Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated 17th June 2020· [2022] KEELC 565 (KLR)

Teresia Waititu & 129 others v Principal Secretary Ministry of Transport, Infrastracture and Urban Planing & another [2022] KEELC 565 (KLR)

Environment and Land Court
25 March 2022
OMOguttu Mboya
5,807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

A Kibera slum-upgrading petition failed because the residents brought no evidence, proving even constitutional claims in Kenya need proof.

What this practically means

#

Executive summary

#
This was a constitutional petition filed by Teresia Wanjiru Waititu on her own behalf and on behalf of 129 undisclosed others, residents of Soweto Zone B, Kibera, who claimed to have been enumerated as beneficiaries of the Kibera Slum Upgrading Project funded by the Government of Kenya and UN Habitat. They sought declarations that threatened evictions were unconstitutional, an order compelling the Principal Secretary to issue them unique identification cards through their advocates, and compensation of Kshs 68,000. The Respondents countered that the Petitioners were not genuine project-affected persons; that enumeration and community-driven verification had reduced beneficiaries to 3,663; that relocation and demolition were voluntary; and that the grievance window remained open. The court framed four issues. First, it held that evidence cannot be introduced through submissions and expunged pages 54 to 148 of the Petitioners' submissions bundle, applying the Moi v Mwangi Stephen Muriithi authority. Second, it held that the Petitioners had produced no evidence of enumeration, residence or assigned numbers and had failed to discharge their burden of proof, and that the court lacked the machinery to undertake the stakeholder-driven verification exercise, which was a policy and administrative function. Third, since the sole Petitioner conceded she had already vacated the premises, neither an injunction nor a declaratory order against eviction could issue, as a court cannot issue orders in vanity. Fourth, the Kshs 68,000 claim was unpleaded special damages, mentioned only in the supporting affidavit, and even in constitutional petitions claims must be precisely pleaded and proved. The Petition was dismissed as premature and misconceived, with each party bearing its own costs.

Key legal issues

#
01

Whether evidence may be introduced through submissions

Holding

No - the documents attached to the Petitioners' submissions were expunged from the record.

Reasoning

The court held that submissions relate only to issues of law premised on facts and evidence already filed; parties cannot smuggle in new evidential material at the submissions stage. The court adopted the Court of Appeal's holding in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi that submissions are 'marketing language' and do not constitute evidence at all, and accordingly expunged pages 54-148 of the Petitioners' bundle.

p. 4
02

Whether the court could identify and authenticate genuine beneficiaries for issuance of unique identification numbers

Holding

No - the court lacks the machinery, the process being a policy/administrative function involving stakeholders and ground verification; and the Petitioners produced no evidence of enumeration.

Reasoning

The ascertainment of genuine beneficiaries requires enumeration, physical verification, stakeholder consultation and visitation to the locus - a labor-intensive administrative process undertaken by the Ministry, the local committee and the community. A court is limited and not inquisitorial and cannot undertake this task. Further, the Petitioners bore the burden of proving enumeration and residence but attached no documents, photographs or numbers, and so failed to discharge it.

p. 6
03

Whether declarations and injunction against threatened eviction could issue

Holding

No - the Petitioner had already vacated the premises before filing, and no evidence linked her to the premises as a project-affected person.

Reasoning

The Petitioner conceded she moved out of the house before compensation and no longer resided in the suit premises before the Petition was filed. An injunction cannot lie in respect of an act that has already occurred, and the declaratory relief failed for want of evidence establishing the Petitioners as project-affected persons under the verification process. The court declined to issue orders in vanity.

p. 7
04

Whether the Petitioners were entitled to compensation of Kshs 68,000

Holding

No - the claim was unproved special damages, mentioned only in passing in the supporting affidavit and not pleaded in the Petition.

Reasoning

Compensation was payable only to persons verified through the mechanism established by the 1st Respondent with the local committee and community. The Petitioners were neither verified nor approved. Further, the claim of Kshs 68,000 appeared only in the supporting affidavit and not in the body of the Petition; as special damages it required specific pleading and proof, which the court held applies even in constitutional petitions, citing Shabani and Mumo Matemu.

p. 7

Legal principles established

#
  • Submissions cannot take the place of evidence; facts or evidence cannot be introduced at the submissions stage.
  • The burden of proof lies on the party who would fail if no evidence were given on either side; the claimant must discharge the initial evidential burden on a balance of probability.
  • A claim for special damages must be specifically pleaded and proved with a degree of certainty and particularity.
  • Even in a constitutional petition, claims must be pleaded with reasonable precision and supported by evidence.

Court orders

#
  1. 1.Expunction of the entire set of documents contained from pages 54 to 148 of the bundle filed as written submissions by the Petitioners.
  2. 2.The Petition be and is hereby Dismissed.
  3. 3.Each Party Shall bear Own Costs.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 23, 27, 42, 43, 47, 48, 50
  • Evidence Act (Chapter 80, Laws of Kenya)Sections 107, 108, 109

Cases cited (5)

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
  • Dr. Samson Gwer & 5 others v Kenya Medical Research Institute (KEMRI) & 3 Others
    [2014] eKLR
  • Raila Odinga & Others v Independent Electoral & Boundaries Commission & Others
    Petition No. 5 of 2013
  • Idi Ayub Omari Shabani v Nairobi City Council
    [1984] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    (2013) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - petition alleging violation of Articles 27, 47, 48 and 50

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Teresia Waititu & 129 others v Principal Secretary Ministry of Transport, Infrastracture and Urban Planing & another [2022] KEELC 565 (KLR)", Case Analysis (2022). Petition dated 17th June 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/565/eng@2022-03-25

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