Muchemi Kingara & 3 others v National Land Commission & another [2018] KEELC 882 (KLR)

Environment and Land Court

4 October 2018

LWL N Waithaka

1,161 words in judgment

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The bottom line

A Nyeri court dismissed a community's land petition because they brought it on suspicion alone, without first demanding proof from the government.

What this practically means

Executive summary

The petitioners, describing themselves as members of the Kirurumi community in Tetu Sub-County, Nyeri County, petitioned the Environment and Land Court at Nyeri alleging that the respondents had demarcated a public parcel of land known as Kirurumi village, measuring about 10 acres, into approximately 70 portions for allocation of individual title deeds to unknown individuals. They claimed the alleged alienation violated their rights to property, public participation, access to public information and fair administrative action, and sought declarations, certiorari, an order setting aside any alienation, mandamus to alienate the land for their proposed community projects, plus costs and interest. The 1st respondent did not enter appearance or respond despite service; the 2nd respondent entered appearance but filed no response. The court directed disposal by written submissions. Waithaka J framed the sole issue as whether the petitioners had made out a case for the orders sought. Relying on Sections 107 and 109 of the Evidence Act, the court held that an undefended suit does not relieve a petitioner of the burden of proving pleaded facts. The petitioners produced only their own development plans; they adduced no evidence that the land had been demarcated or alienated, or that they had communicated their concerns to the respondents. Their claim rested on fear and speculation. The court further held that, before rushing to court, the petitioners should have invoked Sections 4 and 8 of the Access to Information Act, 2016 to obtain the evidence they needed, and did not show they had done so. Accordingly, the petition was dismissed with no orders as to costs.

Key legal issues

Whether an undefended constitutional petition can be granted on unproven allegations

Holding

No; the burden of proof under Sections 107 and 109 of the Evidence Act applies despite the suit being undefended

Reasoning

The court held that the fact a petition is undefended does not remove the petitioner's statutory duty to prove the facts pleaded. The petitioners produced evidence only of their own development plans but no document showing they communicated concerns to the respondents or that the land had been demarcated into 70 plots for alienation. Their claim rested on fear and speculation.

p. 2

Whether the petitioners exhausted the access-to-information machinery before litigating

Holding

No; they did not apply under Sections 4 and 8 of the Access to Information Act, 2016 for the information they needed

Reasoning

The court found the petition premature: the existing legal framework allowed the petitioners to request information from the state under the Access to Information Act, 2016, but they did not demonstrate that they had made such an application or that the respondents failed to supply information. The petition was therefore 'rushed' and based on allegations they could not substantiate.

p. 3

Legal principles established

An undefended suit does not relieve the claimant of the statutory burden of proving the facts pleaded
A court will not grant relief premised on unsubstantiated allegations or mere speculation
A citizen seeking information from the state to support a claim should first invoke the Access to Information Act, 2016 before rushing to court

Court orders

1.Dismissal of the petition
2.No orders as to costs

Authorities

Legislation

Evidence ActSections 107 and 109
Access to Information ActSections 4(1) and 8

Jurisdiction invoked: Constitutional petition (fundamental rights and freedoms - property, public participation, access to information, fair administrative action); article not quoted in the judgment

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Muchemi Kingara & 3 others v National Land Commission & another [2018] KEELC 882 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/882/eng@2018-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.