Musanga & 38 others v Cabinet Secretary, Ministry of Land, Housing, and Urban Development & 5 others (Environment and Land Petition E010 of 2025) [2026] KEELC 3853 (KLR)

STEPHEN SAKEI--------------------------------------------7TH PETITIONER ROSELINE KUMOR CHESUMBAI---------------------8 TH PETITIONER SIMON SATYA BUNUKA--------------------------------9 TH PETITIONER GEOFFREY KELELE---------------------------------------TH 10 PETITIONER MICHAEL KWEMON BUSI-----------------------------11TH PETITIONER ALEX SAMBIRIR NAIBEI--------------------------------12TH PETITIONER JAMES CHEROITICH TAPOO-------------------------13 TH PETITIONER PETER CHEBASA KORORIA---------------------------14TH PETITIONER MUTAI ALFRED MASHANDET-----------------------15TH PETITIONER JAMES LANGAT NDIWA-------------------------------16TH PETITIONER DIFAS ATENDE NDIWA--------------------------------17TH PETITIONER GRACE KORENY MASAI--------------------------------18TH PETITIONER DENIS KIBET ANDIEMA--------------------------------19TH PETITIONER BETTY NAIBEI---------------------------------------------TH 20 PETITIONER BENJAMIN KITIYO---------------------------------------ST 21 PETITIONER PETER NGEIYWA CHEMASWET--------------------22ND PETITIONER GEOFFREY MATAUI KIBIONGET-------------------23RD PETITIONER GILBERT NAIBEI MUSANGA--------------------------24TH PETITIONER BETTY CHEPKWEMOI----------------------------------25 TH PETITIONER ORIGINAL COPY JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 2

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EUNICE YEGO TIRKOI----------------------------------26 TH PETITIONER BEATRCE CHEPKWEMOI------------------------------27TH PETITIONER BONFACE SIMATWO-----------------------------------28TH PETITIONER JOHN KIMEGO-------------------------------------------29TH PETITIONER RAPHAEL BUKOSE--------------------------------------TH 30 PETITIONER KENNEDY CHUMO---------------------------------------31ST PETITIONER MOSES MATUI-------------------------------------------ND 32 PETITIONER SETRICK RUTO-------------------------------------------RD 33 PETITIONER ALBERT PAYIAN-----------------------------------------TH 34 PETITIONER JULIA CHEPTOWEIK------------------------------------35TH PETITIONER DAVID MOHAMMED MANGOSHO--------------36TH PETITIONER GEOFFREY CHELOGOI SIMOTWO----------------37TH PETITIONER JACKSON MUNOKO MASAI-------------------------38 TH PETITIONER FRED MAYEK SHOLEI----------------------------------39TH PETITIONER VERSUS ORIGINAL COPY CABINET SECRETARY, MINISTRY OF LAND, HOUSING, AND URBAN DEVELOPMENT-------------------------------------------1ST RESPONDENT CABINET SECRETARY, MINISTRY OF INTERIOR & COORDINATION OF JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 3

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NATIONAL GOVERNMENT-------------------------2ND RESPONDENT NATIONAL LAND COMMISSION------------------3RD RESPONDENT COUNTY COMMISSIONER, TRANS NZOIA COUNTY------------------------------4TH RESPONDENT KENYA FOREST SERVICE------------------------------5TH RESPONDENT NATIONAL POLICE SERVICE------------------------6TH RESPONDENT JUDGMENT 1. What is before the court is an amended petition ORIGINAL COPY dated 8/4/2026. themselves as The adult petitioners citizens, describe residents, and beneficial owners of Land Parcel L.R. Nos. 7404, 6992/2, 6950/3, 9433, and 6469, hereinafter, the subject properties. The petitioners seek: (a) A declaration that the respondents’ actions and threatened eviction from the subject properties are unlawful, unconstitutional, and in violation of Articles 28, 40, 43, 71, and 50 of the Constitution. (b) A declaration be issued that the petitioners are the beneficial owners of L.R. No. 7404, 6992/2, 6950/3. 9433, and 6469. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 4

