Mariba & 4 others v Cabinet Secretary, Ministry of Lands and Physical Planning & 3 others (Constitutional Petition 2A of 2021) [2026] KEELC 1478 (KLR)

Rule 11(4) of the Mutunga Rules provides a petition 'may' be supported by an affidavit. The court found the wording permissive, not mandatory, and guided by Article 159(2)(d) on substantive justice held the defect was not fatal. An affidavit's purpose is to present evidence; its absence does not of itself doom the petition, though here the failure to depone to evidence later proved decisive.

While the petition set out the constitutional provisions said to be infringed, the Petitioners offered no proof that the 2018 joint demarcation exercise took place, supplying only a valuation report showing the effect (value of lost property) rather than evidence of the cause. Pleadings are not evidence; the absence of sworn depositions or government documentation on the exercise meant the court could not determine the alleged violations.

Applying sections 107 and 109 of the Evidence Act, the burden lay on the Petitioners to prove the facts asserted. The court took judicial notice under section 60(1)(h) that the Kenya-Tanzania boundary is a known geographical division unchanged in the recent past, and noted Article 5 and Article 255(1)(b) on alteration of territory. No tender of evidence of interference with boundaries was made.