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ELCPartially AllowedEnvironment & Land Petition 11 of 2020· [2023] KEELC 18586 (KLR)

Kariobangi Sewerage Farmers Self Group v Sanitation & Irrigation & 7 others; Legal Advice Centre t/a Kituo Cha Sheria (Interested Party)

Environment and Land Court of Kenya
6 July 2023
7,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered the government to return evicted Kariobangi families to their land within 90 days, ruling their forced eviction was unconstitutional.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (A. A. Omollo J) determined an amended petition by Kariobangi Sewerage Farmers Self Group, whose members were evicted and their structures demolished on 4th May 2020 from land known as Nairobi/Block/175 during the COVID-19 pandemic. The court framed five issues: sub judice, locus, legal right to the suit property, violation of rights, and reliefs. It rejected the Attorney General's sub judice objection, finding this petition was filed before Nairobi ELC Pet E023 of 2020 and that the Respondent produced no evidence of identity of subject matter and parties. On locus, the court found the group was registered in 1999 and could sue through its nominated Chairman as a representative suit, declining to follow Kipsiwo Community Self Help Group. On title, guided by Section 26 of the Land Registration Act, the court held the members' certificates of lease, allotment letters, executed leases and payment receipts proved due process in acquisition, and the 2007 forgery complaint was investigated and disproved. The court found the eviction without notice, in the early morning, violated the Petitioners' constitutional rights, the Respondents having filed no replying affidavit; however, breach of the 3rd May 2020 interim orders was not proved as service on the 1st and 2nd Respondents was not demonstrated. The court declined to award the urged Kshs 250,000 per member because individual losses were not pleaded, instead granting liberty to file separate civil claims. Final orders: restitution within 90 days, declarations of unconstitutionality and breach of rights, entitlement to damages, liberty for separate claims, and costs.

Key legal issues

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01

Sub judice

Holding

The petition was not sub judice; the instant petition was filed first (May 2020) and the 8th Respondent failed to prove the other suit involved the same subject matter and parties

Reasoning

The court applied the Supreme Court's articulation of the sub-judice rule in the KNCHR Advisory Opinion. The 8th Respondent did not indicate the filing date of ELC Pet E023 of 2020; the court checked the portal and found it was filed 16th October 2020, after this petition. The Respondent also failed to produce evidence that the other suit concerned the same subject matter and parties.

p. 9
02

Locus standi of the Petitioner

Holding

The Petitioner had locus; it was registered in 1999 and could sue through its nominated Chairman as a representative suit

Reasoning

The certificate of registration showed registration on 20th July 1999, not 2018 as the Respondents contended; 4th March 2018 was the date of issue of the certificate. The court declined to follow Kipsiwo Community Self Help Group, holding a self-help group may sue through its officials, and the Chairman's affidavit confirmed authority to represent the members.

03

Legal right to the suit property

Holding

The Petitioner and its members proved lawful ownership of Nairobi/Block/175 through allocation, leases and certificates of lease

Reasoning

Under Section 26 of the Land Registration Act the titles were prima facie evidence of ownership. The Petitioner produced a 99-year lease with the County Government, payment receipts, allotment letters, executed leases registered in 2019 and certificates of lease. A 2007 forgery complaint was investigated by the DCIO who found no forgery, and the 5th Respondent continued receiving payments. The AG did not specify which alienation procedure was skipped.

04

Violation of constitutional rights through forced eviction

Holding

The forceful eviction without notice, in the early morning, violated the Petitioners' constitutional rights; the claim of contempt of the 3rd May 2020 court order was not proved

Reasoning

The Petitioner did not prove the 1st and 2nd Respondents were served with the interim orders before the demolition, so breach of the court order failed. However, the eviction without any notice and in the wee hours of the morning was not controverted, as the Respondents filed only grounds of opposition and no replying affidavit, so the sworn averments stood unchallenged.

05

Damages

Holding

The Petitioners were entitled to compensation, but no quantum was awarded in this petition; members were granted liberty to file separate civil claims for individual damages

Reasoning

Guided by Daniel Mutai v AG, the uncontroverted affidavit evidence of losses sufficed. However, the petition itself sought liberty to file separate suits for ascertainment of individual special damages, and individual losses were not pleaded, so the court declined to fix quantum at Kshs 250,000 per member as urged.

p. 13

Legal principles established

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  • A certificate of lease/title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition under Section 26 of the Land Registration Act
  • Where a respondent files only grounds of opposition and no replying affidavit, the petitioner's sworn averments stand unchallenged and uncontroverted
  • A self-help group may bring a petition through its nominated officials as a representative suit
  • A party invoking the sub judice doctrine must establish the suits are over the same subject matter, between the same parties, and that one was filed before the other

