violation of its collective property rights. 40. The Petitioner also relied on African Commission on Human and Peoples’ Rights v Republic of Kenya (Ogiek Case), Application No. 006 of 2012, in which the African Court held that indigenous communities possess legally enforceable rights over their ancestral lands, and that any interference with those rights must proportionality satisfy and the principles effective submitted that the decision of legality, consultation. The necessity, Petitioner reinforced the constitutional protection accorded to community land under Article 63 of the Constitution. 41. Reliance was further placed on Advisory Opinion Reference No. 2 of 2014, In the Matter of the National Land Commission [2015] eKLR, where the Supreme Court emphasized that land governance under the Constitution must uphold constitutional values, the rule of law and the rights of the people for whose benefit land is held. That the decision underscored that decisions relating to community land must be undertaken transparently and strictly in accordance with the Constitution. NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 14 of 33

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42. The Petitioner further cited Isack M’Inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR, in which the Supreme Court reaffirmed the constitutional recognition of customary land rights and held that registration of land does not extinguish customary trusts. The Court further observed that registered beneficiaries proprietors and constitutionally that may hold customary recognized form of land in tenure land trust for remains a ownership. The Petitioner also submitted that the Purko Development Trust held the suit property in a fiduciary capacity for the benefit of the Purko Community and could not alienate it without lawful authority. 43. Further reliance was sought in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR, where the Supreme Court held that constitutional rights relating to land deserve a purposive and generous interpretation, and that courts bear an obligation to grant effective remedies whenever those rights are threatened or violated. Further, that the Court ought to intervene through declaratory and conservatory relief to prevent the unlawful alienation of community land. 44. On whether the Respondents acted ultra vires the Purko Development Trust Deed, the Petitioner submitted that the Trust Deed expressly reserved major policy and investment decisions concerning community land to the Purko General Assembly. It was argued that the Board of Trustees and its NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 15 of 33

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Chairman advertised and awarded the impugned lease without obtaining the approval of the General Assembly as required under the Trust Deed. Further, that the Respondents acted beyond the powers donated to them, and that the lease was consequently null and void. 45. On public participation, the Petitioner submitted that Article 10 of the Constitution entrenches public participation as a national value binding upon all persons exercising public authority. It was contended that the Respondents failed to convene the Purko General Assembly for four consecutive years, despite the Trust Deed requiring annual meetings, and further failed to notify community members through barazas, churches or vernacular radio stations despite knowing that a substantial number of the beneficiaries were illiterate. 46. In support of the foregoing argument, the Petitioner relied on British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR, wherein the Supreme Court held that public participation must be real, meaningful and effective rather than a mere procedural formality. The Petitioner submitted that the consultation undertaken by the Respondents fell short of that constitutional threshold. 47. The Petitioner further relied on Robert N. Gakuru & Others v Governor, Kiambu County & 3 Others [2014] eKLR, where the High Court held that public participation must provide members of the public with a genuine opportunity to know, NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 16 of 33

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influence and contribute to decisions affecting them. It was submitted that the Respondents denied the Purko Community that opportunity. 48. Reliance was also placed on Mui Coal Basin Local Community & 15 Others v Permanent Secretary, Ministry of Energy & 17 Others [2015] eKLR, wherein the High Court held that meaningful public participation requires adequate information, sufficient notice and a genuine opportunity for affected persons to influence decision-making. The Petitioner also submitted that consultation cannot be reduced to a mere procedural formality and argued that the Respondents failed to meet those constitutional standards. 49. On fair administrative action, the Petitioner submitted that the impugned decision was reached without notice, consultation or disclosure of relevant procurement information. Further, that the Respondents ignored repeated requests for information, and failed to disclose procurement documents and contractual arrangements entered into with the 4th Respondent, thereby violating Articles 35 and 47 of the Constitution and the Fair Administrative Action Act. 50. On procurement, the Petitioner submitted that the Chairman advertised the tender without authority under the Trust Deed and that the procurement process lacked transparency and competitiveness. It was argued that the process violated Sections 66 and 96 - 99 of the Public Procurement and NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 17 of 33