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(c) A permanent injunction barring and restraining the respondents, their agents, employees, or representatives from evicting the petitioners from the said subject properties, contrary to Articles 28, 40,43, 47, and 50 of the Constitution. (d) An order of prohibition barring and restraining the respondents and or their agents, employees, or representatives from interfering with the petitioners’ occupation of the subject properties, without due process. (e) The petitioners be accorded the right to first priority regarding allocation of the subject properties, as they have a right to own and occupy land based on the fact that they have been in continuous and largely uninterrupted possession thereof. ORIGINAL COPY (f) Order of mandamus compelling the government and or its agents, employees, and representatives to allocate the subject properties to the petitioners. (g) Compensation and general damages for violation of the petitioners’ rights, and an inquiry into quantum be undertaken. 2. Briefly, the petitioners contend that they have established homes and livelihood on the subject properties, where, by virtue of their occupation and possession, they have fenced the land, constructed both permanent and semi-permanent houses, and JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 5

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have undertaken extensive developments thereon, in an open, peaceful, continuous, and uninterrupted manner for over two decades, which properties constitute their only known homes. 3. The petitioners aver that, sometimes in 2006, the said houses or homes were unlawfully demolished, rendering them homeless and destitute. Despite the foregoing demolition, the petitioners aver that they rebuilt their house, re-established their lives on the said properties, and have continued to live there to date. 4. The petitioners aver that in the second week of December 2025, the respondents and or their agents violently entered into the subject properties, ORIGINAL COPY and attacked them in an attempt to forcefully remove them from the subject properties, and threatened them with immediate eviction, while ordering them to forthwith vacate the land without notice or giving them an opportunity to be heard before the threatened eviction. 5. Further, the petitioners aver that none of them has been served personally or by way of a gazette notice relating to the eviction. The petitioners aver that they are largely illiterate and reside in rural villages with no reasonable means of knowing of an alleged notice, if any, issued by the respondents. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 6

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6. The petitioners aver that any decision which may have been made or is in place to evict them from the subject properties is or was made arbitrarily, unprocedurally, in bad faith, and without regard to the land and their long-standing occupation and developments on the subject properties. 7. The petitioners aver that the respondents’ actions are ongoing and pose an imminent threat of eviction, destruction of homes, loss of livelihoods, and displacement of both themselves and their families, yet they have no alternative remedy capable of preventing the impending violation of their rights unless the court intervenes. 8. The petitioners anchor their petition on Articles ORIGINAL COPY (1), 2(1) and (4), (3) (10), (19),(20), (21), (22), (23), (26),(28), (40), (43) (1)(b),(47), (48), (73),(159), (165) (3)(a), (258), and (259) of the Constitution. 9. The petition is supported by an affidavit of John Musange, sworn on 19/12/2025, in which he attaches a letter of authority dated 17/12/205, photographs, and a certificate of electronic evidence of a YouTube-type link of an order of the respondents, ordering them to vacate the subject properties marked as annexure JM-(1), (2), 3A, and 3B, respectively. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 7

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10. While the respondents were served with the amended petition and appeared through learned state counsels, Miss. Mutomi and Mr. Lotir on 18/2/2026 and 23/4/2026, no responses were filed as directed by 30/5/2026. The petition was also ordered to be canvased by way of written submissions to be filed before 30/5/2026. 11. The petitioners rely on written submissions dated 30/5/2026, isolating five issues for the court’s determination. It is the petitioners’ submission that they have discharged the burden of proof on a balance of probability under Section 107 of the Evidence Act, and as held in D.T. Dobie & Co. (K) Ltd. -vs- Wanyonyi Wafula Chebukati [2014] ORIGINAL COPY eKLR, citing with approval Miller -vs- Minister of Pensions [1947] uncontroverted facts 2 All ER 373, in the petition the and the supporting affidavit. 12. The petitioners submit that the failure by the respondents to respond to the amended petition, despite service with the same and ample opportunity to do so, by the court, leaves the factual issues raised therein unchallenged. Reliance is placed on Mutai & 9 Others -vs- Attorney General [2019] KECA 125 KLR, Interchemie E.A. -vs- Nakuru Veterinary Centre Ltd [2005] JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 8

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KEHC 618 [KLR], Kitur -vs- Attorney General [2018] KEHC 7492 [KL]R, and Konchellah -vsSunkuli & Others [2018] KESC 58 [KLR]. 13. The petitioners submit that even assuming without conceding that the subject properties are public land, the respondents were obligated to comply with the Constitution and statutory provisions governing evictions, instead of resorting to arbitrary eviction. 14. The petitioners submit that the Constitution demands that all state organs and public officers abide by the constitutional provisions. In this case, Sections 152B to 152I of the Land Act, which regulate eviction, including unlawful occupants on ORIGINAL COPY public land, especially Section 152(B) and (C), were not complied with in the issuance of a written notice by the National Land Commission. 15. The petitioners submit that Section 152F of the Land Act grants the affected person the right to challenge the eviction notice, and in this case, the failure to issue such a notice denied them access to justice as guaranteed under Article 48 of the Constitution. 16. The petitioners submit that further mandatory safeguards during eviction, as per Section 152G of the Land Act, are guaranteed, which, due to the JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 9

