Justus Chai Mbaru & 12 others v County Government of Mombasa; National Land Commission & 19 others(Interested Parties) [2021] KEELC 4014 (KLR)
The bottom line
#Mombasa tenants lost their court challenge to the Buxton Estate redevelopment because the same issues had already been decided in earlier cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC had jurisdiction over a rights-based petition
The ELC has jurisdiction because the petition's core concerns use and occupation of land; it may hear ancillary fundamental rights claims.
Article 162(2)(b) and Section 13 of the ELC Act confer jurisdiction over environment and land disputes, including occupation. Relying on Omar Tahir Said and Mugendi, the court held that a rights petition is properly before the ELC where the dispute ties to land. The claim that only the High Court may hear rights claims was rejected as legally flawed. The justiciability objection was also rejected as the claims were not political.
Whether the petition is res judicata
Most issues were res judicata, having been determined in High Court Petition No. 39 of 2016 (upheld on appeal) and Petition No. 6 of 2017; only the manner of executing the tenants' vacation was novel.
Public participation, right to housing, access to information, EIA, and statutory violations concerning the project as a whole were decided in Petition No. 39 of 2016 and upheld by the Court of Appeal. Under Explanation 6 to Section 7 of the Civil Procedure Act, the petitioners, though not parties, litigate under the same title in public interest litigation. The ex turpi causa doctrine cannot override res judicata.
Whether the manner of vacating the tenants violated constitutional rights
No violation. There was ample public participation, negotiated relocation payments, adequate notice and a first option to purchase.
The tenancies were periodic and terminable by one month's notice with no obligation to provide alternative accommodation. The tenants received three months' notice, an ex gratia payment of Kshs 300,000, a Kshs 60,000 purchase deposit and first option to purchase. Balancing the tenants' inconvenience against the public good of increased housing, the inconvenience must give way; no right to housing or dignity was infringed.
Whether international instruments were violated
No specific provision of any international instrument was identified as violated, and no mass eviction amounting to a crime against humanity arises.
The petitioners did not point to any specific provision of ICESCR, ICCPR or UDHR infringed by the project. The project is a local government effort to create additional housing from limited land; there is no domestic or international crime, and Satrose Ayuma was distinguished because here there was consultation and agreed resettlement.
Legal principles established
#- The Environment and Land Court has jurisdiction to hear constitutional petitions claiming violation of fundamental rights so long as the subject matter relates to environment and the use and occupation of, and title to, land.
- Res judicata applies to constitutional petitions, including against parties who were not formally parties to the earlier suit, where the earlier litigation was public interest litigation affecting them.
- Only evolved or mutated issues arising after the prior decision can escape res judicata in a new constitutional petition.
Court orders
#- 1.The petition is dismissed
- 2.The petitioners to pay the costs of the litigation to the respondent and to the 2nd interested party
- 3.No orders as to costs in favour of, or against, the 3rd interested parties
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act, No. 19 of 2011 (petition transferred from the High Court on the direction of Ogolla J)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Chai Mbaru & 12 others v County Government of Mombasa; National Land Commission & 19 others(Interested Parties) [2021] KEELC 4014 (KLR)", Case Analysis (2021). Petition (Environment and Land Court, Mombasa) – filed 28 September 2020 (initially Mombasa High Court Constitutional and Human Rights Division). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4014/eng@2021-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.