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ELCDismissedPetition dated 2nd December 2020 (Notice of Motion dated 2nd December 2020)· [2021] KEELC 1279 (KLR)

Francis Kimathi Mutisya & 173 others v Nairobi City County Government & another [2021] KEELC 1279 (KLR)

Environment and Land Court
28 October 2021
4,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The High Court's Environment and Land Court dismissed Gikomba traders' bid to block eviction, but ordered Nairobi County to follow proper legal eviction procedures.

What this practically means

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Executive summary

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The Petitioners, traders in secondhand clothes who have operated in Gacucu Gikomba open air market for over 40 years, moved the court by Notice of Motion dated 2nd December 2020 seeking temporary injunctions restraining the Nairobi City County Government and Nairobi Metropolitan Services from threatening to evict, evicting, demolishing their business structures or interfering with their possession of the market, pending hearing of their petition. They contended the Respondents had issued verbal eviction threats without serving compliant eviction notices under Sections 152A to F of the Land Act, 2012. The Respondents, through a replying affidavit of Stephen G. Mwangi, Deputy Director in charge of lands at Nairobi Metropolitan Services, averred the suit property is public land occupied at the pleasure of the 1st Respondent, and that the area falls within Pumwani Majengo Health Centre, which requires expansion and upgrading to a level 3 hospital owing to increased demand for health care including under the Big 4 agenda's universal health care pillar. Framing three issues - prima facie case, irreparable harm, and balance of convenience - the court applied the Nguruman and Mrao tests. It held the Petitioners, having conceded the land is public and having paid business permit fees, licences and cess, were mere licensees with no legal or lawful interest in the property capable of supporting an injunction, relying on Faraj Maharus and Runda Coffee Estate. No irreparable harm was shown since the market is open-air, any structures are temporary and compensable in damages. The balance of convenience favoured the Respondents' public-interest health facility expansion, private right yielding to public need. The court dismissed the application with no order as to costs, each party bearing their own, but directed that any eviction must strictly follow Sections 152A to F of the Land Act.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

No prima facie case was established because the Petitioners hold no legal or lawful interest in the public land; their occupation is predicated on licence, consent and permission of the 1st Respondent

Reasoning

The court adopted the Nguruman and Mrao definitions of a prima facie case. The Petitioners conceded the suit property is public land and admitted paying single business permit fees, licences and cess to the 1st Respondent, confirming their occupation was by licence. The court held that no legal right accrues out of public property, and that an injunction restraining the owner from taking possession would elevate a licensee above the radical-title owner and be inimical to law, public policy and public order.

p. 4
02

Irreparable harm

Holding

No irreparable loss was shown; any structures are temporary, relocatable and any loss compensable in damages

Reasoning

Applying the Nguruman definition of irreparable injury, the court found the market is an open-air one with no permanent structures, so nothing would be exposed to demolition. Temporary shelter structures can be relocated once the requisite Section 152 notices are served, and any residual loss is quantifiable and compensable in special and general damages, which the Respondents can pay.

p. 5
03

Balance of convenience

Holding

Balance of convenience tilts in favour of the Respondents, whose expansion of Pumwani Majengo Health Centre into a level 3 hospital serves the public good and the right to universal health care

Reasoning

The court framed the case as a conflict between private rights and public interest. Relying on James Joram Nyaga v Attorney General, it held individual rights are not absolute but subject to the general public interest; the right to earn a living is subject to limitation under Article 25 of the Constitution. The Petitioners' right to a livelihood cannot fetter the Respondents' rights to expand and upgrade the health facility for the benefit of the entire country.

p. 6
04

Eviction procedure under the Land Act

Holding

Although the injunction fails, the Respondents must still comply with Sections 152A to F of the Land Act, 2012 (2016) before evicting the Petitioners

Reasoning

The court observed that the radical-title owner is entitled to recover vacant possession for designated public use, but is obliged to issue and serve the requisite notices. It endorsed Susan Waithera Kariuki v Town Clerk, Nairobi City Council, where occupants of public land were held entitled to adequate notice to vacate even though the public interest in development outweighed their private interest.

p. 4

Legal principles established

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  • A Temporary Occupation Licence or payment of levies over public land creates no legal or lawful interest or title in the licensee capable of supporting an injunction against the owner of public land
  • Even where an owner of public land is entitled to recover vacant possession for public use, it must first issue and serve compliant eviction notices under the Land Act
  • Where private rights conflict with public need, the private interest must give way to the public good

Court orders

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  1. 1.The Notice of Motion application dated 2nd December 2020 be and is hereby dismissed
  2. 2.Any removal/eviction of the Petitioners from the suit property must only be carried out in line with the provisions of Sections 152A to F of the Land Act, 2012 (2016)
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Land ActSections 152A, B, C, D, E, G and F
  • Constitution of Kenya, 2010Article 25
  • Registration of Titles Actnull

Cases cited (8)

  • Nguruman Ltd v Jan Bonde Nielsen & Others
    (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • American Cyanamid Co v Ethicon Ltd
    [1975] AC 396
  • Ramanlal Trambaklal Hatt v Republic
    [1957] E.A. 332
  • Faraj Maharus v J. B Martin Glass Industries & 3 Others
    (2005) eKLR
  • Runda Coffee Estate Ltd v Ujagar Singh
    [1966] E.A. 564
  • Susan Waithera Kariuki & 4 Others v The Town Clerk, Nairobi City Council & 3 Others
    (2013) eKLR
  • James Joram Nyaga & Another v The Hon. Attorney General & Another
    [2007] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (petition for conservatory/temporary injunction orders)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Kimathi Mutisya & 173 others v Nairobi City County Government & another [2021] KEELC 1279 (KLR)", Case Analysis (2021). Petition dated 2nd December 2020 (Notice of Motion dated 2nd December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1279/eng@2021-10-28

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