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ELCPartially AllowedPetition No. 11 of 2014 (Amended Petition dated 16th September 2014)· [2016] KEELC 988 (KLR)

In re Estate of Thomas Kipkosgei Yator & another (Deceased) [2016] KEELC 988 (KLR)

Environment and Land Court of Kenya at Eldoret
15 April 2016
15,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~61 min to read original · ~4 min brief

The bottom line

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Kenya's government took over 1,000 acres in Eldoret without following compulsory acquisition rules, and a court has now ordered billions in compensation.

What this practically means

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Executive summary

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The petitioners, as legal representatives of the estates of Thomas Kipkosgei Arap Yator and William Kimngeny Arap Leting, petitioned under Article 40 of the Constitution and section 75 of the former Constitution, seeking declarations that 546 and 604 acres carved out of land parcel I/R No. 17542, L.R No. 10492 (Eldoret Municipality Block 15/1 and Block 23 (King'ong'o)) vested in the estates, that its seizure and subdivision by the respondents was unconstitutional, and mandamus for compensation of about Kshs. 7.86 billion plus Kshs. 2.69 billion mesne profits. The respondents opposed, arguing lack of precision, historical land injustices reserved to the National Land Commission, inordinate delay and laches. The court framed seven issues. It held that the claim was not pleaded as a historical land injustice and the court retained jurisdiction, while noting the issues also merited NLC investigation under Article 67(2)(e). Applying Anarita Karimi Njeru and Mumo Matemu, it found the petition sufficiently precise and declined to strike it out. Relying on Peter M. Kariuki, David Gitau Njau and the post-2002 change of regime, it held the claim was not defeated by laches. On the merits, it found uncontroverted that the land was jointly purchased in 1965, subdivision was approved in 1976-1977, and that the surrender of the land to the Government in 1983 and conversion of the registration regime from RTA to RLA constituted compulsory acquisition effected without notice or adequate compensation, characterised by procedural impropriety and illegality. On the uncontroverted Afriland valuation, the court declared the proprietary interests vested in the petitioners, declared the seizure and subdivision unconstitutional, ordered mandamus compelling payment of Kshs. 3,736,070,381.23 to the Yator estate and Kshs. 4,132,942,326.49 to the Leting estate, and awarded nominal mesne profits of Kshs. 500,000,000 in place of the Kshs. 2.69 billion claimed. Costs were awarded to the petitioners.

Key legal issues

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01

Whether the dispute is a historical land injustice within the exclusive mandate of the National Land Commission under Article 67(2)(e)

Holding

The petition is not pleaded on historical injustices but on deprivation of property without compensation; the court retains jurisdiction and the issues are also worthy of NLC investigation

Reasoning

The court reviewed Kiluwa, Ledidi Ole Tauta, Kipsiwo Community and Lucy Mirigo and found there is no clear definition of historical land injustices and no provision ousting the court's jurisdiction. The petitioners did not base the petition on historical injustices but on violation of Article 40 and section 75. Given the weighty issues implicating third parties not joined to the suit, the issues also merit NLC investigation under Article 67(2)(e).

p. 14
02

Whether the petition met the precision threshold in Anarita Karimi Njeru

Holding

The petition was drafted with sufficient precision and should not be struck out

Reasoning

Applying Anarita Karimi Njeru as reinforced in Mumo Matemu and Trusted Society, the court held the petitioners cited section 75 of the old Constitution and Article 40 of the 2010 Constitution, identified the property and particularised the alleged breach. Precision is not coterminous with exactitude, and a petition with a modicum of comprehension raising concrete issues must be determined on its merits rather than struck out.

p. 21
03

Whether the petitioners were indolent and the claim time barred

Holding

The claim is not defeated by laches; constitutional claims have no prescribed limitation period, and delay was explained by fear of victimisation before the 2002 change of regime

