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ELCPartially AllowedELC Petition No. 15 of 2017· [2018] KEELC 1644 (KLR)

Isaiah Otiato & 6 others v County Government of Vihiga [2018] KEELC 1644 (KLR)

Environment and Land Court
26 September 2018
NMN.A. Matheka
4,974 words in judgment
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The bottom line

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A Kenyan court ruled that Vihiga County cannot take land for a road without following proper procedures and compensating owners first.

What this practically means

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Executive summary

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Seven Petitioners brought a constitutional petition in the Environment and Land Court at Kakamega against the County Government of Vihiga over the intended expansion of the Butamu-Church of God road in Luanda Ward. They complained that agents of the Respondent entered and marked their land parcels in July 2016 without gazetted notices, without an inquiry, without public participation and without compensation, communicating the intention only verbally through the Assistant Chief at funerals. The Petitioners sought declarations that the intended expansion and the deprivation of their property were unconstitutional, an order preserving their parcels, and compensation before any compulsory acquisition. The Respondent was served but neither attended court nor filed submissions. The court, citing the compulsory acquisition procedure under Article 40(3) of the Constitution, the Land Act, and the repealed Land Acquisition Act, held that the Respondent failed to demonstrate that its actions accorded with the law. It further found that the Respondent produced no Environmental Impact Assessment and conducted no public participation, infringing Articles 10, 42 and 47. The court granted the declarations that the intended expansion and the deprivation of the Petitioners' property were unconstitutional, unfair and unlawful, ordered the Respondent to adequately compensate the Petitioners before compulsorily acquiring their parcels, and awarded costs of the petition to the Petitioners. Judgment was delivered at Kakamega on 26 September 2018 by N.A. Matheka, J.

Key legal issues

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01

Legality of the Respondent's entry and marking of land parcels for road expansion

Holding

The Respondent's actions were unconstitutional and unlawful for non-compliance with Articles 2, 3, 10, 40 and 47 and the prescribed compulsory acquisition procedure

Reasoning

The Respondent entered and marked the Petitioners' land without gazetted notices, without an inquiry, without public participation and without compensation. It did not attend court or file submissions to justify its actions. The court found the compulsory acquisition process under the Land Act and the (repealed) Land Acquisition Act requires gazettement, notice to interested persons, inquiry and prompt compensation, none of which was followed. The Respondent therefore failed to demonstrate that its actions accorded with the law.

p. 6
02

Right to just compensation before compulsory acquisition

Holding

The Petitioners are entitled to adequate compensation before their parcels are compulsorily acquired

Reasoning

Article 40(3) permits deprivation of property only for a public purpose or public interest, carried out in accordance with the Constitution and an Act of Parliament requiring prompt payment in full of just compensation. Section 8 of the Land Act likewise requires full and prompt compensation. The Respondent had not compensated the Petitioners nor even conducted an inquiry, so the intended acquisition without compensation would be unconstitutional.

p. 6
03

Environmental Impact Assessment and public participation

Holding

The Respondent produced no EIA report, and the absence of EIA and public participation supported the finding of unconstitutionality

Reasoning

The court noted Article 42 guarantees a clean and healthy environment and Article 69 obligates the State to protect the environment and encourage public participation. Section 8 of the Environmental Management and Coordination Act requires a project proponent to obtain an EIA licence. The Respondent neither conducted nor produced any EIA report, and no public participation or awareness accompanied the intended acquisition, reinforcing the conclusion that the intended expansion was unlawful.

p. 6

Legal principles established

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  • Compulsory acquisition of land must strictly follow the constitutional and statutory procedure, including notice, inquiry, public participation and prompt payment in full of just compensation
  • State action not shown to be in accordance with the law is invalid

Court orders

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  1. 1.A Declaration that the intended expansion of Butamu-Church of God road in Luanda Ward is unconstitutional and is in breach of the petitioners' economic and social rights
  2. 2.A declaration that the Respondent's action in seeking to curtail, undermine and/or deprive the petitioners of their rights to their various properties without just cause and adequate compensation is unfair, unlawful and unconstitutional
  3. 3.The Respondent is ordered to adequately compensate the petitioners before compulsorily acquiring their parcels
  4. 4.Costs of the petition to the petitioners

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 2(4), 3, 10, 22, 23, 40, 42, 43, 47, 69
  • Land ActSections 8, 107, 110, 112, 115 (and 107-133 generally)
  • Land Acquisition Act Cap 295 (now repealed)Sections 3, 4, 4(2), 5, 6, 6(2), 8
  • Environmental Management and Coordination ActSection 8
  • Universal Declaration of Human Rights (1948)Article 17(1) and 17(2)

Cases cited (14)

  • Christopher Ndarathi Murungaru vs Kenya Anti-Corruption & Hon. Attorney General
    (2006)
  • Robert N. Gakuru & Others vs The Governor of Kiambu County & 3 Others
  • Everlyn College of Design vs Director of Children's Department & AG
    Constitution Petition No. 228 of 2013
  • Republic vs National Police Service Commission
    Judicial Review Miscellaneous Application No. 36 of 2016
  • Moffat Kamau & 9 Others vs Aelous Kenya Ltd
    Constitutional Petition No. 13 of 2015
  • Patrick Musimba vs. The National Land Commission and 5 others
    Petition No. 613 of 2014
  • Rutongot Farm Limited vs Attorney General & 3 others
    (2014) eKLR, Petition No. 1 of 2011
  • Virendra Ramji Gudka & 3 Others –v- Attorney General
    [2014] eKLR
  • R vs Chief Immigration Officer
    (1976) 3 AER 843
  • Republic v Council of Legal Education Ex-parte Nyabira Oguta
    (2016) eKLR
  • Horn-v- Sunderland Corporation
    (1941) 2 KB 26, 40
  • Raticliffe vs Evans
    (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
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya 2010 (enforcement of Bill of Rights before the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Isaiah Otiato & 6 others v County Government of Vihiga [2018] KEELC 1644 (KLR)", Case Analysis (2018). ELC Petition No. 15 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1644/eng@2018-09-26

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