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ELCDismissedEnvironment & Land Petition 65 of 2019· [2023] KEELC 17117 (KLR)

Mwaura v Nairobi City County & another

Environment and Land Court
27 April 2023
4,302 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a challenge to the Bachelors/Jeevanjee estate redevelopment, ruling tenants who accepted Kshs.600,000 relocation payments left willingly.

What this practically means

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Executive summary

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This Environment and Land Court petition, filed by Hon Chege Mwaura on behalf of former residents of Bachelors/Jeevanjee Estate in Ngara, challenged the Nairobi City County Urban Renewal Housing Project under which the estate on LR No.209/5458 was to be redeveloped by the 2nd respondent, Jabavu Village Limited, as the county's joint venture partner. The petitioner sought declarations that the residents' eviction, the threats and coercion to sign tenancy forfeiture agreements, and the failure to provide a clear decantation and re-allocation programme violated rights to dignity, security, information, property, fair administrative action and affordable housing, together with orders for executed resettlement agreements, first priority over new units, and general and aggravated damages. The 1st respondent filed no response or submissions. The 2nd respondent produced rent cards and tenancy agreements showing the residents were tenants, and evidence of ex-gratia relocation payments of Kshs.600,000 per tenant. The court, LN Mbugua J, framed three issues: whether the evictions were unlawful and unconstitutional, whether the forfeiture agreements amounted to unconstitutional harassment, and whether damages were payable. Applying Mumo Matemu on the burden of proving rights violations, the court found no forced eviction: residents willingly signed forfeiture agreements, accepted the relocation payments and left peacefully, and the payment exercise was inconsistent with a claim of eviction. Following Moi Education Centre v Musembi, the court held there was no positive obligation to provide alternative accommodation to tenants, and that public participation was adequate, the residents themselves having scuttled the forums. The petition was dismissed with costs to the 2nd respondent.

Key legal issues

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01

Whether the residents were unlawfully and unconstitutionally evicted

Holding

No eviction was proved; residents willingly signed forfeiture agreements, accepted Kshs.600,000 relocation payments and left peacefully

Reasoning

The court found the payment exercise, with detailed records of tenants' identities and signatures, inconsistent with a claim of forced eviction. The petitioner was mute on the payment exercise and failed to show duress or undue influence; the residents ratified the contracts and gave up possession willingly.

p. 7
02

Whether the respondents were obliged to provide alternative accommodation or resettlement agreements

Holding

No; the residents were tenants of the 1st respondent, and there is no positive obligation on a private developer to house evictees

Reasoning

Relying on the Court of Appeal in Moi Education Centre v Musembi, the court held that while the State must take measures towards progressive realisation of the right to housing, a private party is only obliged not to violate rights, not to provide alternative accommodation or shelter.

p. 8
03

Whether public participation was inadequate

Holding

Public participation was adequate; the residents themselves scuttled the consultative forums

Reasoning

The affidavit of Leonard Obonyo showed the respondents engaged residents in public forums from the project's inception, and residents declined to sign attendance sheets and walked out of meetings, so any failure of engagement was attributable to them.

p. 8
04

Whether residents are entitled to damages

Holding

No damages awarded as no violation was established

Reasoning

Since the court found no unlawful eviction, harassment or coercion, the claim for general and aggravated damages of Kshs.500,000 per resident failed. The ex-gratia payment of Kshs.600,000 already made further weighed against any award.

p. 8

Legal principles established

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  • A party alleging violation of constitutional rights must demonstrate the rights alleged to have been violated and the manner of violation
  • A landlord must obtain a court order for possession unless the tenant consents to give up possession
  • A private landlord/developer is not under a positive constitutional obligation to provide evictees with alternative housing

Court orders

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  1. 1.The petition is dismissed for lack of merit
  2. 2.The petitioner is condemned to pay costs of the suit to the 2nd respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21(2), 22, 23, 258, 28, 29, 35, 40, 43, 47, 65
  • Land ActSections 152A-152I, 152B, 152C
  • Land Laws (Amendment) ActSection 98

Cases cited (17)

  • Simeon Kitheka & 18 others v County Government Machakos & 2 others
    [2018] eKLR

    public participation as a national value under Article 10

  • Mugo & 14 others v Matiaing'i & another; Independent Electoral and Boundary Commission of Kenya & 19 others (Interested party)
    (Constitutional Petition 4 of 2019) [2022] KEHC 158 (KLR)

    public participation

  • Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others
    [2013] eKLR

    right of access to information

  • Katiba Institute v Presidents Delivery Unit & 3 others
    [2017] eKLR

    access to information

  • Republic v Cabinet Secretary Ministry of Transport and Infrastructure & 3 others ex parte Francis N. Kiboro & 198 others
    [2015] eKLR

    right to dignity in evictions

  • Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)
    Petition 3 of 2018 [2021] KESC 34 (KLR)

    rights under Articles 19, 20, 21 and 43

  • Edward Akong'o Oyugi & 2 Others v Attorney General
    [2019] eKLR

    damages for unlawful eviction

  • Abdullahi Mohammud Farah & 3 others v County Government of Mandera & another
    [2022] eKLR

    damages for unlawful eviction

  • Njeri & 8 others v Nyakiongora & 3 others; National Land Commission & another (Interested Party)
    (Environment & Land Petition 47 of 2018) [2022] KEELC 2366 (KLR)

    damages for unlawful eviction

  • William Musembi & 13 others v Moi Education Centre Co Ltd & 3 others
    [2021] eKLR

    damages for unlawful eviction

  • Justus Mathumbi & 9 others v Cabinet Secretary, Ministry of Land, Housing and Urban Development & 4 others
    [2018] eKLR

    need to prove actual constitutional violations, cited by 2nd respondent

  • Legal Advice Centre & 3 Others v County Government of Mombasa & 4 others
    [2016] eKLR

    constitutional petitions require proof of violation, cited by 2nd respondent

  • Kituo Cha Sheria & another v Central Bank of Kenya & 8 others
    [2014] eKLR

    transparency/access to information, cited by 2nd respondent

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR

    a party alleging violation must demonstrate the right and manner of violation

  • Teresia Irungu v Jackton Ocharo & 2 others
    [2013] eKLR

    landlord must obtain court order for possession unless tenant consents

  • Moi Education Centre Co. Ltd v William Musembi & 16 others
    [2017] eKLR

    no positive obligation on private party to provide alternative housing

  • Justus Chai Mbaru & 12 others v County Government of Mombasa; National Land Commission & 19 others (Interested Parties)
    [2021] eKLR

    balancing tenant inconvenience against public good; ex-gratia payments; costs

Jurisdiction invoked
Original constitutional petition jurisdiction under the Constitution (Articles 10, 19, 20, 21, 22, 23, 28, 29, 35, 40, 43, 47, 65, 258 invoked) before the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwaura v Nairobi City County & another", Case Analysis (2023). Environment & Land Petition 65 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17117/eng@2023-04-27

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