https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4091

United Care Ltd v Macharia & 2 others (Environment and Land Case 320 of 2019) [2026] KEELC 4091 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4091 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 320 of 2019 CA Ochieng, J July 2, 2026 Between United Care Limited Plaintiff and Roseline Njeri Macharia 1st Defendant The National Land Commission 2nd Defendant Kenya Urban Roads Authority 3rd Defendant Ruling 1.What is before the Court for determination is the Plaintiff’s Notice of Motion application dated the 2nd February 2026 and the 1st Defendant’s Preliminary Objection dated 16th February 2026. In the Notice of Motion application, the Plaintiff seeks the following Orders:a.Spent.b.That this Honourable Court be pleased to issue an order directing and compelling the 2nd Respondent, being the National Land Commission, to forthwith produce and present to this Court the entire file and all records pertaining to the compulsory acquisition of the property known as Land Reference No. 209/12151 as follows:I.All documents relating to the acquisition process, such as notices of intention to acquire, valuation reports, and minutes of the public hearings and inquiries conducted;II.The names and details of the persons and/or entities who were compensated in relation to the acquisition Land Reference No. 209/12151;III.Ownership documents such as titles deeds submitted to support the compensation claim, including but not limited to title deeds, allotment letters, leases, or any other proof of ownership or interest in the land provided by the compensated persons and/or entities;IV.The amounts of compensation paid to each such person and/or entity in respect to Land Reference No. 209/12151; andV.Any correspondence, minutes, reports, and internal memoranda related to the decision-making process for the acquisition.c.That this Honourable Court be pleased to issue an Order summoning and compelling the 2nd Respondent, either through its Chairman or any other duly authorized officer and/or personnel nominated by it, to personally appear before this Honourable Court and to give testimony at the hearing of the suit in regard to the compulsory acquisition of Land Reference No. 209/12151.d.That the documents sought under Prayer 2 be produced within Fourteen (14) days from the date of issuance of the Order.e.That this Honourable Court do make any other and/or such further orders and issue any further relief it may deem fit to grant in the interests of justice.f.That the costs of this Application be provided for and borne by the Respondent. 2.The application is premised on grounds on its face and on the supporting affidavit of its director, one Rishad Hamid Ahmed. He avers that the Plaintiff is the registered proprietor of L.R. No. 209/12151, off Limuru Road and that it has never sold, leased, or permitted the 1st Defendant to occupy or use it. Further, that notwithstanding the said ownership, the suit parcel was compulsorily acquired and the 1st Defendant received compensation under the oversight of the 2nd Defendant, in circumstances that are procedurally improper. 3.He contends that all documents and records relating to the compulsory acquisition and compensation of the suit property are in the exclusive possession, custody, and control of the 2nd Defendant and despite it being a party to these proceedings, it has failed to produce the said records. Further, that vide this Court’s Ruling delivered on 8th July 2025, the Court declined the Plaintiff's prayer for production of certain documents on the basis that it was not the original author or custodian thereof. He explains that the Plaintiff has sought to obtain certified copies of the relevant records from the offices seized of their custody, including the 2nd Defendant, but the said efforts have not borne fruit. 4.He avers that production of records held by the 2nd Defendant is critical to enable this Court to fully determine the issues in dispute and that they will enable the Plaintiff to effectively present its case. Further, that the resolution of the dispute is of significant public interest, as it involves the protection of public resources, promotion of transparency and accountability in the management of state funds. He reiterates that no prejudice will be occasioned to the Respondents if the Orders sought are granted. Response 5.The application is opposed by the 1st Defendant. She avers that the application is contra statute and is a clear detour from the claim in the Plaint, which is ownership of the property L.R No. 209/12151. Further, that a dispute on compensation either paid or payable for compulsorily acquired land can only be handled by the Land Acquisition Tribunal established under Section 133A of the Land Act. 6.She contends that the application does not establish how the documents sought herein will aid in advancing the claim for ownership as pleaded in the Plaint. Further, that in response to the Plaintiff’s prayers in the Plaint, she has raised fundamental questions regarding the fraud in the Plaintiff’s ownership documents including the fact that the Plaintiff was allegedly allotted a property ten (10) years before its incorporation. 7.The 1st Defendant also filed a Preliminary Objection dated 16th February 2026 in which she reiterates that jurisdiction as the Court of first instance, to adjudicate matters relating to the process of compulsory acquisition of land and compensation thereof falls with the Land Acquisition Tribunal. She also contends that the application is in breach of the Doctrine of Exhaustion of remedies. 8.The 2nd and 3rd Defendants did not file responses. 