M’ Munoru M’ Mugwongo,Festus Kaberia M’mirinaga & Estate of the Late Jason Kubai M’kioru (Suing Through Widows and Administrators of the Estate: Margaret Kanario & Ann Nchororo v County Government of Meru (? 17 of 2015) [2020] KEELC 3896 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that long occupation, rate payments, and old council allocations make market plots private property the county cannot demolish without compensation.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the dispute
The court has jurisdiction; the dispute relates to acquisition of and interest in land, not to the enforcement-notice appeal mechanism under the Physical Planning Act.
The enforcement notice concerned encroachment on road reserves, while the respondent's affidavit case alleged illegal acquisition of land; the two are not in tandem. Because the issues concern acquisition of land and the petitioners' occupation gives them an interest, the ELC's jurisdiction under Article 162(2)(b) and Section 13(1) of the ELC Act, read with Article 40(3), is properly invoked. The Physical Planning Act dispute-resolution mechanism does not apply.
Whether the suit land is public or private land
The beneficial interests in the plots lie with the petitioners; they are private property notwithstanding the respondent's allegation of illegal encroachment.
The petitioners have occupied and developed the plots since about 1994, paying rates throughout. The repealed Local Government Act empowered councils to deal with and even sell land, so the defunct council had capacity to allocate. The respondent failed to prove the alleged fraud or wrongful encroachment, produced no documentation, and never explained why it collected rates for years before issuing enforcement notices. The delay in acting was unexplained and the notice alleged a different ground (road reserves).
Entitlement to relief
The petitioners proved their case on a balance of probabilities and obtained declarations protecting their plots from arbitrary deprivation without compensation.
Having found jurisdiction and that the petitioners hold beneficial interests, the court held that any taking must comply with Section 40(3) of the Constitution, requiring prompt payment of just compensation and access to a court. The respondent was bound by fair administrative action and legitimate expectation, having known of and taxed the petitioners' properties. The petitioners were entitled to declarations; costs followed the event against the respondent.
Legal principles established
#- A party desiring a court to adjudicate a legal right dependent on facts must prove those facts; the burden of proof lies on that person.
- Beneficial interests acquired through allocation by a defunct local authority, evidenced by long occupation, payment of rates and council-sanctioned subdivision, are protected; the State cannot deprive such holders of their property except in accordance with the law and with adequate compensation.
- A public body must observe fair administrative action and legitimate expectation; unexplained inaction and collection of rates over many years cannot be cured by an enforcement notice alleging a different ground.
Court orders
#- 1.A declaration that the rights conferred to the petitioners by the defunct Nyambene County Council must be extended, promoted and respected by the respondent
- 2.A declaration that Plot No. 47a, Plot No. 47b and Plot No. 48 within Kiengu Market and the developments thereon are private property and the petitioners should not be deprived of the same unless there is adequate compensation
- 3.The respondents are condemned to pay costs of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’ Munoru M’ Mugwongo,Festus Kaberia M’mirinaga & Estate of the Late Jason Kubai M’kioru (Suing Through Widows and Administrators of the Estate: Margaret Kanario & Ann Nchororo v County Government of Meru (? 17 of 2015) [2020] KEELC 3896 (KLR)", Case Analysis (2020). Petition dated 13.7.2015 (ELC, Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3896/eng@2020-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.