Mbwese Mwinzi & 217 Others v Tana & Athi Rivers Development Authority & Another

residents of the aforementioned areas affected by the compulsory acquisition of land for the benefit of construction of Kiambere Dam. c. A declaration that the eviction of the Petitioners from the aforementioned areas pursuant to the eviction notice dated 16/02/2021 and Embu ELC Case No. 148 of 2017 is in violation of Article 1,2,3,47,258,259 of the Constitution of Kenya and sections 3,6,8,9,10 and 11 of the Land Acquisition Act. d. An order of injunction restraining the Respondents whether by themselves, assigns or any person claiming under them from carrying out any eviction of the Petitioners from the aforementioned areas unless a proper procedure for compulsory acquisition is undertaken. e. Any other relief the Court deems fit to grant as well as costs of the Petition. 2. The Petition was accompanied by a verifying affidavit sworn by Mbwese Mwinzi on 03/05/2021. He averred that the Petitioners are residents of Kithumuoni, Borrow Pit, Katithini, Katooni, Ikuuni, Kiomo, Kyethani areas of Ikongo, Mukonga, Kakuyu Katooni and Wikithuki Sub-locations of Mwingi North and Mwingi West Sub-counties within Kitui County, which border the Kiambere Dam on the Eastern and Southern sides. That in the early 1980s, the Government of Kenya embarked on the construction of Kiambere Dam as part of Page 2 of 6

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the Seven Forks Dams along the Tana River and approached the residents of the area with the intention of compulsorily acquiring their land for purposes of the project, indicating that all affected residents would be compensated. 3. He averred that whereas the 1 st Respondent purported to have made compensation against land to the affected families, most of the residents had denied having been compensated, while others stated that they were neither involved in the determination of the rates applicable to such compensation nor notified of the manner in which the rates were arrived at. He further averred that by letters dated 22/03/2004, 01/04/2004 and 02/07/2007, the Petitioners and their representatives sought a review of the process of compensation, raised concerns regarding the adequacy of the compensation and the failure to compensate certain parcels of land, but the requests elicited no response from the Respondents. That by a letter dated 16/02/2021, the 1 st Respondent issued an eviction notice addressed to members of the public while making reference to Embu ELC Case No. 148 of 2017, TARDA v Joseph Muli Mukuluta & Others, where orders for eviction were issued. He averred that none of the Petitioners were parties to the said suit. 4. He further averred that on 22/04/2021, the 1 st Respondent deployed youths who embarked on the demolition of buildings and dwelling houses at Borrow Pit Shopping Centre, leaving families homeless, and that the Respondents Page 3 of 6

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had continued with the demolitions on a day today basis since. He maintained that the threatened eviction and or eviction without adequate compensation violates their proprietary rights under Article 40 of the Constitution and Articles 2, 10 and 47 of the Constitution. He further averred that the failure to issue a notice specifically addressed to the Petitioners and their families had violated Sections 3, 6, 7, 8, 9 and 10 of the Land Acquisition Act, and that the application of the decree in Embu ELC Case No. 148 of 2017 to evict persons who were not parties to the suit violated Article 47 of the Constitution. 5. He also averred that the 1 st Respondent’s failure to provide information and particulars relating to the compulsory acquisition violates Article 35 of the Constitution and that the failure to conduct a valuation to determine the value of each parcel of land with the involvement of the Petitioners and affected residents violates Sections 9, 10 and 11 of the Land Acquisition Act. He averred that the Petitioners and their families had continued to occupy the parcels of land, had built permanent homes, schools and market centers and buried loved ones thereon, and had no other places to call home. 6. He annexed to the verifying affidavit a copy of an authority to plead and correspondence dated 22/03/2004, 01/04/2004, 02/07/2007 and 16/02/2021. Page 4 of 6

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7. By way of a response and opposition to the Petition, the 2 nd Respondents filed a replying affidavit sworn by L.N Kimuhu, the Land Registrar Embu on 29/01/2026. They averred that the Petitioners had not furnished the Land Registrar’s office with specific parcel numbers, land reference details, or individual titles corresponding to their alleged claims, and consequently, it had not been possible to isolate the properties said to be affected within the Registry records. They further averred that, under the Constitution of Kenya, 2010 and the Land Act, 2012, the mandate for compulsory acquisition of land and payment of compensation vests in the National Land Commission (NLC), and not the Land Registrar. That the role of the Land Registrar is largely administrative and limited to updating the land register upon receipt of formal instruments and notices from the National Land Commission indicating that compensation had been made and acquisition finalized, and that the Registrar neither determines nor participates in compensation decisions. They maintained that the Petition disclosed no actionable claim against the Land Registrar. They urged that the Court finds that no violation, omission, or commission could be attributed to their office and that the Petition be dismissed as against the 2nd Respondent with costs. 8. The parties agreed to canvass the Petition by way of written submissions. Although they were given an opportunity to do so, neither party filed submissions. The Court will therefore Page 5 of 6

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determine the Petition on the basis of the pleadings and affidavit evidence on record. 9. Having considered the Petition, the verifying affidavit, the documents annexed thereto and the replying affidavit filed on behalf of the 2nd Respondent, the issue for determination is whether the Petitioners are entitled to the reliefs sought. 10. The Petitioners' case is that their land was compulsorily acquired for the construction of Kiambere Dam in the 1980s, but that they were either not compensated or were inadequately compensated. They further contend that the 1 st Respondent subsequently issued an eviction notice dated 16/02/2021 pursuant to orders made in Embu ELC Case No. 148 of 2017, despite the fact that they were not parties to those proceedings. However, the Petitioners did not place before the Court evidence identifying the specific parcels allegedly acquired, the nature of their interests in those parcels, or the parcels they currently occupy. Likewise, no evidence was tendered to show that the land occupied by the Petitioners forms part of the land that was the subject of Embu ELC Case No. 148 of 2017. 11. Further, while the eviction notice is said to have been founded on the judgment in Embu ELC Case No. 148 of 2017, the Petitioners did not provide a copy of that judgment to the Court. The Court is therefore unable to ascertain the nature and extent of the orders made thereon, the land to which they relate, or whether the Petitioners fall within the Page 6 of 6

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category of persons affected by them. In the absence of such evidence, the Petitioners' claims remain unsubstantiated, and the Court is unable to determine whether the impugned eviction notice was unlawfully issued or whether the Petitioners' rights were violated as alleged. 12. The Court further notes that the authority to plead annexed to the Petition was signed only by the 2 nd, 3rd, 4th, 5th and 6th Petitioners. There is no other material demonstrating that all persons on whose behalf the Petition was brought authorized the institution of these proceedings which is contrary to Order 1 Rule 13 of the Civil Procedure Rules. 13. Ultimately, I find that the Petitioners have failed to prove, on a balance of probabilities, that the Respondents violated Articles 35, 40, 47 or any of the other provisions of the Constitution relied upon in the Petition. They have likewise failed to establish a basis for the grant of the orders of certiorari, prohibition and injunction sought. 14. merit Consequently, the Petition dated 03/05/2021 lacks and is hereby dismissed with costs to the Respondents. DATED, DELIVERED and SIGNED at EMBU this 24th Day of September, 2026. Page 7 of 6

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HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1.Petitioners/Advocate-absent 2. 1st Respondent/Advocate-absent 3. Mr. Kiongo for the 2nd Respondent-present 4. Ruth C/A Page 8 of 6

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