Mwinzi & 173 others (Per Attached List of Schedule) v Kenya Rural Road Authority & 3 others (Environment & Land Petition 2 of 2021) [2024] KEELC 427 (KLR)
The bottom line
#Landowners lost a compensation claim against a Kenyan road agency because they could not prove their properties were actually taken.
What this practically means
#Executive summary
#Key legal issues
#Competence of the petition as a representative / public interest suit
The petition is competent; all 152 listed persons are proper parties under Articles 22(2)(b) and 258(2)(b) of the Constitution, and Order 1 Rules 8 and 13 CPR do not apply.
The respondents argued non-compliance with Order 1 Rules 8 and 13 of the Civil Procedure Rules, since only 87 of 152 represented persons signed the Consent and Authority. The court held that a constitutional petition is governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which embodies Article 159(2)(d) against technicalities. Petitioners qualify as persons acting in the interest of a group or class under Article 22(2)(b), so the petition could not be defeated on CPR formalities.
Admissibility of witnesses' oral testimony and documents without affidavits or witness statements
The evidence was properly received; the respondents acquiesced by cross-examining without objection.
Rule 11 uses the permissive 'may', so affidavits are not mandatory, and Rule 20(1)(c) permits hearing by oral evidence, which the court directed. The respondents did not object to the bundles or the oral evidence and cross-examined the witnesses. The cases relied on by respondents (Gitari and Too) arose under different procedural regimes and were distinguished because the respondents never sought to have the witnesses stood down to file affidavits.
Whether petitioners' properties were affected by the road project and whether they are entitled to compensation
Petitioners failed to prove that the road was expanded from 30 to 40 metres, that their parcels were affected, or that compulsory acquisition without compensation occurred; the petition is dismissed.
Under sections 107, 109 and 112 of the Evidence Act the burden lay on the petitioners. The 'Persons with Affected Properties' forms lacked letterhead or stamp and their author was unknown to the respondent. The valuation reports relied entirely on client-supplied information without survey maps. Boundary and survey changes would have been recorded with the Director of Survey under the Land Registration Act and Survey Act; such documents were public and available to both parties, so no adverse inference arose from the respondents' failure to produce them.
Legal principles established
#- Constitutional petitions are governed by the Mutunga Rules, not the Civil Procedure Rules, and cannot be defeated by non-compliance with CPR procedure unless reproduced in the 2013 Rules.
- A supporting affidavit to a constitutional petition is not mandatory; a petition may be heard by oral evidence under Rule 20(1)(c).
- The burden of proving infringement of constitutional rights and entitlement to compensation lies on the petitioner and does not shift to the respondent.
Court orders
#- 1.The petition is dismissed with costs to the Respondents.
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights); first-instance constitutional petition
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.
Cite this brief
#Cite this brief
Caselaw, "Mwinzi & 173 others (Per Attached List of Schedule) v Kenya Rural Road Authority & 3 others (Environment & Land Petition 2 of 2021) [2024] KEELC 427 (KLR)", Case Analysis (2024). Amended Petition dated 6th April 2018 (Kitui). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/427/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.