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Asset Disposal Act, and that the Court ought to intervene to prevent implementation of an unlawful procurement process. 51. Regarding environmental protection, the Petitioner submitted that the proposed lease covered approximately 500 acres of community land, and therefore required an Environmental Impact Assessment before implementation. It was argued that no Environmental Impact Assessment had been undertaken prior to commencement of the lease process, contrary to Articles 42 and 69 of the Constitution and the Environmental Management and Co-ordination Act. Consequently, the Petitioner maintained that the Respondents acted unlawfully by proceeding without complying with mandatory environmental safeguards. 52. The Petitioner accordingly urged the Court to allow the Petition and grant the declaratory, injunctive and consequential reliefs sought together with costs. 53. The 4th Respondent filed written submissions dated 14th May 2026, and identified the following issues for determination: i. Whether the Petition met the constitutional threshold required in constitutional litigation; ii. Whether the suit property constituted community land under Article 63 of the Constitution and the Community Land Act; iii. Whether the constitutional Respondents provisions relied violated the upon the by Petitioner; NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 18 of 33

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iv. Whether the Public Procurement and Asset Disposal Act and the Crops Act were applicable to the impugned transaction; v. Whether the impugned transactions were illegal or void; vi. Whether the Trustees of the Purko Development Trust acted within their lawful authority; and vii. Whether the Petitioner was entitled to the reliefs sought. 54. On whether the Petition met the constitutional threshold, the 4 th Respondent submitted that constitutional Petitions must be pleaded with precision. Reliance was placed on Anarita Karimi Njeru v Republic, where the Court held that a party alleging violation of constitutional rights must plead with reasonable precision the constitutional provisions alleged to have been violated, the manner of the alleged violation and the nature of the injury suffered. The 4th Respondent contended that the Petition merely reproduced numerous constitutional and statutory provisions without demonstrating how each provision had been violated by the Respondents. 55. The 4th Respondent further relied on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, where the Court of Appeal reaffirmed the Anarita Karimi principle and held that constitutional Petitions cannot be founded on vague, generalized or speculative allegations. That the Petition failed to identify the specific unconstitutional acts attributable to each NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 19 of 33

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Respondent, the nexus between the alleged acts and the constitutional provisions cited, and the prejudice allegedly suffered by the Petitioner. 56. The 4th Respondent also relied on Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, where the Supreme Court emphasized the doctrine of constitutional avoidance, and held that constitutional litigation ought not to be invoked where adequate statutory mechanisms exist for resolution of the dispute. That the present dispute essentially concerned land and contractual issues, and ought not to have been constitutionalized. 57. On whether the suit property constituted community land, the 4th Respondent submitted that although the Petition was anchored on Article 63 of the Constitution and the Community Land Act, the suit property was owned by the Purko Development Trust, a distinct legal entity capable of owning and managing property under its trust instrument. 58. It was argued that the Petitioner failed to produce evidence demonstrating registration of the land as community land, registration of the community under the Community Land Act, the existence of a community assembly recognized under the Act, or adjudication or conversion of the land into community land. The 4th Respondent therefore maintained that Sections 32, 37, 38, 47 and 48 of the Community Land Act were inapplicable. NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 20 of 33

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59. On the alleged constitutional violations, the 4 th Respondent submitted that the Petitioner failed to adduce evidence of discrimination under Article 27, violation of human dignity under Article 28, denial of access to information under Article 35, breach of the right to fair administrative action under Article 47 or denial of access to justice under Article 48. 60. It was further submitted that the Petitioner had failed to identify any administrative action falling within Sections 5, 6 and 7 of the Fair Administrative Action Act or demonstrate denial of a hearing, procedural impropriety, irrationality, abuse of power or failure to give reasons. 61. The 4th Respondent argued that mere dissatisfaction with transactions affecting land did not amount to a constitutional violation. 62. Regarding the applicability of the Public Procurement and Asset Disposal Act, the 4th Respondent submitted that the Act did not apply to the impugned transaction. It was argued that the Petitioner had failed to establish the existence of a procuring entity, expenditure of public funds or a procurement process regulated under the Act. The 4th Respondent maintained that the transaction concerned trust land administered by the Purko Development Trust rather than procurement undertaken by a public entity, rendering reliance on the Act legally unsustainable. NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 21 of 33

