Simon Murungi, Livingstone Mawira, Purity Ngaiti, Harmsheld Muthomi, Owen Mugambi, Anthony Muriithi, Purity Mwendwa, Kelvin Gikundi, Withford Mwirigi, Phylis Gatwiri, Nonface Gitumi, Armstrong Kiogora, Era Kiaruthi, Patrick Mwenda, Cutis Bundi & Phineas Kithinji v Land Adjudication Officer Ruiri/Rwarera, County Government of Meru & Attorney General; Japhet Kaii (Interested Party) [2021] KEELC 1180 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

PETITION NO. EOO1 OF 2020

IN THE MATTER OF

ARTICLES 40 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF

THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS

AND

IN THE MATTER OF

VIOLATION AND/OR INFRINGEMENT OF THE PETITONERS CONSTITUTIONAL RIGHTS UNDER

ARTICLE 19, 20, 21, 22, 23, 35, 40, 47 AND 165 PF THE CONSTITUTION OF KENYA 2010

BETWEEN

SIMON MURUNGI ............................................................. 1ST PETITIONER

LIVINGSTONE MAWIRA................................................. 2ND PETITIONER

PURITY NGAITI .................................................................3RD PETITIONER

HARMSHELD MUTHOMI ............................................... 4TH PETITIONER

OWEN MUGAMBI ............................................................. 5TH PETITIONER

ANTHONY MURIITHI........................................................6TH PETITIONER

PURITY MWENDWA..........................................................7TH PETITIONER

KELVIN GIKUNDI ............................................................ 8TH PETITIONER

WITHFORD MWIRIGI .................................................... 9TH PETITIONER

PHYLIS GATWIRI ...........................................................10TH PETITIONER

NONFACE GITUMI ........................................................ 11TH PETITIONER

ARMSTRONG KIOGORA.............................................. 12TH PETITIONER

ERA KIARUTHI .............................................................. 13TH PETITIONER

PATRICK MWENDA........................................................14TH PETITIONER

CUTIS BUNDI ...................................................................15TH PETITIONER

PHINEAS KITHINJI ..................................................... 16TH PETITIONER

VERSUS

THE LAND ADJUDICATION OFFICER

RUIRI/RWARERA .......................................................... 1ST RESPONDENT

COUNTY GOVERNMENT OF MERU ........................2ND RESPONDENT

HON. ATTORNEY GENERAL.......................................3RD RESPONDENT

JAPHET KAII ............................................................ INTERESTED PARTY

RULING

1. By a notice of preliminary objection dated 12. 10. 2020, the 2nd respondent attacks the petition dated 30. 8.2020 first for misjoinder, and secondly as an abuse of the court process and thirdly that it raises no reasonable cause of action against it.

2. The 2nd respondent is a creature of Articles 6, 186, 187, 188 Schedule I (1) of the Constitution. The roles and functions of 2nd respondent are clearly spelt out in Schedule 4 thereof vis a vis those of the 1st respondent and the National Government.

3. The 1st respondent is described in paragraph 11 of the petition as an employee of the National Government and not of the 2nd respondent. The petition at paragraph 11, 13, 14 is clear on the nexus between the petitioners and the subject in issue on one hand, and the alleged infringement of the petitioners’ rights and freedoms by the 1st, 3rd and the interested party on the other hand.

4. The nearest the petitioners have pleaded anything against the 2nd  respondent is in paragraph 35 of the petition alleging there has been compromise of the petitioners rights as to protection of private properties and fair administration.

5. Coming to the prayers, in the petition prayer 1 seeks a permanent injunction restraining the respondents and the interested party from hiving off the petitioner’s Parcel No. Ruiri/Rwarera/816and allocating it to the interested party and secondly a declaration that the petitioners constitutional rights and freedoms have been contravened on account of collusion to subdivide the suit land into Parcels No’s 5254 and 5015.

6. As observed above, the power to adjudicate land is granted to the 1st respondent as per the Land Adjudication Act Cap 284 and Land Consolidation Act Cap 283 Laws of Kenya.The 1st respondent is not an employee or agent of the 2nd respondent. The 2nd respondent cannot therefore be held liable or answerable for alleged constitutional infringement of the petitioners land registration rights by the 2nd, 3rd and the interested party.

7. Rule 5 of the Constitution of Kenya) Protection of Rights and Freedoms) Practice and Protection Rules 2013 grants the court powers to strike out parties who are wrongly joined to a petition.  The petitioners have not particularized with a reasonable degree of precision their constitutional complaint against the 2nd respondent as held in Anarita Karimi Njeru –vs- Republic No. (1) (1979) KLR 154 and Mumo Matemu –vs- Trusted Society of Human Rights Alliance (2014) eKLR.

8. In the premises I find the preliminary objection merited. The 2nd respondent is hereby struck out of these proceedings. There will be no order as to costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 27TH DAY OF OCTOBER, 2021

In presence of:

Miss Nyaga for the petitioners

Maranya for 2nd respondent

Kiety for 1st & 3rd respondents

Court Assistant - Kananu

HON. C.K. NZILI

ELC JUDGE