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failure to issue requisite notices, have denied them access to justice. 17. The petitioners submit that the threatened eviction violates Articles 47 and 50 of the Constitution, which eviction decision is an administrative action within the meaning of Article 47, hence an enforceable right as held in Judicial Service Commission -vs- Mbalu Mutava & Another [2014] eKLR, Dry Associates Ltd -vs- Capital Market Authority & Another [2012] KEHC 5368 [KLR], and Suchan Investment Ltd -vs- Ministry of National Heritage & Culture & Others [2016] KECA 729 [KLR]. 18. The petitioners submit that Article 28 of the ORIGINAL COPY Constitution guarantees every person the right to dignity, while Article 43(1) (b), therefore, guarantees every person the right to accessible and adequate housing. In this case, the petitioners submit that they have been on the subject properties for over 20 years, which constitute their only homes, where they have raised children and derive a livelihood. Therefore, the petitioners submit that without issuing any notices over the threatened eviction, the homelessness, respondents destitution, expose and loss JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 them of to shelter 10

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without consultation, which amounts to an affront to the Constitution. 19. Reliance is placed on Mitu-Bell Welfare Society vs- Kenya Airports Authority & 3 Others [2021] KESC 34 [KLR] and Ayuma & 11 Others (Suing on their own behalf and on behalf of Muthurwa Residents) -vs- Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme & Others [2013] KEHC 6003 [KLR]. 20. Further, the petitioners submit that the threatened eviction violates Articles 28, 43, 40, and 40(2)(a) of the Constitution, which extends to protection beyond formal title and recognizes interests that arise from occupation, ORIGINAL COPY possession, investment, development, and legitimate expectation as held in Kitilit -vs- Kibet [2018] KECA 573 [KLR]. 21. The petitioners submit that courts are required to look beyond technical registration and determine the true nature of the interests held by the parties and that, as held in Dina Management -vsCounty Government of Mombasa & Others [2023] KESC 30 [KLR], constitutional adjudication concerning land must be guided by substantive justice rather than technical formalities. 22. The petitioners developments, submit and that investment long in JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 occupation, the subject 11

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properties constitute interests constitutional protection. deserving The petitioners submit that, as held in Attorney General -vs- Zinj Ltd [2021] KESC 23 [KLR], deprivation of proprietary interests must comply with constitutional safeguards and due process requirements, which, in this petition, the respondents have failed to comply with, but intended to arbitrarily evict them contrary to Article 40(2)(a) of the Constitution. 23. The petitioners submit that, as vulnerable communities, they are entitled to constitutional protection as held in Mitu-Bell Welfare Society vs- Kenya Airports Authority & 3 Others (supra), that the state cannot disregard rights to ORIGINAL COPY housing, dignity, and property, merely because a formal title deed is absent, and that there must be a humane, lawful whenever the and state rights based approach agencies seek to evict occupants from the subject properties. 24. In addition, the petitioners submit that they have demonstrated that they have openly occupied the subject properties since the mid-1990s, with the knowledge of the respondents, where they have developed homes, schools, structures, hence hold amounting to rights such farms, and protectable as human JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 social interests dignity, 12

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housing, and fair administrative action, as held in Mitu-Bell Welfare Society (supra). 25. The petitioners submit that, having occupied the land for that long with no lawful step to evict them being taken by the respondents, they legitimately expected that any future action affecting them could comply with both the Constitution and the law. Reliance is placed on Communication Commission of Kenya & Others -vs- Royal Media Service Ltd & Others [2014] KESC 53 [KLR]. 26. The petitioners submit that they have demonstrated actual and threatened violation of their constitutional rights contrary to Articles 28, 40, ORIGINAL COPY 43, 47, and 50 of the Constitution to be entitled to constitutional remedies including declarations, injunctions, conservatory orders, compensation and judicial review remedies which, as held in Mitu-Bell Welfare Society (supra), must be meaningful, effective and in this case, are necessary to prevent the continuing violation. Reliance is placed on Imanyara & Others -vs- Attorney General [2016] KECA 557 [KLR]. 27. The court has carefully gone through the amended petition, supporting affidavit, annexures thereto, JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 13

