Kigathi & another v Attorney General & 4 others

4. It is stated that the report will assist the court in determining the issues in dispute, for it contains expert ndings, opinions and conclusions that are material, relevant and directly pertinent to the fair and just determination of the matters in dispute. 5. Further, the petitioners depose that the report substantially supports their case regarding their legitimate rights, interests and entitlements and that no prejudice will be occasioned to the respondents if leave were to be granted in the interest of justice. 6. The petitioners rely on written submissions dated 20.11.2025 isolating two issues for the court's determination. It is submitted that the leave being sought has arisen out of the respondents' conduct in ling a replying adavit that has introduced new matters and allegations that they could not reasonably have anticipated. Reliance is placed on Raila Odinga and others vs IEBC & others (2013) eKLR. 7. The petitioners submit that if denied the opportunity, they will suer grievous injustice contrary to the rules of natural justice and procedural fairness. Reliance is placed on Msagha vs Chief Justice & others (20026) 2 KLR 553. 8. The petitioners submit that the surveyor's report is credible and material to the just determination of the petition as to the factual basis underlying the amended petition and goes to the very heart of the right to a fair trial. 9. The petitioners rely on Mohamed Abdi Mohamed vs Ahmed Abdullahi Mohammed & others (2018) eKLR, on the considerations a court has to take into account on the adduction of additional evidence. 10. The petitioners submit that the surveyor’s report contains, inter alia, the survey record, legal status, physical inspection, development status and approvals relating to the suit property, which go directly to the facts underlying the petition and the dispute before the court. 11. The 3rd and 5th respondents oppose the application on the grounds of opposition dated 8.10.2025 that; i. That the application lacks merits are frivolous, vexatious and an abuse of the court process. ii. The suit is an old matter. iii. It is misconceived, bad in law, defective and lacking substance. iv. It seeks to hoodwink the court and delay the matter. v. The replying adavit does not raise any new matters. vi. The application is unnecessary and a waste of the court's time. vii. It is brought in bad faith. 12. On the other hand, the interested party supports the application through written submissions dated 14.7.2026 in view of the issues raised by the 3rd and 5th respondents in the aforementioned grounds of opposition. 13. The interested party takes issue with the replying adavit by Major Patrick Maina Ngatia on behalf of the 3rd and 5th respondents as it goes beyond the scope of the issues raised in the amended petition and was also led one year after the amended petition was led and served, close to the hearing date. For instance, the interested party submits that annexure marked PMN (II) is inadmissible under section 106A and 106B of the Evidence Act, and contains various factual inaccuracies as to the actual location of key estates, hospitals and installations such as Donholm, Buruburu phase 2 and Moi Air Base ,whose https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5756/eng@2026-09-23 2

