Kibet (Suing on behalf of the Estates of Kiptot Arap Sitienei and Joseph Arap Korir - Deceased) v Uasin Gishu County Government & 5 others; Omwenga & 3 others (Interested Parties) (Environment & Land Petition 10 of 2013) [2018] KEELC 4855 (KLR)

The court traced the shift from the narrow locus standi under section 84(1) of the repealed Constitution to the broad access regime of Articles 22 and 258 of the 2010 Constitution, relying on Anarita Karimi Njeru as explained in Trusted Society of Human Rights Alliance and Mumo. A petition must give fair notice of the violations but need not plead particulars with mathematical precision. The petitioner was acting bona fide and not for personal profit, so standing was made out.

The court held that neither the 1963 nor the 2010 Constitution prescribes a limitation period for constitutional petitions, citing David Gitau Njau and Wachira Weheire. Applying the Limitation of Actions Act to such petitions would offend the supremacy of the Constitution under Article 2. Further, the cause of action accrued in 2001 and was continuing because the 1st respondent was still collecting rates and levying rent on the land.

A search confirmed registration of I.R. 11404 in the names of the two deceased in 1964 under the Registration of Titles Act, whose section 23 made the certificate conclusive evidence of ownership. The transfer to Langas Farm Ltd was never registered and thus conferred no title; purchasers from unregistered holders acquired nothing. No adverse possession was established since the land remained charged until 2001 and the 1st respondent controlled the allocation process.

The court found the 1st respondent initiated the change of user, commissioned surveys and engaged advocates to prepare leases, while the 2nd respondent's processes facilitated the scheme; the council continued to collect rates and ground rent from non-owners. Recognizing the 'rights' of the interested parties amounted to a compulsory takeover without the compensation mandated by section 75 of the repealed Constitution and Article 40(3) of the 2010 Constitution, rights saved by the transitional provisions of the Land Registration Act.

The court reaffirmed that special damages must be specifically pleaded and strictly proved, associating itself with Radcliffe v Evans, Hahn v Singh and related authorities. The valuation report by county valuers was unchallenged, establishing the pleaded claim; but the court, in its discretion, considered the figure on the higher side and awarded Kshs.4.5 billion payable from the Consolidated Fund as the 1st and 2nd respondents are successors in office.

The court weighed the petitioners' vindicated property rights against the Article 43 socio-economic rights of hundreds of thousands of occupants who had built homes, schools, hospitals and infrastructure. Forcible eviction would create a fresh constitutional crisis and would be disruptive, high-handed and expensive; compensation of the petitioners followed by regularization of the occupants' titles was the juster and more cost-effective remedy.