[2018] KEELC 4689 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

PETITION NO. 26 OF 2011

IN THE MATTER OF ARTICLE 22 AND 23 (1), (3) OF THE CONSTITUTION OF

KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS

AND FREEDOMS UNDER ARTICLE 40 (3), (4), 27 (1), (2), (3), (4), (5) OF THE

CONSTITUTION OF KENYA

BETWEEN

1. IRENE KANYI MWANGI…………………................................………...1ST PETITIONER

2. MARY NYAMBURA MUGO……………………...........................….....2ND PETITIONER

3. WANGECHI MBURU………………………................................……...3RD PETITIONER

4. WINNIE MUTHONI…....................................................................……...4TH PETITIONER

5. HELLEN NYAGATI MUREITHI………..…….................................……..5TH PETITIONER

6. ZIPPORAH WARINGA……………………...............................………..6TH PETITIONER

7. HARIET WANJIRU……………………………............................….…..7TH PETITIONER

8. LOISE WANJIKU…………………………………….............…......…..8TH PETITIONER

9. MARY WANGARI W/O OWEN NDUNGU…………..…..................…..9TH PETITIONER

10. PENNINAH WANGUI NDUNGU D/OOWEN NDUNGU….................10TH PETITIONER

AND

ATTORNEY GENERAL…………………………..................................………1ST RESPONDENT

PERMANENT SECRETARY, MINISTRY OF LANDS ANDSETTLEMENT…2ND RESPONDENT

PERMANENT SECRETARY, MINISTRY OF SPECIAL PROGRAMMES……3RD RESPONDENT

RULING

(Directions on mode of hearing and disposal of constitutional petition)

1. The petition herein was filed in court on 19th September 2011. The petitioners allege that their fundamental rights and freedoms have been violated with regard to the alleged sale of the property known as Ndonga Farm Subukia L.R. No.6507 to the Government of Kenya.

2. The 1st to 8th petitioners describe themselves as daughters of the late Benjamin Njoroge Wamanji while the 9th petitioner is daughter in law of the said Benjamin Njoroge Wamanji. The 10th petitioner is a granddaughter of Benjamin Njoroge Wamanji. The respondents are various government officers as specified in the petition.

3. When the petition came up for directions on 17th October 2017, the court ordered that it be heard by way of affidavit evidence followed by written submissions. Directions were given as to timeframes for filing and exchange of submissions. The matter next came up on 19th December 2017 for oral highlighting of submissions. On that date Ms. Cheruiyot, learned counsel for the respondents, told the court that she was yet to file her submissions. She also urged the court to allow oral evidence to enable her cross examine the document examiner in relation to his report on the power of attorney in issue. Mr. Biko, learned counsel for the petitioners, did not oppose the application. Though the date was taken in the presence of counsel for the 267 interested parties, there was no appearance for the interested parties on 19th December 2017.

4. Having considered the matter and in view of directions earlier given on 17th October 2017, I now give the following directions:

a. The hearing of the petition shall be by both viva voce evidence and affidavit evidence.

b. The petitioners shall call one witness who will give oral testimony.

c. The respondents shall call one witness who will give oral testimony.

d. The interested parties shall call one witness who will give oral testimony.

e. The maker of the Forensic Document Examiner’s Report in respect of the Special Power of Attorney dated 10th January 2011 shall attend court to testify and to produce the report.

f. Any party who wishes to adduce further evidence beyond that specified above shall do so by the affidavits already on record or by new affidavits.

5. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 30th day of January 2018.

D. O. OHUNGO

JUDGE

In the presence of:

Mr. Opondo holding brief for Mr. Biko for the petitioners

No appearance for the respondents

No appearance No appearance for the 1st to 267th Interested Parties

Court Assistant: Gichaba