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ELCPartially AllowedPetition No 45 of 2014· [2018] KEELC 4767 (KLR)

Solomon M. Nchebere & 22 others v Meru County Government [2018] KEELC 4767 (KLR)

Environment and Land Court
24 January 2018
1,603 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 blocked Meru County from demolishing structures on allotted plots, ruling that plot holders had protectable rights and were never given a fair hearing.

What this practically means

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Executive summary

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The Petitioners, holders of letters of allotment issued in May 1999 by the Commissioner of Lands over various unsurveyed plots in Meru Municipality, and in occupation since 1995 with permanent developments, petitioned against the County Government of Meru's threats to demolish their structures and evict them. They sought declarations of ownership, violations of property rights and fair administrative action, and an injunction. The Respondent contended that the land (designated Jua Kali for light industries) had been converted to residential and commercial use, that structures encroached on Kanyuru River riparian public land causing pollution, that developments were unapproved and breached zoning laws, and that a letter of allotment confers no title, citing the Wreck Motors and Joseph Arap Ngok authorities. The court agreed that an allotment letter is not title, but found that the Respondent itself put the Petitioners in occupation and collected rent and rates, thereby incubating possessory rights protected under the doctrine of legitimate expectation, relying on Serah Mweru Muhu, Kuria Green and Lord Brown in ex parte Baker. On fair administrative action, the court held that the Respondent never gave notice, reasons or a hearing before threatening demolition, contrary to Section 4 of the Fair Administrative Action Act and Article 47; judicial review was not a realistic alternative since the Petitioners only knew of the Red X markings. The court restrained demolition absent full compliance with the law, declared legitimate expectation to own the plots, declared violations of property rights and fair administrative action, but declined a declaration of sole ownership. The Respondent was condemned to pay costs.

Key legal issues

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01

Whether letters of allotment confer protectable rights

Holding

They do not confer proprietorship but the Petitioners acquired possessory rights protected by legitimate expectation

Reasoning

The court accepted the Respondent's submission, backed by the Wreck Motors and Ngok authorities, that title arises only after allotment, satisfaction of conditions and issuance of a title document. However, the Respondent itself allocated the plots, put the Petitioners in occupation since 1999, and collected rent and rates, incubating possessory rights pending crystallization into title.

p. 3
02

Whether fair administrative action was accorded

Holding

It was not; the Respondent made allegations of pollution, zoning breaches and unapproved development without notice, reasons or hearing

Reasoning

Section 4 of the Fair Administrative Action Act and Article 47 require prior notice, written reasons and an opportunity to be heard before adverse administrative action. The Respondent adduced allegations only by affidavit and the Petitioners' only notice was red X markings on their structures; the court held they ought to have been heard.

p. 3
03

Whether the matter should have been pursued by judicial review

Holding

Judicial review was not the appropriate or available route for the Petitioners who were unaware of the decisions made

Reasoning

The Respondent argued the dispute lay in judicial review, but the court noted the Petitioners did not know the decisions taken against them, save for red X markings, and therefore could not mount such a challenge; the constitutional petition was a proper vehicle.

p. 3

Legal principles established

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  • A letter of allotment does not confer rights of proprietorship; title arises only upon issuance of a title document after conditions are met
  • An allottee put into occupation by a public body, which collects rent and rates, acquires possessory rights protected under the doctrine of legitimate expectation
  • Administrative action adversely affecting rights requires prior notice, reasons and an opportunity to be heard

Court orders

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  1. 1.Injunction restraining the Respondent or anyone acting on its behalf from demolishing developments/buildings/structures on the suit lands or interfering with the Petitioners' quiet possession, occupation and use, unless there is full compliance with the applicable law
  2. 2.Declaration that the Petitioners have a legitimate expectation to own the suit plots unless and until the Respondent gives reasons to the contrary
  3. 3.Declaration that the Petitioners' constitutional right to protection of the right to own property has been violated
  4. 4.Declaration that the Petitioners' constitutional right to fair administrative action has been violated
  5. 5.Respondent condemned to bear costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Fair Administrative Action ActSection 4
  • Cap 281 (now repealed)
  • Cap 300 (now repealed)

Cases cited (5)

  • Wreck Motors Enterprises vs. The Commissioner of Lands and 3 Others
    Nairobi Civil Appeal No. 71 of 1997
  • Joseph Arap Ngok Vs. Justice Moijo Ole Keiwa
    NAI Civil Application No. 60 of 1997
  • Serah Mweru Muhu v. Commissioner of Lands and 2 others
    Petition No. 413 of 2012
  • Kuria Green limited vs. the Registrar of titles and another
    Petition 107 of 2010
  • R vs DEVON COUNTY COUNCIL ex parte P. BAKER
    [1995] 1 ALL ER
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging violation of rights to property and fair administrative action, Article 47); not expressly cited

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, "Solomon M. Nchebere & 22 others v Meru County Government [2018] KEELC 4767 (KLR)", Case Analysis (2018). Petition No 45 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4767/eng@2018-01-24

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