Kasmatu Welfare Association & 23 others v Dr. Julius Tangus Rotich & 4 others

DAVID KIPLIMO BOR.…………………………..…………....................25TH PETITIONER PETERO CHEPTIM……………………………..….………......................26TH PETITIONER YOURI BOWEN.……………………………….…..…..……......................27TH PETITIONER NICHOLAS NGETICH.…………………………......……….....................28TH PETITIONER STEPHEN KOEСH………………………………….……….....................29TH PETITIONER DAVID CHEPKOECH………………………….……...…….....................30TH PETITIONER JOSEPH ROTICH...………………………………...…..……....................31ST PETITIONER ENOCK CHERUIYOT…………………………….……..….....................32ND PETITIONER ALFRED RUTTО.…………………………………..……..........................33RD PETITIONER VICTOR CHERUIYOT…………………………………….......................34TH PETITIONER TONY KIPKORIR. ……………………………...………….....................35TH PETITIONER DENIS KEMEI…………………………………….………….....................36TH PETITIONER WILFRED KIPSANG…………………………………......….....................37TH PETITIONER KIRUI LENNY.………………………………………..…..….....................38TH PETITIONER IAN CHERUIYOТ ……………………..…………………….....................39TH PETITIONER MIKA ERENG. ……….…………………………………...….....................40TH PETITIONER CHARLES KIBIGO......……………………………………........................41ST PETITIONER KIPLANGAT ARAP RUTTO………..……………………........................42ND PETITIONER WILLIAM LANGAT. ………………………………..…...….....................43TH PETITIONER GIDEON KIRUI.. ……………………………………....……......................44TH PETITIONER LINNER CHERONO TOWETT……………………....……......................45TH PETITIONER FRANKLYNE KIRUI……………….……...…..…………….....................46TH PETITIONER PETER OLE SAAYA.……………………………..………….....................47TH PETITIONER FRANCIS K MARUSOI…………………………….……….......................48TH PETITIONER VERSUS DR. JULIUS TANGUS ROTICH…………………………….....................1ST RESPONDENT JULIUS LEKAKENY OLE SUNKULI……………………......................2ND RESPONDENT MICHAEL ARUSEI RONO…………………………….….......................3RD RESPONDENT GIDEON MOI……………………………………………..….....................4TH RESPONDENT RIFT VALLEY DEVELOPMENT TRUST…………..……....................5TH RESPONDENT RULING 1. The Petitioners, through the Amended Petition dated 24th January, 2024, seek from this Court the following reliefs:i) A declaration that the actions of the 1st , 2nd and 3rd Respondents have contravened Article 10 of the Constitution in that the RULING NAKURU HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E 034 OF 2024 Page 2

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national values and principles of governance set out have not been observed. ii) A declaration that the decision by the 1 st 2nd and 3rd Respondents to approve the transfer and misuse of the trust property is in violation of, the violation/ a threat to Petitioners' right to property under Article 40 of the Constitution. iii) An order of prohibition or injunction against the Respondents from intimidating, harassing, threatening, frustrating and taking retaliatory or adverse action against the Petitioners and members of the trust fund. iv) An order of permanent injunction restraining the 4 th Respondent from interfering with the running of the affairs of the Rift Valley Development Trust Fund. v) An order of permanent order of injunction restraining the Respondents herein, either by themselves, their agents, employees and/ or servants from subdividing, allocating, selling, leasing, charging, transferring or dealing in any way with parcels of land known as L.R. NO. 3380/2, L.R. NO. 5636/1, L.R. NO. 7385/5, L.R. NO. 7018, L.R. NO. 37388 and any subsequent subdivisions thereto. vi) An order of mandamus compelling the Respondents, either by themselves, agents and/or associates, to supply the Petitioner with all records pertaining to the management of the Rift Valley Development Trust Fund, including bank statements, financial records, and meeting minutes. vii) This Honourable Court do issue such further orders and give such direction as it may deem fit to meet the ends of justice and RULING NAKURU HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E 034 OF 2024 Page 3

