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ELCDismissedPetition (Kisumu Environment and Land Court) - number not stated in judgment· [2016] KEELC 135 (KLR)

Samwel Olweny Olweny & 3 others (Suing on their behalf and on behalf of other Licensees) v Attorney General & 2 others [2016] KEELC 135 (KLR)

Environment and Land Court
7 December 2016
SKS.M. Kibunja
6,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that long occupation of public land gives no ownership rights, and evictions after proper notice were lawful.

What this practically means

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Executive summary

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Four licensees of the Ahero National Irrigation Pilot Scheme petitioned the High Court (Environment and Land Division) under the Bill of Rights, complaining that the National Irrigation Board and its scheme manager had, on 8th September 2014, demolished 34 houses including theirs and evicted them without notice, compensation or a hearing, thereby violating Articles 27, 28, 29, 31, 40, 43, 45, 47, 53 and 57 of the Constitution. They sought conservatory orders, declarations of breach, compensation, damages, an order to reconstruct houses and costs. The Respondents maintained that the Petitioners remained licensees of their allocated plots and camp houses, and that the demolitions targeted public utility land reserved for Kore and Masara schools, occupied without authority, after notices in 2012 and 2014 and following community and Advisory Committee resolutions. The court found that the evictions were not from the Petitioners' allocated plots; that no proprietary rights could arise over public land, adverse possession being impossible against the Government however long the occupation; and that adequate notices had been issued over two years before demolition. No constitutional violation was established and the petition was dismissed, each party bearing own costs. However, the court directed the Respondents to file a resettlement progress report within 90 days and, on its own motion, restrained further demolitions and evictions for 120 days, recognising the Respondents' duty to resettle licensees housed in flood-prone areas.

Key legal issues

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01

Whether the Petitioners held protectable proprietary rights over the parcels from which they were evicted

Holding

They did not; the evictions were not from their allocated licensee plots but from land designated for public utilities, which remained public land

Reasoning

The agreed facts showed the 1st and 2nd Petitioners retained their allocated plots (440 and Block A 14) and camp houses. The demolitions occurred on land the Petitioners had moved onto without authority, designated for schools and other public use. Uncontested evidence of designation went unrebutted, and no documentary authorisation to build on those parcels was produced.

p. 8
02

Whether lengthy occupation conferred rights over public land

Holding

No proprietary rights can arise by adverse possession on public land however long the occupation

Reasoning

Relying on Mwambu Mbuvi Maingi and Faraj Maharus, the court held that land set aside for public utilities remained public land; the Petitioners' 12-plus years of occupation could not extinguish the public interest or found title.

p. 8
03

Whether the demolitions and evictions violated Articles 27, 28, 29, 31, 40, 43, 45, 47, 53 and 57

Holding

No violation established; notices had been issued and the Respondents acted on community resolutions to recover public utility land

Reasoning

Notices dated 25th April 2012, 7th May 2012 and 1st October 2014 were addressed to the Petitioners; over two years elapsed before the demolition of 8th September 2014. The court accepted the Respondents could not stand by while the community threatened to burn the houses, and found the notices sufficient.

p. 10
04

The Respondents' residual duty towards licensees housed in flood-prone areas

Holding

The Respondents have a responsibility to resettle licensees whose allocated houses are in flood-prone, uninhabitable areas

Reasoning

Although no violation was found, the court observed that some licensees had been allocated two-roomed houses in El-Nino flood-prone areas; a resettlement process had begun as shown in the 1st October 2014 letter, and the court ordered a progress report to ensure it was pursued.

p. 11

Legal principles established

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  • There can be no adverse possession of public or Government land however long the occupation
  • Licensees in an irrigation scheme may not construct buildings without the written consent of the scheme manager, who may demolish unauthorised structures
  • Persons affected by development-based evictions are entitled to notice, information, participation and adequate notice where eviction is unavoidable, by virtue of Article 2(5) and (6) of the Constitution

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear his/her own costs
  3. 3.The Respondents directed to file a progress report on the resettlement of the eight persons named in the letter dated 1st October 2014 and any other licensee whose house is in similar situation, within 90 days
  4. 4.The Respondents directed, on the court's own motion, to withhold any further demolitions of houses and evictions of the Petitioners from the public lands in question for 120 days to enable compliance with notices to vacate and filing of the resettlement report
  5. 5.The matter to be mentioned after 90 days for further directions
Jurisdiction invoked
Articles 19, 20, 21, 22, 23 and 165 of the Constitution read with Rules 11, 12, 13 and 14 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006

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, "Samwel Olweny Olweny & 3 others (Suing on their behalf and on behalf of other Licensees) v Attorney General & 2 others [2016] KEELC 135 (KLR)", Case Analysis (2016). Petition (Kisumu Environment and Land Court) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/135/eng@2016-12-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.