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63. On the applicability of the Crops Act, the 4th Respondent submitted that the Petitioner had not demonstrated the existence of any licensing, crop regulation or agricultural marketing dispute capable of invoking Sections 6, 8, 10 and 11 of the Crops Act. It was argued that the cited statutory provisions regulate crop development, licensing and management within the agricultural sector and were therefore irrelevant to the dispute before the Court. 64. On whether the impugned transactions were illegal or void, the 4th Respondent submitted that cancellation of agreements affecting land could only be ordered upon proof of fraud, illegality, procedural impropriety or corruption. Reliance was placed on Section 26 of the Land Registration Act, which protects title unless acquired fraudulently or illegally. It was submitted that the Petition neither specifically pleaded nor strictly proved fraud, illegality or any other ground capable of impeaching the impugned lease and that courts ought not to interfere with lawful land transactions in the absence of cogent evidence of illegality. 65. On whether the Trustees of the Purko Development Trust acted within their authority, the 4 th Respondent submitted that the suit property was vested in and administered by the Purko Development Trust in accordance with the Trust Deed and the applicable law. It was argued that the Petitioner had failed to demonstrate any breach of trust, ultra vires conduct, fraud, bad faith or violation of the Trust Deed. Consequently, the Court was urged not to interfere with the lawful exercise of trustees’ NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 22 of 33

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powers in the absence of evidence establishing illegality or abuse. 66. The 4th Respondent accordingly urged the Court to dismiss the Petition with costs. 67. The Court has carefully considered the Petition, the responses thereto, the Affidavits on record, the rival written submissions by the parties and the authorities cited. The issues that arise for determination are: i. Whether the Petitioner has established that the suit property, Land Parcel No. CIS MARA/ENTIANI/1, is community land and whether the Respondents acted unlawfully or ultra vires in leasing the said land to the 4th Respondent. ii. Whether the Respondents violated the Constitution, the Community Land Act, the Fair Administrative Action Act, the Public Procurement and Asset Disposal Act, the Crops Act, or any other applicable law in the process leading to the impugned lease, particularly with regard to public participation, procurement, environmental safeguards and fair administrative action. iii. Whether the Petitioner has proved the alleged constitutional violations so as to warrant the grant of the declaratory, injunctive and consequential reliefs sought. iv. Who should bear the costs of the Petition. NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 23 of 33

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68. The Petitioner contended that Land Parcel No. CIS MARA/ ENTIANI/1 constitutes community land within the meaning of Article 63 of the Constitution and is held by the Purko Development Trust for the benefit of the Purko Community. It was his case that although the Trust holds legal title to the property, the Community beneficial and, ownership consequently, any vests in the Purko lease or disposition affecting the land could only lawfully be undertaken upon the approval of the Purko Development Trust General Assembly and in compliance with the Constitution and the Community Land Act. 69. The Respondents, on the other hand, did not dispute that the suit property is administered by the Purko Development Trust for the benefit of the Purko Community. Their position was that the Trust is a distinct legal entity vested with authority under the Trust Deed to administer the property and that the Board of Trustees acted within its mandate in approving the lease. The 4th Respondent further submitted that the Petitioner had failed to prove that the suit property had been registered as community land under the Community Land Act, so as to invoke the provisions of that statute. 70. Article 63 of the Constitution recognizes and protects community land, and provides that such land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest. The object of Article 63 is to protect communal interests in land while ensuring that NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 24 of 33

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dealings affecting such land are undertaken in accordance with the Constitution and the law. 71. The importance of protecting community land was underscored by the African Commission in Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (Communication No. 276 of 2003), where it held that indigenous communities possess enforceable collective rights over their ancestral lands and that decisions affecting those lands must respect the rights and participation of the affected community. Similarly, in African Commission on Human and Peoples’ Rights v Republic of Kenya (Ogiek Case), Application No. 006 of 2012, the African Court affirmed that community land rights constitute fundamental human rights and that any interference with such rights must satisfy the principles of legality, necessity, proportionality and effective consultation. 72. Equally, in Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari & another [2018] eKLR, the Supreme Court recognized that registration of land does not necessarily extinguish customary or beneficial interests, and reaffirmed that trustees may hold land for the benefit of other persons. The Court observed that the existence of a trust is ultimately a question of evidence. 73. In the present case, there is no dispute that the suit property is administered by the Purko Development Trust for the benefit of members of the Purko Community. Indeed, both the NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 25 of 33

