https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4262

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC PETITION NO. E002 OF 2024** **YUSSUF K. KEITTANY &** **8 OTHERS ..................................... PETITIONERS/APPLICANTS** **VERSUS** **LAND REGISTRAR UASIN GISHU** **COUNTY & 5 OTHERS…………............................ RESPONDENTS** **AND** **WILLIAM CHANGWONY & 280 OTHERS...INTERESTED PARTIES** **RULING:** 1. The Petitioners/Applicants filed the present application vide a Notice of Motion dated 20th February, 2026 seeking the following orders: - * 1. Spent. 2. That there be an order setting aside the court’s directions directing that this petition be canvassed by way of written submissions on 3rd October,2025 and replacing the said directions with an order that the same be heard by way of viva voce evidence. 3. That this honourable court be pleased to issue any necessary directions and/or issue such orders as may be fair and just in the circumstances of the case. 4. That the costs of this application be provided for. 2. The application is premised on 4 grounds on the face thereof and on the Supporting Affidavit evenly dated and sworn by Evans Oduor, an Advocate of the High Court of Kenya having conduct of the matter on behalf of the petitioners/applicants. 3. It is deponed that on 03.10.2025, when the matter came up for pre-trials, this court issued directions that the present petition be heard by way of written submissions. 4. It is however his claim that the petitioners are aggrieved by the said decision on the disposal of the main petition and it is the petitioners’ contention that the best way to canvass the petition and enable them articulate their grievances is by way of viva voce evidence. 5. It is further averred that unless the orders sought are granted, the petitioners’ right to expression and fair hearing risks being violated and thus urged the court to exercise its discretion by allowing the application as sought. 6. The application was opposed. The 4th, 5th and 6th Respondents filed a Grounds of Opposition dated 6th March, 2026 in response to the application. 7. They dismissed the application as being frivolous, vexatious and an abuse of the court process as the same is not provided for in law. They further aver that the impugned directions were issued in the presence and with the concurrence of all counsel for the parties. 8. In addition, it is the respondents’ claim that the instant suit is a constitutional petition, requiring only the interpretation of the constitutional rights as opposed to exploration of contested facts. They thus urged the court that the application be dismissed with costs. 9. This court issued directions on the disposal of the application by way of written submissions on 23.02.2026. The petitioners/applicants filed their submissions dated 23.03.2026 while the 4th, 5th and 6th respondents filed their submissions dated 27.04.2026 together with authorities cited, which I have read and duly considered in arriving at my decision as hereunder. 10. Ms. Odeyo for the 1st and 2nd respondents, 263rd – 281st Interested Parties on 24.03.2026 informed the court that they would not be participating in the application dated 20.02.2026. **Analysis and Determination:** 1. I have carefully considered the Application and the grounds therein, the Supporting Affidavit, the Grounds of Opposition as well as the rival submissions in totality. 2. Consequently, it is my considered view that the issues arising for determination are as follows: - 3. *Whether the present application is merited*. 4. *Who shall bear the costs of the present Application.* 5. The above issues for determination having been duly identified, I will now proceed to discuss the same as hereunder. **Whether the present application is merited.** 1. The applicants in the present application are seeking an order for review of this court’s directions issued on 03.10.2025 on the disposal of the petition by way of written submissions and to substitute the same with the directions that the main petition do proceed by way of viva voce hearing. 2. The orders sought herein are discretionary in nature and the court is therefore under a duty to exercise such discretion judiciously taking into account the circumstances of the case and ensure that no party is prejudiced. 3. The applicants have premised their application on the need to grant the petitioners an opportunity to articulate their grievances and produce exhibits in support of their claim. It is their contention that the issues raised in the petition are complex, highly contested and entails historical facts which can only be adequately determined through oral testimony, cross-examination and the production of physical evidence. 4. The respondents on the other hand dismissed the application on among other grounds, that the present petition only requires an interpretation of constitutional rights and does not include an exploration of contested facts. 5. The question that therefore follows is whether the applicants have satisfactorily demonstrated a sufficient cause to warrant the exercise of this court’s discretion in their favor. 6. The court has perused the petition herein and finds that the only way of thoroughly interrogating the issues raised therein may be by way of Viva voce evidence through a trial involving examination, cross-examination and re-examination of witnesses. 7. This court is guided by the decision in the Supreme Court of Kenya (as correctly cited by the applicants in their submissions) in the case of ***Fanikiwa Limited & 3 others vs Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038) & 36 (E039) of 2022 (Consolidated)) [2023] KESC 105 (KLR),*** where the court in addressing the issue on the mode of hearing of the petition and whether the same can solely be conducted through affidavit evidence, held as follows:- ***“77. This matter entails disputed ownership of land. In other words, there are competing claims as to the ownership of the suit parcels. Therefore, it behoves a court to make a just determination on the same, procedurally. In doing so, it has to, on the basis of the law and evidence before it, decide who the owner is and thoroughly interrogate how such ownership was conferred. In the present scenario, a trial process involving examination, cross-examination and re- examination of the witnesses is the only way of resolving the competing allegations and counter allegations. We recognize that the superior courts below relied on rule 20(1)(a) of the Mutunga Rules to hear the matter by way of affidavit evidence. However, we are of the view that a court is required to make a special endeavour to unravel all the competing claims and in particular, by calling for viva voce evidence from witnesses, especially those who have sworn depositions, and cross examination done. This is particularly important because its decision will have a far-reaching impact especially upon the party(ies) whose ownership may end up being nullified. In taking this view, we are fortified by rules 20(3), (4), and (5) of the Mutunga Rules which allow a court to admit oral evidence, examine and cross-examine parties*** ***78. In the circumstances of this case therefore, we are not convinced that it was prudent and judicious, considering the highly contentious nature of the claims and circumstances of each of the numerous parties involved to determine this matter by affidavit evidence only. The authors of the said affidavits ought to have been called and cross-examined to test the veracity of the affidavits and documentary evidence. To our minds, this would have presented the best available evidence for the learned trial judge to make his decision fairly...”*** 1. Consequently, even though the default position under the Mutunga Rules and from general practice is that petitions be heard by way of affidavit evidence and written submissions as was directed on 03.10.2025, this court is guided by the Supreme Court decision above and I therefore find that there is need to vary the directions issued on the mode of disposal of the petition issued on 03.10.2025. 2. It is therefore the finding of this court that the present application is merited. The applicants have demonstrated sufficient reason and explanation to warrant the exercise of this court’s discretion in their favor. **Who shall bear the costs of the present Application;** 1. The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act, unless the court is satisfied otherwise. 2. However, in view of the circumstances of the application herein, it is my considered opinion that each party should bear their costs of the present application. **Disposition;** 1. In view of the foregoing, it is the finding of this court that the present application vide the Notice of Motion dated 20th February, 2026 is **merited** and is hereby **allowed as prayed**. Each party to bear their own costs of the application. 2. The petitioners are further directed to fix the matter for hearing at the earliest convenience. 3. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** at **ELDORET** this **9th day** of **JULY, 2026.** **HON. C. K. YANO** **JUDGE** **Ruling delivered in the presence of: -** Mr. Oduor for the Petitioners Mr. Warigi and Mr. Kapere for the 4th, 5th & 6th Respondents No appearance for the rest of the Respondents and the Interested parties. Court Assistant – Laban