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the protection of the constitutional rights of the Petitioner and the public at large in the context of the declarations made. 2. viii) The costs of the Petition be awarded to the Petitioner as against the Government of the Republic of Kenya and the other Respondents. In a nutshell, the Petitioners state that: i) The Rift Valley Development Trust was registered in July 1973 with retired President Daniel arap Moi as patron. Its purpose was to unite Rift Valley communities to acquire land and establish the Rift Valley Institute of Science and Technology. ii) Through a harambee fundraising Kshs 3,000,000 was raised and later supplemented by over Kshs 14 million. These funds purchased about 2,700 acres, including Technology and Deloraine farms, and later Glanjoro farm. iii) The Trust registered five titles: L.R NO. 3380/2 (351 Ha), L.R NO. 5636/1 (421 acres), L.R NO. 7385/5 (612 acres), L.R NO. 7018 (25 acres), and L.R NO. 37388 (903 acres). iv) In 1997, Francis Zaasita Kiptoo Menjo, an employee of Rift Valley Institute of Science and Technology, fraudulently consolidated parcels 7385/5, 3380/2, and 5636/1 into Title No. 22771, thereafter subdividing it into LR Nos. 22771/1–6, then unlawfully transferred to Frankolem Enterprises Ltd, Little Meadows Ltd, Romly Agencies Ltd, and Betsy Chelengat Irongi. v) The trustees acted without consent, failed to hold meetings, and engaged in self-dealing, breaching fiduciary duty. These actions RULING NAKURU HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E 034 OF 2024 Page 4

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threaten petitioners’ property rights and violate Articles 10, 35, 40, and 47 of the Constitution of Kenya. 3. The 5th Respondent has raised a Preliminary Objection dated 21st March, 2025 in respect of the Petitioner’s Amended Petition on the following grounds:i) That this Honourable Court is divested of Jurisdiction to hear and determine the Amended Petition by dint of the mandatory provisions of Article 162(2) (b) of the Constitution of Kenya, 2010 as read together with Section 13 of the Environment and Land Court Act, Laws of Kenya. ii) That the Petition therefore offends the doctrine of exhaustion of Constitutional and Statutory remedies and such the jurisdiction of this Court has been prematurely invoked. iii) That the Petition does not raise any Constitutional questions warranting the Petitioners to invoke the Jurisdiction of this Honourable Court. 4. The Petitioners’ submissions It is their submission that this Court has the jurisdiction to hear this Petition. That besides the issue of injunction on land, the Petition raises issues on the running and management of the Trust which the Petitioners argue this Court is well versed to handle. 5. The Petitioners relied on Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR to submit that the Petitioners, by virtue of being members of the 5th Respondent, their rights have been infringed hence are seeking their rights to information, land, and a fair hearing. 6. The Petitioners argue that by the raising of the Preliminary Objection, the Respondents are agreeing that indeed they have failed to relay information to the Petitioners as regards the management of the Trust as trustees. RULING NAKURU HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E 034 OF 2024 Page 5

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5th Respondent’s Submissions 7. The 5th Respondent cited the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR and Karata Ernest & Others v Attorney General [2010] TZCA 30 cited in Umoja Rubber Products Limited v Kenya Power & Lighting Company Limited [2023] KЕНС 19751 (KLR) where the Court defined what a Preliminary Objection is, that is, the Preliminary Objection is on a pure point of law. 8. It is submitted that the predominant issue in the Amended Petition touches on the use of land and the process of acquisition of title to land, use and ownership of land, which is a reserve of the Environment and Land Court pursuant to Section 13 of the Environment and Land Court Act. 9. The 5th Respondent relied on the Supreme Court’s finding in Benard Murage v Fine Serve Africa Limited & 3 others [2015] eKLR that not every violation of the law must be raised in the High Court as a constitution as issues 10. Further reliance was placed on Albert Chaurembo Mumba & 7 others vs. Maurice Munyao & 148 others [2019] eKLR that Article 165(5) of the Constitution ousts certain questions from the jurisdiction of the High Court on matters of employment and labour relations, and matters of environment, use, occupation and title to land. 11. I is the 5th Respondent’s submissions that the Petitioners have not established their interest over and in respect of the suit properties to further enable this Court to determine whether their rights have been violated. Analysis and determination 12. This Court has considered the Preliminary Objection as well as the Amended Petition and the following issues arise for determination: - RULING NAKURU HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E 034 OF 2024 Page 6

