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ELCDismissedPetition 01 of 2020· [2023] KEELC 18766 (KLR)

Mberia & another v County Government of Meru

Environment and Land Court
12 July 2023
CYC. K. Yano
3,347 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed two traders' claim that Meru County violated their property rights, because they could not prove they owned the market stalls.

What this practically means

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Executive summary

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The petitioners, businessmen at Kianjai Market, petitioned the Environment and Land Court at Meru seeking a declaration that the County Government of Meru breached their Article 40 right to property by altering the market map, reallocating their stalls (Plot No. A17 and Plot No. (B) 49), threatening eviction and installing new occupants, plus general damages and costs. They claimed allocation by the defunct Nyambene County Council in 1992 and reliance on licences and minutes. The respondent denied any allocation, asserting no certificates of allocation existed, that stalls were temporary permits revocable for planning purposes, and that the petition raised no constitutional issues, inviting dismissal. A preliminary objection challenged the court's jurisdiction and the petitioners' failure to exhaust statutory dispute-resolution mechanisms. The court framed five issues and held, applying Anarita Karimi Njeru, Trusted Society, Benard Murage, John Mining Temoi and Stephen Nyarangi Onsoma, that the petition raised no constitutional issue since the dispute over reallocation or ownership of stalls was a private law matter; that the petitioners failed to prove ownership, the minutes showing only conditional consideration of applications and permits being temporary; and that no infringement was proved to the required standard. The petition was dismissed with costs to the respondent.

Key legal issues

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01

Whether the petition met the threshold of a constitutional petition

Holding

It did not; the disputes over reallocation or ownership of stalls fall within private law and no constitutional issue was raised.

Reasoning

Applying Anarita Karimi Njeru principles and the Trusted Society test, the court found the petition did not raise substantial constitutional questions. Relying on Benard Murage, the court held that where a statutory remedy exists it should be pursued first; the dispute over reallocation of stalls was a private law matter, and market stalls are temporary permits revocable for planning purposes.

p. 5
02

Whether the petitioners owned the market stalls

Holding

They did not prove ownership; the minutes showed allocation was subject to availability of space and permits were temporary.

Reasoning

The petitioners produced minutes showing only that their applications were considered subject to availability of space. There was no certificate of allocation, letter of allotment or PDP map. Payment for permits did not confer registered ownership, so Article 40 protection was unavailable.

p. 6
03

Whether the respondent interfered with the petitioners' rights

Holding

No violation was proved to the required standard since the petitioners had no demonstrated property right.

Reasoning

Citing John Mining Temoi and Stephen Nyarangi Onsoma, the court held that a petitioner must present evidence or a factual basis for the alleged violation. As the petitioners were not registered owners, they had no evidence demonstrating that their rights were violated by the map changes or threatened eviction.

p. 7

Legal principles established

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  • A petitioner alleging constitutional violation must cite the provisions violated, give particulars of the violation, and adduce evidence of the factual basis for the alleged violation.
  • Where an alternative statutory remedy exists, it should be pursued before resorting to a constitutional petition.
  • Ownership of property must be proved by evidence; mere claim or payment of temporary permits does not establish ownership attracting Article 40 protection.

Court orders

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  1. 1.The petition is dismissed with costs to the respondent.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 165
  • Physical Planning ActCap 286, section 10(2)(a)
  • Physical and Land Use Planning ActNo. 13 of 2019

Cases cited (9)

  • Nelson Kazungu Chai & 9 others vs Pwani University College
    (2014) eKLR

    Powers of allocation of government land

  • Sara Leitich v Joshua Rutto & 2 others
    (2021) eKLR

    Powers of allocation of government land

  • Gabriel Mutava & 2 Others vs Managing Director, Kenya Ports Authority
    [2016] eKLR

    Ownership disputes should be addressed by way of civil suit, not constitutional petition

  • Javan Oscar Bulemi (suing as Secretary General Tiriki Union (E.A) v Permanent Secretary, Ministry of Internal Security and Principal Administration & 2 others
    [2015] eKLR

    Requirements for drafting constitutional petitions

  • Anarita Karimi Njeru vs The Republic
    [1976-1980] KLR 72

    Petitioner must specify constitutional provisions violated and particulars

  • Trusted Society of Human Rights Alliance v Attorney General & 2 Others
    [2013] eKLR

    Substantive test for sufficiency of constitutional petitions

  • Benard Murage v Fine Serve Africa Ltd & 3 others
    [2015] eKLR

    Alternative statutory remedies should be pursued first

  • John Mining Temoi & another v Governor of Bungoma County & 17 others

    Petitioner must show provisions violated, manner of violation, and factual basis

  • Stephen Nyarangi Onsoma & Another vs George Magota & 7 others
    [2014] eKLR

    Petitioner must cite violated provisions and present evidence of violation

Jurisdiction invoked
Article 165 of the Constitution of Kenya, 2010

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, "Mberia & another v County Government of Meru", Case Analysis (2023). Petition 01 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18766/eng@2023-07-12

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