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ELCDismissedFurther Amended Petition dated 11th October 2022 (originally Petition dated 4th March 2016, filed in the High Court and transferred to the Environment and Land Court and re-numbered)

Nyaga & 19 others (Suing on Behalf of the 150 Members of Kismayu Farmers Company) v Ngunyi & 6 others (Environment & Land Petition 17 of 2022) [2025] KEELC 3980 (KLR)

Environment and Land Court
7 May 2025
14,688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~59 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed land claims near Wilson Airport, confirming that an unperfected allotment letter gives no property rights under Article 40.

What this practically means

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Executive summary

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This Environment and Land Court petition, transferred from the High Court and re-numbered, was brought on behalf of the Petitioners and members of Kismayu Farmers Company who claimed to have occupied LR NO. 2X9/10XX3 (Kismayu Slums) near Wilson Airport since 1982 and to hold rights under a letter of allotment dated 18th June 1995. They sought declarations that their eviction and harassment by the 1st and 2nd Respondents in May 2019 was unlawful and unconstitutional, permanent and mandatory injunctions, resettlement or alternative allocation, and damages of about Kshs. 51,986,160/- founded on a valuation report. The court framed three issues: accrued rights to the suit property, proof of eviction and responsibility for it, and reliefs. On the first issue, the court held the Petitioners had no rights: the letter of allotment was issued to a company incorporated only in 2016, was unsupported by a Part Development Plan, its conditions were never complied with and hence it lapsed; and occupation of unalienated public land cannot ground title under section 41 of the Limitation of Actions Act. Article 40 protects only accrued rights. On the second issue, the burden of proof lay on the Petitioners; with photographic evidence excluded under section 106B of the Evidence Act, the uncorroborated testimony of PW2 and a valuer who took no photographs failed to establish the eviction, and the court doubted the bona fides of the claim given its overlap with the Mitu-Bell litigation. On reliefs, no prayer succeeded: an injunction could not restrain a completed act, resettlement would offend public policy and the National Land Commission's constitutional mandate, and the valuation report - dated before instructions were received and lacking licence and methodology - could not sustain compensation. The Petition was dismissed with each party bearing own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the Petitioners herein had acquired or accrued any legal or equitable rights to the suit property and whether the Petitioners are entitled to the protection vide Article 40 (3) of the Constitution or otherwise
  2. 2.whether the Petitioners have proved and demonstrated illegal eviction and if so, the person[s] responsible for the impugned eviction
  3. 3.what reliefs [if any] ought to issue

Key legal issues

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01

Whether the Petitioners acquired legal or equitable rights to LR NO. 2X9/10XX3

Holding

They did not. The letter of allotment of 18th June 1995 was issued to Kismayu Farmers Company which was not incorporated until 2nd February 2016, no Part Development Plan anchored it, its conditions were never complied with, and it conferred no rights on the Petitioners, who are distinct from the company.

Reasoning

The allottee company did not exist in 1995; a letter of allotment cannot issue to a non-entity. No letter of application, acceptance, part development plan, payment of standard premium or statutory levies was proved. Long occupation of unalienated public land cannot ground title given section 41 of the Limitation of Actions Act. The court relied on Torino Enterprises and Dina Management on the allocation of public land.

p. 16
02

Whether the Petitioners proved an illegal eviction and by whom

Holding

No. The claim rested on PW2's uncorroborated word; photographic evidence was excluded under section 106B of the Evidence Act; the valuer took no photographs; RW3's uncontroverted evidence attributed evictions to 2012 and the National Government.

Reasoning

The burden under sections 107, 108 and 109 of the Evidence Act lay on the Petitioners. Absence of photographic or other corroborative evidence negated proof on a balance of probabilities. The court also doubted the bona fides of the claim, noting the Petitioners' identification of the land as that of Mitumba Village and the inclusion of William Musembi, suggesting a disguised re-agitation of the Mitu-Bell litigation.

p. 25
03

What reliefs, if any, ought to issue

Holding

None. The Petition was dismissed with each party bearing own costs.

