Kapsiran Clan

DISTRICT COMMISSIONER ELGEYO/MARAKWET, THE DISTRICT OFFICER TOT DIVISION, THE SENIOR RESIDENT MAGISTRATE’S KASAGUR COURT CLAN (the ELDORET 1st, 2nd the and 1st 3rd and THE Respondents respectively). They claim to be the owners of the land parcel known as MOROR FARM in Korou sub-location previously in TOT DIVISION but currently in TIRAP DIVISION ENBOLOT LOCATION within ELGEYO MARAKWET (the suit land). It is their case that they have occupied the suit land even prior to the 19th century by virtue of historical migration and remain in active possession and occupation to-date. That one of it’s members KAMATAK invited his maternal cousin CHESIR BARSALAT from the 4th Respondent to occupy a portion at the suit land in 1948 for purposes of subsistence farming without the consent of the other members of the Petitioner. 2. The invitation was meant to be temporary but not to vest any rights in favour of the 4 th Respondent who proceeded to take and claim a portion of the suit land in 1951. 3. That illegal instrusion precipitated a dispute between the clans over the suit land. The Petitioner tried to resolve the matter amicably through traditional dispute resolution mechanism between 1951 to 1983 but to no avail. The Petitioner lodged a dispute with the 1st Respondent in 1983 seeking redress for the 4th Respondent’s irregular and unlawful encroachment of the ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) Page 2 of 30

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suit land and a panel of elders was constituted to hear the dispute. 4. Having heard the dispute, the Panel of Elders rendered an award on 12th April 1983 directing for the eviction of the Petitioner’s members from the suit land contrary to the pleadings before the 1st and 2nd Respondent. That award was adopted as a Decree of the Courd vide ELDORET SENIOR RESIDENT MAGISTRATE COURT CASE NO. 47 of 1983. 5. On 25th February 1986, the panel of Elders under the leadership of the District Commissioner rendered a second award which somehow varied the initial award having considered it as a boundary dispute. That award was unreasonable and whimsical as it indicated that the Petitioner had introduced the name ENOU FARM during the proceedings whereas it was the 4th Respondent who had tried to distort the name of the suit land. The panel of Elders award is ambiguous as it does not define the land in dispute with certainly thereby leaving the dispute unresolved and extremely convoluted. 6. Most of the Petitioner’s members were not aware about the Panel of Elders award and the resultant Decree until recently when the 4th Respondent made an attempt of evicting them from the suit land. The proceedings before the Panel of Elders ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) Page 3 of 30

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constituted by the 1st and 2nd Respondents offended the rules of Natural Justice and the fundamental right to a fair hearing noting that an order of eviction was made without affording the parties a chance to be heard. The award was also made ultra vires as the Panel of Elders had no jurisdiction to hear disputes of eviction. The award was also founded on irrationality having failed to take cognizance of the Petitioner’s ancestral rights over the suit land nor their historical and cultural heritage. The 4th Respondent did not hold a title over the suit land and hence it had no capacity to evict the Petitioner’s members and therefore the Panel of Elders award is premature, unreasonable and bad in law. 7. The Petitioner therefore seeks the following reliefs; a) A declaration that the proceedings before the Panel of Elders chaired by the 1 st and 2nd Respondents and the resultant Decree and subsequent orders issued by the ELDORET SENIOR RESIDENT MAGISTRATE’S COURT in Land Case No. 47 of 1983 are null and void and are hereby quashed and/or set aside. b) In the alternative to prayer (a) above, an Order of certioreri to bring to this Honourable Court and quash the Panel of Elders awards dated 12 th April 1983, 25th February 1980 and the resultant Decree and orders issued in ELDORET SENIOR MAGISTRATES COURT land case No. 47 of 1983. ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) Page 4 of 30

