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ELCPartially AllowedPetition dated 22nd January 2024· [2024] KEELC 5350 (KLR)

Gadi & 51 others v National Transport & Safety Authority & another (Environment & Land Petition E001 of 2024) (Environment and Land) [2024] KEELC 5350 (KLR)

Environment and Land Court
19 July 2024
EWE. K. Wabwoto
2,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Long-term occupants of public land in Kenya cannot claim ownership, but the state must still follow legal procedures before any eviction.

What this practically means

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Executive summary

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Three residents of Sofia Riverside area, Voi Sub County, petitioned the Environment and Land Court at Voi against the National Transport and Safety Authority and the Attorney General. They claimed continuous occupation of the suit land since 1936 and sought declarations under Article 40, a mandamus compelling the Attorney General to have the land surveyed and title deeds issued, and costs. The Respondents opposed, contending the land is public land set aside for the 1st Respondent, that the Petitioners held no title, allotment letters or colour of right, and that the Petitioners had not exhausted remedies before the National Land Commission. The court framed three issues: the Petitioners' legal right to the property, whether any rights were violated, and the appropriate remedies. It held that the Petitioners' claim amounted to adverse possession, which cannot run against government or public land, and that no documentary evidence of ownership supported an Article 40 claim; the declaration and mandamus sought were therefore refused. However, the court found the Petitioners' residence and structures on the land undisputed, and held that any eviction must comply with Section 152G of the Land laws (Amendment) Act and the Mitu-Bell eviction guidelines. The court directed the National Land Commission, under Article 67(2)(e), to investigate the Petitioners' claim and make recommendations on their interest or resettlement within 180 days, restrained eviction of the Petitioners pending that compliance, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Petitioners acquired title to the suit land by adverse possession/long occupation

Holding

No - the land is public land, and adverse possession does not run against public land; no documentary proof of ownership was adduced

Reasoning

The Petitioners claimed occupation since 1936, which infers a claim of adverse possession. However, title to land may be acquired under Section 7 of the Land Act through prescription among other modes, and a claim of adverse possession cannot be maintained on government or public land set aside for public use.

p. 4
02

Whether the intended eviction would violate Articles 40 and 43 of the Constitution

Holding

No violation was established as things stood, but any eviction must comply with the statutory eviction procedures; the court restrained eviction pending NLC's investigation

Reasoning

While the Petitioners proved residence and structures on the land, they proved no ownership right under Article 40. Nonetheless the state bears a positive obligation under Article 43, and evictions must follow Section 152G procedures including notice, dignity, and priority to salvage property. Absent evidence of compliance, the court could not allow eviction to proceed uncontrolled.

p. 6

Legal principles established

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  • A claim of adverse possession cannot be maintained on government or public land
  • Even where eviction of persons residing on public land is necessary, due process under Section 152G of the Land laws (Amendment) Act must be followed

Court orders

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  1. 1.The National Land Commission is directed pursuant to Article 67(2)(e) of the Constitution to investigate the Petitioners' claim and make appropriate recommendations on their interest to the land and/or their resettlement within 180 days.
  2. 2.Pending compliance with order (a), there shall be no eviction of any party currently residing in the suit property as at the time of filing the petition.
  3. 3.Each party to bear own costs of the suit.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 43(1)(b)
  • Constitution of Kenya, 2010Article 2(1), 2(5), 2(6), 20(1), 65, 67(2)(e), 156(1)
  • Land Act No. 6 of 2012Section 7
  • Land Act No. 6 of 2012Section 134
  • Land Act No. 6 of 2012Section 152(A)-(H), Section 152G, Section 155
  • Land laws (Amendment) ActSection 152G

Cases cited (5)

  • Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] (KLR) (11th January 2021)
    Petition 3 of 2018; [2021] eKLR
  • Irene Grotboom and Others v The Government of the Republic of South Africa & Others
    [2001](12) SA 46
  • Benson Wekesa Milimo v National Land Commission & 2 others
    (2021) eKLR
  • William Musembi 13 others v Moi Educational Centre Co. Ltd & 3 others
    [2021] eKLR
  • Fatuma Khamis Bilal & 3505 others v Kenya Railways Corporations & 6 Others
    [2021] eKLR
Jurisdiction invoked
Article 23(1) of the Constitution (constitutional petition for enforcement of Bill of Rights); original jurisdiction of 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, "Gadi & 51 others v National Transport & Safety Authority & another (Environment & Land Petition E001 of 2024)  (Environment and Land) [2024] KEELC 5350 (KLR)", Case Analysis (2024). Petition dated 22nd January 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5350/eng@2024-07-19

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