Dixon Orero Olango (Suing as the legal representative of Charles Olango Okoth) v Tobias Odhiambo Obura, Land Adjudication Officer, Land Registrar & The Attorney General

Page 2 of 27 3) A declaration that the 2nd Respondent violated Article 10 of the Constitution in the manner in which he conducted proceedings in objection proceedings and consequently his subsequent decision was unconstitutional and a violation of the constitutional rights of the Petitioner herein and his entire family. 4) That a declaration be and is hereby issued that the action of lodging an objection herein by the 1st Respondent purporting interest the in suit to claim parcel and a purchasers’ thereby being registered on the whole of the suit property despite claiming a portion thereof measuring 5 acres is null and void as they did not have the locus standi to institute any proceeding against the estate of the deceased herein without citing the family of the deceased to take out letters of administration. 5) The decision by the 2nd Respondent to allow the Respondent herein to be registered on property of the deceased herein is unlawful, unconstitutional, invalid and void ab initio as he did not have the jurisdiction nor the mandate to deal with the estate of the deceased without a court order therefore in violation of the rule of law and in direct contravention of provisions of the constitution that guide each of the named Respondents and was therefore an abuse of office. 6) That a declaration be and is hereby issued that the proceedings and decision to transfer the whole of Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 3 of 27 Land Parcel Number Ndhiwa/Kamdar/3055 to the 1st Respondent was unlawful, unprocedural null and void and unconstitutional. 7) A declaration that any registration and transfer of the whole of Ndhiwa/Kamdar/3055 Land to Parcel 1st the Number Respondent is invalid, irregular, unlawful and stand cancelled. 8) An Order be issued directed to the Chief Land Registrar alongside the District Land Registrar Homa Bay to recall the tittle deed issued to the 1 st Respondent for cancellation and or invalidation and rectify and/or amend the Registry Index Map Regarding Parcel Number Ndhiwa/Kamdar/3055 or it’s subdivision which was unprocedurally allowed while implementing the AR Decision made on the 10th day of March, 2006 in favour of the 1 st Respondent. 9) General Damages. 10) Costs of this petition be awarded to the Petitioner. 11) Any other or further relief as this Honourable Court may deem fit and just to grant. 2. The Petitioner filed together with the Petition a Supporting Affidavit he deposed on 2 nd April 2024. In his affidavit, he stated that the late Charles Olango Okoth was the original owner of the land parcel number known as HOMA BAY/KAMDAR/3055 which was ancestral land. He annexed and marked “DOO-2” a copy of the sketch Map for Adjudication Section Kamdar/3055). He deponed further, that Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 4 of 27 sometime in the year 1992 after the death of the late Charles Olango Okoth his son Samuel Okomo Olang’o, despite having been issued with his title deed, illegally and fraudulently sold portions of the deceased's land HOMA BAY/KAMDAR/3055 to various buyers including the 1st Respondent. He annexed and marked as “DOO-3" a copy of the sale agreement dated 20/1/1992. He deposed further that the family of the late Charles Olango Okoth complained to the Area Chief who gave an order to all purchasers to seize (sic) (understood to mean “cease”) their illegal activities on the land. The family affirmed that at no point did they authorize the sale of the deceased’s land. The Chief thereby nullified the sale agreements entered into by the deceased’s son, which Order was obeyed to date since it is the family of the late Charles Olango Okoth that is using the land. He attached and marked ‘DOO-4’ a copy of the Chief’s order. 3. The deponent averred that as a result, all the purchasers ceased their illegal activities on the land. Further, since then the Petitioner’s family has been utilizing the suit property peacefully and without any interference. He annexed and marked as “DOO-5” copies of the pictures showing the farm. 4. He added that on 10th March 2006, the 1st Respondent instead of citing the deceased family to file for Succession to enable him sue the family of Charles Olango Okoth, unprocedurally lodged an objection at the 2 nd Respondent’s office. The hearing proceeded in the absence of the late Charles Olango Okoth’s family. He Attached and marked as ‘DOO-6’ a copy of the objection proceedings. Further, that the Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 5 of 27 1st Respondent alleged to have purchased 5 acres of the suit property from the deceased’s son yet the 2 nd Respondent in its ruling awarded whole of the suit property measuring 12.9 acres to the 1st Respondent and failed to notify the family of the late Charles Olango Okoth. Further, upon perusal of the court proceedings, it is noted that the 1 st Respondent asserted that he bought a portion of the suit parcel of land from the late Samwel Okomo Olango who is deceased and was never at any given time the registered owner of the suit property. 