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c) A permanent injunction to restrain the Respondents and their agents from interfering with the Petitioner’s ownership, possession, occupation and use of the suit land known as MOROR FARM. d) The Elgeyo Marakwet County Land Adjudication and settlement Officers, the County Lands Offices, the County Surveyor and the County Land Registrar are hereby authorized to facilitate issuance of Title Deeds in favour of members of KAPSIRAN CLAN with respect to MOROR FARM. e) Any other relief that the Honourable Court may deem just and fair to grant. 8. Annexed to the Petition BARTOLOMEW KIPKORE are the verifying affidavits of SUTER, JAMES CHESUBAR SIRMA, JOSEPH K. CHEPTOO and DOMINIC K. CHELANGA all dated 29th October 2025. 9. BARTOLOMEW KIPKORE SUTER also filed a supporting affidavit of even date to which the following documents are annexed; 1. Copy of proceedings held at the office of the DISTRICT COMMISSIONER’S OFFICE on 12th April 1983 to determine a boundary dispute between the Petitioner and the 4th Respondent. ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) Page 5 of 30

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2. Copy of order issued in ELDORET SENIOR RESIDENT MAGISTRATE’S COURT land case No. 47 of 1983 adopting the Panel of Elders award dated 12 th April 1983 as an award of the court. 3. Copy of proceedings held before the Panel of Elders on 25th February 1986 between the Petitioner and the 4th Respondent. 10. In opposition to the Petition, the 1st to 3rd Respondents filed a joint response dated 12th February 2026 through the ATTORNEY GENERAL. 11. They describe the Petition as Instituted in bad faith without substance and based on hearsay and afterthoughts meant to mislead this court. They add that there is no specific allegation or evidence provided by the Petitioner on the alleged violation of rights and how the 1st to 3rd Respondents have violated the same. They add further that the Petition is merely speculative and expounding on unsubstantiated facts by giving a false interpretation of rights to property and fair trial. 12. That the Petitioner is purporting to circumvent the procedures of the National Land Commission’s mandate to receive, admit and investigate historical land injustices and complaints. No evidence has been led to suggest that the 2 nd Respondent violated any Constitutional or Statutory provisions or that the 1st Respondent has never taken steps to legalize the ownership ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) Page 6 of 30

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of the Petitioner’s occupation. The Petitioner has failed to justify the allegations sought, there is no nexus between the so called infringed constitutional rights and actions taken or that there was any injustice or infringement of proprietary rights. There is no reason why the Petitioner side-stepped section 15 of the National Land Commission Act which is the appropriate avenue. 13. The Petitioner has also failed to establish the tenets of a Constitutional Petition as laid down in the case of ANARITA KARIMI NJERU V. R 1976 – 1980 KLR 1272 [1979eKLR] and restated in MUMO MATEMU V. TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS 2013 eKLR [2013 KECA 445 KLR]. It should therefore be dismissed with costs. 14. On behalf of the 4th Respondent, their Counsel DOUGLAS OMBATI ADVOCATE filed a response dated 20th February 2026 as well as an affidavit by RAPHAEL K. YEGO the 4th Respondent 2026. 15. In its response, the 4th Respondent describes the Petition as filed in bad faith without merit and based on half truths. That it is guilty of laches as the omission or commission complained of arose in 1983 and further, that the Petition is Res Judicata since the issues complained of were adopted by the 3 rd Respondent after which the Petitioner filed an appeal No. 8 of 2016 at the ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) Page 7 of 30

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ELDORET ENVIRONMENT AND LAND COURT which was heard and dismissed on 28th June 2018. 16. This Petition is an afterthought as the Petitioner did not challenge the legality of the eviction orders. 17. Further, all the Respondents herein have not been connected to any Constitutional breach of the Petitioner’s right. It is not true that the members of the Petitioner were not notified of the eviction order until recently since those orders were issued on 29th July 1985 and subsequent orders on 29 th September 1987, 20th November 2006, 14th July 2015, 6th April 2016 and lastly on 8th July 2016. That each time an eviction order is executed, members of the Petitioner would move back to their ancestral land but again trickle back to the 4th Respondent’s land namely MOROR FARM. 18. The Petitioner cannot be heard to state that they were denied justice and the right to a fair hearing since in paragraph 16 of their Petition, they have confirmed that the 1 st and 2nd Respondents constituted a Panel of Elders which heard both parties. 19. The legal avenue available to the Petitioner is to move the National Land Commission to investigate any alleged historical injustice which in any event, have not been demonstrated. This Petition does not meet the threshold of a proper Constitutional ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) Page 8 of 30

