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ELCStruck OutELC Petition dated 13/9/2016 (Kitale)· [2020] KEELC 2179 (KLR)

Peter Njogu Karanu & 4 others v Nyakinyua Mugumo Trees Co.Ltd & 3 others [2020] KEELC 2179 (KLR)

Environment and Land Court
28 May 2020
MNMwangi Njoroge
3,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute petition was struck out because the owners filed no affidavit evidence to back their claims against a rival survey.

What this practically means

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Executive summary

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The petitioners, shareholders in LR 1803, filed a constitutional petition on 15 September 2016 seeking declarations that a parallel survey and title-issuance exercise by the respondents was unlawful, that the survey registered on 16 April 2014 and the resulting indentures were valid, a permanent injunction against the parallel survey, and judicial review orders quashing the Chief Land Registrar's decision. A contemporaneous Notice of Motion for conservatory orders had already been dismissed on its merits. The respondents, including the County Land Registrar, Trans Nzoia, filed replying affidavits, and the 1st respondent pointedly challenged the petitioners' failure to file any evidence. The court identified a preliminary issue: the petition was unsupported by any affidavit. Reviewing rules 10 and 11 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the court held that the 2013 Rules waived the mandatory affidavit requirement that existed under the 2006 Gicheru Rules, but that the waiver does not absolve a petitioner whose averments are conclusory. Since oral evidence had been ruled out, the petitioners never sought leave to file a supporting affidavit, and all respondents had filed affidavit evidence, the petitioners could not discharge their burden of proof. The court declined to delve into the merits, struck out the petition as fatally defective and incompetent, and awarded costs to the respondents.

Key legal issues

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01

Whether a constitutional petition without a supporting affidavit is competent under the 2013 (Mutunga) Rules

Holding

Unlike the Gicheru Rules, the 2013 Rules do not mandatorily require a supporting affidavit, but an unsupported petition whose allegations require proof cannot stand

Reasoning

The court distinguished the Gicheru Rules position (where absence of affidavit was fatal) and held that rules 10 and 11 of the 2013 Rules waived the mandatory requirement, leaving it to the petitioner's discretion. However, the waiver does not permit conclusory allegations to stand unproven, especially where respondents have filed affidavit evidence.

p. 4
02

Whether the petition could be determined on the merits absent petitioners' evidence

Holding

It could not; the petitioners bore the burden of proof and had adduced no evidence

Reasoning

All respondents had filed affidavit evidence but the petitioners filed none, never sought leave to file a supporting affidavit, and oral evidence was ruled out. In an adversarial setting the court cannot accept conclusory statements as gospel truth; the petitioners could not discharge their burden of proof.

p. 5

Legal principles established

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  • The 2013 Rules waived the mandatory requirement of a supporting affidavit, but a petitioner whose averments are conclusory must still file a supporting affidavit
  • A petition without any supporting evidence cannot proceed to a merits determination where the other parties have filed affidavit evidence

Court orders

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  1. 1.The petition dated 13/9/2016 is struck out
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4, 10, 11
  • Constitution of Kenya [Supervisory and Protection of Fundamental Rights and Freedoms of the Individual] High Court Practice and Procedure Rules 2006 (Gicheru Rules)Rules 13, 14
  • Civil Procedure RulesOrder LIII

Cases cited (8)

  • Commissioner General, Kenya Revenue Authority through Republic v Silvano Onema Owaki T/A Marenga Filling Station
    [2001] eKLR
  • R. v. Wandsworth JJ., ex p. Read
    [1942] 1 K.B. 281
  • Petro Oil Kenya Limited v Kenya Urban Roads Authority
    [2018] eKLR
  • Dickson Mwenda Githinji vs Gatirau Peter Munya & 2 others
    (2014) eKLR
  • Benson Kamanda & 4 others v Bisembe Farmers Co-operative Society Ltd
    [2016] eKLR
  • Patrick Ochieno Obachi & 6 others -v- Kenya Anti-corruption Commission
    [2010] eKLR
  • Sanghani Investments Ltd -vs- Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1 E.A 354
  • Karamorah Impex and Transport Company v Kenya National Highway Authority & 3 others
    [2017] eKLR
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 - constitutional petition for enforcement of rights

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Njogu Karanu & 4 others v Nyakinyua Mugumo Trees Co.Ltd & 3 others [2020] KEELC 2179 (KLR)", Case Analysis (2020). ELC Petition dated 13/9/2016 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2179/eng@2020-05-28

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