Kassam & 12 others v Shah & 16 others (Environment & Land Petition E007 of 2024) [2025] KEELC 3847 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 4th Respondent should be compelled to provide legible building plans
The plea was moot as the drawings had been re-submitted in pdf format and were relied on by the Petitioners' own architect
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.
Whether the Petitioners should be granted access to the suit properties to take measurements
Access was refused; the request falls outside Article 35 and offends the burden of proof rule
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 24th February, 2025 is dismissed without costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.