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ELCStruck OutPetition dated 24/10/2018, filed 28/11/2018

Nathwani & another v Cabinet Secretary, Ministry of Transport Infrastructure Housing & Urban Development & 4 others (Petition 80 of 2018) [2025] KEELC 7971 (KLR)

Environment and Land Court
13 October 2025
2,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to force the Land Registrar to hand over property files, ruling parties must use proper legal channels like discovery or the Access to Information Act.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (J G Kemei, J) delivered virtually on 13 October 2025 on the petitioners' application dated 2 May 2025, brought under Articles 23(1), 25(c) and 50 of the Constitution and the Mutunga Rules. The petitioners, registered owners of LR No 21192, IR 68599 (0.44 ha at Kitisuru, Nairobi), seek an order compelling the 3rd Respondent, the Chief Land Registrar, to produce the deed file and correspondence file for the suit land. Their underlying petition alleges that their property rights under Article 40 were violated when the Government and the 2nd Respondent repossessed the land as a road reserve, allegedly acquired compulsorily in 1975, without compensation. The application was unopposed; the respondents filed no response or submissions despite directions. The court identified a single issue: whether the application was merited. Relying on Speaker of the National Assembly v Karume, Njonjo Mue, Trusted Society of Human Rights Alliance and IEBC v Mutinda Mule, the court held that the petitioners, having elected the Access to Information Act route, must follow its procedure, including complaint to the Commission on Administration of Justice or judicial review for mandamus. The request was, in substance, evidence gathering: the burden of proof lies on the claimant under Section 107(1) of the Evidence Act, the court is an impartial umpire in an adversarial system, and the documents are obtainable through legal mechanisms such as discovery from a party in possession. Allowing the application would shift the burden of proof. The application was struck out with costs to the Respondents.

Questions the Court framed

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

  1. 1.Whether the petitioners' application dated 2/5/25 seeking to compel the Chief Land Registrar to produce the deed and correspondence files is merited

Key legal issues

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01

Whether the court should compel the Chief Land Registrar to produce the deed and correspondence files for the petitioners

Holding

The application was unmerited and was struck out. The documents are in the hands of a party to the suit and are obtainable through established legal mechanisms; compelling their production would shift the burden of proof and drag the court into the arena.

Reasoning

The court held that our justice system is adversarial: a party controls its own case and bears the burden of proving it on a balance of probabilities under Section 107(1) of the Evidence Act. The reasons given by the applicants for seeking the files fell within evidence gathering. Having elected the Access to Information Act route, they must follow its procedure, including remedies of complaint to the Commission on Administration of Justice or judicial review for mandamus. The respondents' failure to respond did not justify enlisting the court as investigator.

p. 5

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed.
  • In an adversarial system, the burden of proof lies on the claimant and the court cannot assist a party to gather evidence to prove its case.
  • A party who elects to seek information under the Access to Information Act must comply with the procedure outlined in that Act.

Court orders

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  1. 1.The application dated 2/5/25 is unmerited and is struck out
  2. 2.Costs of the application to the Respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 23(1), 25(c) and 50 of the Constitution; Rules 3, 4, 5, 6 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Relief refused

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Order compelling the 3rd Respondent (Chief Land Registrar) to produce, avail and serve original copies of the deed file and correspondence file relating to LR No 21192, IR 68599

The request amounted to evidence gathering; under the adversarial system and the burden of proof rules, the court cannot assist a party in proving its case, and the petitioners have other legal mechanisms (including discovery) to obtain documents in the respondents' possession. The petitioners, having elected to invoke the Access to Information Act, must follow its prescribed procedure.

p. 5

Costs

It is hereby struck out with costs to the Respondents.

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.

In the end, the application is unmerited. It is hereby struck out with costs to the Respondents. It is so ordered.
p. 6Final orders striking out the application
The court remains an independent umpire to adjudicate the matter between the two parties. It cannot accept the invitation to enter the arena of litigation, lest it be accused of aiding one party to the disadvantage of another
p. 5Adversarial role of the court
where there is clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed.
p. 4Exhaustion of prescribed procedure
there are legal mechanisms for obtaining evidence, including that which is in the opponent's possession.
p. 5Discovery as the proper avenue

Issues in the judgment

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minor

Paragraph numbering restarts/duplicates in the analysis and orders sections (paragraphs 23, 24, 25 appear twice).

minor

Inconsistent dates for the petitioners' letters requesting the files: the grounds state letters 'dated 18/3/24 and 20/2/25' while the judgment elsewhere refers to '20/2/25 and 18/3/25'.

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, "Nathwani & another v Cabinet Secretary, Ministry of Transport Infrastructure Housing & Urban Development & 4 others (Petition 80 of 2018) [2025] KEELC 7971 (KLR)", Case Analysis (2025). Petition dated 24/10/2018, filed 28/11/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7971/eng@2025-10-13

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