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ELCPartially AllowedELC Case No. 306 of 2015· [2018] KEELC 1768 (KLR)

Micah A. Oriedo v County Government of Vihiga & another [2018] KEELC 1768 (KLR)

Environment and Land Court
25 September 2018
3,934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenyan county governments and state agencies must follow proper land acquisition procedures and pay compensation before touching private land, or face paying damages plus costs.

What this practically means

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Executive summary

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The plaintiff, a retired professor, sued the County Government of Vihiga and the CDF Committee of Luanda Constituency over destruction of his fencing and encroachment on his parcel BUNYORE/IBOONA/1237 during unannounced road expansion works in December 2014 and March 2015. He sought a declaration of unlawful trespass and encroachment, damages for trespass, general damages for trauma and insecurity, special damages of Kshs. 1,572,500/= and costs. The 2nd defendant filed a bare denial; neither defendant attended court to give oral evidence. The court held that the defendants violated the plaintiff's property rights under Article 40, his right to fair administrative action under Article 47 (no inquiry or hearing as required by Section 112 of the Land Act), and his right to a clean and healthy environment under Article 42 read with Section 8 of EMCA (no environmental impact assessment). Relying on the Land Acquisition Act and Land Act procedures, the court found the defendants had neither followed compulsory acquisition process nor obtained consent, and that a government survey showed encroachments of 2.5 metres by the County Government and 1 metre by the CDF. The plaintiff's case was proved on a balance of probabilities. The court declared the encroachment and road expansions illegal, awarded special damages of Kshs. 1,572,500/= with interest from filing, and awarded costs. General damages were refused because no damages were demonstrated to be payable.

Key legal issues

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01

Trespass and unlawful encroachment on the plaintiff's land

Holding

The defendants trespassed and encroached on the plaintiff's land without consent or due process, which was illegal

Reasoning

The court found that the defendants' agents entered the plaintiff's land, destroyed fencing, and expanded roads without conducting a professional survey, without notice, without consent and without following the compulsory acquisition procedure in the Land Act and Land Acquisition Act. Government survey established encroachments of 2.5 metres (County Government) and 1 metre (CDF). The plaintiff proved his case on a balance of probabilities.

p. 4
02

Constitutional property rights and fair administrative action

Holding

The defendants' actions violated Articles 40 and 47 of the Constitution by arbitrarily depriving the plaintiff of property without fair administrative process

Reasoning

The court invoked Article 40 on the right to property and Article 47 on fair administrative action, read with Section 112 of the Land Act requiring an inquiry and hearing of interested persons. The defendants conducted no inquiry, no hearing and no notice, denying the plaintiff fair administrative action before arbitrarily depriving him of portions of his land.

p. 3
03

Entitlement to special damages

Holding

The plaintiff proved special damages of Kshs. 1,572,500/= through his valuer's report

Reasoning

PW2, a valuer, valued the loss suffered at Kshs. 1,322,500/= covering the acquired land, fencing, trees, electrical disruptions, landscaping and related items, excluding general damages and loss of borehole water. The court adopted this evidence plus other quantified losses and awarded special damages with interest from filing.

p. 3
04

Environmental impact assessment

Holding

The failure to conduct a full environmental impact assessment violated the right to a clean and healthy environment under Article 42 and Section 8 of EMCA

Reasoning

The court noted the defendants did not conduct a full environmental impact assessment before marking the parcels for expansion, citing the destruction of whispering pine trees that affected the plaintiff's borehole. It cited Munyao Sila J's view that where environmental protection procedures are not followed, the right to a clean and healthy environment may be presumed under threat.

p. 3

Legal principles established

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  • Compulsory acquisition of land must follow the statutory procedure and attract prompt payment of full just compensation
  • Procedural fairness is a constitutional requirement in administrative action, going beyond the traditional duty to be heard
  • A finding of unlawful acquisition under Article 40(6) must be through a legally established process, not forceful occupation by state institutions

Court orders

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  1. 1.A declaration that the defendants unlawfully encroached and trespassed into the plaintiff's parcel of land EAST BUNYORE/IBOONA/1237 and that the excavations and road expansions were illegal and without sanction of law, procedure and the plaintiff's consent
  2. 2.The defendants to pay special damages of Kshs. 1,572,500/= with interest at court rates from the time of filing of the case
  3. 3.The defendants to pay the plaintiff's costs of the case
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Article 162(2)(b) of the Constitution, as the court seized of a land dispute); not expressly cited in the judgment

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, "Micah A. Oriedo v County Government of Vihiga & another [2018] KEELC 1768 (KLR)", Case Analysis (2018). ELC Case No. 306 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1768/eng@2018-09-25

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