Mater Central Mariakani Residents Association v Cabinet Secretary, Ministry of Transport, Infrastructure, Lands, Housing & Urban Development & 3 others [2021] KEELC 2191 (KLR)
The bottom line
#Mariguini slum residents won protections against forced eviction, but the court confirmed they cannot claim ownership of public land they occupy.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner has locus standi to file the petition
- 2.Whether this court has jurisdiction to entertain the petition
- 3.Whether the Petitioner's rights have been contravened as it claims
- 4.Whether the Petitioner has made out a case for grant of the orders it seeks in the petition
Key legal issues
#Locus standi of a registered residents' association
The Petitioner, a registered association under the Societies Act, has standing under Articles 22 and 258 of the Constitution to institute proceedings claiming violation or threatened violation of rights
Article 22 empowers every person to institute court proceedings claiming a right has been denied, violated or threatened. The association falls within the category of petitioners contemplated by Article 258(c), representing the community resident in Mariguini slum whose rights to remain on the land were said to be threatened.
Jurisdiction of the ELC vis-à-vis the National Land Commission
This court has jurisdiction; constitutional rights claims and adverse possession fall outside NLC's mandate, whose review powers lapsed on 2/5/2017
The 2nd Respondent argued the claim fell within NLC's mandate under Article 67(e) and Section 14 of the NLC Act. The court held that constitutional rights claims and adverse possession claims fall outside NLC's scope and that its review mandate lapsed and was not extended, so the ELC may determine the dispute.
Adverse possession and enforceability of the 1997 decree
The decree in HCCC No. 2842 of 1996 is time-barred and unenforceable, but the Petitioner's adverse possession claim fails because the suit land is Government/public land protected by Section 41 of the Limitation of Actions Act
The decree dated 15/5/1997 could no longer be enforced since Section 4(4) bars actions on judgments after 12 years. However, the land registered in NHC's name, a State corporation, is public land under Article 62, and Section 41 of the Limitation of Actions Act bars acquisition of title to Government land, defeating the adverse possession claim.
Alleged irregular allocation of the suit land
The allegation of irregular allocation in 1983/1988 fails for want of proof and because the Land Act and 2010 Constitution did not apply to those transactions
The Petitioner led no evidence that the allocation to Charles Icharia or transfer to NHC was irregular. At the relevant time allocation of public land was governed by the old Constitution and the Government Lands Act, so the Petitioner's reliance on the 2010 Constitution and the Land Act was retrospective and misplaced.
Threatened forced eviction and the right to housing
No violation or imminent threat of violation was established; residents have a protectable right to housing over public land, and the slum upgrading project should proceed subject to safeguards
Relying on Mitu-Bell, the court held occupants of public land have a protectable right to housing without title. Enumeration had involved the Petitioner's leaders, there was no evidence of likely forced evictions, and the upgrading project would realise Article 43 housing rights. Orders were tailored to ensure transparent, dignified and lawful evacuation under Sections 152-152I of the Land Act.
Legal principles established
#- Landless persons who occupy public land do not acquire title to it but have a protectable right to housing over the land they occupy
- Government land cannot be acquired by adverse possession under Section 41 of the Limitation of Actions Act
- A judgment for possession of land must be enforced within 12 years; Section 4(4) of the Limitation of Actions Act bars actions upon a judgment after twelve years
- NLC's mandate to review grants of public land lapsed on 2/5/2017 and has not been extended by Parliament
Court orders
#- 1.The slum upgrading programme commenced under the 1st Respondent should be allowed to progress expeditiously with set timelines which the 1st Respondent must communicate to members of the Petitioner and other residents of Mariguini slum
- 2.The 3rd Respondent will not evict members of the Petitioner from the suit land for a period of 6 months from the date of the judgement
- 3.The 1st Respondent to avail the list of enumerated residents of Mariakani settlement scheme to the Petitioner and residents of Mariguini slum for transparency and accountability in line with Article 10 (c) of the Constitution
- 4.Members of the Petitioner and other residents to hold follow-up discussions with the 1st, 2nd and 3rd Respondents in baraza meetings and be allowed to fully participate
- 5.The 1st Respondent, in consultation with the Petitioner and other residents, is to develop an evacuation plan including setting a date for residents to vacate the suit land, of which residents should be informed in advance
- 6.The date set for evacuation must take into consideration the school calendar and prevailing weather conditions, and during evacuation the privacy, dignity and security of residents should be observed
- 7.The evacuation exercise must be conducted in strict compliance with Sections 152, 152 A to 152 I of the Land Act
- 8.Each party will bear its costs for the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 258 and 165 of the Constitution of Kenya 2010
Relief refused
#Declaration that L.R. No. 209/10354 was unprocedurally issued and that the 3rd Respondent holds the title in trust for the Petitioner's members
No evidence that the land was illegally allocated to Charles Icharia; the Land Act and 2010 Constitution could not apply retrospectively to 1983/1988 transactions
Order for rectification of the register by cancellation of the 3rd Respondent's title and issuance of titles to members
The land is public land held by a State corporation and cannot be adversely possessed; Section 41 of the Limitation of Actions Act bars acquisition of title to Government land
Damages for violation of constitutional rights
Petitioner failed to demonstrate any real or imminent threat of violation of rights; no evidence of likelihood of forced evictions
Costs
Each party will bear its costs for the petition.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In any event, NLC's mandate to review grants of public land to establish their propriety lapsed on 2/5/2017 and has not been extended by Parliament. This court has jurisdiction to determine this dispute.
Section 41 of the Limitation of Actions Act stipulates that that Act does not enable a person to acquire any title to or easement over Government land or land otherwise enjoyed by the Government.
Section 4 (4) of the Limitation of Actions Act bars the bringing of an action upon a judgement after the end of twelve years from the date of that judgement.
Since the suit land is public land, the Petitioners have a protectable right to housing over the land that they occupy.
The 3rd Respondent will not evict members of the Petitioner from the suit land for a period of 6 months from the date of this judgement.
The evacuation exercise to be undertaken to pave way for the slum upgrading project to commence must be conducted in strict compliance with Sections 152, 152 A to 152 I of the Land Act.
Each party will bear its costs for the petition.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mater Central Mariakani Residents Association v Cabinet Secretary, Ministry of Transport, Infrastructure, Lands, Housing & Urban Development & 3 others [2021] KEELC 2191 (KLR)", Case Analysis (2021). ELC Petition No. 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2191/eng@2021-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.