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ELCPartially Allowed· [2024] KEELC 4359 (KLR)

Kinyanjui & 13 others v Richu & 4 others as officials of Thome V Residents Welfare Association & another (Environment and Land Case Civil Suit 192 of 2017) [2024] KEELC 4359 (KLR)

Environment and Land Court
30 May 2024
5,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Nairobi court declared a residents' association's estate gates illegal because they lacked county approval and were imposed without consulting all residents.

What this practically means

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Executive summary

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Eighteen property owners in Thome V Estate, Nairobi, sued the Thome V Residents Welfare Association and the Nairobi City County Government, seeking permanent injunctions against the erection of gates, spikes, walls and ditches on public access roads P2262-Nairobi and P1909-Nairobi, a declaration that existing gates were illegal, and damages of Kshs. 500,000. They complained of forced levies (Kshs. 65,000 development fee and monthly security charges), denial of access to non-members, and embarrassment. The 1st Defendant justified the gates as a security measure; the 2nd Defendant said it acted on complaints by ordering removal and later allowed the gates back. The 1st Defendant's case was closed after an adjournment application was refused. The court framed three issues: lawfulness of the barriers, infringement of rights, and appropriate orders. Relying on section 49 of the Kenya Roads Act and county letters of 27 January 2017 and 6 March 2017, it held the gates were erected without written permission or agreement with affected residents and were illegal. It found the association breached the Plaintiffs' rights to fair administrative action under Article 47 and section 4(3) of the Fair Administrative Action Act by imposing charges without notice, and that owners in an estate not established as a gated community cannot be compelled to join an association under Article 36. However, total removal was held likely to visit greater harm, and the court endorsed the principle that non-members enjoying common services may reasonably pay applicable fees. The court declared the gates illegal, ordered their removal pending written county approval and mediated agreement with residents including non-members, and awarded costs against the 1st Defendant. Damages were not awarded; the suit therefore partially succeeded.

Key legal issues

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01

Lawfulness of gates erected on public roads

Holding

The gates and barriers were illegally and unlawfully erected because the 1st Defendant lacked written permission from the county and had not reached agreement with affected residents despite notices

Reasoning

Section 49 of the Kenya Roads Act prohibits erecting structures on road reserves without the responsible Authority's written permission. County letters of 27 January 2017 and 6 March 2017 declared the gates unlawful and ordered their removal or regularisation through agreement with neighbours and county approval. The 1st Defendant neither complied nor obtained the Director of Roads' approval, operating with impunity; the constructions were therefore illegal and unlawful.

p. 9
02

Infringement of freedom of movement and fair administrative action

Holding

The 1st Defendant breached the Plaintiffs' right to fair administrative action by imposing gates and charges without notice or involvement, and restricted movement by requiring defaulters to open gates themselves

Reasoning

Article 39 protects freedom of movement; the gates added a limitation, forcing non-paying residents to open gates at all hours, risking security. Article 24(3) requires anyone limiting a right to justify it. Article 47 and section 4(3) of the Fair Administrative Action Act require prior notice and an opportunity to be heard before administrative action adversely affecting rights. The 1st Defendant gave no notice of the gates or the Kshs. 65,000 and Kshs. 4,000 charges, impinging the Plaintiffs' rights.

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Compulsory association membership

Holding

Plaintiffs cannot be compelled to join the 1st Defendant's association since the estate was not established as a gated community

Reasoning

Article 36 includes the right not to be compelled to join an association. Thome V Estate was not developed as a gated community; residents bought and developed properties independently, and the associations arose later to address common challenges. Although a majority may support the association, an association is still bound to uphold the Constitution even where most residents are members. Membership of voluntary associations must itself be voluntary.

p. 10
04

Whether the suit against the 2nd Defendant discloses no cause of action

Holding

The 2nd Defendant was properly joined; it could not raise striking out via submissions when it had not sought it in its pleadings

Reasoning

Order 2 Rule 15(1) permits striking out pleadings that disclose no reasonable cause of action, but the 2nd Defendant never sought striking out through its Statement of Defence; parties are bound by their pleadings and submissions are not pleadings. In any event, the Plaint specifically sought an injunction restraining the 2nd Defendant from allowing installation of barriers without due process, so joinder was proper under Order 1 Rule 3.

p. 6

Legal principles established

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  • No person may erect a structure on a public road or road reserve without the responsible Authority's written permission under section 49 of the Kenya Roads Act
  • Gates or barriers on public access roads are lawful only where the residents' association obtains county approval and agreement of all affected residents on location and management
  • Property owners in an estate not established as a gated community cannot be compelled to join a residents' association; membership of voluntarily established associations must be voluntary
  • Non-members of a residents' association who enjoy common services may reasonably be required to pay applicable fees for those services

Court orders

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  1. 1.A declaration that the existing gates and barriers as erected and maintained by the 1st Defendant are illegal and unlawful
  2. 2.The 1st Defendant to remove the gates and barriers on all the public access roads within the Estate until such time as it obtains written approval of the 2nd Defendant and the agreement of the Plaintiffs and the majority of residents, including non-members, through a mediation process on the terms of use of the barriers
  3. 3.Costs of the suit to be borne by the 1st Defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 39 (freedom of movement); Article 36 (freedom of association); Article 47 (fair administrative action); Article 24(3) (limitation of rights)
  • Kenya Roads ActSection 49
  • Fair Administrative Actions Act, 2015Section 4(3)
  • Civil Procedure Act / Civil Procedure Rules, 2010Order 2 Rule 15(1); Order 1 Rule 3

Cases cited (9)

  • Baburam & 3 Others (Suing as the Legal Representatives of the Estate of Rael Chemeli Baburam) vs Suereca East Africa Limited & Another
    [2022] eKLR
  • Jaswinder Singh Jabbal vs Mark John Tilbury & another
    [2019] eKLR
  • Tim Mwai & 2 Others vs Extra Mile Limited
    [2018] eKLR
  • Hudson Kihumba Wanguhu & 17 others vs Paul Richu & 5 others
    [2017] eKLR
  • Kirinya M. Mwenda vs Runda Water Limited & Another
    [2014] eKLR
  • George Munge v Sanjeev Pancho Sharma & 3 Others
    [2012] eKLR
  • Hudson Kihumba Wanguhu & 17 others vs Paul Richu & 4 Others as officials of Thome V Residents Welfare Association and the City County of Nairobi
    [2017] eKLR
  • Kiriinya M. Mwendia vs Runda Water Limited & Another
    [2014] eKLR
  • Kiriinya M. Mwendia vs Nairobi City County & 2 others
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction over a land and environment dispute (Article 162(2)(b) jurisdiction of the Environment and Land Court); constitutional claims under Articles 39, 36, 47 and 24(3)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kinyanjui & 13 others v Richu & 4 others as officials of Thome V Residents Welfare Association & another (Environment and Land Case Civil Suit 192 of 2017) [2024] KEELC 4359 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4359/eng@2024-05-30

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