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ELCPartially AllowedConstitutional Petition dated 26th July, 2017 (Chuka)· [2018] KEELC 2486 (KLR)

Kaimba Mangaara v Tharaka Nithi County Government [2018] KEELC 2486 (KLR)

Environment and Land Court
16 July 2018
5,000 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Tharaka Nithi County was ordered to pay a plot owner Sh5.5 million in damages plus market-value compensation after blocking him from his land for over 20 years.

What this practically means

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Executive summary

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The petitioner, Kaimba Mangaara, petitioned the Environment and Land Court at Chuka against the County Government of Tharaka Nithi, alleging that since his 1996 allocation of Plot No. 77 Marimanti Market he had been prevented from occupying, developing or enjoying it. He relied on a decree obtained in Meru CMCC 262 of 2005 against the defunct Tharaka County Council, the respondent's refusal to approve his building plans, demolition of his fence, and the abandonment of compensation talks, and sought declarations and damages under Articles 28, 40 and 47 of the Constitution. The respondent, through its County Secretary, admitted ownership was not in dispute but contended the remedy lay in judicial review under the Fair Administrative Action Act, 2015, denied hindering the petitioner, and argued he had not executed the decree. The court framed three issues and rejected the respondent's procedural objection, holding that constitutional rights cannot be subtracted or diminished by statutory processes and that judicial review and constitutional petitions must be bifurcated. It distinguished the judicial review authority relied on by the respondent, applied Arnacherry Limited v Attorney General on compensation, and held that refusal to obey an unappealed court judgment warranted intervention by constitutional petition. The court declared the petitioner's rights to property, fair administrative action and human dignity infringed, awarded general damages totalling Kshs. 5,500,000, directed valuation of the plot within three months, awarded compensation at current market value plus mesne profits for 22 years, interest on all monetary awards, and costs to the petitioner.

Key legal issues

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01

Whether a constitutional petition is the proper vehicle where a respondent claims judicial review under the Fair Administrative Action Act was required

Holding

The petition was properly brought; statutory alternative processes do not diminish constitutional enforcement

Reasoning

The court distinguished judicial review from constitutional petitions, holding the petitioner had not anchored his case on the Fair Administrative Action Act, 2015 but on the Constitution. Statutory processes cannot diminish constitutional rights because the Constitution is supreme. The respondent's assertion that judicial review was the exclusive route was rejected.

p. 8
02

Whether the respondent infringed the petitioner's rights to property, fair administrative action and human dignity

Holding

Yes - the respondent infringed all three rights by depriving, harassing and frustrating the petitioner

Reasoning

Despite admitting ownership, the respondent prevented the petitioner from developing Plot No. 77, refused to approve building plans, demolished his fence and reneged on compensation discussions. The court found the claim that the decree was never extracted to be a contrivance, holding it was the respondent that refused to obey a court judgment.

p. 8
03

Whether the petitioner was entitled to compensation, mesne profits and damages

Holding

Yes - compensation at current market value, mesne profits for 22 years since 1996, and general damages of Kshs. 5,500,000

Reasoning

Relying on Arnacherry Limited v Attorney General, the court held prompt compensation tenable for infringement of property rights. It awarded damages lower than the amounts sought but directed a valuation by the Government/County Valuer within 3 months, with interest on all monetary awards from the date of judgment until payment in full.

p. 9

Legal principles established

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  • Constitutional rights cannot be subtracted or diminished by alternative statutory processes; a petitioner is entitled to enforce rights directly through a constitutional petition
  • Judicial review proceedings and constitutional petitions must not be conflated and must be bifurcated
  • Refusal to obey an unappealed court judgment warrants intervention through orders in a constitutional petition; the rule of law requires compliance with court judgments
  • Where constitutional rights to own property are infringed, orders for prompt, full, fair and just compensation are tenable

Court orders

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  1. 1.Declared that the petitioner's rights to property, to fair administrative action and to human dignity were infringed upon by the respondent
  2. 2.Found the petitioner entitled to prompt compensation for Plot No. 77 Marimanti Market at current market value and mesne profits for 22 years since 1996
  3. 3.Awarded general damages: Kshs. 2,500,000 for infringement of right to own property, Kshs. 1,500,000 for infringement of right to fair administrative action and Kshs. 1,500,000 for infringement of right to human dignity, totalling Kshs. 5,500,000
  4. 4.Ordered the Government or County Valuer, Tharaka Nithi County, to visit Plot No. 77 Marimanti Market within 3 months of judgment to quantify the market value and assess mesne profits from 1996 to date
  5. 5.Awarded interest on all monetary awards, including current value of the plot and assessed mesne profits, from the date of judgment until payment in full
  6. 6.Awarded costs to the petitioner
Jurisdiction invoked
Article 22 and 23 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights - constitutional petition alleging breach of Articles 28, 40 and 47)

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, "Kaimba Mangaara v Tharaka Nithi County Government [2018] KEELC 2486 (KLR)", Case Analysis (2018). Constitutional Petition dated 26th July, 2017 (Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2486/eng@2018-07-16

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