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and the written submissions. The issues calling for my determination are: (1) If the petition meets the constitutional threshold. (2) If the petitioners defined the details of the status, nature, and manner of ownership of the subject properties, dates, particulars, details, and manner of their entry, use, occupation, and developments therein. (3) If the petitioners have demonstrated the nature and particulars of the alleged eviction, loss, damage, and injury, if any. (4) If the petitioners have demonstrated any intervention or demand for information or for fairness regarding the intended eviction, if any, or through issuance of a demand notice to the respondents. ORIGINAL COPY (5) If the petitioners have tendered any evidence of loss, damage, or threat, or breach of their constitutional rights, to be entitled to the reliefs sought. (6) What is the order as to costs? 28. A party seeking a remedy of breach or enforcement of constitutional rights and freedoms must comply with the provisions of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, (2013). 29. Rule 10 states that the petition must disclose the petitioners’ names and addresses, facts relied upon, constitutional provision violated, nature of injury JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 14

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caused or likely to be caused, public interest case to the public, class of persons or community, details regarding any civil or criminal case on related matters in issue, signature, and the reliefs sought. Further, under Rule 11, a petition may be supported by an affidavit and documents. 30. Courts have pronounced constitutional petitions. themselves on A constitutional petition must be pleaded with clarity, specificity, and precision as held in Anarita Karimi Njeru -vsRepublic [1976-1980] KLR 1279 and Mumo Matemu -vs- Trusted Society of Human Rights Alliance & Others [2013] eKLR 31. Precision in pleadings helps the court and the ORIGINAL COPY opposite party to know the issues at hand, and for the expeditious disposal of the same by the court. See Communications Commission of Kenya & Others -vs- Royal Media Services (K) Ltd (supra). 32. In this petition, the petitioners are basing their claim as alleged residents, occupants, possessors, users, and developers of the subject properties for over two decades, now threatened with eviction by the respondents without adequate, sufficient, or no eviction notice in law. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 15

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33. A constitutional petition has to disclose constitutional questions or issues. Constitutional questions or issues arise where their remedies are derived from the Constitution rather than a statute, as was held in CNM -vs- WGM [2018] eKLR, Maya Duty Free Ltd -vs- Hon. Attorney General, Petition No.45 of 2017. See also Ngao -vs- Kitheka Civil Appeal No. 152 of 2019 [2024] KECA 21 [KLR] (25th January 2024) (Judgment). 34. The petitioners rely on Articles 1, 2 (3), 10, 26, 28, 40, 43, 47, and 73 of the Constitution. In particular, they urge the court to find that they have protectable interests or ORIGINAL COPY rights which require constitutional protection. In Mitu-Bell Welfare Society (supra), the court held that the right to property also extends to the protection of the right to housing and shelter. In view of their structures allegedly erected on land regardless of the ownership status of the land. 35. The court therefore finds a constitutional question or issue disclosed in the amended petition, since the legal issue or dispute disclosed in the pleadings can only be resolved by interpreting the constitutional provisions, citing its principles or values, rather than by applying and interpreting statute law. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 16

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36. The next issue is whether the petitioners have proved breach of their alleged constitutional rights and freedoms. The law is that he who alleges must prove the existence of the facts in order to be granted legal rights or for the opposite party to be found liable. 37. In this petition, the petitioners allege that they are beneficial owners of L.R. No. 7404, 6992/2, 6950/3, 9433, and 6469, which they have occupied, used, developed, and utilized for over two decades until the alleged attempted forceful eviction in 2007, and later in December 2025. The petitioners rely certificate of solely electronic ORIGINAL COPY on photographs evidence and a regarding a YouTube hyperlink, evidencing the alleged threats of eviction by the respondents. 38. In this petition, other than stating the parcel numbers in paragraphs 1, 25, and 26, the petitioners have not supplied any particulars on who owns the subject properties. The petitioners, other than stating that they have occupied the subject properties for over two decades, the specific dates of entry, specific portions, locality and unique developments, if any, of each of the petitioners, have not been particularized or specified. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 17