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Petition in its form and content and is intended to circumvent the process of allocating the suit land to the 4 th Respondent by the Land Adjudication Officer. 20. In his affidavit of even date, RAPHAEL K. YEGO a member of the 4th Respondent has averred, inter alia, that the Petition is guilty of laches since the omission and commission complained of arose in 1983. That it is also Res Judicata as admitted by the Petitioner the matter was adopted by the 3 rd Respondent and an appeal filed at ELDORET ENVIRONMENT AND LAND COURT being No. 8 of 2016 was dismissed on 28 th June 2018. That the Respondents have not been connected to any Constitutional breach. 21. That it is not true that the Petitioners are in occupation of the suit land as alleged. Neither is it true that they were notified of the eviction orders. Rather, the Petitioners never challenged the award of the Panel of Elders. 22. The Petitioners are guilty of laches since the matters complained of occurred in 1983 and this Petition is Res Judicata in view of their appeal which was dismissed on 28 th June 2018 in ELDORET ENVIRONMENT AND LAND COURT APPEAL NO. 8 of 2017. The Petitioners have never proved ownership of the suit land and they cannot now invoke the Constitution to litigate over non-existent property rights. Their legal avenue is ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) Page 9 of 30

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to move to the National Land Commission and no Constitutional breaches have been set out in their Petition. 23. Annexed to the Petition are the following documents: 1. Copy of ruling delivered by OMBWAYO J. on 28 th June 2018 in ELDORET ELC APPEAL NO. 8 of 2016 KAPSIRAN CLAN V. KASAGOR CLAN. 2. Copy of order issued on 6 th April 2016 by T. OLANDO RESIDENT MAGISTRATE IN ELDORET CHIEF MAGISTRATE’S COURT CIVIL CASE NO. 47 OF 1983 KAPSIRAN CLAN V. KASAGUR CLAN. 3. Copy of order issued on 14th July 2015 by S. M. MOKUA SENIOR PRINCIPAL MAGISTRATE ELDORET IN CIVIL CASE NO. 47 OF 1983. 4. Copy of eviction order issued on 2nd November 2006 by E. N. MUCHEMI CHIEF MAGISTRATE IN ELDORET CHIEF MAGISTRATE COURT CIVIL CASE NO. 47 of 1983. 5. Copy of two (2) other eviction orders issued in ELDORET CHIEF MAGISTRATE’S COURT CIVIL CASE NO. 47 OF 1983 by NICHOLAS ATEYA on 29 th July 1985 and another issued on 29th September 1987 by another Judicial Officer whose name is not indicated in the order. ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 10 of

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24. The court directed, with the concurrence of the parties, that the Petition be canvassed by way of written submission. However, only MR. KENEI instructed by the firm of KENEI & ASSOCIATES ADVOCATES LL.P for the Petitioner filed his submissions. The ATTORNEY GENERAL representing the 1st to 3rd Respondents and MR. OMBATI instructed by the firm of DOUGALA OMBATI & co. Advocates for the 4th Respondent did not file any submissions. 25. I have considered the Petition, the Responses the rival affidavits, the annextures and the submissions by the Petitioner. 26. What I consider to call for my determination in this Petition are two issues. Firstly, whether the petition has satisfied the threshold set out in the cases of ANARITA KARIMI NJERU V. R (supra) and as also restarted in the case of MUMO MATEMO V. TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS. Secondly, whether this Petition is in fact Res Judicata. Those are the two issues which, in my view, will determine whether this Petition stands or fails. 1. THRESHOLD OF A CONSTITUTIONAL PETITION. 27. Counsel for the Petitioner was very alive to the threshold set out in ANARITA KARIMI NJERU V. R (Supra). In paragraph ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 11 of

