Mariba & 4 others v Cabinet Secretary, Ministry of Lands and Physical Planning & 3 others (Constitutional Petition 2A of 2021) [2026] KEELC 1478 (KLR)
The bottom line
#Five Kenyan landowners lost their constitutional claim over an alleged 2018 Kenya-Tanzania boundary demarcation because they proved only property value, not that the demarcation actually happened.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petition meets the threshold for a constitutional petition (including whether use of a verifying affidavit instead of a supporting affidavit renders it fatally defective)
- 2.Whether the Petition was pleaded with sufficient precision as required by Anarita Karimi Njeru
- 3.Whether the Petitioners discharged their burden of proving that the alleged 2018 joint Kenya-Tanzania boundary demarcation exercise took place and infringed their constitutional rights
Key legal issues
#Whether the use of a verifying affidavit instead of a supporting affidavit renders a constitutional petition fatally defective
It does not; Rule 11 is not mandatory and the court must eschew technicalities under Article 159(2)(d)
Rule 11(4) of the Mutunga Rules provides a petition 'may' be supported by an affidavit. The court found the wording permissive, not mandatory, and guided by Article 159(2)(d) on substantive justice held the defect was not fatal. An affidavit's purpose is to present evidence; its absence does not of itself doom the petition, though here the failure to depone to evidence later proved decisive.
Whether the petition met the Anarita Karimi Njeru threshold of precision
It did not; the particulars of the alleged demarcation were steeped in generalities and unsupported by any documentary evidence
While the petition set out the constitutional provisions said to be infringed, the Petitioners offered no proof that the 2018 joint demarcation exercise took place, supplying only a valuation report showing the effect (value of lost property) rather than evidence of the cause. Pleadings are not evidence; the absence of sworn depositions or government documentation on the exercise meant the court could not determine the alleged violations.
Whether the Petitioners discharged their burden of proof
They did not; decisions on constitutional violations cannot be made in a factual vacuum
Applying sections 107 and 109 of the Evidence Act, the burden lay on the Petitioners to prove the facts asserted. The court took judicial notice under section 60(1)(h) that the Kenya-Tanzania boundary is a known geographical division unchanged in the recent past, and noted Article 5 and Article 255(1)(b) on alteration of territory. No tender of evidence of interference with boundaries was made.
Legal principles established
#- A petition under the Mutunga Rules need not be supported by a supporting affidavit; use of a verifying affidavit is not a fatal defect
- A petitioner bears the burden of proving alleged violation of constitutional rights on a balance of probabilities
Court orders
#- 1.The Petition is dismissed in its entirety
- 2.Costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act; Articles 40(3), 47(1), 4(1) and 61(1) of the Constitution of Kenya, 2010 invoked by the Petitioners; jurisdiction challenged under Articles 162 and 164 of the Constitution
Relief refused
#Declarations under Articles 40(3) and 47(1) and that the 2018 fresh demarcation was unconstitutional under Articles 4(1) and 61(1)
Petitioners did not prove the alleged demarcation exercise occurred; particulars lacked precision
Compensation of Kshs. 9,989,475/= as special damages
No evidence tendered proving the alleged actions causing loss
General damages of Kshs. 5,000,000/= per Petitioner
Petition failed for want of proof
Costs
Costs of the petition to the Respondents
Quotable passages
#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 upshot of the foregoing is that the Petition lacks merit and is dismissed in its entirety with costs to the Respondents.
Noting that the provisions are not couched in mandatory terms, it is my considered view, and guided by the provisions of Article 159(2)(d) of the Constitution to the efiect that this court should not rely on technicalities to determine matters over the need to do substantive justice, that the defect is not fatal.
The presentation of clear evidence in support of violation of constitutional rights is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues.
That is to say, the particulars pertaining the dates of the demarcation are steeped in generalities and therefore lack precision.
Issues in the judgment
#Respondents' submissions address a different suit: they refer to a 'Plaintifi', a 5th 'Defendant', land parcel L.R Bukira/Bwisaboka/217 and the estate of the late Ngoina Magase, which bear no relation to this petition's parties and properties
Inconsistent size of parcel Nyabasi/Busonga/719: stated as approximately 5.31 Hectares in paragraph 3 but 6.31 Hectares in submissions
Total compensation figure inconsistently punctuated: 'Kshs. 9,989.475/=' in the petition versus 'Kshs. 9,989,475/=' in submissions
Dated judgment of Maiyo case (19 December 2025) and grounds of opposition dated 13th December 2024 post-date the 17th June 2021 petition, indicating protracted interlocutory history; no contradiction on face of judgment but unusual chronology
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mariba & 4 others v Cabinet Secretary, Ministry of Lands and Physical Planning & 3 others (Constitutional Petition 2A of 2021) [2026] KEELC 1478 (KLR)", Case Analysis (2026). Petition dated 17th June 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1478/eng@2026-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.