Kenya Law Weekly Issue 48/2011

| Issue 48/2011 Newsletter Archive | Friday 9th December 2011 |

EVICTION OF PETITIONERS WAS IN VIOLATION OF THE LAW
By Nelson K. Tunoi, Advocate

“Eviction results in individuals being rendered homeless or vulnerable to violation of other human rights especially where the affected persons are unable to provide for themselves and for their families. In such circumstances the State must take all appropriate measures taking into consideration the available resources to ensure that adequate alternative housing, resettlement and/or access to basic amenities are available.”

Musa Mohammed Dagane & 25 others v Attorney General & 3 others [2011] eKLR
Constitutional Petition No. 56 of 2009
High Court of Kenya at Embu
M Warsame, J.
November 16, 2011

The High Court at Embu (Warsame, J.) has held that the eviction subjected to the petitioners was in violation of the law and consequently the petitioners suffered loss and damages, which must be compensated. The petitioners were the local and historical indigenous habitants of Garissa District although they had never been issued with title documents to the land they had occupied since time immemorial. In 1981 they were evicted by the provincial administration from the land on which the NEP Technical College currently stands. They alleged that no compensation was offered in spite of the historical claims by virtue of being the local and historical habitants of the subject area hence laying claim to customary interest in the subject land.

The petitioners were evicted in 1984 by the Provincial administration from the land on which Umu Salama Secondary school now stands, and no compensation offered. Again in 1989, the Provincial Administration invaded the land occupied by the petitioners in a move suspected to have been intended to give the said land to a private developer. There was no explanation given by the Provincial Administration as to why the petitioners were being evicted.

In April 2003 the petitioners received a notice from the Garissa District Commissioner alleging to be issued in line with Government policy of repossessing public land taken over by private individuals.  The notice ordered the petitioners to vacate the subject land within fourteen (14) days. Despite the protests by the petitioners regarding the Government’s decision to evict the petitioners, the District Commissioner in the company of administration police proceeded to evict them and demolished their structures leaving them homeless, and later resettled them at an empty parcel of land six (6) kilometers away, which had no access to the amenities essential for basic life support. Those actions by the respondents provoked the instant petition where the petitioners challenged the conduct and actions of the respondents. The petitioners sought declaratory orders, inter alia, that the eviction of the petitioners from the subject lands without any adequate compensation and resettlement amounted to a violation of their right to own property guaranteed under section 75 of the Constitution (now repealed), and that the eviction notices issued were void and of no legal effect. The petitioners also sought directions that the petitioners adduce viva voce evidence to prove their losses of property incurred during the forcible evictions for purposes of appropriate compensation. The petition was not challenged by the respondents.

During the determination of the petition, the petitioners contended that they were relocated to a place which had no access to education facilities, health, electricity, water, road network and other trading facilities that were essential for basic life support. Justice Warsame observed that the petitioners had demonstrated that their land was taken away in a manner contrary to the Constitution and International Conventions against forceful eviction. The judge stated that, “eviction results in individuals being rendered homeless or vulnerable to violation of other human rights especially where the affected persons are unable to provide for themselves and for their families. In such circumstances the State must take all appropriate measures taking into consideration the available resources to ensure that adequate alternative housing, resettlement and/or access to basic amenities are available.” Thus, the petitioners were subjected to inhuman and degrading acts by the conduct of the respondents, and further they lost their land and property in a manner contrary and in violation of the law.

Justice Warsame further held that “the State has a constitutional obligation to provide services to the petitioners in a sustainable manner to promote social and economic development and encourage the growth and the sustenance of basic rights, and that the State must also respect, protect, promote and fulfil the basic rights enshrined in the Constitution to ensure that there is no violation or encroachment on the said rights on any entity or organ of the State.” The judge noted that by evicting the petitioners from their ancestral home, the respondents engaged in acts and in a manner that was broadly at odds with the spirit and purpose of constitutional obligations.
The judge granted the orders sought in the petition and directed that the court would hear oral evidence of the petitioners regarding the loss of property so as to ascertain the appropriate compensation after balancing the interests of the petitioners and that of the respondents. The petitioners were represented by Mr Elisha Ongoya.

