Mwaura v Nairobi City County & another
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the residents were unlawfully and unconstitutionally evicted
No eviction was proved; residents willingly signed forfeiture agreements, accepted Kshs.600,000 relocation payments and left peacefully
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.
Whether the respondents were obliged to provide alternative accommodation or resettlement agreements
No; the residents were tenants of the 1st respondent, and there is no positive obligation on a private developer to house evictees
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.
Whether public participation was inadequate
Public participation was adequate; the residents themselves scuttled the consultative forums
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.
Whether residents are entitled to damages
No damages awarded as no violation was established
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.
Legal principles established
#- 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
#- 1.The petition is dismissed for lack of merit
- 2.The petitioner is condemned to pay costs of the suit to the 2nd respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.