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ELCAllowedNot stated in the judgment· [2020] KEELC 2228 (KLR)

Michael Otieno Nyaguti v Port Manager-Kenya Ports Authority Kisumu & another [2020] KEELC 2228 (KLR)

Environment and Land Court
12 May 2020
AOA.O. Ombwayo
2,142 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 Kenyan court protected a fishing community from eviction, ruling authorities must de-gazette a landing site and provide a suitable alternative before anyone can be moved.

What this practically means

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Executive summary

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The petitioner, acting in person and in public interest on behalf of the fisher folk communities around Lake Victoria, petitioned the Environment and Land Court at Kisumu challenging the threatened eviction of the Kichinjio Beach Management Unit (BMU) from its fish landing site. He claimed that in September 2019 officers of the Railways and Ports Police and Kenya Ports Authority security issued verbal quit notices, and that the 1st respondent fenced off the landing area and access road, without a properly served eviction notice, without a Resettlement Action Plan arrived at through public participation, and without providing an alternative landing site or facilities. He alleged violations of multiple constitutional provisions including Articles 40, 42, 43 and 47, and harm to the riparian wetland which serves as a fish breeding ground and water purification zone. The respondents filed grounds of opposition, denying responsibility for the land and arguing the petition was defective, an abuse of process, and would delay a public interest port project. The 1st respondent argued the petitioner had no right to the property under Section 26(1) of the Land Registration Act. The court held that the 1st respondent misconceived the petition, which was about the right to use the beach as a designated fish landing station, not a land ownership claim. It found the eviction action breached Articles 43 and 47, as no notice was given, the site was not de-gazetted, and no alternative site was provided. The petition was allowed: the respondents were restrained from evicting the BMU members or taking over the site's properties without a suitable relocation site with enabling facilities, and from engaging in any activity harmful to the riparian wetland. Costs were awarded to the petitioner.

Key legal issues

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01

Nature of the petition - land claim or right to use a designated landing site

Holding

The 1st respondent misapprehended the petition; the petitioner claimed the right to use the beach as a fish landing base, not land per se

Reasoning

The court found the 1st respondent misunderstood the petition as a land ownership claim. The petitioner was instead asserting the community's right to use Kichinjio Beach, a designated fish landing station under regulation 42(1) of the Fisheries (General) Regulations (L.N. 40/1997), fourth schedule. This framing meant the Land Registration Act argument was misconceived.

p. 3
02

Breach of economic rights under Article 43

Holding

The eviction action by the 1st and 2nd respondents breached Article 43

Reasoning

The court held that the threatened eviction of the BMU members from their livelihood base, without an alternative site or infrastructure, infringed the fisher communities' economic rights guaranteed by Article 43 of the Constitution. The landing site and surrounding wetland were sources of livelihood, and their loss would expose the community to destitution.

p. 4
03

Breach of fair administrative action under Article 47

Holding

The verbal quit notice and fencing without written reasons or fair closure procedure breached Article 47

Reasoning

Article 47 guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, with written reasons where rights are affected. The respondents issued only a verbal quit notice and fenced the site without written reasons and without de-gazetting the landing site or providing an alternative, rendering the closure procedure unfair and unconstitutional.

p. 4

Legal principles established

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  • Occupants of a gazetted fish landing site are entitled to use it until an alternative site is availed or a fair procedure is undertaken to de-gazette the site
  • A verbal quit notice without written reasons and without following closure procedure breaches Article 47

Court orders

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  1. 1.The respondents be and are hereby restrained from evicting the BMU members from Kichinjio fish landing site and taking over the properties therein without provision of a suitable relocation site with requisite enabling facilities for sanitary operation and within the requirements of the relevant law
  2. 2.The respondents be and are hereby restrained from engaging in any activity that may be harmful to the riparian wetland around Kichinjio BMU landing site in Lake Victoria
  3. 3.Costs of the petition to the petitioner
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya, 2010 (public interest petition)

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, "Michael Otieno Nyaguti v Port Manager-Kenya Ports Authority Kisumu & another [2020] KEELC 2228 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2228/eng@2020-05-12

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