Court orders

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  1. 1.An order of restitution of the Petitioner's members into the parcel of land known as Nairobi/Block/175 within 90 days of the date of the judgment
  2. 2.A declaration that the Respondents' actions of forceful eviction of the Petitioners was an abuse of power and unconstitutional and against statutory law
  3. 3.A declaration that the Respondents are in breach of rights enumerated in the Petition, as a result of which the petitioners have suffered damages, pain and suffering
  4. 4.A declaration that the Petitioner are entitled to special damages, general and exemplary damages against the Respondents jointly and/or severally
  5. 5.A declaration that the Petitioner's members are at liberty to file separate civil claims for the ascertainment of the individual special damages
  6. 6.Costs to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(1), 2(5), 2(6), 10, 22(1), 24(1), 258, 40, 40(2)(a), 40(6), 43(1)(b), 47(1)
  • Land ActSection 7, 152(A)-(H), 153B, 153C, 155
  • Land Registration Act, 2012Section 24, 26
  • Land Laws (Amendment) Act, 2016Section 98
  • Civil Procedure ActSection 6
  • Universal Declaration of Human RightsArticles 6, 7, 17, 22, 25, 25(2), 28, 36
  • International Covenant on Economic, Social and Cultural Rights
  • International Covenant on Civil and Political Rights
  • African Charter on Human and Peoples' Rights
  • UN Guidelines on Evictions: General Comment No. 7

Cases cited (16)

  • Pungu Oceanic & Construction Ltd v Juma Tsala & 13 others [2021] eKLR
    [2021] eKLR

    Certificate of lease is conclusive proof of ownership; holder entitled to proprietary rights including possession

  • Benson Wekesa Milimo v National Land Commission & 2 others (2021) eKLR
    (2021) eKLR

    Mandatory compliance with section 155 of the Land Act before eviction from public land

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

    Forced evictions violate fundamental rights under Article 43; principles for evictions; compensation of Kshs 150,000 per petitioner

  • Adan Abdirahani Hassan and 2 Others v The Registrar of Titles and Others Nairobi Petition No. 7 of 2012 [2013] eKLR
    [2013] eKLR

    If land was illegally acquired, the State must use due process to recover it

  • Evelyn College of Design Ltd v Director of Children's Department & another [2013] eKLR
    [2013] eKLR

    State must use due process to recover illegally acquired land

  • Wensley Barasa v Immaculate Awino Abongo & another [2020]
    [2020]

    Party pleading sub judice must table evidence proving the assertion

  • Waste and Environment Management Association of Kenya v County Government of Nairobi & another (Petition 3 of 2021) [2022] KEELC 3172 (KLR)
    [2022] KEELC 3172 (KLR)

    Ingredients of sub judice under Section 6 of the Civil Procedure Act

  • Ngunjiri Wambugu v Inspector General of Police & 2 others [2019]
    [2019]

    Courts may take judicial notice of media reports and facts in the public domain

  • Fatuma Khamis Bilal & 3505 others v Kenya Railways Corporation & 6 Others [2021] eKLR
    [2021] eKLR

    Occupiers entitled to property and compensation before relocation; liberty to file separate claims for assessment

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR
    [2020] eKLR

    Doctrine of sub judice and its ingredients

  • D. T. Dobie & Company (Kenya) Ltd v Muchina (1982) KLR
    (1982) KLR

    Power to strike out pleadings must be sparingly exercised, only in the clearest of cases

  • Kipsiwo Community Self Help Group v Attorney General and 6 Others (2023) eKLR
    (2023) eKLR

    Members of a group must bring action in own names or through persons with capacity to sue - distinguished

  • Daniel Kibet Mutai and 9 Others v Attorney General (2019) eKLR
    (2019) eKLR

    Effect of respondent's failure to file replying affidavit; affidavit evidence as direct evidence of violations

  • Phillip Tirop Kitur v Attorney General [2018] eKLR
    [2018] eKLR

    In absence of replying affidavit or oral evidence, petitioner's evidence stands unchallenged

  • Peter O. Nyakundi & 68 others v Principal Secretary, State Department of Planning & another [2016] eKLR
    [2016] eKLR

    Grounds of opposition cannot amount to a proper denial of allegations made on oath

  • Mitu-Bell Welfare Society (Mitu-Bell case)

    Eviction principles crystallised into statute; due process required even where eviction is necessary

Jurisdiction invoked
Articles 22(1) and 258 of the Constitution of Kenya 2010 (enforcement of the Bill of Rights) 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kariobangi Sewerage Farmers Self Group v Sanitation & Irrigation & 7 others; Legal Advice Centre t/a Kituo Cha Sheria (Interested Party)", Case Analysis (2023). Environment & Land Petition 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18586/eng@2023-07-06

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