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ELCDismissedPetition (Nyeri, Environment and Land Court)· [2018] KEELC 337 (KLR)

Peter v Attorney General (Environment and Land Case 2 of 2017) [2018] KEELC 337 (KLR)

Environment and Land Court
19 December 2018
LWL N Waithaka
3,542 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner whose property was damaged by a road contractor lost his case in Nyeri because he sued the wrong party and never joined the contractor.

What this practically means

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Executive summary

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The petitioner, an administrator of the estate of Esther Nyandia Mwangi, petitioned the Attorney General alleging that the Ministry of Transport and Infrastructure and KeRRA, through contractor Aegis Construction Company under Contract No. RWC 061, hived off approximately 2 acres from LR No. 2278 to construct the Mweiga-Brookside D449 road without due process, in violation of Article 40. He sought a declaration of the beneficiaries' property rights, a permanent injunction, restoration of the land, compensation, costs and interest. The respondent denied encroachment, asserting that the road lies within an existing road reserve created in 1920, and blamed the contractor for an admitted diversion onto the land. The court framed five issues and found that although trespass was admitted, the petitioner failed to prove that the respondent was responsible for the contractor's actions; KeRRA and the contractor, being the proper parties, were never joined. Uncontroverted expert surveyor evidence established no encroachment and no compulsory acquisition, a claim the petitioner effectively abandoned in favour of trespass. Restitution being impracticable, damages would have been the remedy, but none were specifically pleaded or strictly proved; the court indicated it would have assessed damages at Kshs. 500,000 had the respondent been liable. Holding that the petitioner sued the wrong entity despite a genuine claim, the court dismissed the petition and ordered each party to bear its own costs, delivered at Nyeri on 19th December 2018.

Key legal issues

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01

Responsibility for the contractor's trespass

Holding

The petitioner failed to prove that the respondent was responsible for the contractor's wrongful actions and ought to have joined the contractor and KeRRA.

Reasoning

The respondent denied liability for the contractor's creation of a diversion on the suit property. KeRRA, as the contractor's employer, is a state corporation capable of suing and being sued in its own name. Without evidence that the respondent sanctioned the wrongful acts, and absent joinder of the contractor or KeRRA, the court could not determine responsibility between the parties.

p. 4
02

Existence and legality of the road reserve

Holding

The petitioner did not prove that a road reserve was unlawfully carved out of the suit property or that there would be encroachment.

Reasoning

The respondent's surveyor's uncontroverted expert evidence established that the road's horizontal alignment lies within the existing road reserve and there is no encroachment. Mere allegations by the petitioner, without contrary expert evidence, could not displace that evidence. The compulsory acquisition claim was effectively abandoned in favour of a trespass claim.

p. 5
03

Remedy for admitted trespass

Holding

Although trespass was admitted, damages were not specifically pleaded and strictly proved; the court indicated it would have assessed damages at Kshs. 500,000 had the respondent been liable.

Reasoning

Restitution being impracticable, damages would be the appropriate remedy, but the petitioner provided no valuation or evidence of actual loss beyond the area encroached. Damages in the nature of special damages must be specifically pleaded and strictly proved, so no award could be made against the respondent in any event.

p. 5

Legal principles established

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  • A state corporation such as KeRRA is a body corporate with capacity to sue and be sued in its own name and cannot be substituted by a ministry or the Attorney General.
  • A party alleging responsibility of a principal for a contractor's wrongful acts must either prove that responsibility or join the contractor and its employer.
  • Where land cannot be restored to its original state, the court's remedy is damages for trespass.
  • Uncontroverted expert evidence cannot be displaced by mere allegations without contrary expert evidence.

Court orders

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  1. 1.The petition is found to be bad in law and dismissed
  2. 2.Each party to meet its own costs of the suit (no orders as to costs)

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Land Act No. 6 of 2012Part VIII, Sections 107 and 111
  • State Corporations ActSections 2 and 3
  • Kenya Roads Act No. 2 of 2007null
  • Government Proceedings Actnull

Cases cited (5)

  • Patrick Musimba v. National Land Commission & 4 Others
    (2016) eKLR
  • Commissioner of Lands & Another v. Coastal Aquaculture Ltd
    Civil Appeal No. 252 of 1996
  • Anarita Karimi Njeru v. Republic
    (1976-1980) KLR 1272
  • Veronica Njeri Waweru & 4 others v. The City Council of Nairobi & 2 Others
    (2012) eKLR
  • Laban M. Kimondo v. Attorney General
    (2016) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction under Article 40 of the Constitution of Kenya 2010 (claim of violation of the right to property)

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, "Peter v Attorney General (Environment and Land Case 2 of 2017) [2018] KEELC 337 (KLR)", Case Analysis (2018). Petition (Nyeri, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/337/eng@2018-12-19

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