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39. Further, whereas the petitioners aver that the first attempt to unlawfully demolish their homes and render them homeless and destitute occurred in 2006, and that they rebuilt and re-established homesteads thereafter until December 2025, when they were again threatened with eviction, the petitioners have not pleaded which remedial action or attempts they made to engage the alleged tortfeasors or perpetrators of what allegedly appears to be criminal activities. 40. Moreover, whereas the petitioners in paragraphs 30-35 of the amended petition, blame the respondents under Articles 28, 40, and 47 of the Constitution, there is no evidence by way of notice ORIGINAL COPY given to them demanding compliance with the provisions of the Land Act as to eviction and the Fair Administration Action Act, which are the first port of call as regarding statutory framework on eviction and fair administrative action. 41. A case is won on the basis of its strength, but not the weakness of the opponents. The failure of the respondents to file a replying affidavit or to oppose the petition did not in any way relieve the petitioners of the burden of proving every element of the petition to be entitled to the relief sought. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 18

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42. Constitutional petition, as was held in Charles Owino Likowa -vs- Isaac Aluoch Polo Aluochier & Others Petition No. E008 of 2024 should not be vague, must be precise, and enable the court to understand the grievance submitted and the proof thereof. The court said that only then can any court fashion a remedy under Article 23 of the Constitution. 43. Evidence by way of official search certificates or copies of the title deed to show who owns the subject properties is lacking. There is no specific pleading by the petitioners either in the body of the amended petition or in the supporting affidavit on whether the subject properties are either private, ORIGINAL COPY public, or community land. 44. Section 26 of the Land Registration Act provides that a certificate of title is prima facie evidence of ownership of land. Without evidence of who the current owner is or the status of the subject properties in relation to the respondents, the petitioners are not certain of the ownership of the subject properties. The burden of proof in a constitutional petition is on the claimant. In Isaac Aluoch Aluochier -vs- The Senate & Others Petition No. E014 of 2025, the court said that under Section 108 of the Evidence Act, the burden JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 19

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of proof in a proceeding lies on the person who would fail if no evidence were given at all, on either side. 45. Existence or non-existence of a fact in issues as to who owns the subject properties is at the core of this petition. The legal burden, as held in Raila Odinga & Others -vs- Independent Electoral and Boundaries Commission & 3 Others [2013] KESC 6 [KLR], is on the petitioners, which they must discharge, by showing when entry occurred, the owner of the subject properties, the basis of their entry, nature and particulars of their developments, if any, nature and particulars of the loss or damage, likely ORIGINAL COPY to arise, and more importantly, if they ever send any notice or protest to the owner(s). Regardless of the failure to file a response, it is the petitioners who are alleging nonconformity with the Constitution and the law on eviction. 46. Tangible and cogent evidence to prove those violations is what the law requires, as held in Rail Odinga & Others -vs- IEBC (supra). Copies of the register are public documents within the meaning of Section 112 of the Evidence Act. Without proof of the ownership status of the subject properties, the nature, particulars, and details of their extent and JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 20

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locality, the court finds the petition anchored on quicksand. 47. Substantiation of how the right has been violated, by whom, in what manner, and particular dates, and places of violation is key in any constitutional petition. In Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another -vs- Nathaniel K. Lagat & Others, Petition No. 17 [E021] of 2022, consolidated with Petition No. 24 [E027] of 2022, the court said that the responsibility to prove the legitimacy of the title is not only limited to the party whose title is being challenged, but also extend to the party claiming infringement of his ORIGINAL COPY property rights, to prove his entitlement warranting the attendant constitutional protection sought. 48. In this petition, the supporting affidavit does not lay the basis for how the petitioners made entry into the subject properties, which portions of the land each of them is occupying or using, the nature and particulars of each of the occupants' portions, and the worth of those developments now threatened with eviction. 49. Valuation reports, agricultural reports do not discharge in any way the burden that the petition has in law to prove the existence or non-existence JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 21

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of those facts. Factual issues have to be proved before the court on a balance of probabilities. It is not for the court to assume, as submitted, that the subject properties are public land. That single fact is not pleaded as a matter of fact in the amended petition or in the supporting affidavit. Evidence of the existence or non-existence of that fact is missing. 50. Indeed, before the court can find fault or liability on the part of any of the respondents, the petitioners have to satisfy the court on the status of the subject properties, whether they are registered or not, and the registered owners of the same, as a matter of fact. Throwing the parcel numbers before the court ORIGINAL COPY without official search certificates or copies of the title deeds does more damage to the petitioners’ case than the respondents’ failure to answer to the petition. 51. It is the petitioners who would lose if no evidence is availed before this court to substantiate the status of the land and also for the court to find that indeed it is the respondents, as owners of the land who are not adhering to the law on eviction as provided under Section 152A-I of the Land Act, by not issuing an eviction notice or complying with the JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 22

