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ELCPartially AllowedPetition No 26 of 2016· [2018] KEELC 3179 (KLR)

Zedekia Ondari Kenyoro v Kitutu Chache South Constituency Development Fund Board & 3 others [2018] KEELC 3179 (KLR)

Environment and Land Court
13 April 2018
JMJ. M. Mutungi
2,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed your registered land title cannot be taken for public projects without compulsory acquisition and full compensation.

What this practically means

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Executive summary

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The petitioner, registered proprietor of land parcel Kisii Municipality/Block I/613 (also referred to as 913) since 1995 following a 1986 allotment, petitioned against the Kitutu Chache South Constituency Development Fund Board, Kenya Roads Board and the Attorney General, alleging that a chief's camp, administration police housing units and an access road were constructed on his land without notice, compensation or due process. He sought declarations that his constitutional right to property under Articles 19(3), 40(3) and 47 had been violated, a permanent injunction and damages. Only the 2nd respondent filed a response, denying that it constructs roads or acquires land and claiming it was wrongly enjoined; the 1st and 3rd respondents filed nothing, leaving the petitioner's evidence unchallenged. The court found the petitioner's title indefeasible under Sections 24(b), 25 and 26 of the Land Registration Act, relied on the County Director of Physical Planning's letter confirming encroachment, and held that any acquisition for public purposes had to follow Article 40(3) with prompt, full and just compensation. Following Musinga, J. in Kuria Greens Limited, the court endorsed the requirement that state agencies either compulsorily acquire the land with compensation or challenge the title in court. The 2nd respondent was exonerated for want of any attributed act. Judgment was entered in terms of prayers (a) to (d) - declarations and permanent injunction - but damages were refused as unproved, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the petitioner's constitutional property rights under Article 40(3) were infringed

Holding

Yes, as against the 1st, 3rd and 4th respondents. Unchallenged evidence, including the County Government letter, established encroachment and construction on the petitioner's land without compliance with Article 40(3) or any notice or compensation.

Reasoning

The petitioner's registration and lease certificate were uncontroverted. The Deputy Director of Physical Planning's letter confirmed the building was on parcel 613 and constituted encroachment. With no response filed by the 1st and 3rd respondents, the petitioner's evidence stood unchallenged. There was no evidence that the Article 40(3) process - compulsory acquisition with prompt, full and just compensation - was followed, so the deprivation was unconstitutional.

p. 4
02

Whether the 2nd respondent (Kenya Roads Board) infringed the petitioner's rights

Holding

No. The petitioner attributed no specific act to the 2nd respondent, whose mandate does not include road construction, and its denial was unrebutted.

Reasoning

The 2nd respondent answered the petition stating it was wrongly enjoined, its mandate does not include constructing roads, and it did not commission any road construction. The petitioner did not attribute any specific act of breach to it. The court therefore found no culpability on its part and effectively dismissed the petition as against the 2nd respondent.

p. 3
03

Whether the petitioner was entitled to damages

Holding

No. The damages claim was unproved; no evidence or submissions supported it.

Reasoning

Although the petitioner prayed for general damages for the violation of his property rights, he tendered no evidence quantifying or supporting the loss and did not address the claim in submissions. The court declined to award any damages and granted only the declaratory and injunctive reliefs.

p. 4

Legal principles established

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  • A registered proprietor's indefeasible title cannot be taken or appropriated by state agencies without due process; compulsory acquisition with prompt, full and just compensation under Article 40(3), or a court challenge to the title, are the lawful routes.
  • The onus of proving that a registered owner unlawfully acquired the suit land rests on the person alleging unlawful acquisition.
  • A party against whom no specific act of breach is attributed, and who denies involvement, cannot be held liable for infringement of constitutional rights.

Court orders

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  1. 1.Judgment entered for the petitioner against the 1st, 3rd and 4th respondents in terms of prayers (a), (b), (c) and (d) of the petition
  2. 2.Declaration that the petitioner is entitled to interests conferred by registration and rights of owner of property under the Constitution
  3. 3.Declaration that the respondents have no rights, mandate or authority to forcefully enter upon and build administration police units and road of access on the petitioner's land parcel No. Kisii Township/Block I/613
  4. 4.Declaration that the respondents breached and infringed and violated the fundamental freedom to protection of right to property
  5. 5.Permanent injunction restraining the respondents, their agents, servants and anyone claiming under them from entering upon, trespassing onto, taking possession of, building on or in any other way interfering with the proprietor's rights over the suit land
  6. 6.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 19(3)
  • Constitution of Kenya, 2010Article 40(3)
  • Constitution of Kenya, 2010Article 47
  • Land Registration Act No. 3 of 2012Section 24(b)
  • Land Registration Act 2012Sections 25 and 26

Cases cited (2)

  • Ephantus Kimotho Kimani & 5 Others -vs- Attorney General & Another
    [2013] eKLR
  • Kuria Greens Limited -vs- Registrar of Titles & Another
    [2011] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - Bill of Rights enforcement jurisdiction (Articles 19, 40, 47); petition under Article 40(3)

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, "Zedekia Ondari Kenyoro v Kitutu Chache South Constituency Development Fund Board & 3 others [2018] KEELC 3179 (KLR)", Case Analysis (2018). Petition No 26 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3179/eng@2018-04-13

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