Mainland Properties Limited v Attorney General & 3 others (Environment & Land Petition 13 of 2018) [2024] KEELC 3540 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed police must enforce a Mombasa eviction order but gave government 60 days to resettle squatters first.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd respondent complied with the court order of 9th February 2017 in HCCC No. 503 of 2011
The court found the 3rd respondent did not comply, as the 50 police officers provided were inadequate and the eviction never took place
The order required an adequate contingent of police officers to protect auctioneers during eviction. The 50 officers provided were unsuccessful and left with injuries, demonstrating the contingent was inadequate. The order was never appealed, reviewed or set aside, and the eviction never took place from 2017, so non-compliance was established.
Whether the failure to enforce the eviction order violated the petitioner's constitutional rights
The failure to provide adequate police officers amounted to a violation of Article 40 (property rights) and Article 47 (fair administrative action)
Article 40(3) protects persons from deprivation of property. The 3rd respondent's failure to provide adequate police officers denied the petitioner exclusive enjoyment of its registered property, and that deprivation also amounted to a violation of the right to fair administrative action under Article 47.
Whether the 1,219 joined respondents (Kajiweni Asili CBO) could be affected by the order of 9th February 2017
No - the order was not directed at them as they were not parties to HCCC No. 503 of 2011, and binding them would breach natural justice
The joined squatters were not parties to the suit in which the 2017 order was made. Affecting them without an opportunity to be heard under Article 50, or without access to the eviction procedures under sections 152A to 152G of the Land Act, would breach the rules of natural justice. The 169 cross-petition respondents, having not replied, were deemed to have no objection to the eviction.
Whether the compensation and damages prayers should be granted
Prayers g, h, j and k were declined; the petitioner was estopped from claiming damages relating to the resettlement of the original 69 families
The petitioner had voluntarily settled 69 squatter families at its own cost and issued them allotment letters, after which they ceased to be trespassers. Seeking the amounts spent on that resettlement was inconsistent with that goodwill, and damages prayers were found not to serve the justice of the case in the circumstances.
Whether the cross-petition by the National Government and Inspector General of Police had merit
The cross-petition was dismissed; its resettlement/compensation proposal lacked evidence of engagement with the petitioner
Although the cross-petitioners sought dismissal of the petition, they simultaneously sought the petitioner's vacant possession - an internal contradiction. Their proposal for enumeration, survey, valuation and purchase lacked evidence of engagement with the petitioner, so the court would not issue such an order, though parties were left free to pursue it.
Legal principles established
#- A person against whom a court order is made is under a plain obligation to obey it unless and until it is discharged
- He who alleges must prove, per section 107 of the Evidence Act
- It is contrary to natural justice to affect parties by an order in a suit to which they were not party and without a hearing
Court orders
#- 1.The cross-petition by the National Government and the Inspector General of Police dated 4th July 2019 is dismissed with costs to the petitioner in the main petition
- 2.Prayers 'a', 'b', 'c', 'd', 'e', and 'l' of the petition dated 26th June 2018 are granted as prayed
- 3.Prayers 'f', 'g', 'h', 'i', 'j', and 'k' of the petition dated 26th June 2018 are rejected
- 4.The 1st to 4th respondents are granted sixty (60) days to engage all relevant parties and come up with a resettlement solution for the squatters on the suit property or part thereof
- 5.If no settlement solution is reached within sixty (60) days, an order of mandamus requiring the 3rd and 4th respondents to ensure compliance with the court order of 9th February 2017 issued in HCCC No. 503 of 2011 within the next sixty (60) days be issued
- Jurisdiction invoked
- Articles 22(1) & (2), 23(1) & (3) and 165(3)(b) & (d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mainland Properties Limited v Attorney General & 3 others (Environment & Land Petition 13 of 2018) [2024] KEELC 3540 (KLR)", Case Analysis (2024). Mombasa ELC Petition 13 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3540/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.