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mandatory procedures governing eviction on private, public or community land. 52. The petitioners submit that there has been noncompliance with Article 47 of the Constitution as read together with the provisions of the Fair Administrative Action Act. Whereas fair administrative action has been elevated to a constitutional right as held in Judicial Service Commission -vs- Mbalu Mutava (supra) and Suchan Investment Ltd -vs- Ministry of National Heritage & Culture (supra), the burden still is on the petitioners to establish that they were owed a fair administrative action by any of the respondents in relation to land belonging or owned ORIGINAL COPY by one or all of them at a specific part of the country. 53. Written submissions do not amount to evidence or pleadings as held in Daniel Toroitich Moi -vsMwangi Stephen Murithi & Another (2014). The petitioners, in their submissions, state that the respondents have not challenged the facts pleaded in the supporting affidavit and the amended petition, based on D.T. Dobie & Co. (K) Ltd. -vsWanyonyi Wafula Chebukati [2014] eKLR. 54. Other than mentioning the parcel numbers, the locality of the subject properties within the County JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 23

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of Trans Nzoia, based on a defined location, ward, or subcounty, is missing. The photographs attached do not indicate the locality by way of coordinates. Access, use, possession, and occupation must be anchored on a defined piece of land. 55. Copies of title deeds, survey maps, and georeferenced maps would have assisted the court. The petitioners in their written submissions allege that they have children and houses on the subject properties. The photographs attached do not indicate who among the petitioners owns, occupies, or which house or structure they occupy, or who has developed what and where. 56. Legitimate expectation has been submitted on. ORIGINAL COPY Unfortunately, it is not pleaded anywhere in the amended petition. A legitimate expectation arises where there is a reasonable representation expressed by a competent authority, who had, at the time, statutory powers conferred upon him by law to give such an undertaking as was held in Sehmi & another -vs- Tarabana Company Ltd & 5 others [2025] KESC 21 (KLR). 57. Legitimate expectation as a facet of the rule of law does not by itself create an enforceable right to a substantive benefit. Its primary function is to ensure procedural fairness, such as the duty to consider JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 24

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the expectation or provide a hearing, though in limited cases, substantive protection may arise where denial is manifestly arbitrary and not justified by public interest. 58. In State Of Uttar Pradesh -vs- Bhawana Mishra 2006. 4SCC 1, the court in India held that the doctrine cannot be invoked to fetter policy changes or compel the state to continue a practice that is no longer viable or equitable. 59. In Fanikiwa -vs- Sirikwa Squatters Petition No. 32 (E036) and 35(E038) and Petition No. 36 (E039) of 2022, the court held that to invoke the doctrine, there must be evidence of expectation induced by some conduct of the public authority ORIGINAL COPY and that only reasonable expectation afforded protection by the law and to establish the same in law, is a question of fact as held in Kenya Revenue Authority -vs- Export Trading Co. Ltd [2022] KESC 31 [KLR]. 60. In this petition, the petitioners have not pleaded that there was an express, clear, and unambiguous promise given by any of the respondents, which expectation was reasonable, and that its representation was made by a competent and lawful authority. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 25

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61. The law, as held in Communication Commission of Kenya & Others -vs- Royal Media Service Ltd (supra), is that there can be no legitimate expectation against clear provisions of the law or the Constitution. Alleging that the respondents allowed and must continue to allow the petitioners to occupy the subject properties, whose ownership has not even been verified, cannot be said to have been established for this court to declare the petitioners entitled to live and be allocated the subject properties. 62. At the very least, the petitioners would have provided documents from any of the respondents, as evidence of a promise or representation where ORIGINAL COPY they were assured that their occupation, use, and possessory rights or interests over the suit properties would not be put to an abrupt halt or compensation thereof. 63. What constitutes pronounced in public Torino or private land was Enterprises Ltd -vs- Attorney General [2023] KESC 79 [KLR]. It is a matter of registration of titles, an act of reservation, or setting aside in accordance with the provisions of the applicable law, as held in Fanikiwa -vsSirikwa (supra), that dictates that an action can only be undertaken if it is authorised by the law. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 26

