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ELCDismissedPetition dated 18/10/2023· [2025] KEELC 8111 (KLR)

Kenya Human Rights Commission & another v East Africa Portland Cement Company & another (Environment and Land Petition E004 of 2023) [2025] KEELC 8111 (KLR)

Environment and Land Court
18 November 2025
AKA. Y. Koross
2,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court dismissed a petition over home demolitions because the occupants brought no evidence to prove their rights were violated.

What this practically means

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Executive summary

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The petitioners, purporting to act for occupants of land parcel L.R. No. 10424, petitioned the court following demolitions and forced evictions allegedly carried out on 14/10/2023 by the 1st respondent, shortly after the court's 9/10/2023 decision in ELC Case No. 74 of 2014 declaring the 1st respondent the legitimate owner. They sought declarations that the demolitions violated the rights to dignity, access to information, protection of property and fair administrative action (Articles 28, 35, 40 and 47), a permanent injunction, a declaration of liability and compensation, alternatively damages. The 1st respondent, through its Company Secretary Florence Mitey, asserted registered ownership of about 4,298 hectares, denied harassment, and contended that occupants held no title and that adequate notices (a 19/12/2019 notice and a 3/07/2020 caveat emptor) had been issued. The court framed two issues: whether the petition met the legal threshold, and whether the violations were proved. Applying Rule 10 of the Mutunga Rules, Anarita Karimi Njeru and Mumo Matemu, it found the petition met the threshold as properly pleaded public interest litigation. However, under sections 107-112 of the Evidence Act and the Peter Ngari Kagume line of authority, the petitioners bore the burden of proving the violations. They adduced no evidence of the demolished structures, residents or those responsible; the 1st respondent denied the allegations and produced the notices. The petition was therefore dismissed with each party bearing their own costs. Judgment delivered at Machakos on 18 November 2025 by Hon. A. Y. Koross, Judge.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru threshold

Holding

The petition met the legal threshold; it identified the constitutional provisions violated and how, and was properly before the court as public interest litigation.

Reasoning

Rule 10 of the Mutunga Rules and Anarita Karimi Njeru require precision in pleading violations. Mumo Matemu tempers this: precision demands neither formulaic factual prescription nor formalistic utterance of provisions. The court found the petition disclosed the petitioners' case, legal grounds, specific constitutional provisions and the manner of violation, and was brought on behalf of occupants whose homes were demolished.

p. 5
02

Whether violations of Articles 28, 35, 40(1) and 47(1) were proved

Holding

Not proved; the petition was dismissed for want of evidence.

Reasoning

Under sections 107-112 of the Evidence Act the burden lay on the petitioners. They adduced no evidence: no witness statements, photographs, valuation or proof of the demolished structures, residents or those who carried out the demolition. The 1st respondent denied the allegations and produced evidence of notices issued in 2019 and a caveat emptor in 2020. Allegations denied on affidavit required tangible proof; the court cannot act on speculation.

p. 6

Legal principles established

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  • A petitioner alleging infringement of fundamental rights bears the burden of proving the violation with tangible evidence of probative value; where one side alleges and the rival denies, the alleg(er) must prove.
  • Precision in a constitutional petition does not require exactitude; the test is whether the court can define the issues, the provisions infringed and the manner of infringement.

Court orders

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  1. 1.The petition is hereby dismissed.
  2. 2.Each party shall bear their respective costs.
Jurisdiction invoked
Articles 22(1), 23, 20(3) and 258 of the Constitution (enforcement of Bill of Rights) read with Article 165; petition filed under Articles 28, 35, 40(1) and 47(1) of the Constitution

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, "Kenya Human Rights Commission & another v East Africa Portland Cement Company & another (Environment and Land Petition E004 of 2023) [2025] KEELC 8111 (KLR)", Case Analysis (2025). Petition dated 18/10/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8111/eng@2025-11-18

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