5. The deponent averred that at the proceedings the 2 nd Respondent took cognizance of the sale agreement that the seller was an entirely different person from the late Charles Olango Okoth. Therefore, the same could not purport to confer interest in the Estate of the deceased. He urged that the recognition of the sale agreement by the 2 nd Respondent offends the basic maxim of property law, the maxim of nemo dat quod non habet as the alleged seller could not confer interest or transfer ownership of a suit parcel that is not registered in his name. He attached and marked as ‘DOO-7’, a copy of the sale agreement. 6. The deponent averred that the 1st Respondent voluntarily omitted the fact that at one point the family of the original owner, Charles Olango Okoth, disputed the sale of his parcel of land by his son and “nullified” the same, as his son did not have authority to sale property that was originally registered in the name of Charles Olango Okoth without the consent of the family as shown in annexture “D00-5” above. Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 6 of 27 Additionally, the 2nd Respondent failed in its judicial duties when he gave the 1st Respondent the whole of the said property whereas the 1st Respondent herein had adduced a valid sale agreement without verifying the veracity of his claim that he bought five acres, as the sale agreement doesn’t state the acres that was allegedly bought by the 1 st Respondent. 7. He urged that all the proceedings and the registration at the 2nd and 3rd Respondents’ offices were done without the knowledge of the applicant’s family who up to date have never received any eviction notice from the 1 st Respondent on the claim that he is the registered owner of the suit property. Further, that the 1st Respondent has been silent to date because of the illegal and fraudulent acts purported by himself in acquiring the suit parcel known as HOMA BAY/KAMDAR/3055. 8. The Petitioner deponed that the Objection as filed which allowed the transfer of the deceased’s Estate was not only illegal and unlawful but also malicious and/or fraudulent destined to deprive Charles Olango Okoth or his beneficiaries the rights to enjoy his property. Further, that the 2 nd Respondent being a state officer with experience in his/her service, having custody of the Adjudication Register with the mandate to rightfully advice on matters of land equally failed in its cardinal duty to advise or direct the Objectors to sue the family of the deceased to Petition the honourable court for letters of grant of administration prior to conducting a hearing, and to ensure service was done upon the family of Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 7 of 27 the deceased, at the very least. He annexed and marked as ‘DOO-8' a copy of the consent from the Adjudication Office. 9. He deponed that neither he or his family was awarded an opportunity’ to defend themselves and as a result, the Objector's case in the first place having been filled against a deceased person whose family members are still alive and were present at the time of filing the case, renders the proceedings arising thereof unprocedural, illegal, unlawful and against the natural laws of justice. 10. He conducted a search and found that the land had been unprocedurally transferred to the 1st Respondent in the year 2022. He filed a suit for fraud but somewhere along the hearing withdrew it with costs since the Attorney General raised an objection that he ought to have filed for judicial review as the fraud had taken long even though they had no knowledge of the Respondents actions until the year 2022 when he applied for a search. 11. He maintained that the Respondents’ actions resulted in a breach of his constitutional rights and prayed that the Petition be allowed. 12. The 4th Respondent entered Appearance and filed Grounds of Opposition dated 15th August 2024. They were premised on the following grounds; 1) That the Applications is incompetent, bad in law and an abuse of this Hon court process for reasons that the application is frivolous, vexatious, and to harass or oppress the Respondent. It lacks any substantial Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 8 of 27 legal bas intended solely to delay or obstruct the course of justice. 2) That under Section 9 (1), of the Adjudication Act, the Adjudication Officer is in charge of and also exercises general supervision and control over the adjudication. The said officer hears and determines petitions respecting any act done, omission made or decision given by a survey officer, demarcation officer or recording officer. 3) That the objector proceedings were conducted on 10/03/2006 and the claim that Petitioner only became aware of the transfer of ownership of the suit land on 5/03/2022 is a clear indication that the Petitioner failed to comply with Section 26 of the Act referred to above. 