Kigathi & another v Attorney General & 4 others
The bottom line
#Kenya's Environment and Land Court allowed landowners to add a surveyor's report as evidence after state agencies introduced new documents late.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted to file a surveyor's report as additional evidence
Leave granted; the report meets the Mohamed Abdi Mahamud criteria and no prejudice results to respondents.
The court noted the respondents filed fresh documents and a replying affidavit late, on the eve of hearing, introducing new matters. Applying equality of arms, interest of justice and proportionality, the petitioners must be allowed to respond. The report is relevant, useful, not voluminous, and respondents can respond effectively.
Burden of proof in constitutional petitions
The burden lies on the party alleging a constitutional violation to place sufficient evidence before the court.
Relying on Gwer v Kemri, Wamwere v AG, CCK v Royal Media Services and Mwakaneno, the court reaffirmed that a petition must be supported by affidavits or documentary evidence; unsubstantiated factual foundations cannot sustain a claim of constitutional violation.
Legal principles established
#- A constitutional violation cannot be established in a factual vacuum; allegations must be supported by admissible evidence.
- Leave to adduce additional evidence is assessed on relevance, usefulness to just determination, manageability and absence of prejudice.
Court orders
#- 1.The application dated 8.9.2025 is allowed
- 2.Petitioners granted 21 days to file a further affidavit restricted only to the issues raised in the replying affidavit by the 3rd and 5th respondents
- 3.Parties directed to file and exchange paginated trial bundles within 30 days from the date of the ruling
- 4.Parties to agree on issues for determination before the date of case conference
- Jurisdiction invoked
- Original constitutional petition jurisdiction of the Environment and Land Court (Article 162(2)(b) and Article 22/23 of the Constitution, as invoked by the parties' pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigathi & another v Attorney General & 4 others", Case Analysis (2026). Enviromental and Land Originating Summons 968 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5756/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.