Maringo K.P. & T.C. Estate House Owners’ Association (Maringo Posta Estate v Board of Trustees, Postal Corporation of Kenya Staff Pension Scheme & another [2020] KEELC 3652 (KLR)
The bottom line
#A Nairobi court ruled that residents' associations can sue for members' rights, but cannot take over an estate's management until a sectional plan is officially registered.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a registered society to institute a constitutional petition on behalf of its members
The petitioner, being an association registered under the Societies Act and a 'person' under Article 260, has locus standi
Article 260 defines 'person' to include an association or body of persons whether incorporated or unincorporated. The post-2010 Constitution expanded the scope of locus standi to include incorporated and unincorporated entities. The petitioner, as a duly registered society, may agitate the rights of its members through a constitutional petition.
Alleged violation of the right to property under Article 40(1)
No violation established; the members own their purchased units and there is no intention to deprive them
Each of the 254 unit owners bought their units from the 1st respondent. There was no intention to deprive any owner of their entitlement, and the complaints raised did not concern infringement of Article 40(1). The petition failed to state the manner of the alleged violation.
Declaration of the petitioner as a Management Corporation under the Sectional Properties Act
The court cannot declare the petitioner a Management Corporation because the corporation is constituted by statute upon registration of a sectional plan, which has not occurred
Section 17 of the Act provides that a Corporation is constituted on registration of a sectional plan. The evidence showed the sectional plan is yet to be registered by the Ministry of Lands. No statutory power allows the court to confer the corporation's powers, spelt out in Section 20, on any other entity.
Mandamus to compel handover of the mother title
Refused; title must be held by the corporation contemplated by the Act, not the petitioner
Once the 1st respondent completes registration of the sectional plans and a Management Corporation is in place, the Act contemplates that the title shall be held by the corporation, which has the powers to manage common areas including insurance. The petitioner is not such a corporation.
Alleged violation of the right to housing and sanitation under Article 43(b)
No violation; the members own their purchased houses with piped water and sewer connections
The members purchased units ranging from one to four bedroom apartments, so they cannot complain of lack of accessible and adequate housing. The South African housing cases cited concerned informal settlement dwellers petitioning government to provide housing, distinguishable from owners of purchased houses. Piped water, sewer connections and storage tanks established reasonable standards of sanitation.
Alleged violation of the right to a clean environment and abdication of duty by the 2nd respondent
No violation; the estate is private, the county collects garbage through a youth group, and management issues are for the members pending formation of a corporation
The 2nd respondent's role under the Solid Waste Management Act is confined to streets and public places and is complimentary in nature. Illegal structures interfering with drainage are a management issue the members should resolve, and the county's intervention was never sought. The members must organise themselves pending establishment of the Management Corporation.
Alleged violation of the right to human dignity under Article 28
No violation demonstrated; the members are owners of their own houses and not living in a slum
The petitioner misapprehended the context of the UN Convention on dignity and decent living, and the decisions relied on were inapplicable. Complaints about parking, rates, the community hall and offensive uses are management issues, not constitutional issues.
Legal principles established
#- A registered association within the meaning of Article 260 of the Constitution has locus standi to file a constitutional petition alleging infringement of its members' rights
- A Management Corporation under the Sectional Properties Act is constituted only upon registration of a sectional plan, and a court cannot declare any other entity to be the corporation
- Where a Management Corporation is not in place, the house owners are under a duty to organise themselves and mitigate their problems
- A county government's solid waste management duty under the Nairobi City County Solid Waste Management Act extends to streets and public places, not individual private houses, and mandamus will not issue to compel cleaning of a private estate
Court orders
#- 1.The petition is dismissed with costs to the respondents
- Jurisdiction invoked
- Article 165 of the Constitution of Kenya 2010 (constitutional petition alleging violation of fundamental rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maringo K.P. & T.C. Estate House Owners’ Association (Maringo Posta Estate v Board of Trustees, Postal Corporation of Kenya Staff Pension Scheme & another [2020] KEELC 3652 (KLR)", Case Analysis (2020). Constitutional Petition (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3652/eng@2020-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.