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ELCStruck OutNot stated in the judgment as provided

Mbithi & 305 others v Buruchara & 17 others; Mohamed & another (Interested Parties) (Environment and Land Petition E012 of 2022) [2025] KEELC 7785 (KLR)

Environment and Land Court
11 November 2025
2,584 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Six petitioners, purporting to sue for themselves and on behalf of 300 others, petitioned the Environment and Land Court at Machakos seeking declarations that thirty parcels of land in Mavoko (LR Numbers 32202, 30031, 22884, among others) form part of communal land, that the respondents' title registrations were fraudulent and obtained without natural justice, that the petitioners held rights of pre-emption and legitimate expectation arising from government task forces (including the Saitoti and Karoney task forces), together with orders for cancellation of titles, permanent injunctions, and security from the police. Earlier, on 20/03/2025, claims against eleven respondents had been struck out, leaving the 10th and 11th respondents, the 2nd interested party and certain state respondents. The 10th respondent traced his title to LR No. 22886 through an allotment letter, payments, a deed plan and a certificate of title issued in 2020, treating the petitioners as trespassers. The 11th respondent claimed LR No. 21736 as an innocent purchaser for value since 1997 and cross-petitioned under Article 40(1) and Section 26 of the Land Registration Act. The 2nd interested party claimed LR Nos. 29431 and 29691 as a purchaser from the 1st and 4th respondents. Suo motu, the court raised the question of the petitioners' authority to file a representative suit. Applying Order 1, Rules 13(1) and (2) of the Civil Procedure Rules and the Court of Appeal's decision in Kenya Trypanosomiasis Research Institute v Gusinjilu, it held that no written authority signed and filed by the 300 represented persons existed, and that the supporting affidavit was sworn by a stranger to the pleadings. The petition and cross-petition were struck out as incompetent, with the petitioners and 11th respondent bearing their own costs, and the six named petitioners ordered to personally, jointly and severally bear the 10th respondent's and 2nd interested party's costs.

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 had authority to file a representative suit.
  2. 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. 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. 4.What orders should be made concerning the petition, including an order on costs?

Key legal issues

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01

Authority to institute a representative suit

Holding

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.

Reasoning

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.

p. 6
02

Alleged violation of Articles 28 and 40 (dignity and property)

Holding

Not reached on the merits; the petition was struck out as incompetent before determination of the substantive constitutional claims.

Reasoning

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.

p. 7
03

The 11th respondent's cross-petition under Article 40(1) and Section 26 of the Land Registration Act

Holding

Struck out together with the petition, with the 11th respondent bearing his own costs.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.That the petition and cross-petition are hereby struck out, with the petitioners and 11th respondent bearing their respective costs.
  2. 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

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

majority

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

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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

p. 7

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

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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.

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.
p. 7Disposition – striking out for lack of representative authority
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.
p. 7Personal costs order against the named petitioners
The authority must be given in writing by each of the other plaintifi and the authority must be filed in court.
p. 6Requirements for representative suits (quoting the Court of Appeal)

Issues in the judgment

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material

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.

minor

The case number and neutral citation are not stated anywhere in the judgment text provided.

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, "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.