4) That the Petitioner, being dissatisfied by the decision of the Land Adjudication Officer, failed to lodge an appeal to the Minister despite the findings stipulating that they had a right to do so within sixty days. 5) That the decision of the Land Adjudication and Settlement Officer did not contravene the provisions of Articles 40, 47 and 50 of the Constitution. The Act has a detailed dispute resolution mechanism from the time of inception of claims to the final decision of the Minister under Section 29. If followed through to its conclusion, the dispute resolution mechanism Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 9 of 27 is supposed to deliver Constitutional protection and just determination of rights. 6) That the Petition is defective because having failed to challenge the decision of the Land Adjudication Officer, through the process provided by the law the Petitioner cannot be heard to say that his Constitutional rights were violated. 7) That the Application is further defective as the appeal to the minister under section 29 would have been dealt with, heard and determined since the Minister’s powers are wide to determine appeals and make such order thereon as he thinks just. 8) That the application is defective as it offends this court. The Petitioner failed to file the appeal and instead filed a suit for fraud and the present Constitutional Petition and therefore should have been guided by the Court statutes where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, parties need to resort to that mechanism first before resorting to Court action as was in Mohamed Ahmed Khafid (Chairman) and 10 Others vs Director of Land Adjudication & 2 Others [2013] eKLR. 9) That the said Petition is bad in law, mischievous misconceived and made in bad faith. 10) That it is in the interests of justice that the Petitioner’s Petition and dated 2nd April. 2024 be dismissed with costs. Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 10 of 27 13. The matter proceeded for hearing, viva voce. PW1 was Dixon Orero Olango, the Petitioner. He testified that Charles Olango Akoth was his grandfather. He adopted his Affidavit in support of the Petition as evidence in chief. 14. He stated that he resided on parcel No. 3055. He added that the 1st Respondent had never resided on the land. It was in his grandfather’s name. That his name was included on the Adjudication Register but currently, the 1 st Respondent was a registered owner. He stated that he was not aware how he was registered as the owner. He applied for a search certificate upon which he discovered the registration. 15. He testified further that when he looked at the adjudication record, he found that it showed that Samuel Okeno gave the 1st Respondent the land which was 5 acres. He produced the search as P-Exh 6. He stated that Samuel Okeno was never registered as the owner of the land and that during the objection proceedings, the land adjudication officer gave the 1st Respondent 5 acres. That comparing the certificate of search and the proceedings, they showed that the 1 st Respondent was given more land than he was entitled to. 16. He stated that he did not attend the proceedings but he raised a complaint at the Chief’s office. The chief referred him back to the family. They were summoned by the chief. The Chief instructed them that any person who was given land after Charles Olango had died should surrender the parcels. Others surrendered their parcels but Charles went and got title. He approached the Adjudication Office. They gave him Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 11 of 27 consent to institute a suit. He prayed that he be given the land. 17. When the court asked for clarification on the evidence, the witness stated that the rest of his brothers and sisters were dead. He was the only one alive and Jane Adhiambo, his sister, who resided on parcel No. 3055. Further, that Tobias had never resided on the land which is 11 ½ acres. He stated that his grandfather died on 1985 and Samuel Okongo gave the 1st Respondent the land in 1992. Further, that the 1 st Respondent registered for the whole parcel of land yet he was entitled to be registered for 5 acres. He stated that they claimed all the parcel including the 5 acres as he had never seen Tobias come to the land all the years. 18. The Petitioner filed submissions dated them 20 th February 2026. Petitioners’ submissions 19. The Petitioner summarised the facts leading up to the case and identified the issues for submissions. 20. On whether the objection proceedings in Objection case No. 730 was in violation of the applicable statutory provisions having been filed out of time and the Petitioner having failed to be served with notices, Counsel urged that on matters of objection proceedings lodged outside the provided time there are clear procedures that have been stipulated as discussed in the case of Koinger v Pirde & 5 others(Environment & Land Petition E001 of 2023) [2023] KEELC 21702 (KLR) (14 November 2023) (Judgment). Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 12 of 27 21. Counsel urged that the adjudication process took place in Kamdar in the year 1992. That was why all the records indicate that by the year 1992, the suit parcel herein was already in existence, which is parcel number 3055 as indicated in the Chief’s letter and the sale agreement. 