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20 of his submissions, he has cited that Judgment where it was held that; “ We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that Justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed nd the manner in which they are lleged to be infringed”. Emphasis added. 28. Then in paragraph 21 and 22, he proceeds to add thus: 21: “The principle set out in the Anarita Karimi Case was re-affirmed by the Court of Appeal in the case of Mumo Matemu V. Trusted Society of Human Rights Alliance & 5 others 2003 eKLR. We therefore invite this Honourable Court to examine the instant Petition as drawn vis – a – vis the threshold mapped in the above-mentioned case law”. 22: “My Lord, the Petitioner has set out clearly at paragraphs 6-28 of the Petition the nature and extent of the infringement of its fundamental rights. The Petitioner pleaded that its rights as ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 12 of

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protected under Articles 40, 47 and 48 of the Constitution of Kenya were infringed by the reliefs sought by the nature of impugned award. The Petitioner further speak to the infringement of its rights” 29. However, in paragraphs 17 and 18 of the 2 nd Respondent’s response, it is stated thus: 17: “That the Petitioner has miserably failed to establish the tenets of a Constitutional Petition as laid down in the celebrated case of ANARITA KARIMI NJERU V. REPUBLIC (1979) and restated in MUMO MATEMO V TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS (2013) to the extent that he failed to set out with reasonable degree of precision the complaint, the provision said to be infringed and the manner in which they are alleged to be infringed” 18: “That the Petition as framed does not meet the Constitutional threshold as set out in the celebrated case of Anarita Case as the Petitioners have not in any way set out with reasonable degree of precision that right which is complained of, the provisions of the Constitution said to be infringed ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 13 of

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and the manner in which the 2 nd Respondent has breached the Petitioner’s right over land known as Kimwani ADC Farm LR (FR319/45)”. 30. The ANARITA KARIMI NJERU VR case (supra) was considered by the court of Appeal in the case of MUMO MATEMU V TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS (Supra) where at paragraphs 41 and 42, the Appellate Court observed that: 41: “We cannot but emphasis the importance of precise claims in due process, substantive Justice and the exercise of Jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not conterminous with exactitude. Restated, although precision must reman a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the Constitutional provision alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the Judicial decision is to define issues in ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 litigation and Page 14 of

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adjudication, and to demand exactitude ex ante is to miss the point.” 31. The court then went on at paragraph 42 to add as follows: 42: “However, our analysis cannot end at that level of generality. It was the High Court’s observation that the Petition before it was not the ‘eptiome of precise, comprehensive or elegant drafting’. Yet the principle in Anarita Karimi Njeru importance of (Supra) defining underscores the dispute the to be decided by the Court. In our view, it is a misconception to claim as it has been in recent times with compliance increased with rules frequency of that procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under Section 1A and 1B of the Civil Procedure Act (Cap 21) and Section 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the Court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice as they give fair notice to the other ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 party. The Page 15 of

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principle in Anarita Karimi Njeru (supra) that established the rule that require reasonable precision in framing of issues in Constitutional petition is an extension of this Principle”. Emphasis added. 32. The court proceeded to cite the words of Jessel MR in the case of THORP V HOLDSWORTH 1876 3 ch D 637 at page 639 that; “The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules ……. was to prevent the issue being enlarged which would prevent either party from knowing whenthe cause came on for trial. What the real point to be discussed was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing” Emphasis added. 33. The Appellate court then makes the following final observations in paragraphs 43 and 44 of its Judgment. 43: “The Petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 16 of

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of the Constitution in its title. However, the Petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the Petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrities of the appellant, No particulars were enumerated. Further, paragraph 4 of the Petition alleged that the Government of Kenya had overthrown the Constitution, again without any particulars. At paragraph 5 of the amended Petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars”. Emphasis added. 44 “We wish to reaffirm the principle holding on this question in Anarita Werimi Njeru (supra). In view of this, we find that the Petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the Petition so as to provide sufficient particulars to which the respondent could reply. Viewed thus, the Petition fell short of the very substantive test to which the High ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 17 of

