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

2. The application is based on the grounds on the face of it and the supporting afidavit sworn on even date. Briefiy, the deponent stated as follows; a. The applicants are the registered owners of the suit land measuring 0.4400 ha, situated in the Kitisuru area within Nairobi City County. b. They have dutifully paid land rent and rates, being statutory outgoings for the suit land to date. c. In the petition, they aver that they hold a valid title and that their right to property as guaranteed under Article 40 of the Constitution has been breached by the respondents without due regard to the procedure for compensation. d. They contend that the respondents maintain that the allocation of the suit land was irregular because the Government had compulsorily acquired it for a specific purpose and, therefore, was not available for alienation. e. According to the petitioners, the main issue for determination will therefore be whether the suit land was public or private before the petitioners acquired it. f. The petitioners further aver that before the acquisition of the suit land, they carried out the necessary due diligence, which confirmed that the land was available for sale and/or allocation and free from any defects. g. That being so, it is imperative for this court to confirm all the necessary steps outlined in the SCOCK in the case of Dina Management Limited Vs County Government of Mombasa & 5 others (2023) EKLR. h. That the 3rd Respondent has abdicated its role as the custodian of registered titles in the manner it has provided piecemeal information, thus violating the petitioners' rights under Article 50 of the Constitution. i. Moreover, this court has a duty to uphold the sanctity of the record at the Chief Land Register’s Ofice. j. Furthermore, in accordance with the provisions of Section 8 of the Access to Information Act, the petitioners requested for the deed and correspondence files from the 3rd Respondent through the letters dated 18/3/24 and 20/2/25; however, no response was ever received or acknowledged from the 3rd Respondent, contrary to the provisions of Section 11 of the said Act, which mandates a public body to give a written response to a party seeking information within 15 days of receipt of the application. k. Based on the above, the petitioners urged the court to intervene by granting the orders sought, asserting that the production of the two documents will assist the court in verifying the applicants' claims regarding ownership of the suit property, thus fostering a fair and just resolution of the case. l. Lastly, the refusal by the 3rd Respondent to provide the information is prejudicial to the petitioners and amounts to obstructing the due administration of justice. Response by the Attorney General 3. Despite service of the application upon the respondents, I note that the respondents failed to file any response thereto. This is despite Mr Allan Kamau, counsel for the Respondents, having been granted leave to file his response by close of day on 23/7/25. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7971/eng@2025-10-13 2

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4. However, by the time of writing the ruling, the Hon Attorney-General had not complied with the directions to file responses as well as its written submissions. The application is therefore unopposed. 5. Both parties also failed to comply with directions with respect to the filing of written submissions. The application was therefore not prosecuted. 6. That being the case, the court will determine the application based on what was placed before it, but in any event, on its merits. Analysis and determination 7. In considering the application, the sole issue that commends itself for determination is whether the petitioners' application is merited. 8. The application is premised on the petition dated 24/10/2018 and filed on 28/11/2018. The petitioners averred that they acquired the suit land from Job Okuna Oyugi, Joshua Onyango, and Douglas Odhiambo (the vendors) in 1996, paid valuable consideration, and obtained an absolute and indefeasible title to the suit land in their names that same year, and have continued to pay all the outgoings related to land rent and rates annually to date. 9. Before the acquisition, they averred that they conducted due diligence at the Lands Registry, which showed that the land was available for sale or allocation and was free of all encumbrances. 10. They aver that they held a valid title, and even the 2003 Ndungu Commission of Inquiry into illegally or irregularly allocated land found no fault with it. However, trouble began when they obtained approval from the then City Council to build a perimeter wall, when the 2nd Respondent claimed that the land was a road reserve and had been acquired by the Government of Kenya in 1975 via Gazette Notice No 942 of 1975, a claim the Petitioners dispute. The Petitioners’ grievance therefore is that the Government of Kenya, in conjunction with the 2nd Respondent, have repossessed the suit land for the purpose of constructing a road without ofiering appropriate compensation in accordance with Article 40 of the Constitution and Sections 107-133 of the Land Act. 11. Based on the foregoing, the petitioners state that their constitutional right to property has been violated, hence the various reliefs sought in the petition, including declaratory rights to property and, in the alternative, compensation for the market value of the suit land. 12. In opposing the instant petition, the respondents argue that the suit land is public land that was compulsorily acquired by the Government in 1975 for the construction of a Link road. They contend that, having been acquired, the land was not available for alienation by the Commissioner of Lands to any other person or entity, including those from whom the petitioners purchased the land. 13. The Petitioners have admitted that they sought the documents from the respondents through two letters dated 20/2/25 and 18/3/25 under Article 35 (1) a of the Constitution read together with Section 8 of the Access to Information Act. It is not in dispute that the Respondents failed to respond to the said letters. 14. Article 35 of the Constitution provides that every citizen has the right of access to—a) information held by the State; and b) information held by another person and required for the exercise or protection of any right or fundamental freedom. 15. For purposes of actualising the provisions of Article 35 of the Constitution, the parliament enacted the Access to Information Act 2016. Section 4 of the Act, provides for the procedure to access information. It provides as follows; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7971/eng@2025-10-13 3

