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ELCDismissed(Notice of Motion dated 30th July 2018 arising from a petition filed on 20th July 2018)· [2018] KEELC 4891 (KLR)

Magdalene Njeri & 9 others v Moses Nyakiongora & 5 others [2018] KEELC 4891 (KLR)

Environment and Land Court
8 August 2018
EOE. O. Obaga
1,219 words in judgment
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The bottom line

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The court refused to stop demolitions of unsafe structures on public utility land, ruling that eviction protections under Section 152C of the Land Act don't apply.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Obaga J) determines a notice of motion dated 30th July 2018 filed alongside a constitutional petition by nine petitioners, led by Magdaline Njeri and including Yash Pal Ghai for the 9th petitioner, seeking interim conservatory orders to restrain the respondents from demolishing homes, schools and businesses in Kaloleni, Makongeni, Mbotela, Mutindwa, Dandora, Kenyatta University (Kamae), Langata sub-county headquarters and the Wilson Airport/Langata Wilson South C link road reserve. The application, prompted by notices dated 19th and 26th July 2018 issued by the Secretary of the National Building Inspectorate and Chairman of the Multi-Sectoral Committee on Unsafe Structures, was heard ex parte on 6th August 2018 after service, the respondents not appearing. Counsel for the petitioners argued the notices were illegal, that evictions had already begun in Kaloleni, and that evictions were being carried out inhumanely in cold weather. The court framed a single issue: whether conservatory orders should issue. It held that the notices targeted illegal structures along Kenya Power and Kenya Railway reserves; removal of unsafe structures fell within the first respondent's mandate; Section 152C of the Land Act 2012 on evictions does not apply to removal of unsafe or illegal structures; and the Kibera precedent relied on was distinguishable. There being no evidence the structures were the petitioners' residences, the notice of motion was dismissed with no orders as to costs on 8th August 2018.

Key legal issues

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01

Whether conservatory orders should issue to halt the threatened demolitions pending hearing of the petition

Holding

No conservatory orders were granted; the petitioners did not demonstrate entitlement to them.

Reasoning

The court compared the two notices of 19th and 26th July 2018 with the Kibera-type evictions the petitioners relied on and found the situations different. There was no evidence the targeted structures were the petitioners' residences or that they were internally displaced persons. The notices targeted illegal structures on Kenya Power and Kenya Railway reserves, and the statutory eviction protections were inapplicable.

p. 3

Legal principles established

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  • The eviction provisions of Section 152C of the Land Act 2012 do not apply to the removal of unsafe or illegal structures.
  • It is within the mandate of the National Building Inspectorate and the Multi-Sectoral Committee on Unsafe Structures to ensure unsafe structures are removed, subject to notice to the affected persons.

Court orders

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  1. 1.The notice of motion dated 30th July 2018 is dismissed with no orders as to costs

Authorities

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Legislation

  • Land ActSection 152C
Jurisdiction invoked
Original constitutional petition jurisdiction of the High Court (Constitutional and Human Rights Division), the interim application having been transferred to the Environment and Land Court

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, "Magdalene Njeri & 9 others v Moses Nyakiongora & 5 others [2018] KEELC 4891 (KLR)", Case Analysis (2018). (Notice of Motion dated 30th July 2018 arising from a petition filed on 20th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4891/eng@2018-08-08

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