Reasoning

Since no accrued rights were proved and no eviction was established, the declarations, injunctions, resettlement orders and compensation all fell away. The resettlement and alternative allocation prayers would have usurped the National Land Commission's constitutional mandate, and the compensation claim failed on the defective valuation report prepared before instructions and lacking licence and methodology.

p. 27

Legal principles established

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  • A Letter of Allotment can only issue to a legal person in existence at the time of issue; it cannot issue to a non-existent entity.
  • A letter of allotment per se confers no interest in land; an allottee must perfect it by complying with its conditions and thereafter obtain registration.
  • A letter of allotment whose terms are not complied with lapses and stands extinguished.
  • Article 40 of the Constitution protects only rights that have actually accrued, not illusory, inchoate or imaginary rights.
  • Long occupation/adverse possession cannot found a claim to public land, per section 41 of the Limitation of Actions Act.
  • The burden of proving an eviction and its perpetrators rests on the claimant, and the standard does not shift even where the other side does not respond.

Court orders

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  1. 1.The Petition be and is hereby Dismissed.
  2. 2.Each party shall bear own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution - Environment and Land Court jurisdiction over a petition concerning rights and interests in land transferred from the High Court

Relief refused

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Declaration that the actions of the 1st and 2nd Respondents in evicting, harassing, intimidating, threatening and destroying the Petitioners' crops was unconstitutional

The Petitioners established no legal or equitable rights to the suit property; their claim of rights under Article 40 was imaginary and illusory, and no eviction was proved.

p. 19

Permanent injunction restraining encroachment, eviction and fencing

The Petitioners had already been removed from the suit property; an injunction cannot restrain an act that has already occurred.

p. 25

Declaration that the eviction was unlawful, unprocedural and unconstitutional

The court found the Petitioners were not evicted in the manner contended or otherwise.

p. 25

Mandatory injunction compelling resettlement on the suit property

The land is public land on the flight path/take-off lane of Wilson Airport; resettlement would offend public policy, public interest and safety, and the order falls outside the mandate of the parties impleaded.

p. 25

Alternative resettlement on land within Nairobi County and processing of titles free of statutory fees

Allotment of public land is the mandate of the National Land Commission, an independent constitutional commission immune to directions of the court.

p. 26

Damages of Kshs. 51,986,160/- and Kshs. 7,797,924/- with interest for destroyed property

The valuation report was undated inconsistently, lacked methodology, professional licence/certificate, and was not probative; the eviction itself was unproved.

p. 27

Costs

Each party shall bear own costs taking into account the nature of the issues and the fact that the award of costs is at the discretion of the Court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Petition be and is hereby Dismissed.
p. 27final orders - dismissal of the petition
Nevertheless, each party shall bear own costs taking into account the nature of the issues and coupled with the fact that the award of Costs is at the discretion of the Court.
p. 27costs order
The bottom line is that a Letter of Allotment can only issue to a legal person in the eyes of the law and not otherwise.
p. 14validity of allotment letters issued to non-existent entities
the provisions of Article 40 of the Constitution, 2010; cannot be invoked to vindicate illusory, inchoate and/or imaginary property rights.
p. 18scope of Article 40 constitutional protection of property
the claims based on the longevity of occupation, which is akin to a claim for adverse possession and prescription, does not lie as pertains to Public land.
p. 20adverse possession over public land
Certainly, it does not fall within my jurisdiction to direct the Respondents, least of all the 4th Respondent to allocate land. Such an Order would be illegal and void.
p. 26limits of judicial power over National Land Commission's mandate
I am not persuaded that the valuation report which was tendered and produced on behalf of the Petitioners sufices to prove the compensation adverted to.
p. 27probative value of valuation reports

Issues in the judgment

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minor

The claim in damages pleaded as Kshs. 51,986,160/- is described in the analysis of the compensation prayer as a claim of Kshs. 59,784,894/-, the figure from the valuation report rather than the pleaded figure.

minor

The judgment refers inconsistently to the paragraph source of the Petitioners' core claim, citing paragraph 17 of the 'further Amended Plaint' at one point and 'further amended Petition' elsewhere.

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, "Nyaga & 19 others (Suing on Behalf of the 150 Members of Kismayu Farmers Company) v Ngunyi & 6 others (Environment & Land Petition 17 of 2022) [2025] KEELC 3980 (KLR)", Case Analysis (2025). Further Amended Petition dated 11th October 2022 (originally Petition dated 4th March 2016, filed in the High Court and transferred to the Environment and Land Court and re-numbered). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3980/eng@2025-05-07

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