Michael Otieno Nyaguti v Port Manager-Kenya Ports Authority Kisumu & another [2020] KEELC 2755 (KLR)
The bottom line
#A Kenyan court stopped the eviction of Kisumu fisherfolk, ruling they cannot be moved from a designated fish landing site without a fair process and an alternative site.
What this practically means
#Executive summary
#Key legal issues
#Nature of the petition - land claim or right of use
The 1st respondent misapprehended the petition; it is not a claim to land but to the right to use the beach as a fish landing base
The court found the 1st respondent's defence under Section 26(1) of the Land Registration Act misconceived because the petitioner was not claiming ownership of land but the right of the fisher folk to use a gazetted fish landing station. The Kichinjio Beach is a designated fish landing station under the fisheries regulations, so the question was the lawfulness of depriving the community of that use, not title.
Right to fair administrative action (Article 47)
The respondents breached Article 47 by issuing a verbal quit notice, fencing the site, giving no reasons and following no fair closure procedure
Article 47 guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and written reasons where rights are affected. The eviction was effected by a verbal quit notice and fencing without written reasons, without de-gazettement of the landing site and without provision of an alternative site, all of which rendered the administrative action unfair and unconstitutional.
Economic and environmental rights (Articles 42, 43)
The threatened eviction breached Article 43 economic rights and threatened the riparian wetland ecosystem
The court held that evicting the BMU without an alternative site infringed the economic rights of the fisher community whose livelihoods depend on the landing site and the surrounding wetland. The reclamation and destruction of the riparian wetland, which filters sewage and municipal runoff and serves as a fish breeding ground, also threatened the right to a clean and healthy environment.
Legal principles established
#- Occupants of a gazetted fish landing site are entitled to remain in use of it until an alternative site is availed or a fair procedure to de-gazette it is undertaken
- A verbal quit notice without written reasons and without fair procedure breaches Article 47 fair administrative action
Court orders
#- 1.The respondents are 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.The respondents are restrained from engaging in any activity that may be harmful to the riparian wetland around Kichinjio BMU landing site in Lake Victoria
- 3.Costs of the petition to the petitioner
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution of Kenya, 2010 (public interest enforcement of Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Otieno Nyaguti v Port Manager-Kenya Ports Authority Kisumu & another [2020] KEELC 2755 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2755/eng@2020-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.