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ELCDismissedELC Petition (Machakos) – notice of motion dated 7/02/2024 (petition filed 7/03/2022)

Barasa & 30 others v Anglican Church of Kenya (ACK) Lower Riverside Church & 5 others (Environment & Land Petition E003 of 2022) [2025] KEELC 4015 (KLR)

Environment and Land Court
27 May 2025
1,499 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a liquidator's evidence, confirming fair hearing rights outweigh premature attempts to remove opposing evidence.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 7/02/2024 by the petitioners in an Environment and Land Court petition at Machakos, invoking Article 25(c) of the Constitution. The petitioners sought to expunge and strike out the replying affidavit sworn on 6/06/2022, witness statement and letter dated 21/11/2022 of Peter Wanjohi Kiama, who allegedly acted as the 2nd respondent's liquidator, and to compel the 1st and 2nd respondents to file a fresh list and bundle of documents. They argued that the gazette notice placing the 2nd respondent under liquidation was revoked on 15/07/2022, cancelling Peter's appointment and hence his locus; they also alleged that despite an injunction in Co-operative Tribunal Case No. 720 of 2016, Peter illegally transferred two Mavoko Town Block parcels to the 1st respondent. Only the 1st respondent opposed, through the affidavit of Rev. Peterson Kithaka Francis, noting that the 2nd respondent's registration cancellation was lifted on 6/07/2022 and that Peter needed to testify to rebut the evidence of Paul Barasa. Koross J framed a single issue: whether the motion was merited. The court held that the reliefs negated the very essence of Article 25(c): striking out the evidence would deny the respondents the non-derogable right to fair trial underpinned by Article 50 and natural justice. Peter had capacity under Section 66 of the Co-operative Societies Act when the petition was filed on 7/03/2022, and his credibility could be tested at trial under Section 154 of the Evidence Act, making the challenge premature. The motion was dismissed with costs to the 1st respondent only. Delivered at Machakos on 27 May 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petitioners' notice of motion dated 7/02/2024 seeking to expunge and strike out the documents of Peter Wanjohi Kiama is merited

Key legal issues

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01

Whether the motion to expunge Peter Wanjohi Kiama's documents was merited

Holding

The motion was dismissed; the reliefs were misplaced because they would breach, rather than uphold, Article 25(c) of the Constitution

Reasoning

The court held that fair trial rights apply in both criminal and civil processes and exist to ensure a litigant is not denied the opportunity to present its case effectively. Disallowing the liquidator's evidence would deny the 1st and 2nd respondents a non-derogable constitutional right. Peter had locus as liquidator when the petition was filed under Section 66 of the Co-operative Societies Act, and his credibility could be tested at trial.

p. 4
02

Whether challenges to a liquidator's capacity and credibility can be determined at an interlocutory stage

Holding

No – the challenge was premature; credibility is a matter for trial under Section 154 of the Evidence Act

Reasoning

The court found the revocation of the gazette notice on 15/07/2022 did not retrospectively remove Peter's authority at the time the petition was filed, when he was properly the liquidator. Questions about his conduct and credibility were matters for cross-examination at trial, not for striking out his evidence in advance.

p. 4

Legal principles established

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  • A liquidator appointed under the Co-operative Societies Act has capacity under Section 66 to institute and defend legal proceedings by and on behalf of the society in his own name or office, and his capacity is assessed as at the time the petition was filed
  • Striking out a party's evidence offends the right to a fair hearing under Article 50 and the non-derogable right to fair trial under Article 25(c); a party's credibility is a matter for trial, not interlocutory striking out

Court orders

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  1. 1.The petitioners' notice of motion dated 7/02/2024 is dismissed
  2. 2.Costs of the motion awarded to the 1st respondent; no costs to the other respondents as they did not participate

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 25(c) of the Constitution of Kenya; Co-operative Societies Act (Section 66; 1st Schedule paragraph 26); Evidence Act (Section 154)

Relief refused

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Expungement and striking out from the record of Peter Wanjohi Kiama's replying affidavit sworn 6/06/2022, witness statement and letter dated 21/11/2022

The reliefs sought negate the essence of Article 25(c); striking out the evidence would deny the respondents the non-derogable right to a fair trial under Article 50

p. 4

Direction that the 1st and 2nd respondents file a fresh list and bundle of documents excluding the expunged documents

It was absurd for the petitioners to seek to control and dictate the 1st respondent's evidence; the motion was found wholly unmerited

p. 3

Costs

Motion dismissed with costs to the 1st respondent; costs not awarded to the other respondents as they did not participate in the proceedings

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, this court has no dificulty in finding the petitioners' notice of motion dated 7/02/2024 is not merited and it is hereby dismissed with costs to the 1st respondent. As the other respondents did not participate in the proceedings, costs are not awarded to them.
p. 4Disposition – dismissal of the motion and costs
This court is convinced that disallowing these shreds of evidence by Peter will deny the 1st and 2nd respondents a right fair trial, which is a non-derogable right under the Constitution.
p. 4Right to fair trial under Article 25(c)
At that time the petition was filed on 7/03/2022, Peter was the 2nd respondent’s liquidator. Therefore, by the provisions of Section 66 of the Co-operative Societies Act, he had the capacity to institute and defend suits and other legal proceedings by, and on behalf of, the 2nd respondent in his own name or ofice.
p. 4Capacity of a liquidator to litigate
the striking out of the 1st and 2nd respondents’ documents goes against the tenets of the right to a fair hearing, which is underpinned in Article 50 of the Constitution.
p. 4Fair hearing under Article 50

Issues in the judgment

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minor

The petitioners' affidavits are dated 7/02/2024 and 4/02/2025, and submissions dated 4/02/2025 and 6/03/2025, yet the court describes the second supporting affidavit as 'respectively deposed' – the chronology spans over a year for a single motion, though not internally contradictory

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, "Barasa & 30 others v Anglican Church of Kenya (ACK) Lower Riverside Church & 5 others (Environment & Land Petition E003 of 2022) [2025] KEELC 4015 (KLR)", Case Analysis (2025). ELC Petition (Machakos) – notice of motion dated 7/02/2024 (petition filed 7/03/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4015/eng@2025-05-27

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