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ELCStruck OutEnvironment & Land Petition 7 of 2019· [2023] KEELC 15928 (KLR)

Waithaka & 2 others v National Land Commission & 4 others

Environment and Land Court
23 February 2023
2,667 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land compensation petition because one petitioner died without substitution, another lacked standing, and a third withdrew.

What this practically means

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Executive summary

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The three petitioners sought declarations, an injunction, mandamus, resettlement/compensation and damages over the Kariminu II Dam project in Gatundu North, Kiambu, alleging violations of Articles 31(b), 35, 40, 43 and 47 of the Constitution arising from entry onto their lands and commencement of works before compensation. The 1st Respondent (National Land Commission) filed grounds of opposition denying any cause of action against it; the 2nd Respondent (Athi Water Services Board) filed a replying affidavit and a motion dated May 27, 2021 seeking striking out of the Petition, contending the 1st Petitioner died on March 22, 2021 without substitution, the 2nd Petitioner lacked locus standi over Chania/Kanyoni/397 which belonged to his late father, and the affected persons were compensated by award accepted on November 18, 2020. The 3rd Petitioner wholly withdrew his claim by notice dated August 2, 2021. The court, applying Order 24 Rule 3(2) CPR because the Mutunga Rules are silent on substitution, held the 1st Petitioner's cause had abated; found the 2nd Petitioner's claim unsustainable for want of locus standi, noting unrebutted evidence of compensation; and accepted the 3rd Petitioner's withdrawal. The application of May 27, 2021 was allowed and the Petition dated June 12, 2017 was struck out with costs, the merits becoming moot. Petitioners' counsel had earlier indicated he had no instructions and sought to cease acting.

Key legal issues

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01

Abatement of the Petition upon death of the 1st Petitioner

Holding

The 1st Petitioner's cause of action abated by operation of law as no substitution application was made within one year of his death on March 22, 2021

Reasoning

The court applied Order 24 Rule 3(2) CPR by analogy because the Mutunga Rules are silent on substitution. The death was proven on a balance of probabilities by the death certificate, and no application for substitution appeared on the record after almost two years, so the cause abated so far as the deceased petitioner was concerned.

p. 4
02

Locus standi of the 2nd Petitioner

Holding

The 2nd Petitioner's claim over Chania/Kanyoni/397 failed for want of locus standi as the land belonged to his late father and compensation was paid to the beneficiaries

Reasoning

No title in the 2nd Petitioner's name appeared in the annexed titles. The uncontroverted evidence showed the parcel belonged to his late father Mbugua Gakua and compensation was made and accepted by beneficiaries on November 18, 2020. Though public interest litigation remains open to him, the compensation position was unrebutted.

p. 5
03

Withdrawal by the 3rd Petitioner

Holding

The 3rd Petitioner wholly withdrew his claim via Notice dated August 2, 2021

Reasoning

The court noted the notice of withdrawal filed on August 2, 2021, removing the 3rd Petitioner's claim from the Petition entirely.

p. 5

Legal principles established

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  • The burden of proof applies even in undefended suits; a petitioner must prove allegations on a balance of probabilities
  • Where no application for substitution is made within one year of a sole petitioner's death, the suit abates under Order 24 Rule 3(2) CPR
  • The Mutunga Rules do not expressly provide for substitution of a deceased petitioner, so the Civil Procedure Rules apply

Court orders

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  1. 1.The Application dated May 27, 2021 is allowed as prayed
  2. 2.The Petition dated June 12, 2017 is struck out with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 31(b), 35, 40, 43, 47; Articles 22, 258, 3(1)
  • Land ActSections 133C, 112
  • Fair Administrative Action ActSection 9
  • Water Act, 2016Section 68
  • Civil Procedure RulesOrder 24 Rule 3(1) and (2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice & Procedure Rules, 2013 (Mutunga Rules)Rules 19, 27(3)

Cases cited (2)

  • Mutava & Others Vs Managing Director Kenya Ports Authority & Anor
    [2016] eKLR

    Abatement of suit following a party's death and failure to substitute within one year

  • Karl Wehner Claasen v Commissioner of Lands & 4 Others
    [2019] eKLR

    Locus standi under Articles 22 and 258; right to enforce Bill of Rights is not purely personal

Jurisdiction invoked
Articles 22, 23, 40, 43 and 47 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights before the Environment and Land Court)

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, "Waithaka & 2 others v National Land Commission & 4 others", Case Analysis (2023). Environment & Land Petition 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15928/eng@2023-02-23

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