Reasoning

Relying on Peter M. Kariuki, David Gitau Njau, Peter Ngari Kagume and Durity v Attorney General, the court held there is no limitation period for Bill of Rights claims. Delay of about 30 years was material but explained by the powerful state actors implicated and the post-2002 liberalisation that enabled victims to litigate without fear, consistent with Dominic Arony Amolo and Wachira Waihere.

p. 23
04

Whether the respondents violated the petitioners' right to property

Holding

Yes; the surrender of the land to the Government and conversion from RTA to RLA regime amounted to compulsory acquisition without notice or compensation, and was unconstitutional

Reasoning

The uncontroverted evidence established that the joint purchasers' land was renamed, lease titles never issued, and the parcel surrendered to the Government in September 1983, with the remainder amalgamated into Block 23 and subdivided to third parties. The court found this constituted compulsory acquisition requiring compliance with section 75 of the former Constitution and the Land Acquisition Act, which the respondents did not follow.

p. 14
05

What compensation is payable

Holding

The estates are entitled to Kshs. 3,736,070,381.23 and Kshs. 4,132,942,326.49 respectively based on the uncontroverted valuation, plus Kshs. 500,000,000 nominal mesne profits

Reasoning

The valuation by Afriland Valuers Ltd valued the property at Kshs. 21 billion and was uncontroverted. The court accepted the claimed compensation figures for the two estates. The full mesne profits claim of Kshs. 2.69 billion was declined for failure to mitigate by filing within reasonable time after 2002, and a nominal Kshs. 500 million was awarded instead.

p. 24

Legal principles established

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  • Surrender of a registered owner's land to the Government otherwise than through the constitutionally prescribed compulsory acquisition procedure with notice and adequate compensation is characterised by procedural impropriety and illegality
  • A petition is not defeated for want of precision where it clearly identifies the constitutional provisions and the right alleged to be infringed; courts will not hastily strike out a petition that has a modicum of comprehension
  • Neither the old nor the current Constitution prescribes a limitation period for claims founded on violation of Bill of Rights; delay is material only depending on circumstances and may be excused where the change of regime after 2002 enabled victims to litigate without fear

Court orders

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  1. 1.Declaratory order that the proprietary interest in 546 and 604 acres of land comprised in Land Parcel I/R No. 17542, L.R No. 10492, otherwise known as Eldoret Municipality Block 15/1 and Eldoret Municipality Block 23 (King'ong'o), absolutely vests in the 1st and 2nd Petitioners respectively as co-owners
  2. 2.Declaratory order that the 1st to 5th respondents' seizure of the deceased estates' property comprised in the said land, other than by way of compulsory acquisition, without consent or compensation, was unconstitutional
  3. 3.Declaratory order that the subdivision of the land by the 1st to 5th respondents and transfer of resultant title deeds to 3rd parties violated the petitioners' proprietary rights under Article 75 of the Independence Constitution and Article 40 of the Constitution of Kenya 2010
  4. 4.Order of Mandamus compelling the 1st to 5th respondents jointly and/or severally to pay the Estate of Thomas Kipkogei Arap Yator (deceased) Kshs. 3,736,070,381.23 being fair compensation for loss of 546 acres
  5. 5.Order of Mandamus compelling the 1st to 5th respondents jointly and/or severally to pay the Estate of William Kimngeny Arap Leting (deceased) Kshs. 4,132,942,326.49 being fair compensation for loss of 604 acres
  6. 6.Award of Kshs. 500,000,000 as mesne profits in lieu of the claimed Kshs. 2,690,603,339
  7. 7.Costs of the Petition awarded to the Petitioners

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Constitution of Kenya 2010Article 67(2)(e)
  • Constitution of Kenya 2010Article 47
  • Constitution of Kenya (Independence Constitution)Section 75
  • National Land Commission Act (No. 5 of 2012)Section 5(2)
  • Land Acquisition Act Cap 295 (repealed)Section 6(1)
  • Land Acquisition Act Cap 95 (repealed)
  • Registration of Titles Act
  • Registered Lands Act Cap 300
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 4 & 10
  • Limitation of Actions Act

Cases cited (36)

