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ELCDismissedPetition dated 26th November 2020· [2021] KEELC 2028 (KLR)

David Gathinji Kariuki Suing on behalf of members of Mbegi Muridate Community, Gilgil v Kenya Defence Force & 2 others [2021] KEELC 2028 (KLR)

Environment and Land Court
16 September 2021
DOD. O. Ohungo
1,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Gilgil community lost its constitutional challenge against eviction because, although it had standing to sue, it presented no evidence proving its rights were violated.

What this practically means

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Executive summary

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The petitioner, a farmer and resident of Mbegi Muridate Ward, Gilgil, sued on his own behalf and on behalf of his community, claiming that the respondents arbitrarily ordered the community to vacate approximately 10 acres belonging to KENHA and Telkom, where they had dried maize for 15 years, without written reasons, allegedly violating Articles 26 (right to life) and 47(2) (written reasons for administrative action). He sought four declarations. The respondents, through an affidavit of Lieutenant Colonel Victor Mburu of the Kenya Ordnance Factories Corporation, opposed the petition, deposing that the community had no rights over the land, that their maize-drying attracted birds whose droppings contaminated rainwater used in food processing, and that the matter was addressed through the local administration: a meeting before the Deputy County Commissioner resolved that the community vacate by 30th November 2020, and a Public Health Officer issued a notice to vacate on 3rd December 2020. The respondents argued lack of locus standi and that the petitioners were trespassers constituting a nuisance under Section 115 of the Public Health Act. The petitioner filed no replying affidavit nor submissions. The court framed three issues: locus standi, violation of Articles 26 and 47(2), and entitlement to relief. It held that Article 22 confers standing on any person alleging a Bill of Rights violation, so the petitioners had standing despite lacking any interest in the land. However, having conceded no ownership or interest and produced no proof of authority from KENHA or Telkom, and offering no evidence against the respondents' exhibited minutes and notice, the petitioners failed to establish any violation. The petition was dismissed with costs to the respondents on 16th September 2021.

Key legal issues

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01

Locus standi

Holding

Petitioners have locus standi under Article 22 despite lacking any interest in the suit property

Reasoning

Article 22 accords every person the right to institute proceedings claiming a Bill of Rights violation, whether in their own interest, a group's interest, or the public interest. Ownership of the suit property is not a prerequisite; it suffices that they allege a right has been denied, violated, infringed or threatened. The court harboured no doubt the petitioners had standing.

p. 2
02

Alleged violation of Articles 26 and 47(2)

Holding

No violation established; the petition failed

Reasoning

The petitioners conceded they neither own nor hold any interest in the land and produced nothing to show authority from KENHA and Telkom. The respondents exhibited minutes of meetings held on 7th November and 15th October 2020 before the Deputy County Commissioner and Area Chief, plus a notice to vacate dated 3rd December 2020 from the Public Health Officer. The petitioners adduced no evidence to challenge this material.

p. 3

Legal principles established

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  • Under Article 22, a person need not have an ownership interest in property to institute proceedings enforcing Bill of Rights freedoms; standing lies in one's own interest, a group's interest, or the public interest
  • A party alleging a right or authority must prove it

Court orders

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  1. 1.The petitioners' case is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 26
  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Public Health ActSection 115

Cases cited (1)

  • Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others
    [2002] eKLR
Jurisdiction invoked
Articles 22 and 23 of the Constitution (enforcement of Bill of Rights)

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, "David Gathinji Kariuki Suing on behalf of members of Mbegi Muridate Community, Gilgil v Kenya Defence Force & 2 others [2021] KEELC 2028 (KLR)", Case Analysis (2021). Petition dated 26th November 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2028/eng@2021-09-16

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