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ELCDismissedPetition dated 1st February 2017 (number not stated in judgment)· [2018] KEELC 4873 (KLR)

Amina A Salim & 42 others v National Land Commission & 12 others [2018] KEELC 4873 (KLR)

Environment and Land Court
11 April 2018
5,504 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a challenge to Kisumu's Manyatta Arab Estate slum-upgrading allotments because the petitioner proved no rights violation.

What this practically means

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Executive summary

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Amina A. Salim, described as the 1st of 43 petitioners, petitioned the Environment and Land Court against the National Land Commission and 12 other respondents, seeking declarations that allotment letters dated 15th/16th February 2001 were the only genuine letters issued in compliance with judicial review orders in Kisumu H.C. Misc. Civil Application No. 96 of 1998, restraining and prohibition orders against fresh allotments at Manyatta Arab Estate, cancellation of later allotment letters and PDPs, damages for violation of Articles 26, 28 and 43, and costs. The respondents opposed, contending that the court order relied on was altered (the correct date of the allotment letters being 16th February 2011), that a new PDP No. N9/2010/02 established 78 plots through a participatory process, and that some petitioners were deceased, had sold their plots, or were strangers. The court framed four issues. It found no written authority from the 42 co-petitioners and treated the petition as filed by Amina A. Salim alone. It found the 2001 date in the order relied on to be an acknowledged error, the correct date being 16th February 2011, unchallenged by the Petitioner. It found no specific particulars of discrimination or of any violation of constitutional rights, and held that the petition lacked the reasonable precision required by Anarita Karimi Njeru and Mumo Matemu, with any genuine grievance better pursued in an ordinary suit. It endorsed the KISIP tenure-regularization project provided court-recognized beneficiaries are reasonably involved. The petition and notice of motion were dismissed with each party bearing their own costs, and the interim conservatory order of 28th February 2017 was vacated.

Key legal issues

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01

Authority of the 1st Petitioner to file the petition for 42 others

Holding

No authority was established; the court treated the petition as by the 1st Petitioner alone

Reasoning

The petition and supporting affidavit contained no averment that the 42 co-named persons authorized the filing, and no signed written authority was annexed. The lack of authority was raised in the respondents' replying affidavits and was never answered by a further or supplementary affidavit, leaving the court in doubt whether the petition was by 43 persons or one.

p. 11
02

Validity of the 2001 allotment letters relied on

Holding

The court order the Petitioner relied on was shown to contain an erroneous date; the correct date of the allotment letters is 16th February 2011

Reasoning

The Respondents produced another copy of the 28th March 2012 order and correspondence between the Chief Magistrate and the advocate confirming that the reference to 16th February 2001 was in error. The Petitioner did not dispute or challenge that deposition, so the foundation of the claim of compliance with the court order failed.

p. 11
03

Alleged violation of constitutional rights (Articles 26, 28, 43) and discrimination

Holding

No evidence of infringement was tendered

Reasoning

The Petitioner alleged discrimination by the 2nd Respondent but gave no specific details enabling a finding. The Respondents, by contrast, produced detailed documentation of a participatory process culminating in PDP No. N9/2010/02 and a list of 78 allottees. With the petition standing as that of one petitioner, no violation or threatened violation of rights was shown.

p. 11
04

Adequacy of pleading in the constitutional petition

Holding

The petition lacked reasonable precision and should have been an ordinary suit

Reasoning

The complaints were unclear as to the specific acts or omissions of each named Respondent. Citing Anarita Karimi Njeru and Mumo Matemu, the court held that constitutional petitions require precision, and that the Petitioner's grievance against the project, involving disputed facts, could best be ventilated in an ordinary suit where viva voce evidence could be taken.

p. 12

Legal principles established

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  • A petitioner swearing an affidavit and filing a petition on behalf of named co-petitioners must establish written authority from them; absent such authority the court may treat the petition as filed by the deponent alone
  • Constitutional petitions must be pleaded with reasonable precision, with specifics of the acts or omissions and the provisions infringed, as per Anarita Karimi Njeru and Mumo Matemu
  • Disputed factual matters requiring viva voce evidence are better pursued through an ordinary suit rather than a constitutional petition
  • A slum-upgrading project formalizing secure land tenure deserves support provided prior court-recognized beneficiaries are reasonably involved and their interests protected in any replanning or resurveying

Court orders

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  1. 1.The petition and the notice of motion based on it are dismissed
  2. 2.Each party to bear their own costs
  3. 3.The interim conservatory order granted on 28th February 2017 in terms of prayer (2) is vacated

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 26, 28, 43
  • Constitution of Kenya, 2010Article 10(a),(b),(c),(d)

Cases cited (2)

  • Anarita Karimi Njeru –V- The Republic
    [1979-1980] KLR 1272 (as printed)
  • Mumo Matemu –V- Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
Jurisdiction invoked
Constitutional petition under Articles 26, 28 and 43 of the Constitution of Kenya, 2010 (article 10 also raised by respondents); specific jurisdictional provision not stated in the judgment

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, "Amina A Salim & 42 others v National Land Commission & 12 others [2018] KEELC 4873 (KLR)", Case Analysis (2018). Petition dated 1st February 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4873/eng@2018-04-11

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