Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC J.R No. 7 of 2018 (Formerly J.R No. 72 of 2010)· [2021] KEELC 2243 (KLR)

Republic v Attorney General & another Ex parte Peter Njoroge Muiruri & 9 others; Samuel Ojowa Achieng & another (Interested Parties) [2021] KEELC 2243 (KLR)

Environment and Land Court
9 August 2021
6,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This first-instance judgment of the Environment and Land Court at Nairobi (K. Bor, J) determined a judicial review reference transferred from the High Court in which approximately 350 households of the Mathare Mabatini informal settlement challenged the purported allocation of part of the land they had occupied since the early 1970s to the 1st Interested Party, Samuel Ojowa Achieng, for warehouse development. The Applicants sought declarations that the allocation violated their right to adequate and accessible housing and the government's slum upgrading policy, that the land was unalienated public land, and orders cancelling the allocation and directing communal allocation to the residents. The Attorney General and the City Council of Nairobi called no evidence; the City Council denied having allocated the land. The court found the parties had long occupied the land on the Chief's allocation within an informal settlement, that the land remained unalienated public land held by the City Council, and that the 1st Interested Party failed to prove a lawful allocation: his letter of allotment did not confer title, his beacon certificate referred to plot C in Mathare North, and the National Land Commission had no records for the parcel. The court held the residents' housing and sanitation rights ranked in priority over commercial development. It declared the allocation unlawful, directed the City Council to cancel any individual allocation and allocate the land to the residents communally, restrained the 1st Interested Party from harassing or evicting the residents, and awarded the Applicants costs borne by the 1st Interested Party. The claim succeeded substantially, though no Article 63 community land declaration was made.

Key legal issues

#
01

Whether the Applicants' right to adequate and accessible housing under Article 43 was violated

Holding

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

Reasoning

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.

p. 6
02

Whether the 1st Interested Party proved lawful allocation of the suit land

Holding

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

Reasoning

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.

p. 6
03

The status of the suit land and appropriate relief

Holding

The suit land remained public/unalienated land, and it should be allocated to the residents communally with the upgrading process resumed

Reasoning

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.

p. 6

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. 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. 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. 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. 4.The Applicants are awarded the costs of the suit, to be borne by the 1st Interested Party

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 43, 63
  • Community Land Actregistration of community land procedure
  • Local Government Actland held by defunct municipal councils
  • National Housing Policyobjectives on progressive realisation of the right to housing

Cases cited (2)

  • Advisory Opinion No. 2 of 2014 (Supreme Court) on community land
  • Kepha Omondi Onjuro
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.