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Gazette Notice Volume CXIII – No. 119 Dated December 9, 2011

GAZETTE NOTICE NO. 15435
THE ENERGY ACT
(Cap. 12 of 2006)
THE ENERGY REGULATORY COMMISSION
APPOINTMENT

IN EXERCISE of the powers conferred by section 10 (1) (d) of the Energy Act, the Minister for Energy appoints —

WANJIKU C. MANYARA

to be a Commissioner of the Energy Regulatory Commission, for a period of three (3) years, with effect from the 29th November, 2011.

The appointment of Emma W. Kiilu*, is revoked.

Dated the 29th November, 2011.

KIRAITU MURUNGI,
Minister for Energy.
*G.N. 7337/2009.

GAZETTE NOTICE NO. 15436
THE MOHAMMEDAN MARRIAGE AND DIVORCE
REGISTRATION ACT
(Cap. 155)
THE KENYA CITIZENS AND FOREIGN NATIONALS
MANAGEMENT SERVICE ACT
(No. 31 of 2011)
APPOINTMENT

IN EXERCISE of the powers conferred by section 4 of the Mohammedan Marriage and Divorce Registration Act, as read with section 25 of the Kenya Citizens and Foreign Nationals Management Service Act, the Attorney-General appoints —

SHEIKH MOHAMED SHEBWANA MOHAMED

to be an Assistant Registrar of Mohammedan marriages and divorces for Nairobi District.

Dated the 1st December, 2011.

GITHU MUIGAI,
Attorney-General.

GAZETTE NOTICE NO. 15437
THE MOHAMMEDAN MARRIAGE AND DIVORCE
REGISTRATION ACT
(Cap. 155)
THE KENYA CITIZENS AND FOREIGN NATIONALS
MANAGEMENT SERVICE ACT
(No. 31 of 2011)
APPOINTMENT

IN EXERCISE of the powers conferred by section 4 of the Mohammedan Marriage and Divorce Registration Act, as read with section 25 of the Kenya Citizens and Foreign Nationals Management  Service Act, the Attorney-General appoints —

MUHAMMAD M. SHUKRY

to be an Assistant Registrar of Mohammedan marriages and divorces for Nairobi District.
Dated the 24th November, 2011.

GITHU MUIGAI,
Attorney-General.

GAZETTE NOTICE NO. 15438
THE MAGISTRATES’ COURTS ACT
(Cap. 10)
INCREASE OF LIMIT OF JURISDICTION

IN EXERCISE of the Powers conferred by section 5 (1) of the Magistrates’ Courts Act (Cap. 10), the Chief Justice increases the limit of jurisdiction of the following Resident Magistrate to Kenya shillings five hundred thousand shillings (KSh. 500,000) with effect from 1st December, 2011.