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Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the Superior Court below to lament that the Petition before it was not the ‘epitome of precise, comprehensive or elegant drafting’ without requiring remedy by the 1st respondent”. Emphasis added. 34. Finally, in the case of COMMUNICATIONS COMMISSION OF KENYA & 5 OTHERS V. ROYAL MEDIA SERVICES LTD & 5 OTHERS 2014 KESC 53 KLR, the Supreme Court weighed in on the issue of threshold by adding thus; “Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed as well as the basis of his or her grievance, this principle emerges clearly from the High Court decision in Anarita Karimi Njeru V. Republic 1979 KLR 154; the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 18 of

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plays a positive role, as a foundation of conviction and good faith in engaging the Constitutional process of dispute management.” Emphasis added. 35. From a perusal of the Petition herein, it must be obvious why I have extensively made references to the above decisions from the superior courts. Although the Petition in it’s heading makes reference to Articles 19, 20, 21, 22, 23, 40, 45, 47 and 48 of the Constitution, and although in his submissions Counsel for the Petitioner has stated in paragraph 22, which I have already referred to above, that; “ ……… the Petitioner has set out clearly at paragraph 6-28 of the Petition the nature and extent of the infringement of its fundamental rights. The Petitioner pleaded that it’s rights are protected under Articles 40, 47 and 48 of the Constitution of Kenya were infringed by the impugned award. The reliefs sought by the Petitioner further speak to the nature of infringement of its rights; there is no mention in paragraphs 6 to 28 of the Petition of the aforementioned Constitutional Provisions and in what manner they were violated. Yet, in the case of COMMUNICATIONS COMMISSION OF KENAY & 5 OTHERS V ROYAL MEDIA ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 19 of

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SERVICES LTD & 5 OTHERS (Supra), the Supreme Court was clear that there must be, in a Constitutional Petition; “……….. the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened and the manifestation of contravention or infringement.” 36. That is clearly lacking in this Petition and in particular, in paragraphs 6 to 28 of the grounds of the Petition where the Constitutional infringements complained of ought to have been manifest. It is not enough, as the Petitioner herein has done, to gloss a Petition with the Articles of the Constitution alleged to have been violated yet he fails to explain them in the body of the Constitutional Petition. On that ground, this Constitutional Petition has failed the threshold set out in the case of ANARITA KARIMI NJERU V R (Supra) and subsequent cases of the Superior Court. IS THIS PETITION RES-JUDICATA? 37. Section 76 of the Civil Procedure Act provides that: “No. Court shall try any suit or issue in which the matters directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 20 of

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between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.” 38. In the case of KENYA COMMERCIAL BANK LTD V. MUIRI COFFEE ESTATE LTD & 3 OTHERS (MOTION NO. 42 & 43 OF 2014 CONSOLIDATED) 2016 KESC 6KLR. The Supreme Court in paragraph 52 described the doctrine of Res Judicata in the following terms; 52: “Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of all matters of all categories including issues of Constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon. Narbert Mao V Attorney – General, Constitutional Petition No. 9 of 2002 [2003 UGCC 3], the Petitioner brought an action on ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 21 of

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behalf of 21 persons from his Constituency, for declarations under Article 137 of the Ugandan Constitution, and for redress under Article 50 of that Constitution. The matter arose from an incident in which Officers of the Uganda Peoples Defence Forces attacked a prison and abducted 20 prisoners killing one of them. Unknown to the Petitioner, another action had already been filed under Article 50 seeking similar relief and Judgment had been given in Hon. Ronald Reagan Okumu V. Attorney General Misc Application Non 0063 of 2002 High Court HCT 02 CV MA 063 of 2002. The Constitutional court dismissed the Petition on a plea of res judicata, declining the Petitioner’s pleas that certain declarations now important sought Constitutional had not been accommodated in the earlier Judgment”. 39. The Supreme Court went on to add in paragraph 54 that; 54: “The doctrine of res judicata, in effect allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 22 of

