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ELCDismissed

Mwenda & another v Mung’athia & 4 others (Land Case Petition E011 of 2024) [2026] KEELC 2094 (KLR)

Environment and Land Court
13 April 2026
1,568 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru refused to send officials to collect land evidence for petitioners, ruling that gathering evidence is the parties' own job.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (B M Eboso, ELC Judge) determines a notice of motion dated 26/11/2025 filed by the petitioners in a constitutional petition lodged in July 2024. The petition challenges the ruling of the Cabinet Secretary, acting through the Deputy County Commissioner, Igembe Central, delivered on 20/11/2020 in Appeal Case No 421 of 2015, on the ground that the Cabinet Secretary entertained a statute-barred appeal out of time against decisions of the District Land Adjudication and Settlement Officer made on 4/11/2011, and thereby acted ultra vires. Earlier, on 14/5/2025, the court had directed that the petition be canvassed by affidavit evidence and written submissions. By the motion, the petitioners sought an order directing the Land Registrar, Igembe Central, to visit the locus in quo on the suit parcels to ascertain ground occupation vis-à-vis the registry index maps, and an order requiring the Sub-County Land Surveyor to prepare and file a ground verification report within seven days. They argued that the Minister's delegatee had made the impugned ruling without a ground verification report, infringing their right to property. The 1st respondent opposed, contending that the issues were constitutional rather than about acreage, that the applicants sought to fill gaps in their case, and that a site visit would waste judicial time. The court identified a single question: whether a proper case was made for the orders sought. Applying Rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and Article 50 of the Constitution, the court held that gathering evidence is the parties' responsibility, and directing the Registrar and Surveyor would compromise its impartiality. The application was dismissed with costs to the applicants.

Questions the Court framed

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

  1. 1.Whether a proper case has been made to warrant the orders sought in the application dated 26/11/2025, namely a direction to the Land Registrar to visit the locus in quo and an order that the Sub-County Land Surveyor prepare and file a ground verification report

Key legal issues

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01

Whether the court should direct a site visit by the Land Registrar and a ground verification report by the Sub-County Land Surveyor in a constitutional petition

Holding

The application was dismissed; the court cannot gather evidence for a party, as this would compromise its impartiality under Article 50

Reasoning

The court held that under Rule 20 petitions under the Bill of Rights are heard by affidavits, written submissions or oral evidence, with discretion on the court. Inviting the court to direct the Land Registrar and Sub-County Land Surveyor to collect ground-verification evidence would cast the court in a partisan role inconsistent with Article 50's guarantee of an independent and impartial tribunal. The responsibility to gather evidence lies with the parties. The application was therefore dismissed with costs to the applicants.

p. 4

Legal principles established

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  • The responsibility to gather evidence and place it before a court seized of a constitutional petition is that of the parties; it is not within the province of the court to undertake the partisan role of gathering evidence to bolster or weaken a party's case
  • Hearing of petitions under the Bill of Rights is governed by Rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, which allows hearing by affidavits, written submissions or oral evidence, and empowers the court to call witnesses on its own motion

Court orders

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  1. 1.The application dated 26/11/2025 is rejected and dismissed for lack of merit
  2. 2.The applicants shall bear the costs of the application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Bill of Rights jurisdiction under the Constitution, governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

Relief refused

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Order directing the Land Registrar, Igembe Central, to visit the locus in quo (Athiru/Ruuujine/Ndoleli/1372, 1371, 1817 and 2016) to ascertain ground size occupation vis-à-vis the registry index maps

The court cannot assume the partisan role of gathering evidence for a party; the responsibility to gather and place evidence before the court is that of the parties

p. 4

Order directing the Sub-County Land Surveyor, Igembe Central, to prepare a ground verification report and file it in court within seven days

Same reasoning; no proper case made for the orders sought

p. 4

Costs

The applicants shall bear costs of the application

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.

The responsibility to gather evidence and place the evidence before a court seized of a constitutional petition is that of the parties to the petition; it is not within the province of the court to undertake the partisan role of gathering evidence that would bolster or weaken the case of a party to a petition.
p. 4impartiality of the court; party responsibility for evidence
For the above reasons, the court comes to the finding that no proper case has been made to warrant issuance of the orders sought in the application dated 26/11/2025. The result is that the said application is rejected and dismissed for lack of merit. The applicants shall bear costs of the application
p. 4disposition - dismissal of the application and costs

Issues in the judgment

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minor

The judgment's case title/number is not stated in the text provided; the case number is unascertainable from the judgment

minor

The 1st respondent's written submissions are dated 20/1/2025 while the supporting chronology suggests they should post-date the affidavit of 9/12/2025, suggesting a typographical error

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, "Mwenda & another v Mung’athia & 4 others (Land Case Petition E011 of 2024) [2026] KEELC 2094 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2094/eng@2026-04-13

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