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1) “Subject to this Act and any other written law, every citizen has the right of access to information held by—a) the State; and b) another person and where that information is required for the exercise or protection of any right or fundamental freedom. 2) Subject to this Act, every citizen's right to access information is not afiected by—a) any reason the person gives for seeking access; or b) the public entity's belief as to what are the person's reasons for seeking access. 3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. 4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6. 5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information. 16. Section 8 of the Access to Information Act provides a clear legal procedure on how a requester should access information. An application to access information must be made in writing in English or Kiswahili to the Information Access Oficer. If the applicant is illiterate or has a disability that prevents them from making a written request, the information oficer shall record the request on their behalf. A public oficer shall decide on an application within twenty-one days of receipt, unless the request involves a large amount of information. When the information concerns a person's life or liberty, the information oficer shall provide it within forty-eight hours of receiving the application. 17. The Act provides a straightforward procedure and remedies for the requester if the public body refuses or fails to respond, including filing a complaint with the Commission on the Administration of Justice or seeking judicial review before the court for remedies such as mandamus. 18. It is a principle of law that 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. See the Court of Appeal case of Speaker of the National Assembly -vs- James Njenga Karume [1992] KECA 42 (KLR) 19. The Supreme Court in the case of Njonjo Mue & Another Vs Chairperson of the Independent Electoral and Boundaries Commission & 3 others (2017) EKLR stated that; “ ….. However, such information should fiow from the custodian of such information to the recipients in a manner recognised under the law without undue restrictions on access to any such information. Furthermore, a duty has also been imposed upon the citizens to follow the prescribed procedure whenever they require access to any such information. This duty cannot be abrogated or derogated from as any such derogation would lead to a breach and violation of the fundamental principles of freedom of access to information provided under the Constitution and the constituting provisions of the law. It is a two way channel where the right has to be balanced with the obligation to follow due process. [emphasis is mine} 20. Given that the applicants elected to approach the request for the documents through the provisions of the Access to Information Act, it must comply with the procedure outlined therein by law. 21. The Supreme Court in the case of Trusted Society of Human Rights Alliance Vs Mumo Matemo & 5 others (2014) EKLR reminds us that a suit in court is a solemn process owned solely by the parties. It is for this reason that the Civil Procedure Code contains provisions governing who may be a party to a suit and the nature of the evidence that will be presented before the court. These provisions have been more or less repeated in the Mutunga Rules which rules are applicable in Petitions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7971/eng@2025-10-13 4

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22. In the case of IEBC & Anor Vs Stephen Mutinda Mule & 3 others (2014) EKLR the court stated as follows; “ Lord Denning was of course alluding to the essential difierence between an adversarial system of justice such as we have in which the judge is or ought to be more of an impartial umpire and the inquisitorial system where the judge is an active investigator after evidence and truth. The good law Lord had proceeded to quote Lord Green MR who had explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations for, by descending into the arena the judge is liable to have his vision clouded by the dust of confiict. See Yuill v Yuill [1945] All ER 183”“ 23. The above decision emphasises the role of the Judge in an adversarial system in our legal regime, which states that a party controls their case and decides whom to sue, what pleadings to submit, and the evidence to present before the court, all aimed at securing a favourable outcome in terms of the reliefs sought. 24. The applicant admits that the 3rd Respondent has responded to its petition with information regarding the suit land, albeit in a piecemeal manner. Following the alleged piecemeal information provided by the 3rd Respondent, the petitioner wrote to the Chief Land Registrar and the Director of Land Administration requesting the deed and the correspondence files on 20/2/25 and 18/3/25. As these letters elicited no response, the applicants approached the court for orders of enforcement against the 3rd Respondent. 25. It is the applicant's case that the court needs to have the two documents to confirm that all the steps regarding the alienation of the suit land were followed before the title was registered in the names of the vendors from whom they acquired the land. Likewise, the applicants request the court to consider that these documents will help verify the authenticity of their claim concerning ownership of the suit property. The applicants are confident that the answer lies within these documents. These two reasons, evidently fall within the realm of evidence gathering by a party in order to proof its case. 26. The law is now settled that he who alleges must prove. In civil cases, the onus of proof rests with the claimant to prove his case on a balance of probabilities. Section 107(1) of the Evidence Act has codified this principle as follows:“ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 23. In this case, the responsibility to prove their claim before the court lies with the applicants. 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 in obtaining evidence, and to quote Lord Denning, liable to have its vision clouded by the dust of confiict. Additionally, the adversarial nature of our system does not require the court or respondents to assist the applicants in proving their case. Allowing the application in my view, invariably shifts the burden of proof from the applicants to the respondents, without any justifiable reason. 24. Needless to say, the court is satisfied that the applicants will not sufier any prejudice, as the respondents from whom the petitioner is seeking the documents are a party in this case. Secondly, there are legal mechanisms for obtaining evidence, including that which is in the opponent's possession. I say no more. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7971/eng@2025-10-13 5

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25. 23. Final orders for disposal a. In the end, the application is unmerited. b. It is hereby struck out with costs to the Respondents. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 13TH DAY OF OCTOBER 2025 VIA MICROSOFT TEAMS. J G KEMEI JUDGE Delivered online in the presence of; 1. Mr. Brian Okoth for the Petitioners 2. Mr. Allan Kamau for the 1st, 2nd, 3rd and 5th Respondent 3. N/A for the 4th Respondent 4. C/A – Ms. Yvette Njoroge https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7971/eng@2025-10-13 6

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