22. Counsel submitted that it is surprising to note that the 1 st Respondent waited for 14 years and precisely after the death of the registered owner to lodge the Objection No. 730 which was lodged on the 10th day of March, 2006, in contravention to the provisions of Article 50 of the Constitution of Kenya 2010. Reliance was placed on the case of Henry & another v M'Anampu & another (Petition E001 of 2022) [2024] KEELC 5317 (KLR) (18 July 2024) (Judgment). 23. It is the Petitioner’s case that it is on record that the objection proceedings herein were urged without any attendance from the part of the registered owner or any of his children and beneficiaries who, to date, occupy the tittle deed and have not been evicted therefrom. Further, that the procedure would have under Section 13 (5) of the Land Adjudication Act. At the time the said proceedings were taking place the registered owner was already put to rest sometimes on the 16th day of June 1985 hence he could only participate in the said proceedings through his representative. The Petitioner affirms that as per Section 13 of the Land Adjudication Act their attendance herein was important. Nonetheless, he affirms that they were neither served nor notified of any proceedings touching on the suit land. Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 13 of 27 24. Learned counsel posited that the procedure was not dully followed as no notices were issued by the Respondents herein pertaining to the intended objection proceedings. Further that the right to fair hearing was denied to the registered owner and his family which process could process could repeat itself if this court does not interpret the right to fair hearing to the 2nd Respondent who also confirmed that the right procedure was never followed, and that is why a consent to proceed with these proceedings was issued. 25. On whether the objection proceedings complied with the provisions of the Constitution, counsel urged that there is no doubt that the deceased was the registered owner of land parcel No. 3055, and the Adjudication Record created lawful beneficial rights to the person recorded as being entitled to the said land with a legitimate expectation that the registrable rights would ultimately end with a title deed. In essence therefore, once the Adjudication Record was issued in favour of the Petitioner, it also created valid beneficial land rights which must be protected under Section 40 of the Kenyan Constitution, 2010. It is against this background that he considered that such rights were violated by the Respondents through the objection proceedings as the 2 nd and 3rd Respondents failed to comply with the mandatory requirements of Section 13 of the Land Adjudication Act, which is a breach of the Petitioners right to own property and be subjected to a fair hearing as contemplated by Articles 40(1) (a) and (b) of the Constitution and Article 50 of the Constitution, as no notices were issued pertaining to the said Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 14 of 27 Objection proceedings which resulted to the nonattendance of the ensuing proceeding. As such the Petitioners right to fair administrative action was violated. 26. He added that the 2nd Respondent entertained the objection proceedings touching on and concerning parcel No. 3055 in the absence of the owner or his representative. Thereafter it proceeded to make decisions affecting the Petitioner’s rights suo moto. In particular, the decision arising from the objection proceedings had affected, alienated his interested completely from the suit land yet his family were neither notified of nor involved in the impugned proceedings and they are to date occupying the land. This is because the 1 st Respondent has no right to take a land he acquired unprocedurally a fact that was confirmed by the 2 nd Respondent's office when they gave a consent to file this suit challenging their decision. As such his rights under Article 50 (1) of the Constitution had been violated and this court is called upon to interpret the said Article when it comes to fair hearing of the objection proceedings brought against an estate of a deceased person. 27. On whether the implementation of the decision by the 2 nd Respondent pronounced on 10th March 2006 infringed on the Petitioner’s Rights Under Article 40, 47 and 50 of the Constitution, Counsel urged that there is no doubt that the decision has been implemented as seen in certificate of official search dated 15th March 2022 in which the 1st Respondent is the registered owner of the whole of land Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 15 of 27 parcel No. Homabay/ Kamdar 3055. However, to date he is yet to acquire vacant possession of the suit land. 28. Counsel urged that the next issue for determination is whether the Ruling of the 2nd Respondent would also infringe on the Petitioner’s rights especially Article 40 and 50 of the Constitution. He stated that in order to answer this, we need to have a look at the objection proceedings specifically pertaining to the rights so asserted by the 1 st Respondent in the proceedings. He highlighted that an excerpt from the said proceedings which reads, “I have bought a portion of this land measuring five (5) acres from the defendant’s sons at a cost of seven thousand nine hundred only...” Then he added that the finding read as follows: “…the objector is claiming a portion of this land which he says he bought it from the defendant's son Samwel Okomo Olango.” 