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Petitioner and the Respondents acknowledge that the Trust was established for that purpose. The dispute is therefore not so much about ownership of the land as it is about whether the Board of Trustees exceeded the powers donated to it under the Trust Deed in leasing a portion of the land. 74. The burden of proving that allegation rested squarely upon the Petitioner. Section 107 of the Evidence Act places the legal burden upon the party asserting a fact. As stated by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, a party alleging infringement of constitutional rights bears the burden of proving the facts constituting that infringement. 75. Although the Petitioner repeatedly asserted that approval of the General Assembly was mandatory before any lease could be granted, no specific provision of the Purko Development Trust Deed was identified to demonstrate that the Board of Trustees lacked authority to lease the property or that approval of the General Assembly was a mandatory pre-condition for the impugned transaction. Conversely, the Respondents consistently maintained that the Board acted within its powers under the Trust Deed and that the Chief Executive Officer merely discharged administrative functions in implementing the Board’s decision. 76. Courts cannot infer illegality merely because a party alleges that trustees acted outside their mandate. There must be evidence demonstrating the specific provision breached, and NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 26 of 33

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the manner in which the impugned act exceeded the authority conferred by the trust instrument. In the absence of such evidence, this Court is unable to conclude that the Respondents acted ultra vires the Purko Development Trust Deed. 77. Consequently, while this Court recognizes the constitutional importance of protecting community interests in land, the Petitioner has failed to establish, on a balance of probabilities, that the Respondents lacked authority to lease the suit property or that the lease was unlawful merely because it was undertaken by the Board of Trustees. 78. On the second issue, the Petitioner further contended that the process leading to the lease violated Articles 10, 35, 47 and 227 of the Constitution, the Community Land Act, the Public Procurement and Asset Disposal Act, the Fair Administrative Action Act, the Crops Act and the Environmental Management and Co-ordination Act. These allegations were founded principally on the alleged absence of public participation, lack of transparency in the procurement process, denial of information and failure to undertake an Environmental Impact Assessment. 79. Constitutional litigation demands more than mere allegations. In Anarita Karimi Njeru v Republic (1979) KLR 154, as reaffirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Court held that a party alleging violation of constitutional rights must plead and prove with reasonable NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 27 of 33

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precision the nature of the right violated, the manner of the violation and the injury suffered. 80. With respect to public participation, there is no dispute that Article 10 of the Constitution elevates public participation to a national value binding upon all State organs and public bodies whenever they make decisions affecting the public. In British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR, the Supreme Court held that public participation must be real and meaningful and not a mere cosmetic exercise. Likewise, in Mui Coal Basin Local Community & 15 Others v Permanent Secretary, Ministry of Energy & 17 Others [2015] eKLR, the High Court observed that meaningful public participation requires adequate notice, access to relevant information and a genuine opportunity for affected persons to influence the decisionmaking process. 81. The Petitioner asserted that no meaningful public participation was undertaken because meetings of the General Assembly had not been convened, and consultations were not carried out through forums accessible to members of the community. The Respondents, however, maintained that the leasing opportunity was publicly advertised, competitive bids were invited and consultations were undertaken before the lease was awarded. 82. Apart from asserting that additional forums such as barazas, churches and vernacular radio stations ought to have been utilized, the Petitioner did not NAROK ELCL PET. NO. E013 OF 2025 place before JUDGMENT the Court Page 28 of 33

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anyevidence demonstrating that community members were denied an opportunity to participate or that the consultations undertaken were constitutionally inadequate. The Constitution does not prescribe a single mode of public participation; what is required is a reasonable opportunity for those affected to be heard. On the evidence before the Court, the alleged violation of Article 10 has not been proved. 83. The allegations of breach of Articles 35 and 47 of the Constitution are equally unsupported by the evidence. No documentary material was produced demonstrating formal requests for information that were unlawfully declined, nor was any identifiable administrative decision shown to have been made in breach of the procedural safeguards contemplated under the Fair Administrative Action Act. 84. As regards procurement, the Petitioner relied upon the Public Procurement and Asset Disposal Act. However, no evidence was placed before the Court demonstrating that the Purko Development Trust is a procuring entity within the meaning of that Act or that the impugned lease constituted public procurement regulated by the statute. The mere existence of a competitive tender process does not, without more, render the Act applicable. 85. The allegations Environmental relating to Management the Crops and Act and the Co-ordination Act, similarly remained unsubstantiated. The Petitioner neither demonstrated how the cited provisions of the Crops Act were NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 29 of 33

