Joel Amdany & 90 others v Baringo County Government & 3 others [2021] KEELC 3687 (KLR)
The bottom line
#Baringo residents lost their challenge to a road project because they could not prove they owned the land affected.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the Anarita Karimi Njeru threshold
It did; the petitioners identified the constitutional provisions allegedly violated, but mere mention of articles without substantiation and proof is insufficient
The court accepted that the petitioners cited Articles 10, 22, 23 and 40 with reasonable precision, satisfying the Anarita Karimi Njeru standard. However, it stressed that identifying articles is only the first step; the petitioner must link the provisions to actual, specific violations supported by proof. The petition proceeded to fail on substantiation rather than on pleading.
Whether public participation was conducted before the road construction
Yes; minutes of meetings dated 3rd September 2019 and 10th October 2019 showed consultation, and the petitioners admitted engagement
Relying on Article 10 and the Luo Council of Elders case, the court held public participation requires only a reasonable opportunity for the public to know issues and be heard, not acceptance of every view. Minutes annexed to the 1st respondent's replying affidavit and the petitioners' own admissions at paragraphs 3 and 6 of their affidavit established that consultation occurred; the petitioners were simply dissatisfied with the outcome.
Whether the petitioners' right to property was violated
No; the petitioners failed to prove any proprietary or beneficial interest in the affected parcels
The petitioners admitted they were not registered owners and claimed ancestral beneficial ownership, but produced no title or ownership documents. Citing Serah Mweru Muhu and Section 109 of the Evidence Act, the court held that he who alleges must prove and that ownership rights cannot be asserted without proof of ownership. Ancestral claims unsupported by evidence cannot ground an Article 40 violation.
Whether the petitioners were entitled to the injunctive and compensatory reliefs sought
No; public interest in the road outweighed the petitioners' claims, and no evidence of harm to their parcels was adduced
The court found the road construction serves public interest and future generations, citing Kenya Guards Allied Workers Union and Veronica Waithera. It also deferred to the respondents' technical mandate over road design, holding laymen cannot dictate road routing. The petitioners neither proved degradation of their parcels nor showed how the road would adversely affect them; indeed they stood to benefit.
Legal principles established
#- A party asserting a constitutional right to property must first establish a proprietary right or interest in the land; the Constitution does not itself create such rights
- A constitutional petitioner must plead with reasonable precision the violation complained of, the provisions infringed and the manner of infringement (Anarita Karimi Njeru threshold)
- Public participation does not require that every person be heard or that stakeholders' views be accepted; it suffices that a reasonable opportunity to be heard is afforded
- The burden of proof as to a particular fact lies on the person who wishes the court to believe in its existence
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Articles 22(1), 23(1) and 165 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Aweso Mohamed Shali & 8 others v National Land Commission & 2 others [2021] KEELC 165 (KLR)[2021] KEELC 165 (KLR)20 Dec 2021
Cite this brief
#Cite this brief
Caselaw, "Joel Amdany & 90 others v Baringo County Government & 3 others [2021] KEELC 3687 (KLR)", Case Analysis (2021). Petition dated 5th May, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3687/eng@2021-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.