Name                                            Station
Ngetich Kipkirui Solomon            Kitale
Mwinzi Shadrack Mwendwa       Meru
Mayova Paul Mutio                     Nakuru
Too Edward Kiprono                    Machakos
Ekhubi Ben Mark                         Mombasa
Akala Mary Ashisero                  Kiambu
Kendagor Jepyegen Caroline     Kakamega
Temba A. Sitati                           Kehancha
Maiteri D. Wangeci                    Bungoma
Makokha Margaret Nafula         Bondo
Awino V. Otieno                          Mwingi
Nyongesa E. Nafula                    Makadara
Mwangi Agnes Wahito               Kibera
Lesootia Alberty Satabau           Kitui
Nanzushi Anyona Martha          Kimilili
Shikanda Yusuf Abdallah           Malindi
Muango Ettah Achieng              Kerugoya
Mwangi Patrick Wambugu        Makindu
Adika Harrison Musa Sajide      Kisumu
Sarapai Lyna Nafuna                 Maua
Muleka W. Evans                      Tigania
Onkwani Hellen                         Karatina
Cheruiyot Willy Kipkoech          Thika
Kangoni Edgar Matsigulu          Kilifi
Mulongo Christine Wekesa       Nyeri
Ireri David Muchangi                Eldoret
Kiptoon Vincent Kibichi             Nyahururu
Khaemba Bryan Mandila          Kigumo
Mukhwana Jackline Wekesa     Muranga
Kasam Juliet Atema                   Sotik
Karanja Virginia                        Bomet
Simiyu Lester                            Machakos
Adhiambo Gladys                      Kapsabet
Towett Chemosop Alice            Molo
Kuto Derrick Khaemba               Eldoret
Kamau Charles Mwaniki            Ogembo
Koskey Purity Chepkorir             Rongo
Bett Evanson                               Kabarnet
Ngumi Wangeci                          Makadara
Kiniale Lilian Nafula                    Butere
Anne Wanjiku Nyoike                  Kangema
Opande Sammy Aswani               Kibera
Mogire Onkoba                           Gichugu
Lucy Chebet Kaittany                   Kisii
Matata Kimutai Bethwel             Nanyuki
Kahuya Irene Marcia                   Kericho
Mokoross Amos Kiprop                    Kilgoris
Jalang’o Stephen Samuel Wadida     Baricho
Koech Betty Chepkemei                    Mombasa
Opanga Martha Akoth Owiti              Kithimani
Munene Andrew Githinji                  Marsabit
Matutu D. Kiprono                          Taveta
Chesang Maisy                               Wundanyi
Nthuku Judicaster Nthambi             Hamisi
Adet Vincent Okello                       Moyale
Bernard Kasavuli                             Lamu
Sani Jared Nyangena                       Siaya
Kithinji Cecilia Karimi                      Kandara
Makau Agnes Ndunge                      Siakago
Khapoya Benson Sikuku                   Maralal
Wesonga Joy Shiuna                      Kakamega
Mwangi Susan Njeri                     Kangundo
Nchoe Sironka Timothy                  Vihiga
Waigera Leah Njambi                  Homa Bay
Maureen Lambisia Nabibya         Butali
Ngotho Irene Ruguru                   Mombasa
Mayamba Charles Alberto Obonyo    Nkubu
Kinyanjui Manuela Wanjiru            Gatundu
Ndombi Mugeni Rose                    Iten
Mutegi Martin Kinyua                   Wajir
Yator Rhoda                                  Makueni
Murage Margaret Wanjeru          Mukurweini
Nandi John Paul                              Runyenjes
Ocheing Melanie Awino            Eldama Ravine

Dated the 29th November, 2011.

WILLY MUTUNGA,
Chief Justice and President of
the Supreme Court of Kenya.

GAZETTE NOTICE NO. 15439
THE OATHS AND STATUTORY DECLARATIONS ACT
(Cap. 15)
A COMMISSION
To all to whom these presents shall come greeting: BE IT KNOWN that on 28th October, 2011—

BOSIRE DANIEL KIRERA

an advocate of the High Court of Kenya, was appointed to be a Commissioner for Oaths under the above-mentioned Act for as long as he continues to practice as such advocate and this Commission is not revoked.

Given under my hand and the Seal of the Court this 28th October, 2011 at Nairobi.

WILLY MUTUNGA,
Chief Justice and President of
the Supreme Court of Kenya.

GAZETTE NOTICE NO. 15440
THE POLICE ACT
(Cap. 84)
ESTABLISHMENT OF POLICE STATIONS

IN EXERCISE of the powers conferred by section 2 of the Police Act, the Commissioner of Police declares:
1. Watima Patrol Base in Nyeri South District, within Nyeri County, to be a police station, with effect from 1st December, 2011.
2. Inuka Police Post in Likoni District, within Mombasa County, to be a police station, with effect from 1st December, 2011.
3. Kwa Vonza Patrol Base in Lower Yatta District, within Kitui County, to be a police station, with effect from 1st December,2011.
4. Mbakalo Patrol Base in Bungoma North District, within Bungoma County, to be a police station, with effect from 1st December, 2011.

Dated the 1st December, 2011.

M. K. ITEERE,
Commissioner of Police.

GAZETTE NOTICE NO. 15441
THE LAND ACQUISITION ACT
(Cap. 295)
ADDENDUM
IN Gazette Notice Nos. 5073 and 5074 of 2010 add the following:

Plot No. Registered Owner Area Affected (Ha.) 11739/R — 0.5518 Dundori/Lanet Blk. 1/65 Julius Watatua Macharia 0.0661 Every person who is interested on the affected land is required to deliver to the commissioner of lands not later than the day of inquiry a written claim to compensation. All interested parties should appear for inquiries with copies of PIN, ID card and Title deed.

