Njeri & 8 others v Nyakiongora & 3 others; National Land Commission & another (Interested Parties) (Environment & Land Petition 47 of 2018) [2022] KEELC 2366 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled the government wrongly evicted eight residents without proper notice or consultation and awarded each Kshs 1 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Petitioners including Katiba Institute
The suit is not a proper representative suit under Order 1 Rule 8 (no notice to or appointment by the represented class), but the Petitioners properly instituted it on their own behalf and in the public interest under Articles 22 and 258; the Court adopted a liberal approach to locus standi.
The Court found no evidence of notice by personal service or advertisement as required for a representative suit, citing Ngugi Mbugua and Ibrahim Buwembo. However, Article 22(2)(c) permits any person to sue in the public interest, and the Petitioners were themselves residents directly affected. Following Priscilla Nyokabi Kanyua, standing in constitutional and public interest litigation is liberally granted to bona fide petitioners, and the petition was determined on that basis.
Whether the 1st Respondent had authority to issue the Removal Notices
The 1st Respondent, as Secretary of the National Building Inspectorate established by Executive Order No 1 of 2018 under Articles 132(3)(b) and 135 of the Constitution, acted within his mandate in issuing the notices; he did not act ultra vires.
The Court held that Executive Orders derive from presidential powers under Articles 132(3)(b) and 135. The Inspectorate's mandate includes profiling unsafe structures and demolishing unlawful encroachments on road, power line and railway reserves. Hence issuing the notices was within the 1st Respondent's rights, and nothing showed extraneous purpose. The Court, however, noted overlapping mandates with the County Governments, Ministry of Lands and NLC, and urged a clear statutory framework to avoid such disputes.
Violation of the right to fair administrative action (Article 47)
The 1st, 2nd and 3rd Respondents violated the Petitioners' right to fair administrative action by failing to consult them and issuing only 12- and 14-day notices, which were inadequate for long-term residents.
Relying on Article 47, sections 3, 4 and 5 of the Fair Administrative Action Act, UN General Comment No 7 and UN Habitat Fact Sheet procedural guarantees, the Court held that persons facing eviction deserve genuine consultation, adequate notice and a hearing. Comparative authorities (Ibrahim Sangor Osman, Veronica Waweru, Susan Waithera) found 14- to 21-day notices unreasonable for long-term occupants. Twelve and fourteen days were inconceivably short to upheave lives, and the Petitioners were uncontroverted on this.
Violation of Articles 28 and 29 (dignity; freedom from cruel and inhuman treatment)
The forceful eviction without adequate notice, exposing the Petitioners, including children, the elderly and disabled, to harsh August weather, violated their rights to dignity and freedom from cruel and inhuman treatment.
The Petitioners' sworn, uncontroverted evidence and Haron Muiruri's photographs showed destruction of structures and household items and families sleeping outside in cold weather. Applying Satrose Ayuma and Moi Educational Centre, evictions are traumatic and must respect dignity; treatment causing unjustifiable mental and physical suffering constitutes cruel and inhuman treatment under Article 29.
Violation of Articles 40 (property), 43(1)(b) and (f) (housing and education), and 53, 54 and 57 (children, disabled, elderly)
The demolitions destroyed homes, fixtures and goods protected under Article 40; rendered long-term occupants homeless in violation of Article 43(1)(b); affected children's education contrary to Article 43(1)(f); and violated the rights of children, persons with disabilities and the elderly under Articles 53, 54 and 57.
Article 260 defines property to include permanent fixtures on and improvements to land, and photographs demonstrated destroyed houses and goods. Relying on the Supreme Court's Mitu-Bell decision, the right to housing accrues to every citizen and crystallizes over public land by long occupation. Uncontroverted evidence showed schools demolished and children unable to attend school, and vulnerable groups rendered homeless with no alternative shelter, a failure of the State's Article 21(3) duty.
Violation of Article 32 (freedom of religion)
The claim failed for lack of evidence.
The Petitioners alleged destruction of churches and mosques but adduced no evidence of such destruction, nor that they were denied access to any institution, employment or facility on account of belief or religion. The Court found no merit in this claim.
Appropriate remedies
Declarations of violation were issued and each of the 1st to 8th Petitioners was awarded general damages of Kshs 1,000,000; other prayers were dismissed.
Guided by Article 23(3), Fose v Minister of Safety and Security, Doucet-Boudreau, and the Ramanoop/Gitobu Imanyara line of authority, the Court held compensation against the State is an appropriate and effective remedy, and awards should be compensatory and vindicatory. Considering the psychological and physical suffering, it awarded general damages of Kshs 1,000,000 to each of the 1st to 8th Petitioners, but declined exemplary damages, the injunction, quashing orders and other declarations sought.
Legal principles established
#- A petition instituted on one's own behalf and in the public interest may proceed even where the representative-suit requirements of Order 1 Rule 8 have not been met
- Uncontroverted affidavit evidence is deemed admitted where the respondent fails to file a replying affidavit or participate
- A petitioner alleging constitutional violations must plead with reasonable precision the provisions infringed and the manner of infringement, and discharge the burden of proof
- Persons facing eviction from land, even public land unlawfully occupied, are entitled to adequate notice, consultation and a hearing before adverse administrative action
- Damages for constitutional violations should be compensatory and vindicatory, and the right to housing over public land crystallizes by long occupation
Court orders
#- 1.A declaration that the demolition of the 1st to 8th Petitioners' structures in Kaloleni and Makongeni without consultation and without reasonable adequate notice violated their right to fair administrative action guaranteed by Article 47 of the Constitution
- 2.A declaration that the demolition of the 1st to 8th Petitioners' structures without according them alternative shelter and/or accommodation, rendering them homeless, violated their rights under Articles 21(3), 28, 29, 40, 43(1)(b), 43(1)(f), 53, 54 and 57 of the Constitution
- 3.A declaration that each of the 1st to 8th Petitioners is entitled to damages for violation of their fundamental rights and freedoms enshrined in the Constitution
- 4.Judgment entered in favour of the 1st to 8th Petitioners against the Respondents by way of general damages of Kshs 1,000,000 each
- 5.No orders as to costs
- 6.All other prayers in the Petition not granted are consequently dismissed
- Jurisdiction invoked
- Articles 22 and 23 of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights), matter transferred from the High Court Constitutional and Human Rights Division for raising land issues under the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muiruri v County Government of Nakuru (Environment and Planning Civil Case 2 of 2024) [2026] KEELC 4140 (KLR)[2026] KEELC 4140 (KLR)2 Jul 2026
- Fresco Bushlands (K) Limited v National Police Service & 4 others (Constitutional Petition 35 of 2019) [2024] KEELC 3494 (KLR)[2024] KEELC 3494 (KLR)25 Apr 2024
- Mwaura v Nairobi City County & another[2023] KEELC 17117 (KLR)27 Apr 2023
- Mwaura v Nairobi City County & another[2023] KEELC 17117 (KLR)27 Apr 2023
Cite this brief
#Cite this brief
Caselaw, "Njeri & 8 others v Nyakiongora & 3 others; National Land Commission & another (Interested Parties) (Environment & Land Petition 47 of 2018) [2022] KEELC 2366 (KLR)", Case Analysis (2022). Petition No. 264 of 2018 (as amended). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2366/eng@2022-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.