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ELCDismissedELC Petition No. 1 of 2017 (Formerly Milimani Petition No. 531 of 2016)· [2018] KEELC 1488 (KLR)

David Ramogi & 5 others v Cabinet Secrectary, Ministry of Energy & Petroleum & 7 others [2018] KEELC 1488 (KLR)

Environment and Land Court
3 October 2018
COChristine Ochieng
4,738 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed landowners' attempt to block a power line project, ruling police were lawfully on their land and compensation must follow the valuation process.

What this practically means

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Executive summary

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This is a first-instance constitutional petition before the Environment and Land Court at Kajiado, in which five Petitioners alleged that the presence of police on their Kitengela-area parcels of land, deployed to protect construction of the Mombasa-Nairobi Transmission Line, violated their rights to property, privacy, residence, dignity, security and fair administrative action. They sought declarations of unconstitutionality, an injunction requiring the Respondents to vacate the parcels, and compensation for losses and damages. The Respondents, the 3rd Respondent and the Interested Party (KETRACO) opposed, arguing that the line is a public utility of national importance, that the 2nd and 5th Petitioners had already executed easements and been compensated, and that the compensation dispute was already pending in ELC No. 78 of 2016. The court framed four issues: the 1st Petitioner's locus standi, alleged rights violations, the merits, and costs. It held that the 1st Petitioner, an activist and friend of the landowning Petitioners, had standing under Articles 22(2) and 258(2). On the merits, applying Anarita Karimi Njeri, the court found the Petitioners had failed to demonstrate with precision how their rights were infringed; it held the police were lawfully on the land under Article 244 of the Constitution and section 24 of the National Police Service Act to restore law and order, and that the Petitioners themselves had provoked the police presence. On compensation, the court held the claim was an attempt to negotiate higher compensation and that the Petitioners should await the outcome of ELC No. 78 of 2016 under section 148 of the Land Act. The Petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Locus standi of the 1st Petitioner, a non-landowning activist

Holding

The 1st Petitioner had locus standi to institute the petition on behalf of the other Petitioners.

Reasoning

It was undisputed that the 1st Petitioner owns none of the suit lands and acts as an activist and friend of the 2nd to 5th Petitioners. Articles 22(2)(a) and (b) and 258(2) of the Constitution expressly permit a person acting on behalf of another who cannot act in their own name, or in the interest of a group or class of persons, to institute proceedings. Reliance on those provisions and the facts established his standing.

p. 6
02

Whether the presence of police on the Petitioners' land violated their constitutional rights

Holding

No violation was established; the police were lawfully present to maintain law and order and protect the contractors.

Reasoning

The court found the actions of the 2nd to 5th Petitioners themselves precipitated the police presence, as they had interfered with construction of the transmission line. Article 244 of the Constitution and section 24 of the National Police Service Act authorise the police to maintain law and order and protect life and property. The Petitioners failed to demonstrate precisely how each right was infringed, as required by Anarita Karimi Njeri v R, and had not reported their allegations to any law enforcement agency or the Inspector General.

p. 8
03

Whether the court should award compensation for losses and damages

Holding

Compensation was refused; the quantification of wayleave compensation is the subject of ELC No. 78 of 2016.

Reasoning

Section 148 of the Land Act prescribes the compensation regime for wayleaves over private land based on qualified valuation. An existing suit, ELC 78 of 2016, in which the 2nd to 5th Petitioners are defendants, was already adjudicating compensation, and the 2nd and 5th Petitioners had already been compensated and easements registered. The court held it would be pertinent for the Petitioners to await the outcome of that case, characterising the present claim as aimed at negotiating higher compensation.

p. 8

Legal principles established

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  • A person acting on behalf of another, or in the interest of a group or class of persons, or in the public interest, may institute constitutional proceedings under Articles 22(2) and 258(2) of the Constitution.
  • A constitutional petitioner must plead with precision the rights infringed and the manner of infringement (Anarita Karimi Njeri principle).
  • The police may lawfully enter private property to preserve peace, restore law and order and protect life and property, in accordance with Article 244 of the Constitution and section 24 of the National Police Service Act.
  • Under section 148 of the Land Act, compensation for a wayleave over private land is based on the value of the land as determined by a qualified valuer, and disputes on the amount may be referred to court.

Court orders

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  1. 1.The Petition dated 19th December 2016 is dismissed
  2. 2.Each party to bear their costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 2, 3, 10, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 35, 39, 40, 42, 47, 48, 50, 57, 60, 61, 64, 70, 159, 160, 165, 244, 258
  • Land ActSections 4, 144, 148
  • Land Registration ActSections 24(a), 25, 26(1)
  • Fair Administrative Action Act No. 4 of 2015Sections 4, 5, 6, 7
  • National Police Service ActSection 24

Cases cited (2)

  • Anarita Karimi Njeri vs R
    (1976 - 1980) KLR 1272
  • KETRACO vs Agnes Ntoye & 560 others (ELC 78 of 2016)
Jurisdiction invoked
Articles 22, 23, 70 and 165 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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Cite this brief

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Cite this brief

Caselaw, "David Ramogi & 5 others v Cabinet Secrectary, Ministry of Energy & Petroleum & 7 others [2018] KEELC 1488 (KLR)", Case Analysis (2018). ELC Petition No. 1 of 2017 (Formerly Milimani Petition No. 531 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1488/eng@2018-10-03

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