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ELCPartially AllowedELC Petition No. 2 of 2018· [2018] KEELC 1206 (KLR)

Japheth Azegele v Chief Land Registrar & 3 others [2018] KEELC 1206 (KLR)

Environment and Land Court
23 October 2018
NMN.A. Matheka
2,010 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court stopped Nandi County from taking a landowner's 0.7 acres, confirming Kenyan authorities must pay full, prompt compensation before acquiring anyone's land.

What this practically means

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Executive summary

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The petitioner, the registered owner of land parcel NANDI/KOIBARAK "A"/234 obtained through adjudication in 1980, petitioned the Environment and Land Court at Kakamega seeking conservatory orders to stop the respondents from hiving off approximately 0.7 acres of his land and annexing it to NANDI/KOIBARAK "A"/238, which belongs to the Nandi County Council. He relied on Articles 20, 21, 40 and 47 of the Constitution and on the fact that a prior decision effecting the annexation had been quashed in Kakamega High Court Judicial Review case No. 49 of 2004. The respondents were served but did not attend court or file submissions. The court found as undisputed that a register forwarded to the Chief Land Registrar indicated the 0.7 acres had been hived off from the petitioner's parcel and annexed to the council's parcel, that the quashed decision was about to be implemented, and that the council was creating and selling plots in the disputed area. Applying Article 40(3) and authorities on compulsory acquisition including Virendra Ramji Gudka and Coastal Aquaculture, the court held that the State may not deprive a person of property except through acquisition for a public purpose in accordance with the Constitution and statute, with prompt payment in full of just compensation and access to a court. The respondents had not complied with any such procedure nor made any inquiry, rendering their actions illegal and contradictory of the Constitution. The petition was allowed: conservatory injunctions issued restraining the respondents from creating or offering leases or plots out of the petitioner's parcel and from laying claim to, occupying or registering the 0.7 acres as part of the council's parcel, the respondents were ordered to adequately compensate the petitioner before any compulsory acquisition, and costs were awarded to the petitioner.

Key legal issues

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01

Whether the respondents' actions in hiving off 0.7 acres of the petitioner's land without compulsory acquisition procedure and compensation were lawful

Holding

The respondents' actions were illegal and unconstitutional; the petition was merited

Reasoning

The petitioner is the registered proprietor of NANDI/KOIBARAK "A"/234 following adjudication in 1980. A register prepared by the Land Adjudication Officer indicated that approximately 0.7 acres had been hived off and annexed to the 3rd respondent's parcel. The decision effecting this had been quashed in Kakamega High Court Judicial Review case No. 49 of 2004, yet the respondents disregarded that decision. No compulsory acquisition procedure was followed, no inquiry made, and no compensation paid, contrary to Articles 40 and 47. The respondents, though served, did not attend or file submissions, and the facts were undisputed.

p. 3
02

What the Constitution requires for lawful compulsory acquisition of land

Holding

Compulsory acquisition must be for a public purpose or in the public interest, conducted in accordance with the Constitution and statute, with prompt payment in full of just compensation and access to a court of law

Reasoning

Relying on Article 40(3) as expounded by Mutungi, J in Virendra Ramji Gudka and on the repealed Land Acquisition Act Cap 295, the court held that compulsory acquisition rights are conferred by specific statutory provisions and their procedures must be strictly observed. The petitioner was never compensated, and the respondents had not even commenced an inquiry, so the intended deprivation could not stand. Adequate compensation was ordered as a precondition to any compulsory acquisition.

p. 3

Legal principles established

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  • The State shall not deprive a person of property unless the deprivation results from an acquisition in accordance with Chapter Five, or is for a public purpose or in the public interest carried out in accordance with the Constitution and an Act of Parliament requiring prompt payment in full of just compensation
  • In cases of compulsory acquisition the government is required to strictly adhere to the provisions of the Constitution and the governing acquisition statute
  • Just compensation for compulsorily acquired land must be paid promptly and in full to persons whose interests in the land have been determined

Court orders

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  1. 1.A conservatory order of injunction restraining the respondents from creating and offering lease holds and/or plots out of land parcel No. NANDI/KOIBARAK "A"/234
  2. 2.A conservatory order of injunction restraining the respondents from laying claim to, trespassing on, occupying, utilizing or registering a portion out of land parcel No. NANDI/KOIBARAK "A"/234 measuring approximately 0.7 acres, or whatever size, as part of NANDI/KOIBARAK "A"/238
  3. 3.The respondents ordered to adequately compensate the petitioner before compulsorily acquiring the parcels
  4. 4.Costs to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 20, 21, 40(1), 40(2), 40(3), 10, 47, 27(4), 65; sections 7 and 19 of the Sixth Schedule
  • Constitution of Kenya (High Court Practice and Procedure) Rules 2006Rules 20 and 21
  • Land Acquisition Act Cap 295 Laws of Kenya (repealed)Section 3
  • Land Act No. 6 of 2012Sections 107 to 133

Cases cited (7)

  • Virendra Ramji Gudka & 3 Others v Attorney General [2014] eKLR
    [2014] eKLR
  • R vs Chief Immigration Officer (1976) 3 AER 843
    (1976) 3 AER 843
  • Republic v Council of Legal Education Ex-parte Nyabira Oguta (2016) eKLR
    (2016) eKLR
  • Horn v Sunderland Corporation (1941) 2 KB 26
    (1941) 2 KB 26
  • Raticliffe vs Evans (1892) QB 524
    (1892) QB 524
  • Commissioner of Lands & Another vs Coastal Aquaculture Ltd Civil Appeal No. 252 of 1996
    KLR (E&L 264)
  • Arnacherry Limited v Attorney General (2014) eKLR
    (2014) eKLR
Jurisdiction invoked
Articles 20, 21, 23, 40 and 47 of the Constitution of Kenya 2010 and sections 7 and 19 of the Sixth Schedule, under rule 20 and 21 of the Constitution of Kenya (High Court Practice and Procedure) Rules 2006

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, "Japheth Azegele v Chief Land Registrar & 3 others [2018] KEELC 1206 (KLR)", Case Analysis (2018). ELC Petition No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1206/eng@2018-10-23

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