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ELCAllowedEnviromental and Land Originating Summons 968 of 2012

Kigathi & another v Attorney General & 4 others

Environment and Land Court
23 September 2026
2,599 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by C.K. Nzili, J of the Environment and Land Court at Nairobi determines an application dated 29.9.2025 by the petitioners, James Michael Ndungu Kigathi and Emmah Wangu Kigathi, seeking leave to file and rely on a surveyor's report dated 23.9.2025 in support of their amended petition of 1.10.2024. The petition concerns the alleged demolition of the petitioners' property on 22/11/2011 by state respondents, including the Commander of the Kenya Air Force. The application was prompted by a replying affidavit sworn on 8.9.2025 by Major Patrick Maina Ngatia for the 3rd and 5th respondents, which the petitioners and the interested party said introduced new matters and fresh annexures filed late, on the eve of hearing. The 3rd and 5th respondents opposed, citing finality of litigation, delay and bad faith. The court reviewed the procedural history, including a dismissed application for judgment on admission and a consented amendment of the petition, and found the replying affidavit introduced annexures not previously disclosed. Reaffirming that constitutional violations cannot be established in a factual vacuum and that the burden of proof rests on the party alleging violation, the court applied the Mohamed Abdi Mahamud criteria on additional evidence. Holding that equality of arms, the interest of justice and proportionality favoured the petitioners, and that the respondents would suffer no prejudice, the court allowed the application, granted 21 days to file a further affidavit restricted to the new issues, and directed exchange of paginated trial bundles within 30 days and agreement on issues before case conference. No costs order was made.

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 are entitled to leave to file and rely on a surveyor's report dated 23.9.2025 as additional evidence in support of the amended petition
  2. 2.Whether the respondents will be prejudiced if leave is granted

Key legal issues

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01

Whether leave should be granted to file a surveyor's report as additional evidence

Holding

Leave granted; the report meets the Mohamed Abdi Mahamud criteria and no prejudice results to respondents.

Reasoning

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.

p. 5
02

Burden of proof in constitutional petitions

Holding

The burden lies on the party alleging a constitutional violation to place sufficient evidence before the court.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated 8.9.2025 is allowed
  2. 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. 3.Parties directed to file and exchange paginated trial bundles within 30 days from the date of the ruling
  4. 4.Parties to agree on issues for determination before the date of case conference

The bench

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

majority

Wrote the judgment

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)

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.

Accordingly, the court, based on the concepts of equality of arms, interest of justice and proportionality, finds that the petitioners are entitled to leave to file a supplementary affidavit to answer the new issues raised in the replying affidavits.
p. 5Grant of leave - equality of arms and proportionality
The upshot is that the application dated 8.9.2025 is allowed. The petitioners are granted 21 days to file a further affidavit restricted only to the issues raised in the replying affidavit by the 3rd and 5th respondents.
p. 5Final orders
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 affidavits, documentary evidence, or proof of violation
p. 5Evidentiary foundation for constitutional petitions
Looking at the pleadings on record and, more particularly, taking into consideration the late filing of fresh documents attached to the 3rd and 5th respondents' replying affidavits, on the eve of the hearing, the court finds no merit in the grounds of opposition by the respondents.
p. 5Rejection of grounds of opposition

Issues in the judgment

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minor

Application date inconsistency: described as dated 29.9.2025 but allowed as dated 8.9.2025.

minor

Typographical citation year for Msagha.

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, "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.