In re Estate of Thomas Kipkosgei Yator & another (Deceased) [2016] KEELC 988 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dispute is a historical land injustice within the exclusive mandate of the National Land Commission under Article 67(2)(e)
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
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).
Whether the petition met the precision threshold in Anarita Karimi Njeru
The petition was drafted with sufficient precision and should not be struck out
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.
Whether the petitioners were indolent and the claim time barred
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
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.
Whether the respondents violated the petitioners' right to property
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
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.
What compensation is payable
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
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.
Legal principles established
#- 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
#- 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.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.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.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.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.Award of Kshs. 500,000,000 as mesne profits in lieu of the claimed Kshs. 2,690,603,339
- 7.Costs of the Petition awarded to the Petitioners
- Jurisdiction invoked
- Articles 22, 23, 40 of the Constitution of Kenya 2010 and section 75 of the former Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.