Dated the 30th November, 2011.

Z. A. MABEA,
Commissioner of Lands.
MR/8406100

GAZETTE NOTICE NO. 15442
THE TRUST LAND ACT
(Cap. 288)
SETTING APART OF LAND

NOTICE is given that the land described on the schedule hereto has been duly set apart in accordance with the provisions of Part IV of the Trust Land Act, for the purposes specified in the said schedule.

SCHEDULE

Place.—Mitangoni, Mariakani, Kaloleni District.
Purpose.—Industrial.
AREA.—18.26 ha. approximately 45.12 acres.

Description of Land:
This Land is situated approximately 8.3 km to the north west of Mariakani Township. The boundaries are demarcated on the ground and are described as follows:
Starting from a point DEV1. which is a Iron Pin on concrete from which spotheight 207 and spot height 212 are 1,905 m and 1,860 m distant on bearing of 183°48'49 and 234°49'12" respectively; thence for a distance of 103.27 m on a bearing of 125°49’29" to point DEV2 - 1 PC; thence for a distance of 63.55 m on a bearing of 127°14'05" to point DEV3 – 1PC; thence for a distance of 60.88 m on a bearing of 133°46'52" to point DEV4 – 1PC; thence for a distance of 29.00 m on a bearing of 141°20'25" to point DEV5 – 1PC; thence for a distance of 58.98 m on a bearing of 139°42'28" to point DEV6 – 1PC; thence for a distance of 33.63 m on a bearing of 145°40'11" to point DEV7 – 1PC; thence for a distance of 460.84 m on a bearing of 242°03'05" to point DEV8 – 1PC; thence for a distance of 169.05 m on a bearing of 194°02'10" to point DEV9 – 1PC; thence for a distance of 125.17 m on a bearing of 282°55'34" to point DEV10 – 1PC; thence for a distance of 250.72 m on a bearing of 350°07'28" to point DEV11 – 1PC; thence for a distance of 350.60 m on a bearing of 37°00'02" to point DEV12 – 1PC; thence for a distance of 160.77 m on a bearing of 67°32'35" back to starting DEV1– 1PC.

All bearings given above are magnetic.
A plan of the area may be inspected at the Office of the District Commissioner, Kaloleni.

Dated the 2nd December, 2011.

Z. A. MABEA,
Commissioner of Lands.
MR8406300

GAZETTE NOTICE NO. 15443
THE TRUST LAND ACT
(Cap. 288)
SETTING APART OF LAND

NOTICE is given that the land described on the schedule hereto has been duly set apart in accordance with the provisions of Part IV of the Trust Land Act, for the purposes specified in the said schedule.

SCHEDULE
Place.—Mitangoni, Mariakani, Kaloleni District.
Purpose.—Industrial.
Area.—1.696 ha. approximately 4.2 acres.
Description of Land:
This Land is situated approximately 7.9 km to the north west of Mariakani Township. The boundaries are demarcated on the ground and are described as follows:

Starting from a point CJ1. which is a iron pin on concrete from which spotheight 231 and spot height 225 are 1,395 m and 1,366 m distant on bearing of 316°48'00"and 139°04'00" respectively; thence for a distance of 165.00 m on a bearing of 278°01’54" to point CJ2 - 1pc; thence for a distance of 120.60 m on a bearing of 05°42'38" to point CJ3 – 1pc; thence for a distance of 84.40 m on a bearing of 103°42'25" to point CJ4 – 1pc; thence for a distance of 75.29 m on a bearing of 120°18'40" to point CJ5 – 1pc; thence for a distance of 85.09 m on a bearing of 177°08'21" back to CJ1– 1pc.

All bearings given above are magnetic.

A plan of the area may be inspected at the Office of the District Commissioner, Kaloleni.

Dated the 5th December, 2011.

