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ELCDismissedPetition dated 3rd August, 2023· [2024] KEELC 6542 (KLR)

Mebarne & 109 others v County Government of Narok & 3 others (Environment & Land Petition E002 of 2023) [2024] KEELC 6542 (KLR)

Environment and Land Court
8 October 2024
MCMbogo C.G.
3,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Narok dismissed 110 residents' petition over public land because they could not prove their case, even though nobody opposed it.

What this practically means

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Executive summary

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The 1st to 110th petitioners filed a constitutional petition against the County Government of Narok and two other respondents, seeking declarations that Cis Mara/Kipise/38 is public land reserved for public utilities and that its subdivision without public participation and without involvement of the National Land Commission was unlawful and unconstitutional. They also sought certiorari to quash the subdivision creating parcels Cis Mara/Kipise/3490 and 3491, an order compelling the county government to develop a public market, and a permanent injunction against alienation. The petitioners contended they paid Kshs. 10,000 each for survey and allocation of plots at Mpeuti Trading Centre and held a legitimate expectation to occupy them. The petition was unopposed; the respondents filed no response despite service, and the matter proceeded by way of the petitioners' written submissions. The court, applying the Anarita Karimi Njeru standard and Section 107(1) of the Evidence Act, held that an unopposed petition must still be proved. It found the petitioners' evidence unsatisfactory: no notice of alienation, a list of recipients with no source, receipts only for 'survey and showing', no allocation letters, and an undated, unsigned plan. The court concluded the petitioners had not sufficiently proved the manner in which the cited constitutional provisions were violated, dismissed the petition in its entirety, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the petitioners proved the alleged constitutional violations

Holding

Petition dismissed; petitioners failed to discharge the burden of proof

Reasoning

The court found the petitioners' documentary evidence unsatisfactory: there was no notice of the intention to alienate the land, the list of plot recipients had no verifiable source, receipts indicated payment only for 'survey and showing', no allocation letters existed, and the development plan was neither dated nor signed. Applying the Anarita Karimi Njeru standard and Section 107(1) of the Evidence Act, the violations alleged were not proved.

p. 9

Legal principles established

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  • An unopposed petition does not automatically succeed; the petitioner must still prove the allegations
  • He who alleges must prove, per Section 107(1) of the Evidence Act

Court orders

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  1. 1.The petition dated 3rd August, 2023 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 10(2)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 62(2)
  • Constitution of KenyaArticle 65
  • Constitution of KenyaArticle 67(2)(a)
  • Constitution of KenyaArticle 201(d)
  • Land ActSection 2
  • Land ActSection 8(1)
  • Land ActSections 12 and 14
  • Physical and Land Use Planning ActSections 51(2) and 42(5)
  • Evidence ActSection 107(1)
  • Urban Areas and Cities ActSections 12, 13 and 31
  • Vienna Convention on Diplomatic Relations

Cases cited (9)

  • Kyallo Elly Joy versus Samuel Gitahi Kanyeri
    [2021] eKLR
  • Kenya Anti-Corruption Commission versus Frann Investment Limited & 6 Others
    [2020] eKLR
  • Kenya Revenue Authority versus Export Trading Company Limited
    [2022] eKLR
  • Republic versus Commissioner of Lands & 4 Others ex parte Associated Steel Mill
    [2014] eKLR
  • Muthaiga North Residents Association versus Nyari House Limited; National Land Commission and Another (Interested Parties)
    [2022] eKLR
  • Republic versus Public Procurement Administrative Review Board & Another ex parte Intertek Testing Services (EA) Pty Limited & Authentix Inc; Accounting Oficer; Energy and Petroleum Regulatory Authority & Another
    [2022] eKLR
  • Anarita Karimi Njeru versus Republic
    [1979] eKLR
  • Ostenah Ogero Taracha versus Ethics & Anti-Corruption Commission & Attorney General
    [2017] eKLR
  • Mumo Matemu –vs- Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
Jurisdiction invoked
Article 10(2), Article 47, Article 62(2), Article 67(2)(a) and Article 201(d) of the Constitution (constitutional petition jurisdiction)

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, "Mebarne & 109 others v County Government of Narok & 3 others (Environment & Land Petition E002 of 2023) [2024] KEELC 6542 (KLR)", Case Analysis (2024). Petition dated 3rd August, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6542/eng@2024-10-08

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