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ELCDismissedNot stated in the judgment (plaint dated 10th June 2016, amended 19.2.2018)· [2021] KEELC 944 (KLR)

Ndung’u & 2 others (Suing on their own Behalf and om Behalf of 32 other Members of Materetha Self Help Group) v Nairobi City County & 8 others (Cause 650 of 2016) [2021] KEELC 944 (KLR)

Environment and Land Court
17 November 2021
LMLucy N. Mbugua
2,734 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nairobi court dismissed traders' claim over Soweto Market land because they had no documents proving it was public land.

What this practically means

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Executive summary

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Three plaintiffs, traders of the Soweto Open Air Market in Kayole and members of Materetha Self Help Group, sued the Attorney General, the 2nd to 8th defendants and the 9th defendant. They claimed that 5 acres had been set aside in 1994 for the market, that members were allocated stalls and issued certificates of stall ownership, and that a 1996 sub-division carved out the police station, social hall and 'Mradi wa Mwenje' plots, shrinking the market. They sought a declaration that the land is public land, an order for demolition of permanent structures built by the 2nd to 8th defendants, and orders compelling survey, registration and issuance of a Land Reference Number. The suit proceeded undefended; the National Land Commission was joined by amendment but was never served with the amended plaint. The court framed four issues: whether the land is public land, whether there was encroachment, whether demolition should be ordered, and entitlement to the prayers. Applying Sections 107 and 109 of the Evidence Act, the court held that the plaintiffs bore the burden of proving their claim and failed: no documents established the land's status as public land, the stall certificates conferred no proprietary interest, and the alleged survey was not legally anchored. The court noted the NLC holds the constitutional mandate over public land and its absence left critical questions unanswered. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the suit land is public land

Holding

Not established on the evidence; the plaintiffs produced no tangible documentation proving the land's classification as public land

Reasoning

Article 62(1) defines public land and Article 62(2) vests it in county governments in trust for residents. However, no documents indicated the suit land was public land; the map produced (exhibit 6) was illegible and irrelevant to classification, and the alleged survey was a rudimentary sub-division without legal anchoring. The burden of proof under Sections 107 and 109 of the Evidence Act lay on the plaintiffs and was not discharged.

p. 5
02

Whether the defendants encroached and developed illegal structures

Holding

Not established; the nature and extent of the plaintiffs' interests was undefined and no compelling evidence of allocation was produced

Reasoning

The certificates of stall ownership did not confer proprietary interests, and no legal process allocating the alleged public land to the plaintiffs was demonstrated. In an undefended suit the court still must be satisfied on a balance of probability, and glaring evidential gaps prevented a fair and conclusive finding of encroachment.

p. 5
03

Effect of non-joinder/non-service of the National Land Commission

Holding

The failure to serve the NLC, the entity mandated over public land, prejudiced the court's ability to determine the land's status

Reasoning

The NLC was joined by amendment but was never served with the amended plaint and summons; only a mention notice was served. The court proceeded as if the NLC was never joined. Since the NLC could have shed light on the status and utilization of the market land, its absence left the central question unanswered.

p. 6

Legal principles established

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  • He who alleges bears the burden of proving; a party asserting that land is public land must adduce evidence to establish its classification
  • The NLC holds the constitutional and statutory mandate to alienate or dispose of public land
  • Unsurveyed and undemarcated land breeds conflict, as it may be treated as res nullius

Court orders

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  1. 1.Suit dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes concerning public land (suit land alleged to be public land under Article 62)

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, "Ndung’u & 2 others (Suing on their own Behalf and om Behalf of 32 other Members of Materetha Self Help Group) v Nairobi City County & 8 others (Cause 650 of 2016) [2021] KEELC 944 (KLR)", Case Analysis (2021). Not stated in the judgment (plaint dated 10th June 2016, amended 19.2.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/944/eng@2021-11-17

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