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further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits which would ordinarily clog the court, apart from occasioning unnecessary costs to the parties, and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.” 40. In the well known case of HENDERSON V. HENDERSON 1843 3 HARE 100 at page 115, WIGRAM V.C held as follows; “ …….. where a given matter becomes the subject of litigation in, and or adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in the contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 23 of

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their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” 41. And as to whether the doctrine applies in Constitutional Petitions, the Supreme Court stated at paragraph 82, having considered jurisprudence from other jurisdictions including in this county, that: 82: “If we were to find that the doctrine does not apply to Constitutional litigation, the doctrine may very well lose much of it’s legitimacy and validity. We say this in light of the fact that Constitutional tenets permeate all litigation starting with the application of article 159 of the Constitution both Civil and Criminal litigation, and it’s application now embedded in all procedural statutes. Further, article 50 on right to fair hearing and article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 24 of

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holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some Constitutional provision or other”. 42. The Supreme Court however, ended that discussion with the following rider at paragraph 84: “ Just as the Court of Appeal in it’s impugned decision noted that rights keep on evolving, mutating and assuming multifacated dimensions, it may be difficult to specify what is rarest and clearest. We however, propose to set some parameters that a party seeking to have a court give an exemption to the application of res judicata. The first is where there is potential for substantial injustice if a court does not hear a Constitutional matter or issue on its merits. It is our considered opinion that before a Court can arrive at such a conclusion, it must examine the entirely of the circumstances as well as address the factors for and against exercise of such discretionary power.” ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 25 of

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43. It is common knowledge that the dispute between these parties has been determined before the Elders in 1983. Their award was subsequently adopted as a Judgment of the SENIOR PRINCIPAL MAGISTRATE’S COURT ELDORET in land Case No. 47 of 1983. There was also a further determination by another panel of Elders in 1986 under the Chairmanship of the then DISTRICT COMMISSIONER ELGEYO/MARAKWET MR. S. 2. AMBUKA. All those award were made in favour of the Respondent. 44. The Judgment by the Magistrates Court in ELDORET COURT Land case No. 47 of 1987 was the subject of an appeal at the ENVIRONMENT AND LAND COURT ELDORET being appal No. 8 of 2016 filed by the Petitioner. That appeal was dismissed by A. OMBWAYO J. vide a ruling delivered on 28 th June 2018. There is no evidence to suggest that any further appeal or any other application was filed by the Petitioner with regard to the ruling by A. OMWAYO J. The dispute over the suit land involving the Petitioner and the Respondent has been heard and finally determined by a competent court with jurisdiction almost 10 years ago. This Petition is barred by the doctrine of res judicata. 45. A perusal of the reliefs sought by the Petitioner also show that whereas this is a Constitutional Petition, prayers (a) and (b) are basically orders available to a party in a Judicial review ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 26 of

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application. Only a court seized with a Judicial Review Application can issue orders of “certiorari to quash” the decision of a Court or other tribunal. Not a Court considering a Constitutional Petition. 46. Counsel for the Petitioner has also submitted at length on why this Court should nonetheless grant Judicial Review Order in this Petition. In paragraph 50, 51 and 52 of his submissions, Counsel states; 50: “My Lord, we have demonstrated the nature of breach on the Petitioner’s rights by the Respondent. We have substantiated on extent of the infringement and the reliefs sought to remedy the breach. On the other hand, the Respondents have not demonstrated the probity of the impugned Awards. They have anchored their hope on a conservative approach where reliance is on mechanical application of the procedural technical.” 51: “My Lord, the Respondents are living in the pre-2010 era and want to drag everyone there. They want us to believe that the only way to ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 27 of

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challenge decisions of a quasi Judicial body is by way of Judicial Review. They further want this Honourable Court to use time as a factor in determining the instant Petition. They need to be made alive to the fact that the advent of the current Constitution brought a paradigm shift as acknowledged by the Court of Appeal in the case of Lilian Bargetuny V. Esther Suge & 3 others 2020 eKLR.” 52: “Article 23(3) of the Constitution has expanded the powers of this Honourable Court while dealing with matters concerning enforcement of human rights. This Honourable court is mandated to look at the nature of the breach of human rights and reach a conclusion on the appropriate reliefs more importantly, this Honourable court has been empowered to grant Judicial Review remedies in a Petion for enforcement of human rights. We do urge you, Mr Lord to look at the current Petition and grant judicial review orders in addition to the reliefs expressly sought in the Petition.” ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 28 of