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64. A respondent’s promise, practice, conduct, or action outside the prescription of the law or undertaken by a person or entity without competent authority is illegal and cannot expectation. The give rise petitioners to legitimate have failed to substantiate such a legitimate expectation. 65. Coming to whether the petitioners, long occupants, users, or possessors of the subject properties, have a constitutional right, which may have been infringed upon by the respondents. A squatter is defined under Black’s Law Dictionary 8th Edition, page 1439, as a person who settles on property without any legal claim or title. Apart from the 1 st petitioner, none of the rest of the petitioners swore ORIGINAL COPY individual deposition on how they gained entry, nature, and occupation, particulars and of their developments on entry, the use, subject properties. Veracity of the 1 st petitioner’s affidavit is therefore left bare and unsupported by any documentary evidence in relation to the portion each of the petitioners is occupying or entitled to be declared as faced with imminent forceful eviction. 66. The petitioners also rely on Attorney General -vsZinj Ltd (supra), that their proprietary interests and rights require protection of the law. The instant case is distinguishable from the Attorney General JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 27

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-vs- Zinj Ltd case, where the question was whether the government could lawfully deprive an owner of its property by granting a lease of the suit property to a third party without following the provisions of Article 40(3) of the Constitution and the Land Acquisition Act (repealed). 67. In this suit, the petitioners are not the registered owners of the subject properties. The petitioners are not advancing properties by superior rights way registration, of to the subject which the respondents have unlawfully or unconstitutionally alienated, contrary to the law. 68. Regarding Mitu-Bell Welfare Society (supra), the court reaffirmed that under Articles 21(1) and ORIGINAL COPY 43(1) (b) of the Constitution, the state has the duty to observe, respect, protect, promote, and fulfil the bill of rights and freedoms including taking legislative policy and other measures to achieve and ensure realization of the right to housing, dependent upon the availability of land and other material resources. The court held that where the landless occupy public land and have established homes, they have protectable rights to housing over the same. 69. In this petition, the petitioners, though alleging long occupation, establishment of homes, raising of JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 28

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families, and establishment of other developments thereon, have not tendered specific, individual, collective, tangible, concrete, and credible evidence to substantiate the claim to be entitled to the constitutional reliefs sought. 70. Evidence by way of valuation reports, agricultural extension officers' reports, testimonials of the existence of public or community utilities on the subject properties, and other particulars are missing in the body of the petition and the supporting affidavits. 71. In Mwakaneno -vs- Registrar of Titles, Mombasa & Others Civil Appeal No. E104 of 2026 KECA [KLR] ORIGINAL COPY (20th February 2026) (Judgment), the court cited Gwer & 5 Others -vsKenya Medical Research Institute & 3 others [2020] KESC 66 [KLR], that the burden of proof lies on the party alleging a constitutional violation to place sufficient proof before the court. 72. The court further cited Wamwere & Others -vsAttorney General [2023] KESC 3 [KLR], that a claim of alleged threat or violation of rights and freedoms requires a petitioner to discharge the burden of proof to prove their claim with sufficient evidence or a balance of probabilities. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 29

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73. In this case, the petitioners have failed to demonstrate erecting, living, or possessing any portion of the suit properties, and secondly, to prove that the respondents or any of the state agencies, persons, or officers have interfered, threatened, or infringed their right or interest of occupation, use, and possession of the subject properties without any justification in law. 74. It is only after a petitioner succeeds in establishing a breach of a right that he can be entitled to constitutional reliefs under Articles 21 and 23 of the Constitution, as held in Major General David Tinyefuza -vs- Attorney General [1997] UGCC 3. ORIGINAL COPY 75. Actual, imminent, and real threat to forceful eviction has not been substantiated with tangible and cogent evidence. The existence of homesteads, farming, structures permanent or semi-permanent, number of occupants, nature and status of that occupation, coupled with clear evidence that the respondents own the subject properties, as well as nexus between the petitioners, the proprietary interests or right, and lastly, the imminent danger or eviction threat is what the petitions have failed to establish. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 30

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76. The upshot is that I find the petition lacking merit. It is dismissed with no order as to costs. 77. File marked closed. 78. Orders accordingly. Judgment dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 24th day of June 2026. In the presence of: Court Assistant - Dennis No appearance for the parties. ORIGINAL COPY HON. C.K. NZILI JUDGE, ELC KITALE. JUDGMENT: KITALE ELC PETITION NO. E010 OF 2025 - D.O.D. – 24/6/2026 31

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