Muthaiga North Residents Association v Nyari House Limited; National Land Commission & another (Interested Parties) (Environment & Land Petition 115 of 2015) [2022] KEELC 2578 (KLR)

Relying on Mumo Matemu and Juletabi, the court held that the stringent pre-2010 standing requirements are gone. Article 70 dispenses with proof of personal loss or injury in environmental claims. The petitioner, an association of residents and landowners, could sue on its own behalf or for its members and was not a busybody as the respondent contended.

The surrender of LR 16217/3 in 2006 was undisputed. Under the then-applicable Government Land Act, only the President could alienate un-alienated government land, with limited delegation to the Commissioner of Lands. The land, reserved for public amenities, was not available for further alienation under the public trust doctrine, so the allocation and subsequent grant IR 140342 were unlawful.

Citing Chemey Investment, the court held sanctity of title is not a vehicle for fraud or unjust enrichment at public expense. Section 26 of the Land Registration Act permits cancellation of titles obtained illegally. The NLC was directed by mandamus to cancel or revoke the grant, and the respondent was permanently restrained from interfering with the land.

The court noted the EMCA and Ramsar definitions of wetlands and NEMA's mandate, but NEMA had taken no protective action such as pegging boundaries or gazettement. The court lamented a legal lacuna over ungazetted wetlands on public land but held the evidence insufficient for a conclusive finding. The prayer to restrain NEMA was refused as presumptive since public participation was still ongoing.