Z. A. MABEA,
Commissioner of Lands.
MR8406300

GAZETTE NOTICE NO. 15444
THE CONSTITUTION OF KENYA
THE GOVERNMENT LANDS ACT
(Cap. 280)
THE TRUST LAND ACT
(Cap. 288)
REVOCATION OF LAND TITLES

WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purpose under the relevant
provisions of the Constitution, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional.

Under the circumstances and in view of the public need and interest, the Government revokes the said titles.

Mayungu/Kilifi:
Chembe/Kibabamshe/427

The above land was reserved for a fish landing site.

Dated the 21st November, 2011.

A. O. JUMA,
Land Registrar, Kilifi.

GAZETTE NOTICE NO. 15445
THE CONSTITUTION OF KENYA
THE GOVERNMENT LANDS ACT
(Cap. 280)
THE TRUST LAND ACT
(Cap. 288)
REVOCATION OF LAND TITLES

WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purpose under the relevant
provisions of the Constitution, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional.

Under the circumstances and in view of the public need and interest, the Government revokes the said titles.

Lamu:

L.R. No. 28100 L.R. No. 12852/176
L.R. No. 28101 L.R. No. 12852/177
L.R. No. 28107 L.R. No. 12852/178
L.R. No. 28108

This above land falls within the proposed new Lamu Port Site.

Dated the 7th December, 2011.

R. M. INGONGA,
Registrar of Titles.

GAZETTE NOTICE. NO. 15746
THE COURT OF APPEAL
CHRISTMAS VACATION, 2011

THE Christmas vacation shall commence on Wednesday, 21st December, 2011 and shall terminate on Friday, 13th January, 2012.

During the vacation, the Registry of the Court will open to the public from 9.00 a.m. to 12 noon on all weekdays except public holidays. A Judge will be in attendance for the disposal of any urgent business.

Dated the 5th December, 2011.

M. K. K. SEREM,
Senior Principal Deputy Registrar.

GAZETTE NOTICE NO. 15413
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED DEVELOPMENT OF KURAWA
SALTWORKS AND AQUACULTURE AT UNGWANA BAY,
TANA RIVER DISTRICT
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of the Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of Kurawa salt works and aquaculture.

The project will involve construction of salt fields, aquaculture facilities, artemia and staff housing.

The proposed site is situated about 70km North of Malindi bordering a long beach length of about 10km extending westwards 6km and bordering the northern boundary of Kemu Salt works. The total area is 5,360 Hectares.

The anticipated impacts and proposed mitigation measures are as set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, the National Environment Management Authority (NEMA), Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Building, Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Tana River District.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.

SALOME MACHUA,
for Director-General,
National Environment Management Authority.
MR8256153

GAZETTE NOTICE NO. 15753
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED BARAKA ESTATE PHASE 3 ON PLOT
L.R. NO. 18111 IN EMBAKASI, NAIROBI
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the implementation of the proposed Baraka estate phase 3.

The proposed development will include construction of a residential estate of 101 units of three types:

(a) Type C—Maisonettes
(b) Type D—Maisonettes
(c) Type F—Maisonettes

The project site is located on Plot L.R. No. 18111 in Embakasi, off North Old Airport near Administration Police Training College (APTC).

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, the National Environment Management Authority (NEMA), Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Building, Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Nairobi Province.
(d) District Environment Officer, Embakasi and Makadara Districts.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.

B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR7681871

SUPPLEMENT Nos. 147 and 156
Acts, 2011
The Independent Policing Oversight Authority Act, 2011.
The Mutual Legal Assistance Act, 2011.

SUPPLEMENT Nos. 148, 151, 152, 154 and 157
Legislative Supplement
LEGAL NOTICE NO.
163—The Education (Kenya Education Staff Institute) (Amendment) Order, 2011.
171—The National Drought Management Authority Order, 2011.
172—National Co-ordinating Agency for Population and Development (Amendment)
Order, 2011.
179—The Public Officer Ethics (Management, Verification, and Access to Financial
Declarations) Regulations, 2011.
180—Stamp Duty Act—Exemption.

SUPPLEMENT Nos. 149, 150, 153 and 155
Bills, 2011
The Publication of Electoral Opinion Polls, Bill, 2011 .
The Pyrethrum Bill, 2011.
The Coconut Bill, 2011.
The Judicature (Amendment) Bill, 2011.

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