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1. Whether the Preliminary Objection by the 5th Respondent raises a pure point of law capable of disposing of the matter at the threshold stage without recourse to evidence. 2. Whether this Court has the jurisdiction to hear and determine the Petition 13. Both parties have relied on the landmark case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 where the Court held as follows: “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law and it is argued on the assumption that all the facts pleaded are correct. It cannot be raised if any fact needs to be ascertained or if what is sought is the exercise of judicial discretion.” 14. The import of this holding is that a preliminary objection must be confined to a pure point of law. It cannot be sustained where facts must be proved or discretion exercised. 15. The 5th Respondent’s Preliminary Objection challenges the jurisdiction of this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, asserting that the matter falls within the exclusive domain of the Environment and Land Court. 16. The 5th Respondent’s objection does not require ascertainment of facts; it rests on the legal question of whether the High Court is divested of jurisdiction by statutory and Constitutional design. It therefore qualifies as a proper Preliminary Objection and must be determined before the merits of the Petition can be considered. 17. On the second issue as to whether this Court is vested with jurisdiction to entertain this matter, jurisdiction is the foundation of judicial authority. RULING NAKURU HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E 034 OF 2024 Page 7

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Nyarangi JA in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) stated that:“…I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…” 18. From the above settled law, this Court is obliged to determine jurisdiction at the earliest stage of the matter. In the absence of jurisdiction, the Court must down its tools immediately. 19. The Petitioners argue that the issues raised are not merely about land but also about trust, governance, fiduciary duty, accountability and access to information under Articles 10, 35 and 47 of the Constitution. That these constitutional questions are distinct and properly within the High Court’s jurisdiction. 20. However, a look at the Petition reveals that the Petitioners ‘ main grievance of the Petitioners is that the Respondents unlawfully transferred the trust land to third parties without consent. 21. This complaint touches on the questions as to title, ownership and occupation of the trust land. Although the Petitioners have sought to clothe the dispute in constitutional language by invoking Articles 10, 35, and 47 of the Constitution, jurisdiction is not determined by the manner in which pleadings are couched but by the substance of the dispute. RULING NAKURU HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E 034 OF 2024 Page 8

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22. Article 162(2)(b) of the Constitution establishes the Environment and Land Court with jurisdiction over disputes relating to the environment, use, occupation and title to land. While the High Court is a court of unlimited general jurisdiction, Article 165(5) bars the High Court from entertaining matters which are a reserve of the specialised Courts. 23. The Petitioners’ invocation of constitutional provisions does not alter the fact that the substratum of the dispute is ownership and title to land. Accordingly, this Court holds that it is divested of jurisdiction to entertain the Petition. See Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR) 24. The proper forum for determination of this matter is the Environment and Land Court which is empowered to adjudicate both the land dispute and the constitutional questions arising therefrom. This Court must therefore down its tools. 25. Consequently, the Preliminary Objection dated 21 st March, 2025 is allowed. The Petition is hereby struck out with costs to the 5th Respondent. Dated and signed at Nairobi this 21st Day of June, 2026. PATRICIA GICHOH JUDGE Delivered at Nakuru this 29th Day of July, 2026. ……………………… DR. JOSEPH SERGON JUDGE RULING NAKURU HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E 034 OF 2024 Page 9

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