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ELCDismissedPetition dated 28th March 2024 (Notice of Motion dated 24th February 2025)· [2025] KEELC 3847 (KLR)

Kassam & 12 others v Shah & 16 others (Environment & Land Petition E007 of 2024) [2025] KEELC 3847 (KLR)

Environment and Land Court
15 May 2025
3,747 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court refused to force a property owner to hand over plans or allow site access, ruling litigants must prove their own cases.

What this practically means

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Executive summary

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The Petitioners moved the Environment and Land Court in Nairobi by Notice of Motion dated 24th February 2025 seeking two orders: that the 4th Respondent be compelled to produce building plans with legible measurements in DWG or legible PDF format for developments on L.R Nos 209/871/11 and 209/871/14, City Park Drive, Parklands; and that upon production, the Petitioners be granted access to the properties to take measurements and compile a compliance report. The application invoked Article 35(1)(b) of the Constitution and Order 16 Rule 1 of the Civil Procedure Rules. The 4th Respondent opposed, arguing it had already supplied the plans in PDF format, that Order 16 Rule 1 does not lie against an adverse party, and that the request was a fishing expedition inconsistent with the Petitioners' burden of proof. The court framed two issues. On the first, it found the plea moot: the 4th Respondent had re-submitted the drawings in pdf format, the Petitioners admitted receipt, and their architect relied on them in a report. The court also declined to consider the site and deed plans for Plot 209/871/14, holding parties bound by their pleadings. On the second issue, the court held Article 35 protects access to pre-existing records, not the creation of new evidence by surveying private property, and that the Petitioners, who bore the burden under Sections 107 and 109 of the Evidence Act, could not prosecute their Petition piecemeal. Angote J dismissed the Notice of Motion on 15th May 2025 without costs.

Key legal issues

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01

Whether the 4th Respondent should be compelled to provide legible building plans

Holding

The plea was moot as the drawings had been re-submitted in pdf format and were relied on by the Petitioners' own architect

Reasoning

The court examined the annexures and found the 4th Respondent re-submitted the drawings in pdf format save for the Greenview Apartments drawings, which were now on the record. The Petitioners admitted receipt and forwarded the plans to their architect whose report relied on them. Legibility complaints were therefore rendered moot and the prayer unmerited.

p. 6
02

Whether the Petitioners should be granted access to the suit properties to take measurements

Holding

Access was refused; the request falls outside Article 35 and offends the burden of proof rule

Reasoning

Article 35 protects access to pre-existing information or records, not the creation of new evidence by surveying private property. Having pleaded violations, the Petitioners bear the burden under Sections 107 and 109 of the Evidence Act and cannot use the court as a tool for evidence gathering. The court declined to be drawn into fishing expeditions.

p. 7

Legal principles established

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  • The right of access to information under Article 35 binds not only public bodies but also private entities where the information is required for the exercise or protection of a right
  • Reliance on a wrong procedural provision does not in itself render a motion incompetent
  • Order 16 Rule 1 applies to summoning witnesses to give evidence or produce documents and does not lie against an adverse party to compel production
  • A party alleging facts bears the burden of proving them and cannot compel an adverse party to facilitate evidence gathering on private property

Court orders

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  1. 1.The Notice of Motion dated 24th February, 2025 is dismissed without costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35(1)(b)
  • Constitution of Kenya, 2010Article 24
  • Civil Procedure Act, 2010Sections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 16 Rule 1
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 11
  • Evidence ActSections 68(1)(a), 69, 107, 109
  • Access to Information Act No. 31 of 2016Sections 4, 6(1)(g)

Cases cited (9)

  • Kimalit vs Laikipia University
    (Cause 44 of 2019)[2023] KEELRC 30 (KLR)
  • Nyanza Management Limited and Anor vs National Bank of Kenya Limited & 3 Others
    (Commercial Case 68 of 2018)[2023] KEHC 19329 (KLR)
  • Lustman & Co (1990) Limited vs Corporate Business Centre & 4 Others
    [2022] KEHC 42 (KLR)
  • Jack Mukhongo Munialo & 12 Others vs Attorney General & 2 Others
    [2017] eKLR
  • Communication Commission of Kenya vs Royal Media Services and 5 Others
    [2014] eKLR
  • Rinascimento Global Limited & 12 Others vs Kenya Deposit Insurance Corporation and another (Chase Bank Kenya Limited (in liquidation) (Interested Party)
    [2022] KEHC
  • Edwin Harold Dayan Dande & 3 Others vs British American Investments Co (K) Ltd & Another
    [2019] eKLR
  • Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone
    [2013] eKLR
  • Nguma & 77 Others vs Katelembo Athiani Muputi Farming & Ranching Co-operative Society & 5 Others
    [2021] eKLR
Jurisdiction invoked
Articles 35(1)(b) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules

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, "Kassam & 12 others v Shah & 16 others (Environment & Land Petition E007 of 2024) [2025] KEELC 3847 (KLR)", Case Analysis (2025). Petition dated 28th March 2024 (Notice of Motion dated 24th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3847/eng@2025-05-15

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