https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2987

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NANYUKI** **ELC PET E001 OF 2025** **TOROBEEK COMMUNITY…….….......PETITIONER/APPLICANT** **VERSUS** **COUNTY COMMISSIONER, LAIKIPIA WEST..…1ST DEFENDANT** **INSPECTOR GENERAL OF POLICE..…...…..…2ND DEFENDANT** **THE NATIONAL POLICE SERVICE………..…….3RD DEFENDANT** **THE DIRECTOR OF CRIMINAL** **INVESTIGATIONS (DCI)……………….…………4TH RESPONDENT** **THE ATTORNEY GENERAL……………………..5TH RESPONDENT** **JUDGMENT** 1. This suit was commenced by way of a Petition dated 5.3.2025 where the Petitioners seek the following orders; **“ a) A declaration that the forced eviction of the Torobeek Community by the respondents was illegal, unconstitutional and a violation of their rights under Articles 28, 29, 40, 43 and 47 of the Constitution of Kenya, 2010.** **b) A declaration that the respondent’s actions in carrying out the eviction without due process violated the petitioner’s rights to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015.** **c) A declaration that the eviction conducted by the respondents amounted to a violation of the petitioner’s right to property under Article 40 of the Constitution, and that the petitioner is entitled to full restoration of possession of the suit property.** **d) A declaration that the use of excessive force, destruction of property, and inhumane treatment of the petitioner’s members by the respondents were violations of the rights to dignity, security and freedom from cruel, inhuman and degrading treatment under Articles 28 and 29 of the Constitution.** **e) An order restraining the respondents, their agents, officers, or any other persons acting on their instructions from further interfering with, evicting, or harassing the members of the Torobeek Community on the suit property without due process.** **f) An order directing the respondents to compensate the petitioner for the loss, suffering and damages occasioned by the unlawful eviction.** **g) An order directing the respondents to immediately restore the petitioner’s members to the suit property and ensure their peaceful occupation.** **h) An order for compensation for the unlawful eviction of 500 members of the petitioner’s community.** **i) An order that the costs of this Petition be borne by the respondents.** **j) Any other relief that this Honourable Court may deem just and expedient in the circumstances.”** 1. The respondents opposed the suit vide the Replying affidavit dated 15.4.2025. 2. On 17.9.2025, the Petitioners prayed for the suit to be heard by way of written submissions, of which the respondents were aggregable. Thus the court gave directions for the Petition to be heard by way of written submissions. ***The Case for the Petitioners*** 1. The case for the petitioners is contained in their petition and the supporting affidavit of Paulo Kiprotich Mosbei, the Chairman of the petitioners. The Petitioners contend that they lawfully purchased the suit parcels nos. Mutara /Thome Block (Thome IV) 3521 and 2962 each measuring 2 acres from Martin Macharia Kogi, thus they are the rightful occupants. However, on 25.2.2025, the respondents unlawfully evicted the petitioners, thus violating their Constitutional rights to property and carrying out the eviction in an arbitrary manner. They contend that they have been deprived of their homes, security, food and water and they have been rendered homeless. 2. In their submissions dated 16.2.2006, the petitioners contend that they have locus to file this suit, that the same meets the constitutional threshold and that the petitioners have legitimate proprietary interests in the suit properties. They rely the case of; **Mitubell welfare Society v Kenya Airports Authority & Others ( 2021) KESC** to buttress the point that as informal settlers, they have a right to dignity, housing and protection from arbitrary evictions even in absence of a registered title. Further, they have cited the provisions of Section 152 of the land Act to challenge the manner in which the evictions were carried out. ***Case for the Respondents*** 1. The case of the Respondents is contained in their Replying Affidavit sworn by Barasa Wafula, the Deputy County Commissioner Laikipia West County on 15.4.2025. They contend that there was a camp on the suit parcels made up of makeshift structures and shanties with people living in squalid conditions of which there was anxiety from the residents. That there was also a serious public health situation as there was no sanitation. That the information gathered was that the leaders of the petitioners collect funds from unsuspecting members of the public under guise of registration fees promising them land allocations from the government and the people would be dumped in the small space so as to justify the money collected. Thus the respondents requested the camp to be closed, of which most people left. 2. In their submissions dated 15.4.2025, the respondents reiterated the averments set out in their pleadings. 3. I have considered the rival pleadings and submissions. The issues falling for determination turn on two points; the proprietary rights of the petitioners and the alleged forceful and unlawful evictions. 4. Firstly, the court has to interrogate the issue of proof. The provisions of **Section 107 of the Evidence Act** stipulate that; **“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”.** 1. The **Halsbury’s laws of England 4th Edition volume 17** describe the legal burden as follows; **“ The legal burden is the burden of proof which remains constant throughout a trial . It is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will loose”.** 1. In the case of **Samson S. Maitai & another V. African Safari Club Limited & Another [2010] eKLR**, the court had this to say in relation to proof. **“ Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute.”** 1. This far, it becomes clear that the onus was upon the petitioners to prove their claim. Thus the assertion of their claim to being the rightful proprietors of the suit parcel ought to have been tabled before an ordinary suit and not a petition. Further the manner in which the evictions were carried out required evidence from the actual evictees. The fact that this suit was filed as a petition does not in anyway exclude the claimants from adhering to the law on evidence. Thus it was not enough for the petitioners to simply plead that they own the land and that their eviction was unlawful. 2. Secondly, the attention of the court has been drawn to the averments of the petitioners that they wanted their members to claim communal land so as to settle their members permanently. Going by their averments, each parcel measures 2 acres thus a total of 4 acres. However, their members are about 537. It is simply not logical or even permissible that such a number would purport to share the 4 acres of land. It simply flies against the provisions of Article 60 (1) of the Constitution where it is stated that; **“ 60. (1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable…...”** 1. Further it is noted that the petitioners claim to have bought the suit parcels from one Martin Macharia Kogi. However, that claim is inconsistent with their claim that community land cannot be disposed of without free, prior and informed .consent of the Community. The petitioners appear to be mixing up the import of the provisions of Article 61 of the Constitution on classification of land in the Republic of Kenya. 2. Still on the issue of resettling the members of the petitioners, I find that such a function is anchored in law where by the National Government has the mandate to settle such groups of people like the IDPS. To this end, I make reference to the provisions of Section 134 of the Land Act which provides that; **“ (1) The National Government shall implement settlement programmes to provide access to land for shelter and livelihood. (2) Settlement programmes shall, for the purposes of this Act, include, but not be limited to provision of access to land to squatters, persons displaced by natural causes, development projects, conservation, internal conflicts or other such causes that may lead to movement and displacement”.** 1. Thirdly, the court takes into account the averments made by the respondents that there was a camp set up on site with makeshift structures. In its ruling of 17.9.2025, this court noted that *“ Such uncontrolled developments would certainly pose a health and security risk to not just the petitioners, but other residents in the vicinity”.* To this I will add that land use and planning is anchored on law, and so is environmental protection. Thus the rights of the petitioners must be weighed against other rights touching on environment and planning. That is why the court in its ruling of 17.9.2025 stated that the provisions of Article 24 (d) of the Constitution on limitation of rights are applicable. 2. In conclusion, I find that this petition is not merited, the same is hereby dismissed. Each party is to bear their own costs of the suit. **DATED, SIGNED AND DELIVERED AT NANYUKI THIS 13TH DAY OF MAY 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** Cheyem – Petitioner Gicemba – Respondent Nancy Mwangi – C/A