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47. I must remind Counsel and the Petitioner that having elected to approach this court by way of a Constitutional Petition, it would be improper to impart into this matter the principles of a Judicial Review Application no matter how tempting or attractive it would be. It is the pleadings placed before the court by the parties which guide the parties on how to prosecute their respective cases and also for the court to know what it has to determine. I do not therefore see how this court, as suggested by the Petitioner, can be persuaded “to look at the current Petition and grant judicial review orders in addition to the reliefs expressly sought in the Petition.” That would be an affront to the law and procedure. 48. On the submission that “the Respondents have not demonstrated the probity of the impugned award”, it is the Petitioner who bore the burden of proof to prove the alleged violation and that the Respondent infringed the same. Sections 107, 108 and 109 of the Evidence Act make that very clear. They read; 107 (1) “Whoever desires any court to give Judgment as to any legal right and liability dependent on the existence of fact while he asserts must prove that those facts exists.” ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 29 of

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(2) “When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person”. 108: “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 109: “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person”. 49. It was therefore not the duty of the Respondent to prove “the probity at the impugned award”. Rather, the duty to prove the Constitutional violations pleaded was on the Petitioner and as I have already demonstrated above, that was not done. 50. Finally, the petitioner appear to be pursuing a complaint regarding historical injustices over land. In paragraphs 9 to 12 of his supporting affidavit, BARTOLOMEW KIPKORE SUTER depones on how the Respondent, having been allowed in 1948 to occupy a portion of the suit land on a temporary basis and only for subsistence went ahead to claim ownership of the same thus precipitating this dispute. The 1 st to 3rd Respondents’ rejoinder in paragraph 10 is that the Petitioner is trying to ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 30 of

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circumvent the provisions of this National Land Commission Act with regard to the Commission’s mandate to receive and investigate all historical land injustices and recommend appropriate redress. The 4 th Respondent has also in paragraph 18 and 19 at it’s response pleaded that the Petitioner’s avenue is to move to the National Land Commission to investigate any historical injustices. 51. Under Section 15(2) of the National Land Commission (Amendment) Act 2025, such historical land injustice include violation of rights to land which result in the displacement of persons from their habitual place of residence, which occurred between 15th June 1985 and 27th August 2010 when the new Constitution was promulgated and which has not been sufficiently resolved and subsists. It is the Petitioner’s case that the dispute with the Respondent over the suit land still subsists. 52. The view I take of all those averments is that the Doctrine of Constitutional Avoidance comes into play and that given those circumstances, the Petitioner ought to have approached the National Land Commission. In the case of GABRIEL MUTAVA & 2 OTHERS V. MANAGING DIRECTOR KENYA PORTS AUTHORITY & ANOTHER 2016 KECA 411 KLR [CIVIL APPEAL NO. 67 OF 2015] the court of Appeal said the following: ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 31 of

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“Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such a party ought to seek redress under such other legal regime rather than trivialize Constitutional litigation……. A corollary to the foregoing is the principle of Constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a Constitutional issue, that should be done.” 53. This appears to me to be a case in which I should invoke the doctrine of Constitutional Avoidance. 54. Having said all the above, I am satisfied that this Petition is for dismissal. 55. Ultimately, therefore, I issue the following disposal orders: 1. The Petition is dismissed. 2. Costs to the Respondents ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 32 of

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BOAZ N. OLAO JUDGE 17TH SEPTEMBER 2026 Judgment dated, signed and delivered by way of electronic mail on this 17th day of September 2026 with notice to the parties. Right of appeal. BOAZ N. OLAO JUDGE 17TH SEPTEMBER 2026 ITEN ELC PET. NO. E002 OF 2026 (JUDGMENT) 30 Page 33 of

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