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ELCDismissedNot stated in the excerpt (Petition filed in the Environment and Land Court)· [2017] KEELC 2383 (KLR)

Muungano wa Wanavijij & others v Attorney General & 14 others [2017] KEELC 2383 (KLR)

Environment and Land Court
20 June 2017
EOE.O. Obaga
2,254 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi court dismissed a slum-dwellers' land petition, confirming that occupiers must prove land was public and that fraud allegations require strong evidence.

What this practically means

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Executive summary

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The Principal Petitioner, Muungano Wa Wanavijiji, a federation of slum dwellers, together with other petitioners occupying land in the Gathara Village/Marurui Jua Kali Settlement, petitioned the Environment and Land Court seeking cancellation of title deeds held by the 7th to 15th respondents, publication of the ownership profile of the land, conservatory orders against eviction and dealings with the land, alternative declaratory relief based on prescription, declarations of violations of the rights to housing, life, property and dignity, and damages. The petitioners claimed the land was public land set aside as a buffer zone between two colonial farms and fraudulently allocated to the respondents while they were in occupation. The 1st to 4th respondents traced the land to LR 30/1, privately held by Thome Estate Limited under a 999-year lease from 1st June 1913 and lawfully subdivided between 1993 and 1994. The 9th respondent denied being a Government Surveyor at the material time, showing he had retired and was paid in land for professional fees. The court framed three issues: whether the land was public land irregularly acquired, whether constitutional rights were violated, and whether the petitioners were entitled to the reliefs sought. Applying the standard in Ratilal G. Patel v Lalji Makanji, the court found the fraud allegations unproved and no evidence that the land was ever public. Adverse possession failed both because it cannot run against Government land and because a pending 2012 suit stopped time. The court held the petitioners had no proprietary rights under Article 40 and could not claim socio-economic rights from private citizens. The petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the land occupied by the petitioners was public land irregularly acquired by the 7th-15th respondents

Holding

The land was private land, never public land; no evidence of fraud in its acquisition

Reasoning

The petitioners merely alleged that the land was grabbed public land but produced no evidence. Documentary evidence from the 9th respondent and Gordon Ochieng's affidavit showed the land was private since 1st June 1913, held on leasehold by Thome Estate Limited (LR 30/1) and subdivided with approvals. The allegation that the 9th respondent was a Government Surveyor at the time was refuted by proof of his voluntary retirement.

p. 4
02

Whether the petitioners' constitutional rights were violated

Holding

No violation established; petitioners had no proprietary rights capable of protection under Article 40

Reasoning

The court held that the petitioners did not identify with precision the constitutional provisions violated. Having found the land private, the petitioners had no right to claim it. Their claim of adverse possession failed because the land was never Government land, occupation was not shown to be peaceful and continuous, and a pending suit in 2012 stopped time from running. Economic and social rights could not be claimed from private citizens.

p. 5
03

Whether the petitioners were entitled to the reliefs sought

Holding

Not entitled to any relief since the main prayer (protection of right to property) failed and all other reliefs flowed from it

Reasoning

The petitioners' main prayer was protection of the right to property. Having found no violation of that right, the court held that compensation and all other ancillary reliefs could not issue. The petition was therefore dismissed with no order as to costs.

p. 5

Legal principles established

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  • Allegations of fraud must strictly be proved to a standard higher than a mere balance of probabilities, though not beyond reasonable doubt
  • Adverse possession cannot be claimed against land held by the Government
  • A petitioner alleging constitutional violation must state with precision the constitutional provisions violated and the manner of violation
  • Economic and social rights can only be provided by the State and cannot be claimed from private citizens

Court orders

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  1. 1.The petitioners' petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40

Cases cited (1)

  • Ratilal G. Patel –vs- Lalji Makanji
    (1957) EA 314
Jurisdiction invoked
Constitution of Kenya, 2010 - petition alleging violation of constitutional rights (Article 40 right to property invoked in the pleadings)

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, "Muungano wa Wanavijij & others v Attorney General & 14 others [2017] KEELC 2383 (KLR)", Case Analysis (2017). Not stated in the excerpt (Petition filed in the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2383/eng@2017-06-20

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