Saruni Ole Loonkushu & 9 others v Attorney General & 14 others [2018] KEELC 2104 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAROK

CONSTITUTION PETITION NO. 4 OF 2018

IN THE MATTER OF ARTICLES

1,2,3,10,19,20,22,23,35,40,43,47(1),50,60,63,165(3)(B),258 AND 259 1(B) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE SUPREMACY OF THE CONSTITUTION PRSUANT TO ARTICLE 1 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICITON AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2006, RULES 11-23

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOM UNDER ARTICLES 20,27,28,40,43,53,56 AND 57 OF THE CONSTITUTION OF KENYA

AND IN THE MATTER OF THE COMMUNITY LAND ACT SECTIONS 4,5,6,7,8,9,10,11,12 AND 13

AND

IN THE MATTER OF THE ADJUDICATION AT NAROSUURA GROUP LR NO. NAROK/NAROSUURA/1, IN NAROK COUNTY

BETWEEN

SARUNI OLE LOONKUSHU & 9 OTHERS ................... PETITIONERS

-VERSUS-

THE ATTORNEY GENERAL & 14 OTHERS ............ RESPONDENTS

RULING

The Applicants had by a Notice of Motion dated 25th April, 2018 sought to be enjoined in Petition as an interested party on the ground that the Applicant is a bonafide member of Narosoora Group Ranch being member No. 2725 and that he has been in occupation of parcel No. 1085 which he has developed and carries out farming activities and he contends that during the adjudication exercise his parcel was allocated to the Chairman of the adjudication committee and hence the same will deprive off his livelihood.

The Application was supported by the affidavit of Tajeu Sadera who in essence deponed to the grounds I stated above and he annexed to the said affidavit a copy of his certificate of membership.  He further averred that he has through his advocate filed a complaint with the area adjudication committee but his complaint was not addressed.

The Application was opposed by the 6th Respondent by way of a Replying Affidavit arguing that the issues that the interested party wishes to argue are the same issues that the Petitioners will argue and the same will not add any value to the hearing of the Petition and that hearing of the same will amount to hearing a Petition within another Petition.  He further averred that allowing the Interested Party to be enjoined will open a floodgate of others to enjoin the Petitioner.

I have read the Application before me and the opposing submissions which were filed by the interested party and the 6th Respondent who is the only one who opposed the application.

The Applicant seek to join the Petition as Interested Party to simply protect his parcel of land that is 1051 within Naroosora Group Ranch.  The Respondent has not demonstrated to the group that the Interested Party is neither a member of the Naroosora Group Ranch nor the owner of parcel No. 1085 within the Group Ranch.

It is my finding that on the basis of the above alone the Interested Party has demonstrated that he has legitimate interest in the Petition and his joinder as an Interested Party will adequately assist the court in determining the issues in the petition and further that to exclude the proposed Interested Party from the Petition will negate the constitutional guarantee to own property and to the protection of the same.

In view of the above I find that the application dated 25th April, 2018 is merited and I do grant leave to the interested party to be enjoined in the petition.

I further direct the Petitioner to serve the Interested Party with a copy of the Petition and all other pleadings and costs be in the cause.

DATED, SIGNED and DELIVERED in open court atNAROKon this31stday ofJuly, 2018

Mohammed Noor Kullow

Judge

31/7/18

In the presence of:-

Mr Mburu for the Petitioners and holding brief for Mbugua for the proposed interested party

Mr Kambo holding brief for Mr Ochang for 5th to 15th Respondents

N/A for the Attorney General

CA:Chuma

Mohammed Noor Kullow

Judge

31/7/18