Mbithi & 305 others v Buruchara & 17 others; Mohamed & another (Interested Parties) (Environment and Land Petition E012 of 2022) [2025] KEELC 7785 (KLR)
The bottom line
#A land rights petition covering 300 people collapsed because the six named petitioners never filed written authority to sue on behalf of the group.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioners had authority to file a representative suit.
- 2.Whether the petitioners have proved their rights to dignity and property protected under Articles 28 and 40 of the Constitution had been violated by the respondents.
- 3.Whether the 11th respondent proved his rights to property protected under Article 40(1) of the Constitution had been violated by the petitioners.
- 4.What orders should be made concerning the petition, including an order on costs?
Key legal issues
#Authority to institute a representative suit
The petition was incompetent because the six petitioners, purporting to sue for themselves and 300 others, produced no written authority signed by those they claimed to represent; the deponent of the supporting affidavit was also a stranger to the pleadings.
Order 1, Rules 13(1) and 13(2) of the Civil Procedure Rules require written authority, signed by each represented person and filed in court, before nominated persons can act representatively. The Court of Appeal in Kenya Trypanosomiasis Research Institute v Gusinjilu was cited for this proposition. Since no such authority was filed, the petition was fundamentally defective and susceptible to being struck out; costs followed the event.
Alleged violation of Articles 28 and 40 (dignity and property)
Not reached on the merits; the petition was struck out as incompetent before determination of the substantive constitutional claims.
Although the court framed the violations question as an issue for determination, the finding on the absence of representative authority disposed of the matter. The court noted that costs follow the event and struck out both the petition and the cross-petition, without making findings on the alleged fraudulent registrations, communal land claims, legitimate expectation or pre-emption rights.
The 11th respondent's cross-petition under Article 40(1) and Section 26 of the Land Registration Act
Struck out together with the petition, with the 11th respondent bearing his own costs.
The 11th respondent claimed to be a bona fide purchaser for value of LR No. 21736 and sought declarations, an injunction and general damages. The cross-petition, being part of the same incompetent representative proceedings, suffered the same fate as the petition and was struck out, with each side bearing its own costs as between the petitioners and the 11th respondent.
Legal principles established
#- A party who sues or acts in a representative capacity must produce and file a written authority signed by the persons on whose behalf they claim; without it the suit is incompetent and liable to be struck out.
Court orders
#- 1.That the petition and cross-petition are hereby struck out, with the petitioners and 11th respondent bearing their respective costs.
- 2.That David Mbithi, John Parkesui, Simon Kosen, Patrick Makau, Solomon Ting'a and Mutete Pasere shall jointly and severally personally bear the 10th respondent's and 2nd interested party's costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010, Articles 28 and 40 (property and dignity rights); petition filed as an original constitutional petition
Relief refused
#All reliefs sought in the petition (declarations that the Mavoko suit properties are communal land, cancellation of titles, permanent injunction, pre-emption rights, and security/protection orders) and the reliefs sought in the 11th respondent's cross-petition
The suit was a representative action by six petitioners purporting to act for 300 others, but the mandatory written authority under Order 1, Rule 13 of the Civil Procedure Rules was never produced or filed, rendering the petition and cross-petition fundamentally flawed and incompetent
Costs
Petition and cross-petition struck out with the petitioners and 11th respondent bearing their respective costs; the six named petitioners shall jointly and severally personally bear the 10th respondent's and 2nd interested party's costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Following this, the court finds the petition and cross-petition incompetent. Costs follow the event; thus, the petition and cross petition are hereby struck out with the petitioners and 11th respondent bearing their respective costs.
That David Mbithi, John Parkesui, Simon Kosen, Patrick Makau, Solomon Ting'a and Mutete Pasere shall jointly and severally personally bear the 10th respondent's and 2nd interested party's costs.
The authority must be given in writing by each of the other plaintifi and the authority must be filed in court.
Issues in the judgment
#The supporting affidavit deponent is described as holding authority to plead but that authority was not presented; the deponent's name appears only in the affidavit and not in the amended petition.
The case number and neutral citation are not stated anywhere in the judgment text provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi & 305 others v Buruchara & 17 others; Mohamed & another (Interested Parties) (Environment and Land Petition E012 of 2022) [2025] KEELC 7785 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7785/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.