Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Petition No. 547 of 2015 (consolidated with ELC Petition Nos. 883 of 2016 and 884 of 2016; formerly Constitutional Petition No. 170 of 2015)· [2022] KEELC 1592 (KLR)

Jenkins Mochama & 9 others v Marashi Holdings Limited & 6 others [2022] KEELC 1592 (KLR)

Environment and Land Court
26 January 2022
LMLucy N. Mbugua
3,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Nairobi's Environment and Land Court dismissed three eviction-related petitions because residents couldn't prove their land rights, active court orders, or claimed losses.

What this practically means

#

Executive summary

#
Three consolidated petitions (ELC Petition 547 of 2015 as lead suit, with 883 and 884 of 2016, formerly High Court Constitutional Petition 170 of 2015) were brought by over 50 petitioners who claimed to have resided and settled on LR No. 9042/130 (and 9042/129) Embakasi, Nairobi for over 12 years. They alleged that between 25th and 27th February 2015 the 1st Respondent, the registered owner of the land, forcefully evicted and demolished their structures with the aid of the other Respondents, in breach of subsisting orders in NBI CMCC No. 544 of 2013 and ELC No. 665 of 2011 (OS), and in violation of their rights to property, housing and fair administrative action. They sought declarations, general and special damages and compensation. The 1st Respondent denied the evictions and any knowledge of court orders, asserting the petitioners were trespassers; the 2nd Respondent filed a preliminary objection; no replying affidavits were traced for the 2nd Respondent or the 3rd to 8th Respondents, whose submissions the court disregarded for want of pleadings. The court held that the petitioners failed to prove the orders were in force at the date of the evictions, that the status of the two earlier suits was unexplained, that the petitioners' interests in the land were unascertained given their admission of the 1st Respondent's registered ownership, that settlement particulars were inconsistent and possibly moot following the 2010 demolitions and Petition 75 of 2011, and that special damages were not strictly proved. All three petitions were dismissed with costs to the 1st Respondent.

Key legal issues

#
01

Whether the court orders in CMCC No. 544 of 2013 and ELC No. 665 of 2011 (OS) were in force at the time of the evictions

Holding

Petitioners failed to discharge the evidential burden of proving the orders were in force in February 2015

Reasoning

The CMCC orders were exparte pending interpartes hearing with no clarification of the substantive orders; the 1.12.2011 status quo order did not mention the suit property or clarify the nature of the status quo, and the Respondents were not fully captured in either suit. Petitioners gave no clarification of the status of the suits as at February 2015.

p. 4
02

Nature and extent of the Petitioners' rights and interests in the suit parcels

Holding

Not adequately ascertained; Petitioners admitted the 1st Respondent is the registered owner and Article 40(6) protection does not extend to unlawfully acquired property

Reasoning

The Petitioners acknowledged in their pleadings that the 1st Respondent is the registered owner of LR 9042/130. Their particulars of settlement did not add up, raising doubts whether they were fresh settlers after the 2010 demolitions or part of the over 3000 residents in Petition 75 of 2011. Their interest, if any, was unresolved.

p. 5
03

Whether special damages/compensation claims were proved

Holding

Not proved; claims were pegged at figures without valuation reports or supporting documents

Reasoning

The Petitioners produced only handwritten documents quantifying their loss. Courts require special damages to be specifically pleaded and strictly proved with acceptable evidence; a mere assertion of figures without valuation reports does not satisfy the strict standard of proof.

p. 5
04

Effect of submissions filed without primary pleadings

Holding

Submissions of the 2nd Respondent and the 3rd to 8th Respondents disregarded for want of pleadings

Reasoning

No replying affidavit could be traced for the 2nd Respondent and no primary pleadings were filed by the 3rd to 8th Respondents. Following Konchellah v Sunkuli, submissions cannot stand without a foundational pleading and must fall by the wayside.

p. 3
05

Mootness of settlement on the suit property

Holding

The issue of settlement appears moot unless the settlement occurred after the 2010 demolitions

Reasoning

Previous demolitions occurred in 2010 and Petition 75 of 2011 concerned over 3000 residents. Sampling of compensation papers showed claimants of stated ages developing properties years earlier, raising doubts about candidness of the Petitioners' settlement claims.

p. 5

Legal principles established

#
  • He who asserts must prove; the burden of proving that court orders were in force at the time of the alleged violation lies on the party asserting it
  • Submissions unsupported by any primary pleading (replying affidavit) are of no effect
  • Special damages must be specifically pleaded and strictly proved
  • Constitutional protection of the right to property does not extend to property unlawfully acquired

Court orders

#
  1. 1.The three consolidated petitions are dismissed
  2. 2.Costs of the petitions awarded to the 1st Respondent

Authorities

#

Legislation

  • Evidence ActSection 107
  • Evidence ActSection 109
  • Physical Planning ActSection 38(2)
  • Constitution of KenyaArticle 40(6)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 4(1) and 10(c)

Cases cited (10)

  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR
  • Evans Nyakwana vs. Cleophas Bwana Ongaro
    (2015) eKLR
  • George Kinami Mbugua & Others v Ministry of Roads & Another; Symon Gatutu Kimamo & 587 others v East African Portland Cement Co Ltd
    [2011] eKLR
  • Susan Waithera Kariuki & 4 others v Town Clerk, Nairobi City Council & 2 others
    [2011] eKLR
  • George Kimani Mbugua & 3 others vs. Ministry of Roads and The Attorney General
    NBI PET 75 OF 2011
  • Daniel Kaminja & 3 others (suing as Westland Environmental Caretaker Group) v County Government of Nairobi
    [2019] eKLR
  • Ryce Motors Limited & Another v Elias Muroki
    [1996] eKLR
  • B W K v E K & another
    [2017] eKLR
  • H M B Kayondo vs. Somani Amirali Kampala
    HCCS No. 183 of 1994 [1995] IV KALR 78
Jurisdiction invoked
Original constitutional jurisdiction under Article 22 & 23 of the Constitution (petitions alleging violation of fundamental rights), transferred from the High Court to the Environment and Land Court; Article 40(6) Constitution considered

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jenkins Mochama & 9 others v Marashi Holdings Limited & 6 others [2022] KEELC 1592 (KLR)", Case Analysis (2022). ELC Petition No. 547 of 2015 (consolidated with ELC Petition Nos. 883 of 2016 and 884 of 2016; formerly Constitutional Petition No. 170 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1592/eng@2022-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.