Abdullahi Mohammud Farah & 3 others v County Government of Mandera & another [2022] KEELC 584 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that Mandera County illegally evicted two communities and must pay each Sh40 million in compensation.
What this practically means
#Executive summary
#Key legal issues
#Standing and petition threshold
The petitioners met the threshold under Article 22, having attached an authority sworn by 390 community members, and the petition satisfied the Anarita Karimi Njeru precision standard
The court found the petitioners presented the petition on behalf of the Neboi and Garbaqoley communities with an authority signed by 390 members, satisfying Article 22. The petition particularised the infringed rights and manner of infringement, meeting the precision requirement in Anarita Karimi Njeru. Jurisdiction was founded on Section 13 of the ELC Act.
Trusteeship of unregistered community land
The County Government, as trustee of unregistered community land under Section 6 of the Community Land Act, could not deal with or evict the community from the land without the statutory procedure including public participation
Section 6(1) makes county governments trustees of unregistered community land, and Section 6(8) bars disposal. Trusteeship confers no authority to deal with the land; setting it apart requires an intricate procedure with public participation. There was no rebuttal showing public participation preceded the eviction, so the eviction was unlawful.
Validity of the subordinate court order relied on
The ex parte order in Mandera SRM Misc Application No. E001 of 2021 was defective because the petitioners were necessary parties who were not joined
The order was obtained ex parte by the 1st Respondent alone, was not directed against the petitioners, and the 1st Respondent allegedly concealed that the land was unregistered communal land. Because the petitioners were necessary parties, the order could not legitimise the eviction.
Violation of fundamental rights
The eviction, demolition, destruction of property and detention violated Articles 10, 27, 40, 43, 48, 35 and 47, and the rights of children and the elderly under Articles 21, 53 and 57
The uncontroverted evidence, including photographs, showed the community lived in a desolate place after a violent eviction conducted without notice, hearing or alternative accommodation. The court held this was in total disregard of national values and the rights to property, economic and social rights and fair administrative action.
Quantum of damages
A global award of Kshs 20,000,000 to each community was appropriate instead of individualised awards
The court acknowledged that individual community members could not singularly present claims and equally could not individually assess each person's loss. Considering all factors including the number of members in each community, it awarded Kshs 20 Million to the Neboi Community and Kshs 20 Million to the Garbaqoley Community.
Legal principles established
#- A county government holding unregistered community land in trust has no authority to sell, dispose of or deal with that land, and any setting apart must follow the elaborate procedure under the Community Land Act including public participation
- An ex parte order obtained against none of the affected parties, where the petitioners were necessary parties, is defective and cannot authorise their eviction
- Where members of a community cannot individually present their claims, a global award of damages is a proper remedy
Court orders
#- 1.A declaration that the petitioners' forced eviction by the 1st Respondent under the superintendence of the armed forces commanded by the 2nd Respondent is unlawful and illegal
- 2.A declaration that the demolition of houses and structures and forced eviction without provision of alternative land or accommodation violated Articles 20, 21, 26, 28, 29, 40 and 43 of the Constitution
- 3.A declaration that demolition and forced eviction without service of notice, hearing or information violated the right to information and fair administrative action under Articles 35 and 47
- 4.A declaration that evicting residents without according children and elderly persons alternative shelter violated Articles 21, 53 and 57
- 5.A declaration that the Respondents' actions amounted to unlawful, illegal and irregular compulsory acquisition in violation of Article 40
- 6.An order of prohibition against the Respondents and their agents from demolishing houses, forcefully evicting the petitioners or interfering with their ownership, occupation and quiet enjoyment of the suit land
- 7.Compensation assessed at Kenya Shillings Twenty Million (Kshs 20,000,000) to the Neboi Community and Twenty Million (Kshs 20,000,000) to the Garbaqoley Community
- 8.Costs of the suit to the petitioners
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngusilo (Suing as the Chairman of the Ogiek Council of Elders) & 2 others v Attorney General & 5 others (Petition 1 of 2023) [2024] KEELC 4427 (KLR)[2024] KEELC 4427 (KLR)30 May 2024
- Mwaura v Nairobi City County & another[2023] KEELC 17117 (KLR)27 Apr 2023
Cite this brief
#Cite this brief
Caselaw, "Abdullahi Mohammud Farah & 3 others v County Government of Mandera & another [2022] KEELC 584 (KLR)", Case Analysis (2022). Petition dated 23rd July 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/584/eng@2022-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.