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coordinates are allegedly mis-explained in annexure marked PMN (2) to obscure the actual size of the Moi Air Base. 14. The interested party submits that annexure marked PMN (3) is not in fact what it purports to be and has curiously omitted to attach legal notice No. 309 of 1961 as an exhibit. 15. The interested party submit that annexures PMN (4) and (5) are incomplete, as they omit to give the survey plan, number, name and signature of the surveyor who made it or the date of preparation of the deed plan. 16. Further, it is submitted that the attached certicates of title lacks a registration unit of (land registry) at which it was issued nor the date when it was issued. 17. The interested party submits that the alleged justication by the respondents to demolish buildings surrounding the Moi Air Base as posing a security ight risk does not address key issues, namely: i. How did the government agencies issue grants to the petitioners or allow them to charge the properties or consent to the same, or stamp the charge, or receive revenue from the interested party or continue to collect rates and land rents or assess the stamp duty payable or why only target some buildings or why has it not taken action against the residents of buildings who are described as aliens with suspicious motives? 18. The interested party submits that the alleged national security risk by the respondents in the circumstances remains a mere excuse and a ruse to avoid the consequences of the respondents' failure to accord the petitioners due process or compensate them. 19. The interested party submits that annexures marked PNM (8) lack compliance with the law, while PNM(a) has no probative value. 20. The interested party submits that annexures marked PMN (10) & 11 lack evidence of when the distribution occurred or the date on which the notice was served. 21. The interested party submits that since the Physical Planning Act 1996 became operational on 29.10.1998, it was therefore not in force when annexure marked PMN (11) was allegedly written meaning that such an Act cannot apply retrospectively. 22. The 3rd and 5th respondents rely on written submissions dated 24.11.2025. It is submitted that, taking into account the doctrine of nality of litigation and the principle of exercising judicial authority without unreasonable delay, the orders sought should not be allowed; the application is brought in bad faith to delay the matter and is a waste of the court’s time. Reliance is placed on Moses Lord Lenchasho vs Lentage Ole Sentila & others (2025) eKLR, citing with approval Mohamed Abd Mohamed vs Ahmed Abdullahi Mohamed & others (2018) eKLR on proportionality and the prejudice of allowing production of additional evidence. 23. Before determining whether or not to allow the petitioners to le additional material in support of the amended petition, it is important to put the application in context. The initial petition was led on 27.7.2022. The cause of action is based on an alleged demolition of the subject property belonging to the petitioners on 22/11/2011 by the respondents. 24. The court record shows that after the respondents were served with the petition, they sought on 23/1/2013 to hear the petition through viva voce evidence. The respondents were given 21 days to respond to the petition. Time was later extended on 12.2.2013 for the respondents to comply. As of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5756/eng@2026-09-23 3

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19.2.2013, the respondents had not complied. Only the interested party had complied. Another 14 days to comply on 14.3.2013 was granted by the court. 25. An application was later led to stay the matter as the court was asked to appoint an arbitrator. The court, in a ruling dated 17.3.2022, declined to grant the reliefs sought. 26. On 23.6.2022, the petitioners at a case conference raised the issue of a report on valuation. 27. A hearing date for 29.6.2022 was issued. Before the hearing could commence, an application dated 21.6.2013 was led for entry of judgment on alleged admission of liability through a response by the 3rd and 5th respondents dated 6th March 2013. By a ruling dated 29.2.2024, the application was dismissed. 28. Thereafter, the petition was set for hearing but could not take place after an application to amend it was led on 16.7.2024. The same was allowed by consent on 24.9.2024. The respondents and the interested party were then given 14 days to serve their responses to the amended petition dated 1.10.2024. The respondents then sought to le a replying adavit after the amended petition was served upon them. They were to do so before the hearing date of 29.10.2024. 29. The petition could not proceed on 19.3.2025 and was adjourned to 2.10.2025. It could not proceed due to the instant application. Learned counsel for the 3rd and 5th respondents also conceded to ling the replying adavit in issue late. 30. The 3rd and 5th respondents in the initial replying adavit had annexed several documents among them an area map, marked VP1; survey map of K40 (VP 2), gazette notice No. 309 OF 1961 (VP 3); PDP map marked VP (4); an Allotment Letter (VP 5); lead story in Daily Nation VP1 (6); photos (VP 8) & (8), request for approval of construction (VP 9) and lastly deliberations made at the air force (VP 10) attached to the replying adavit. 31. Further, in the replying adavit to the application for referral to arbitration sworn on 6.3.2020, the deponent, one Major George Moses Otieno, had stated at paragraph 9 that all parties had led their pleadings and therefore the referral was going to violate the 3rd and 5th respondents’ rights to a fair hearing and expeditious disposal of the matter. 32. Looking also at another replying adavit sworn by Vincent Pera from the court record, it shows on its face that the petitioner’s lawyers had received it on 8.3.2013. The adavit is also referred to and annexed to the replying adavit of Major George Moses Otieno sworn on 23.8.2018 as annexure marked Gmo (1). 33. The petitioners, in the adavit of James Michael Ndunga Kigathi sworn on 23.10.2017, at paragraph 10, also referred to the replying adavit of 6.3.2013 by the 3rd and 5th respondents as annexure marked JMK (6), as a basis for seeking judgment on admission, alleging that the respondents had taken responsibility for the demolition and destruction. 34. In the amended petition pursuant to leave granted on 24/9/2024, the petitioners introduced the value of the suit property. Paragraphs m(a), m (b), (v), P (c), (d), (9) and the reliefs sought also raised, inter alia, new issues not captured earlier in the primary petition. 35. Looking further at the replying adavit sworn on 8.9.2025 by Major Patrick Maina Ngatia, it attached PMN (1), (2) & (3) previously annexed as VP (1), (2) & (3) in the 2013 replying adavit in paragraphs 13 & 14. It also introduces annexures PMN (4) and PMN (5) dated 2002 respectively, which were not in the earlier replying adavit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5756/eng@2026-09-23 4