29. From the aforementioned excerpt vis-a-vis the search certificate, it is apparent that the 1st Respondent was given the whole land rather than the claimed portion in the adjudication proceedings. He argued that this alone invalidates the said decision as the Petitioner’s land has been given to the 1st Respondent without taking into consideration that he was only illegally claiming a portion of the suit land which was not sold to him by the registered owner. As earlier on affirmed, the Petitioner being the registered owner of the land, his rights and interest over the suit property enjoys the protection of Section 26 of the Land Registration Act or under Section 27 of the repealed Registered Land Act. Therefore, under Section 26 of the Land Registration Act, the ownership Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 16 of 27 rights by the Petitioner over the suit property can only be interfered with through the provisions of Section 80 of the Land Registration Act which affirms the rectification of the register. 30. In essence therefore, the decision of the 2 nd Respondent and/or its subsequent implementation through alienation of the entire suit property in favour of the 1 st Respondent despite having been filed out of the required period affected, altered and/or interfered with the Petitioner’s ownership rights through an irregular quasi-judicial process which without no doubt infringed on the Petitioner’s rights under Article 40 of the Constitution. He relied on the case of Koinger v Pirde & 5 others (Environment & Land Petition E001 of 2023) [2023] KEELC 21702 (KLR) (14 November 2023) (Judgment). 31. Counsel urged that the Petitioner has satisfied the Court that the decision of the 2nd Respondent pronounced on the 10 th March 2006 is unconstitutional and infringes on his rights as provided under Article 40 of the Constitution. He reiterated that the Petitioners’ rights were violated and urged the court to allow the Petition as prayed. Analysis and Determination 32. I have considered the Petition, the law, the evidence and the submissions of the parties as filed. The issues that arise for determination are; i) Whether the Petition meets the threshold for a constitutional Petition; Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 17 of 27 ii) Whether the Petitioners’ Constitutional Rights were violated iii) What remedies the Petitioner was entitled to 33. This court now proceeds the issues in the Petition in sequence, starting with the first one. i) Whether the Petition meets the threshold for a constitutional Petition; 34. It is trite that the pleadings of a Constitutional Petition must capture the requisite particular[s] of the infringements to a degree of specificity and particularity. This was elucidated clearly in the case of Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) where the Court of Appeal stated thus: “We cannot emphasise 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 functions of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 18 of 27 issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point. 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 “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim, as has been in recent times with increased frequency, that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle undersection 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of the 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 party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.” 35. The Petitioner contends that there was a violation of his constitutional rights arising from the objection proceedings Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 19 of 27 on Adjudication that were conducted on 10 th March 2006 in his absence. The Petitioner clearly pleads how the owner of the suit land was registered in the Adjudication Register as such and how his name was removed therefrom upon proceedings conducted under the permission and direction of the 2nd Respondent in absence of the deceased since he was dead, and not substituted or his family members duly notified. Having considered the pleadings and the attendant annexures, it is my considered view that the Petition meets the threshold for a Constitutional Petition. ii. Whether the Petitioners’ Rights to a fair hearing were violated 36. The crux of the Petition is the Objection Proceedings before the Land Adjudication Committee which resulted in the transfer of five (5) acres to the 1st Respondent were in violation of his right to be heard, under Article 47 and 50(1) of the Constitution. He bases his contention on the allegation that he was never summoned to attend the said proceedings. Further, that the proceedings were conducted against the deceased owner of the suit land who was not cited for succession proceedings or substituted. 