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applicable to the impugned transaction nor produced evidence establishing that an Environmental Impact Assessment was legally required before the one-year lease could be undertaken. 86. Accordingly, this Court finds and holds that the Petitioner has failed to prove that the Respondents violated the Constitution or any of the statutory provisions relied upon in the process leading to the impugned lease. 87. Having found that the Petitioner failed to establish that the Respondents acted outside the powers conferred upon them under the Purko Development Trust Deed and further failed to prove any violation of the Constitution or the applicable statutory provisions in the process leading to the impugned lease, it follows that the declaratory reliefs sought cannot issue. Declaratory relief is a discretionary remedy and can only be granted where a party has established an infringement or threatened infringement of a legal or constitutional right. 88. In Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR, the Supreme Court reiterated that constitutional remedies are intended to provide effective redress where constitutional rights have been violated. Equally, such remedies cannot issue where the alleged violations have not been proved by evidence. 89. The Petitioner sought declarations that the Respondents’ actions were unconstitutional, illegal, null and void; that the suit property constitutes community land incapable of being NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 30 of 33

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leased without compliance with the Constitution, and the Community Land Act; orders cancelling the lease; a permanent injunction restraining the Respondents from dealing with the property; and damages for alleged constitutional violations. Those remedies are all predicated upon proof of unlawful conduct by the Respondents. 90. As already found, the Petitioner has failed to demonstrate that the Board of Trustees acted ultra vires the Trust Deed, that the procurement process was unlawful, that the constitutional requirements relating to public participation and fair administrative action were violated, or that the Respondents contravened the Community Land Act, the Public Procurement and Asset Disposal Act, the Crops Act or the Environmental Management and Co-ordination Act. Therefore, this Court finds no legal basis upon which the impugned lease can be nullified or the injunctive and declaratory orders sought can issue. 91. Similarly, the prayer for general damages for constitutional violations cannot succeed. It is now settled that damages for constitutional violations are not awarded as a matter of course. A Petitioner must first establish the existence of a constitutional violation before the Court can proceed to assess an appropriate remedy. Since no constitutional infringement has been proved in the present case, the claim for damages necessarily fails. 92. On the issue of costs, Section 27 of the Civil Procedure Act provides that costs shall ordinarily follow the event, unless the NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 31 of 33

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Court, for good reason, orders otherwise. The award of costs nevertheless remains a matter within the discretion of the Court. 93. The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others [2014] eKLR held that while costs ordinarily follow the event, the Court retains an unfettered discretion to depart from that principle where the circumstances of the case so demand, particularly where the litigation raises matters of genuine public interest. 94. Although the Petition has not succeeded, it raises issues touching on the management of land held for the benefit of members of the Purko Community, and the accountability of trustees administering community assets. These are matters of public importance, and there is no evidence that the Petition was brought in bad faith, or for an ulterior purpose. In the circumstances, this Court is persuaded that each party should bear its own costs. 95. In the result, the Court finds and holds that the Petition herein is devoid of any merit and, and for the above reasons, the instant Petition is hereby dismissed entirely. 96. Each party shall bear its own costs. It is so ordered. Dated, Signed and Delivered Virtually this 6 th Day of August 2026. NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 32 of 33

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L. GACHERU JUDGE. 06/08/2026 Delivered online in the presence of: Boniface Maluki – Court Assistant No appearance for the Petitioner. Mr. Musyoka for the 1st Respondent. Mr. Oltina for the 2nd Respondent. Mr. Musyoka for the 3rd Respondent. Ms Nyabuto holding brief Ms Gacheche for the 4th Respondent. L. GACHERU JUDGE. 06/08/2026 NAROK ELCL PET. NO. E013 OF 2025 JUDGMENT Page 33 of 33

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