  • Rutongot Farm Limited vs. Attorney General & 3 Others
    [2014] eKLR
  • Adan Hassan & 2 Others vs. The Registrar of Titles, Ministry of Lands & 2 Others
    [2013] eKLR
  • County Government of Migori vs. Registered Trustees of Catholic Diocese of Homa Bay & 2 Others
    [2015] eKLR
  • Virenda Ramji Gudka & 3 Others vs. Attorney General
    [2014] eKLR
  • Multiple Hauliers East Africa Limited vs. Attorney General & Others
    [2013] eKLR
  • David Gitau Njau and 9 Others vs. Attorney General
    [2013] eKLR
  • Oriental Commercial Bank Limited vs. Central Bank of Kenya
    [2015] eKLR
  • Wachira Weheire vs. Attorney General
    [2010] eKLR
  • Orbit Chemical Industries Ltd vs. Attorney General
    [2012] eKLR
  • Annarita Karimi Njeru vs. Republic
    1979 KLR 154; (1976-1980) KLR 1272
  • James Muchene Ngei vs. Republic
    [2008] eKLR
  • Cyprian Kubai vs. Stanley Kaiyongi Mwenda
    [2002] eKLR
  • Benjoh Amalgamated Limited & Another vs. Kenya Commercial Bank Limited
    [2014] eKLR
  • The Lindsay Petroleum Co. vs. Hurd
    (1874) L.R 5 P.C.
  • Ledidi Ole Tauta & Others vs. Attorney General & 2 Others
    [2015] eKLR
  • Matalinga & Others vs. Attorney-General
    [1972] E.A 518
  • Justice Amraphael Mbogholi Msagha vs. Chief Justice of the Republic of Kenya & 7 Others
    [2006] eKLR
  • Peter Ngari Kagume & 7 Others vs. Attorney General
    [2009] eKLR
  • Kiluwa Limited & Another vs. Commissioner of Lands & 3 Others
    [2015] eKLR
  • Kipsiwo Community Self Help Group vs. Attorney General and 6 Others
    [2013] eKLR
  • Lucy Mirigo & 550 Others vs. Minister for Lands & 4 Others
    [2014] eKLR
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • John Kipng'eno Kipkoech & 2 Others vs. Nakuru County Assembly & 5 Others
    [2013] eKLR
  • Samson Otieno Bala T/A Missam Enterprises vs. Kenya Bureau of Standards & 4 Others
    [2015] eKLR
  • Abuya Abuya vs. Independent Electoral and Boundaries Commission & Another
    [2014] eKLR
  • Trusted Society of Human Rights Alliance vs. Attorney General & 2 Others
    [2012] eKLR
  • Northern Nomadic Disabled Person's Organization (Nondo) vs. Governor County Government of Garissa & Another
    [2013] eKLR
  • Martin Nyaga Wambora & 4 Others vs. Speaker of the Senate & 6 Others
    [2014] eKLR
  • Vekariya Investments Limited vs. Kenya Airports Authority & 2 Others
    [2014] eKLR
  • Joseph Ihugo Mwaura and Others vs. The Attorney General and Others
    Nairobi Petition No. 498 of 2009 (Unreported)
  • Zipporah Seroney & 5 Others vs. Daniel Toroitich Arap Moi & Another
    [2015] eKLR
  • Chandoo vs. Hussein
    Petition No. 374 of 2015
  • Peter M. Kariuki vs. Attorney General
    [2014] eKLR
  • Kamlesh Mansukhlal Damji Pattni & Another v Republic
  • Durity v Attorney General
    [2002] UKPC 20
  • Dominic Arony Amolo v Attorney General
Jurisdiction invoked
Articles 22, 23, 40 of the Constitution of Kenya 2010 and section 75 of the former Constitution

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, "In re Estate of Thomas Kipkosgei Yator & another (Deceased) [2016] KEELC 988 (KLR)", Case Analysis (2016). Petition No. 11 of 2014 (Amended Petition dated 16th September 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/988/eng@2016-04-15

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