37. I have considered the pleadings, responses and submissions and it is apparent that the Petition is premised on the decision by the Land Adjudication Officer arising from the objection proceedings of 10th March 2006. 38. Under the Land Adjudication Act, Objection proceedings are governed by Section 26(1). It provides as follows; Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 20 of 27 “Any person adjudication named register in or affected who considers by the to be it incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.” 39. Accordingly, Section 29 gives the option on Appeals from such proceedings. It stipulates as follows; “Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Cabinet Secretary by— (a) delivering to the Cabinet Secretary an appeal in writing specifying the grounds of appeal; and (b) sending a copy of the appeal to the Director of Land Adjudication, and the Cabinet Secretary shall determine the appeal and make such order thereon as he thinks just and the order shall be final.” 40. The Petitioner was prudent enough to annex a copy of the objection proceedings and from a reading of the same, it is clear that the Petitioner was never a party to said proceedings, despite the claim that the parcel was purchased from him. The 1st Respondent never tendered any evidence to corroborate the allegation that the Appellant was served Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 21 of 27 with Summons on various occasions, as stated in the proceedings. 41. All facts considered, it is imperative to consider whether this court has the jurisdiction to grant the orders sought as opposed to the Petitioner filing a Judicial Review Application. The orders sought pertain to a quasi-judicial process and therefore, the best remedy would be to consider whether the process was properly conducted. This is also in light of the prayers that the Petitioner seeks as they are declaratory orders that would essentially make a final determination on ownership of land yet the same issue was the decision of the objection proceedings, which decision was never appealed against. 42. The wording of the prayers, though not express, imply that the Petitioner seeks the quashing of the decision to transfer parcel No. 3055 to the Respondent. This then begs the question as to whether this court can grant the orders sought in the circumstances. 43. Recently, the Supreme Court clarified the approach to Judicial review In Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC40 (KLR), where it set the scope of Judicial Review and the circumstances under which the scope may be expanded to include inquiry into the merits of administrative action. The Supreme Court, while disagreeing with the reasoning of the Court of Appeal, and in a complete shift from its previous decision in SGS Kenya case, i.e. (SGS Kenya Limited v Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 22 of 27 Energy Regulatory Commission & 2 others SC Petition No 2 of 2019 [2020] eKLR) case, held inter alia that: “With utmost respect to the learned Judges of the Court of Appeal, we disagree with the above reasoning and find that the appellants had clothed their grievances as constitutional questions believing that their fundamental rights had been violated. Therefore, this required the superior courts to conduct a merit review of the questions before them and dismissal of their plea as one requiring no merit review was misguided. A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in order 53 of the Civil Procedure Rules. The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings. Our decision in the Jirongo and Praxedes Saisi cases speaks succinctly to this issue. That is also why, the question below is pertinent to the present appeal.” 44. It follows that the current position can be summarized as follows: 1) The entrenchment of judicial review under the Constitution of Kenya, 2010 is elevated it to a substantive and justiciable Constitution. Accordingly, right judicial under review the is Homa Bay Environment and Land Constitutional Petition No. E004 of 2024 no

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Page 23 of 27 longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. 2) When a party approaches a court under the provisions of the Constitution, then the court ought to carry out a merit review of the case. However, if a party files suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and not the merits of the decision per se. 45. What this then means is that this court is clothed with the jurisdiction to determine whether the decision of the Land Adjudication officer resulted in the infringement of the rights of the Petitioner. 46. The Respondents never tendered any evidence that there was a Notice of Objection served upon the Petitioner and from a reading of the record of the proceedings, the Petitioner did not participate in the objection proceedings. 