9.The Notice of Motion application and the Preliminary Objection were canvassed by way of written submissions. Submissions 10.The Plaintiff submits that under Order 16 Rules 1, 6 and 7 of the Civil Procedure Rules, this Court is empowered to compel any party to produce, inspect and disclose documents in its possession that are relevant to the matters in dispute. Further, that Sections 1A and 1B of the Civil Procedure Act imposes an obligation on each party to conduct litigation in a manner that facilitates the just, expeditious and proportionate resolution of disputes. 11.It insists that the 2nd Defendant holds the entire record of how the suit property was acquired and has not justified withholding the said record thus its silence constitutes breach of Article 35 (1) (a) of the Constitution. It relies on the case of Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others [2023] eKLR to submit that a public entity cannot escape the constitutional requirement under Article 35(1)(a) of the Constitution, to provide citizens with access to information it holds. 12.It also submits that denial of documents is a deliberate violation of its right to hearing, which this Court has power to remedy by ordering production. On whether this Court has jurisdiction, it submits that every action pleaded in its Plaint falls within Section 13 of the Environment and Land Court Act. Further, that the 1st Defendant has deliberately mischaracterizes its claim. It insists that its claim is neither about compulsory acquisition nor the quantum of compensation, but its case concerns ownership of land that was compulsorily acquired by the 2nd Defendant. 13.On the exhaustion argument, it submits that the doctrine does not apply where the statutory remedy is inadequate, irrelevant and inaccessible. It points out that while Section 133C of the Land Act creates a framework for persons who are aggrieved by the process of acquisition or the amount of compensation awarded, it does not provide a forum for resolving competing title claims over the same piece of land or title. To buttress its averments, the Plaintiff relied on the following decisions: D.T Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1982] KLR 1 and Presbyterian Church of East Africa, Ngong Parish & Another (Civil Appeal No. 125 of 2018) eKLR. 14.On her part, the 1st Defendant submits that the jurisdiction of this Court with regard to claims about compulsory acquisition and the process thereto is conferred by Section 133C (6) of the Land Act, as an Appellate jurisdiction, yet the Plaintiff calls this Court to scrutinize the process of compulsory acquisition of the suit property, which is a request that goes to the heart of the compulsory acquisition process. 15.On the issue of exhaustion of statutory remedies, she submits that where a statute provides a specific dispute resolution mechanism, the first opportunity must be given to the mandated body, judicial intervention is deferred to allow the statutory process to run its course. To this end, she relied on the following decisions: Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme))(Petition 3 of 2016) [2019] KESC 83 (KLR); United Millers Limited v Kenya Bureau of Standards & 5 others (Petition (Application) 4 of 2021) [2021] KESC 72 (KLR) (Civ); Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023)[2023] KESC 113 (KLR); Maingi v National Land Commission & another (Land Case E050 of 2023) [2025] KEELC 6463 (KLR); Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR; Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1 and In the Matter of Interim Independent Electoral Commission [2011] eKLR. Analysis and Determination 16.Upon consideration of the instant Notice of Motion application including the respective affidavits, Notice of Preliminary Objection and rivalling submissions, the only issue for determination is whether the 2nd Defendant should be compelled to produce documents and to summon its officers to testify and if the 1st Defendant’s Preliminary Objection dated 16th February 2026 is merited. 17.The Plaintiff seeks for the 2nd Defendant to be compelled to produce all the records and documents in its custody, with all materials relating to the compulsory acquisition and compensation over the suit property. The 1st Defendant has opposed the application by filing a replying affidavit and Notice of Preliminary Objection. The 1st Defendant insists that this Court does not have jurisdiction to handle matters of compulsory acquisition and the Plaintiff has not exhausted the available remedies. 18.On summoning of witnesses, Order 16 Rule 1 of the Civil Procedure Rules states that:“At any time before the trial conference under Order 11 the parties may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.” 19.While Order 1 Rule 7 of the Civil Procedure Rules provides inter alia:“Any person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.” 20.In Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR), the Court of Appeal held that:‘In law, the appellant cannot compel the respondent to call a witness to support or rebut the respondent’s case; all that the respondent is obligated to do is call credible and material witnesses to prove its case to the required standard……….We note that the failure to call a particular witness or voluntarily to produce documents or objects in one's possession is conduct evidence. (See J. Wigmore, Evidence § 265, at 87 (3d ed. 1940). In principle, failure by a party to call a material witnesses may be interpreted as an indication of knowledge that his opponent's evidence is true, or at least that the tenor of the evidence withheld would be unfavorable to his cause.’ Emphasis Mine 21.On access to information from a government entity, the Supreme Courtstated as follows in Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] KESC 45 (KLR):‘‘Article 35(1)(a) and (b) of the Constitution, read with section 3 of the Access to Information Act would thus show without unequivocation that all citizens have the right to access information held by the state, or public agencies including bodies…..We also recognize that information held by the State or State organs, unless for very exceptional circumstances, ought to be freely shared with the public. However, such information should flow from the custodian of such information to the recipients in a manner recognized under the law without undue restriction to access of any such information…. Further, a duty has also been imposed upon the citizen(s) 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/or 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 Mine 22.In this instance the Plaintiff seeks an Order to compel the 2nd Defendant, being the National Land Commission, to forthwith produce and present to this Court the entire file and all records pertaining to the compulsory acquisition of the property known as Land Reference No. 209/12151. Further, it seeks for the Chairman of the National Land Commission or an official therefrom to appear in Court and provide evidence on the said compulsory acquisition process. 23.It is trite that in an adversarial system, parties have the responsibility to prove their claim and cannot shift this responsibility to the opponent, whom it has sued. I note the Plaintiff in its Plaint claims ownership of the suit property, which was compulsorily acquired with the 1st Defendant being compensated for it. I further note that parties herein had already complied with Order 11 of the Civil Procedure Rules, undertaken pretrial conferencing and when the hearing of the matter commenced, the 1st and 3rd Defendants objected to the Plaintiff’s production of copies of documents from the various government entities including the 2nd Defendant, which objection was upheld, hence the Plaintiff has now filed the instant application. 24.Insofar as Sections 1A and 1B of the Civil Procedure Act imposes an obligation on each party to conduct litigation in a manner that facilitates the just, expeditious and proportionate resolution of disputes, however, based on the facts as presented while associating myself with the decisions quoted and applying them to the circumstances at hand, I find that the Plaintiff, through the instant application, cannot seek to compel the 2nd Defendant to produce documents in its custody, to support the Plaintiff’s case. It is quite irregular for the Plaintiff to seek to summon the Chairman of the 2nd Defendant or any other duly authorized officer to personally appear before this Court and testify at the hearing of the suit in regard to the compulsory acquisition of Land Reference No. 209/12151. I opine that it was incumbent upon the Plaintiff to prepare for its case, obtain relevant documents prior to filing its case and not rely on the opponent to furnish it with documents to support its claim. 25.In my view, the Plaintiff should have adhered to the procedure as set out in the Sections 6 and 8 of Access to Information Act on obtaining documents from a government entity and in the event that the 2nd Defendant failed to furnish the documents, it had a recourse to lodge a complaint with the Commission on Administrative Justice. In that regard, I will decline to grant this prayer. 26.On the argument that this Court is devoid of jurisdiction to entertain the dispute. Further, that the Plaintiff’s application offends the doctrine of exhaustion under the Land Act. The 1st Defendant contends that the dispute concerns compulsory acquisition and compensation and therefore falls within the mandate of the Land Acquisition Tribunal, under Section 133C of the Land Act. 27.On its part, the Plaintiff insists that its complaint is not directed at the quantum of compensation or the legality of the acquisition process, it is about ownership of a property that was compulsorily acquired by the 2nd Defendant. The 1st Defendant also contended that by approaching this Court, first before proceeding to the Land Acquisition Tribunal, the Plaintiff violated the Doctrine of Exhaustion. 28.The Court of Appeal in Muthinja & another v Henry & 1756 others (Civil Appeal 10 of 2015) [2015] KECA 304 (KLR) (30 October 2015) (Judgment) stated as follows on the doctrine of exhaustion:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 29.Further, in Simandi Investments Limited & another v Macharia & 6 others (Environment and Land Petition E035 of 2025) [2026] KEELC 890 (KLR) (19 February 2026) (Ruling), it was stated as follows on the Land Acquisition Tribunal:“while the Tribunal is competent to deal with disputes strictly arising from the process and quantum of compensation, questions of ownership and title fall outside its remit and are properly determined by courts vested with jurisdiction over land titles.” 30.From a keen reading of the prayers in the instant application and the plaint, I note Plaintiff is seeking documents in respect to compulsory acquisition of the suit property as well summons to issue to the Chairman of the 2nd Defendant or any official therefrom, to present the same. Further, the Plaintiff claims ownership of the suit property. There is no prayer for determination of the dispute relating to compulsory acquisition of land. In the circumstances, I find the Notice of Preliminary Objection premature. 31.In the foregoing, I find the instant Notice of Motion application and Notice of Preliminary Objection unmerited and will disallow them. 32.Costs will be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Ochieng Oduol SC and Brian Okoth for 1st DefendantAhmed Farah holding brief for Ms Asli Omar for PlaintiffAllan Kamau for 3rd DefendantCourt Assistant: Vena