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36. The court also notes that the averments in paragraphs 16, 17, 18, 19, 20, 21, 22 and 23 of the replying adavit and is also similar to the earlier adavit, save that annexures marked PMN (6), (7), (8), (9), (10) and (11) had not been disclosed in 2013. 37. Paragraphs 25, 26, 27, 28, 29, 30 – 38 of the replying adavit appear as to be modications of the earlier adavit. 38. Based on the foregoing observations in relation to the pleadings, the question is whether the petitioners are entitled to leave to put in a survey report and, if so, whether the respondents will be prejudiced. 39. It is trite law that a constitutional violation cannot be made in a factual vacuum and that an unsupported hypothesis cannot ground a constitutional petition without being supported by either adavits, documentary evidence, or proof of violation, as was held in Leonard Otieno of Vs Airtel (K) Ltd (2013) eKLR. 40. In CCK & others vs Royal Media Services Ltd & others (2014) eKLR, the court held that a party invoking Article 22 (i) of the Constitution has to show, inter alia, the basis of his grievance and manifestation of the contravention. 41. In Gwer & others vs Kemri and others (2020) KESC 66 (KLR), the court underscored the principle that the burden of proof lies with the party alleging a constitutional violation, who in law remains with the burden to place sucient evidence before the court, as was also the case in Wamwere and others vs Ag (2023) KESC 3 (KLR). 42. In Mwakaneno vs Registrar of Titles Mombasa & others Civil Appeal E104 of 2022 (2026) KECA 296 (KLR) (20th February 2026) (Judgment), the court termed the contents of the petition as unsubstantiated for lack of any scintilla of evidence substantiating its factual foundation upon which the court could interrogate or determine the alleged constitutional violation. 43. In the Freedom Ltd vs Omar Awadh Mbarak Petition Application No. E009 of 2024, the court rearmed with approval the principles in Mohamed Abdi Mahamud case (supra) on leave to adduce additional evidence. 44. Looking at the pleadings on record and, more particularly, taking into consideration the late ling of fresh documents attached to the 3rd and 5th respondents' replying adavits, on the eve of the hearing, the court nds no merit in the grounds of opposition by the respondents. 45. Accordingly, the court, based on the concepts of equality of arms, interest of justice and proportionality, nds that the petitioners are entitled to leave to le a supplementary adavit to answer the new issues raised in the replying adavits. 46. The intended survey report by the petitioners meets the criteria in the Mohammed Abdi Mahamud case (supra). It is relevant to the issues before the court. It would be useful for the just determination of the issues at hand. It is not voluminous to make it dicult or impossible for the respondents to respond eectively. The respondents will not be prejudiced in any way. 47. The upshot is that the application dated 8.9.2025 is allowed. The petitioners are granted 21 days to le a further adavit restricted only to the issues raised in the replying adavit by the 3rd and 5th respondents. 48. Given the earlier directions that the matter be heard viva voce, the parties are directed to le and exchange paginated trial bundles within 30 days from the date hereof. Parties to agree on issues for determination before the date of case conference. 49. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5756/eng@2026-09-23 5

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DATED, SIGNED AND DELIVERED THIS 23RD DAY OF SEPTEMBER 2026 ……………………………… HON. JUSTICE C.K NZILI JUDGE In the presence of: Gecage for Karugu for the petitioner. Miss Kiuga for 3rd & 5th respondents . Mr. kamau for 1st, 2nd & 4th respondent Waigwa for Nderitu SC for the interested party. C/A: Julius https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5756/eng@2026-09-23 6

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