47. Article 47 of the Constitution provides as follows; Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 48. Additionally, Article 50(1) of the Constitution provides as follows; Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 24 of 27 Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. 49. The State Counsel, in the Grounds of Opposition filed, acknowledged that by the Petitioner becoming aware of the transfer of ownership of the suit land in 2022 was an indication of non-compliance. It may not have occurred to the Respondent that this very occurrence is proof that the Petitioner was unaware of the proceedings. It would have been more prudent to provide evidence of notice of the objection proceedings having been served or attempts thereof to show whether the Petitioners’ right to be heard was not infringed upon. 50. Consequently, in the absence of service of the notice of objection proceedings, the Petitioner was not aware of the same and therefore cannot be faulted for not having appealed. What this reveals, is that there was a gross violation of the Petitioner’s’ Constitutional rights under Articles 47 and 50 of the Constitution. He urged that it was upon the 1st Respondent to ensure that as the beneficiaries of the Estate of the deceased they were served or at the very least cited for Succession proceedings, in order for his claim of a portion of the Estate of the deceased to be considered. 51. Given that the objection proceedings resulted in an order to transfer the entire property which belonged to Charles Olango Okoth which was to devolve to his Estate there was a Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 25 of 27 breach of the right to property under Article 40 of the Constitution. 52. The next issue for determination is; what reliefs available to the Petitioner are. 53. It is clear that the Petitioners’ right to a fair hearing was violated as he was not made aware of the objection which led to proceedings that eventually led to his loss of property. 54. The Petitioner sought a number of declaratory reliefs with regards to the violation of his rights. As aforesaid, a determination has already been made with regards to the violation of his rights to a fair hearing and administrative action. Given that the violation of those rights resulted in the transfer of a portion of the suit land to the 1 st Respondent, it follows that the Petitioners’ Right to property was also violated. 55. A reading of the impugned decision, it is not clear on what portion was to be transferred to the objector. In fact, in the entire proceedings, there is no indication of what portion of the land he had purchased. Additionally, the sale agreement relied upon for the decision does not show the portion of land that the 1st Respondent allegedly purchased by the 1 st Respondent. It is crystal clear that the hearing of the objection was irregular and therefore the same cannot be allowed to stand in the circumstances. 56. As for the award for general damages, the same is discretionary. Given that the court has not been led to any figure to guide it on quantum in this regard and therefore I shall not issue any award on the same. Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 26 of 27 57. The upshot of the foregoing is that the Petitioners’ Petition is merited. I hereby enter judgment for the Petitioner against the Respondents as follows; 1) A declaration that the Respondents have violated the Petitioner’s rights under Articles 27, 40, 47,50(1) and 50 of the Constitution. 2) A declaration is hereby issued that the decision by the 2nd Respondent to allow the Respondent herein to be registered as the proprietor of was in violation of the Petitioners’ Constitutional Rights under Articles. 3) A declaration is hereby issued that the proceedings and decision to transfer the whole of Land Parcel Number Ndhiwa/Kamdar/3055 to the 1st Respondent was unconstitutional. 4) A declaration is hereby issued that the registration and transfer of the whole of Land Parcel Number Ndhiwa/Kamdar/3055 to the 1st Respondent is invalid, irregular, unlawful and stands cancelled. 5) The Chief Land Registrar Homa Bay is hereby directed to recall the tittle deed issued to the 1 st Respondent for rectification of the register regarding Parcel Number Ndhiwa/Kamdar/3055 or any subdivisions allowed while implementing the decision made on the 10th day of March, 2006 in favour of the 1st Respondent. 6) The prayer for general damages is not granted. Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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Page 27 of 27 7) The costs of this petition shall be borne by the Respondents jointly and severally. 58. Orders accordingly. Judgment dated, signed and delivered virtually via the Teams Platform this 1st day of October 2026. HON. DR. IUR NYAGAKA JUDGE From 1:15 PM, in the presence of, Kimberly Advocate for the Petitioner No appearance for the Respondents Homa Bay Environment and Land Constitutional Petition No. E004 of 2024

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