Republic v Attorney General & another Ex parte Peter Njoroge Muiruri & 9 others; Samuel Ojowa Achieng & another (Interested Parties) [2021] KEELC 2243 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants' right to adequate and accessible housing under Article 43 was violated
The allocation of the land on which the village stands for commercial development violated the Applicants' right to adequate and accessible housing and the government's slum upgrading policy
The Applicants had occupied the suit land for almost forty years as an informal settlement. The 2nd Respondent had encouraged a slum upgrading initiative with Pamoja Trust, including public toilet and water facilities. Allocating part of that unalienated public land to the 1st Interested Party for warehouses defeated the upgrading policy and infringed the residents' housing and sanitation rights, which the court held took priority over commercial development claims.
Whether the 1st Interested Party proved lawful allocation of the suit land
He failed to prove a lawful allocation; the letter of allotment did not confer title, the beacon certificate referred to Mathare North, and the City Council distanced itself from the allocation
The 2nd Respondent never corroborated the alleged allocation and by letter dated 9/9/2008 denied it emanated from its office. The NLC officer deponed there were no records for L.R. No. 219/110. The 1st Interested Party produced no allocation minutes, no lease, and his beacon certificate referred to plot C in Mathare North, a different location. He therefore was not the registered proprietor and failed to prove allocation under the Local Government Act.
The status of the suit land and appropriate relief
The suit land remained public/unalienated land, and it should be allocated to the residents communally with the upgrading process resumed
The land had been allocated to the City Council (L.R. No. 219/14) and had never been subdivided or alienated. Given the residents' long occupation and the State's slum upgrading policy, the court directed cancellation of any individual allocation and communal allocation to the residents, and restrained the 1st Interested Party from interfering with their occupation.
Legal principles established
#- A letter of allotment does not confer title; an allottee must proceed to obtain title (a lease) for the allocation to crystallise
- Residents' constitutional rights to accessible and adequate housing and reasonable sanitation on unalienated public land rank in priority over an individual's claim to the same land for commercial development
Court orders
#- 1.A declaration that the alienation or allocation of L.R. No. 219/110 or any part of the land on which Mathare Mabatini village stands by the 2nd Respondent to the 1st Interested Party or any other party for commercial developments was unlawful and violated the government policy of upgrading informal settlements and ensuring access to adequate and accessible housing
- 2.The 2nd Respondent is directed to cancel the allocation to any individual of the land on which Mathare Mabatini village stands or any part of it, and to allocate the land to the residents of Mathare Mabatini village on a communal basis
- 3.An order restraining the 1st Interested Party or his agents from harassing, evicting, or otherwise interfering with the Applicants' occupation and use of the land on which Mathare Mabatini village stands
- 4.The Applicants are awarded the costs of the suit, to be borne by the 1st Interested Party
- Jurisdiction invoked
- Articles 22, 23, 40, 43 and 63 of the Constitution (judicial review reference transferred to the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & another Ex parte Peter Njoroge Muiruri & 9 others; Samuel Ojowa Achieng & another (Interested Parties) [2021] KEELC 2243 (KLR)", Case Analysis (2021). ELC J.R No. 7 of 2018 (Formerly J.R No. 72 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2243/eng@2021-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.