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ELCPartially AllowedELC Suit No. 745 of 2013· [2014] KEELC 433 (KLR)

Isabel Waithira Njoroge v Permanent Secretary Ministry of State for Provincial Administration & Internal Security & 4 others [2014] KEELC 433 (KLR)

High Court of Kenya, Environment and Land Court Division
28 March 2014
LGL. Gacheru
3,144 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, registered proprietor of Limuru/Rironi/T.381 since 1980, petitioned the High Court at Milimani (ELC) alleging that in 1983 the County Council of Kiambu induced her to surrender her title deed for a compulsory acquisition by exchange with Limuru/Rironi/326 plus monetary compensation. The Provincial Administration and Kenya Police constructed a Chief's Camp and Police Post on the land in 1984, but the acquisition was never completed and she was never compensated. In 2001 the Council returned her title deed and asked her to retain the property, yet the police and administration continued occupying it. The 1st, 2nd and 3rd Respondents did not enter appearance; the 4th and 5th Respondents admitted the facts but contended that damages, if any, should be borne by the 1st, 2nd and 3rd Respondents. The court held that the compulsory acquisition was never lawfully effected under Section 75(1) of the former Constitution and the Land Acquisition Act (repealed), that the 1st and 2nd Respondents were in wrongful occupation, that Article 47 was breached by all Respondents through failure to explain, respond or act expeditiously, and that Article 40 was infringed by the arbitrary deprivation of the Petitioner's property without prompt, just compensation. The court declared the Respondents not entitled to occupy the suit property, awarded Kshs.500,000/= general damages for the Article 47 breach and Kshs.2,000,000/= damages for the Article 40 breach, both jointly and severally, together with costs of the Petition borne by the Respondents. The alternative prayer for purchase at current market value was not granted; damages were awarded instead.

Key legal issues

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01

Entitlement to the suit property notwithstanding the attempted compulsory acquisition

Holding

The compulsory acquisition was never lawfully completed; the 1st and 2nd Respondents are in wrongful occupation and must give vacant possession

Reasoning

The 4th Respondent initiated an exchange-based acquisition in 1983 but never complied with Section 75(1) of the former Constitution and Sections 6, 8, 10, 13 and 19 of the Land Acquisition Act. The Petitioner surrendered her title deed, was never compensated, and in 2001 the deed was returned. The police and provincial administration nonetheless constructed and occupied a police post and chief's camp, depriving the registered proprietor of her indefeasible rights under the Registered Land Act and Article 40.

p. 4
02

Violation of Article 47 (fair administrative action)

Holding

All Respondents breached Article 47 by failing to explain the acquisition process, respond to the Petitioner's queries, or act expeditiously

Reasoning

The 4th Respondent approached the Petitioner in 1983 but never explained the procedure for compulsory acquisition. Numerous letters went unanswered until 2001 when the title deed was returned. Meanwhile the 1st and 2nd Respondents occupied and utilized the land without informing the Petitioner and without prompt compensation. The court held this conduct violated the right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action, warranting general damages.

p. 5
03

Violation of Article 40 (right to property) and compensation

Holding

The Petitioner was arbitrarily deprived of the use of her land for over 30 years and is entitled to damages of Kshs.2,000,000/= under Article 40

Reasoning

Article 40(3), like the former Section 75, forbids deprivation of property without prompt payment in full of just compensation carried out in accordance with the Constitution and an Act of Parliament. The acquisition procedure was never followed, the Petitioner was never compensated, and the Respondents occupied and utilized the land excluding her. Having lost decades of economic use, she was awarded Kshs.2,000,000/= as reasonable compensation, guided by the Dominic Arony Amolo principle.

p. 6

Legal principles established

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  • Compulsory acquisition of private property must strictly follow the constitutional and statutory procedure, including prompt payment of full just compensation; occupation without such acquisition is wrongful
  • Monetary compensation for constitutional violations must be reasonable and fair, taking into account all the circumstances of each case

Court orders

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  1. 1.Declaration that the Respondents by themselves and anyone claiming under them are not entitled to occupy Limuru/Rironi/T.381 and should surrender it and give vacant possession to the Petitioner
  2. 2.Declaration that the Respondents violated the Petitioner's rights under Article 47 of the Constitution
  3. 3.General damages of Kshs.500,000/= payable jointly and severally by the Respondents for breach of Article 47
  4. 4.Damages of Kshs.2,000,000/= payable jointly and severally by the Respondents for breach of Article 40
  5. 5.Costs of the Petition to be borne by the Respondents
Jurisdiction invoked
Articles 20, 21, 23, 40, 47 and 165(3) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Isabel Waithira Njoroge v Permanent Secretary Ministry of State for Provincial Administration & Internal Security & 4 others [2014] KEELC 433 (KLR)", Case Analysis (2014). ELC Suit No. 745 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/433/eng@2014-03-28

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