Ng’anya & 2 others (All suing on their own behalf and on behalf of 27 others) v Mukabana (Being sued as administrator of the Estate of Peter Keya Were-Deceased) & 5 others; National Environment Management Authority (Interested Party) (Environment & Land Petition 67 of 2019) [2024] KEELC 6866 (KLR)
The bottom line
#A Kenyan court ruled that demolishing homes without legal notice violated residents' rights, awarding them Kshs 10 million in general damages.
What this practically means
#Executive summary
#Key legal issues
#Locus standi
Petitioners have standing under Articles 22, 258 and 70 notwithstanding their lack of proved property rights; the 4th Respondent's objection goes to proof of violation, not standing
The Court held that standing under the 2010 Constitution is enlarged and every person may institute proceedings claiming breach of the Bill of Rights. The 4th Respondent's contention that the Petitioners had no property rights is really a question of whether violations were proved, which is distinct from whether they may be heard. Locus was therefore not undermined.
Specificity of the Petition (Anarita Karimi Njeru test)
The Petition met the test by identifying the constitutional provisions said to be infringed and the manner of infringement
The Court applied Anarita Karimi Njeru as affirmed in Mumo Matemu and Communications Commission of Kenya, holding that precision demands neither formulaic prescription nor formalistic recitation. The Amended Petition pleaded the provisions contravened and the manner of contravention, satisfying the threshold.
Sub judice
The Petition is not sub judice: it is not between the same parties nor does it contest ownership as the other suits do
Applying Section 6 of the Civil Procedure Act and the Supreme Court's criteria, sub judice requires the same subject matter and same parties. Apart from one Petitioner, the Petitioners are not parties to the other suits, and they seek redress for constitutional violations arising from demolition, not a determination of ownership.
Fair administrative action (Article 47)
Violation established: no notice was given before the demolition; the police involvement constituted administrative action and Section 152E of the Land Act was contravened
The Court found the absence of notice uncontested and held that police provision of security during evictions amounted to administrative action under the broad definition in the Fair Administrative Actions Act. The statutory notice regime of Section 152E of the Land Act applies even to trespassers and was breached.
Right to dignity (Article 28)
Violation established: demolitions carried out at night without notice degraded the Petitioners' dignity
Drawing on Satrose Ayuma and UN guidelines that evictions must not take place at night or in bad weather, the Court found the uncontroverted evidence that demolitions occurred at night while families were in the houses established a breach of the right to dignity.
Right to property (Article 40)
Violation of proprietary rights in the houses established, but no compensation under Article 40(4) as this was not compulsory acquisition
While the Petitioners disclaimed any claim to the land itself, Article 260(a) defines property to include permanent fixtures and improvements. The demolition of houses without due process therefore breached Article 40, though the demolitions were not a compulsory acquisition attracting compensation under Article 40(4).
Quantum and proof of damages
General damages of Kshs 10,000,000 awarded against the 4th Respondent; special and exemplary damages refused
Special damages of Kshs 62,424,999 failed because receipts for building materials dated 2013-2019 were at odds with the pleaded development period of 2010-2012, and evidence at variance with pleadings must be disregarded. Exemplary damages lacked proof of a highly culpable mind. General damages were merited for the proved breaches.
Legal principles established
#- Evictions from private land, even of illegal occupiers, require a statutory notice under Section 152E of the Land Act, 2012; reliance on purely injunctive court orders cannot justify eviction
- Houses as permanent fixtures on land constitute property under Article 260(a), and their demolition without due process violates Article 40
- Compensation under Article 40(4) applies to compulsory acquisition, not to demolitions without due process
- Special damages in constitutional petitions must be specifically pleaded and proved; evidence at variance with pleadings must be disregarded
Court orders
#- 1.A declaration that the demolition of the Petitioners' houses by the 4th Respondent in collusion with the 6th Respondent contravened the Petitioners' rights under Articles 28, 40(1) and 47 of the Constitution of Kenya
- 2.General damages of Kshs 10,000,000 to be borne by the 4th Respondent for the declared violations
- 3.All other prayers in the Petition not granted are dismissed
- 4.The 4th Respondent shall bear the costs of the Petition
- Jurisdiction invoked
- Articles 22(1), 23, 258, 70 and 165(3) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’anya & 2 others (All suing on their own behalf and on behalf of 27 others) v Mukabana (Being sued as administrator of the Estate of Peter Keya Were-Deceased) & 5 others; National Environment Management Authority (Interested Party) (Environment & Land Petition 67 of 2019) [2024] KEELC 6866 (KLR)", Case Analysis (2024). Petition (Amended) dated 6th March 2020, Environment and Land Court, Nairobi (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6866/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.