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ELCDismissedPetition No. 14 of 2011 (originally filed at High Court Mombasa; transferred to ELC Malindi 22nd October 2015)· [2019] KEELC 1325 (KLR)

Mikaal Limited & another v Attorney General & another; Daniel Runya Gamba(Interested Party) [2019] KEELC 1325 (KLR)

Environment and Land Court
24 October 2019
JOJ.O. Olola
1,999 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioners, Michael John Karanja and Mikaal Ltd, sued the Attorney General and the Commissioner of Lands alleging that the Respondents unconstitutionally placed an embargo over Plot No. Kilifi/Jimba/470, which had been allotted to Mikaal Ltd by Letter of Allotment dated 19th June 1992, and thereafter unlawfully subdivided and reallocated the land to members of the Mijikenda community. They sought a declaration of unconstitutionality, compensation of Kshs 59,000,000/-, interest and costs, invoking Article 40 of the Constitution. The Respondents filed Grounds of Opposition asserting the Petition was frivolous, that no rights were breached, and called no evidence. The Petitioners called two witnesses: a director who testified to payment of the allotment sum of Kshs 100,830/- in April 1996, settlement of a third-party caution by payment of Kshs 1,083,000/-, and a 2012 valuation of Kshs 25 Million; and a valuer. The court found no evidence of any embargo or restriction on the suit property, noting the only proof offered was a newspaper advertisement lifting restrictions on other parcels. It further observed the Petitioners paid outside the 30-day allotment period, remained in occupation of the land, and suffered no compensable loss. Relying on authority that Article 40 does not protect unlawfully acquired property and that compensation must not loot public coffers, the court found no merit in the Petition, dismissed it entirely, and made no order as to costs.

Key legal issues

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01

Whether an embargo/restriction was placed on the suit property by the Respondents

Holding

No proof of the embargo was produced; the fact that the property was not among those listed as cleared in a newspaper notice did not necessarily mean a restriction existed

Reasoning

The only evidence produced was a Daily Nation advertisement of 12th August 2010 lifting restrictions on certain parcels, and the suit property was not listed. The court held that omission from that list did not prove an embargo. Further, the Petitioners pleaded the restriction was imposed in the early 1990s, meaning they must have known of it when they received their 1992 Letter of Allotment, and they paid only in 1996, four years later.

p. 3
02

Whether the Petitioners were entitled to compensation under Article 40

Holding

Claim fails - the Petitioners occupied the land and suffered no compensable loss

Reasoning

The Petitioners remained in occupation of the suit property and produced no evidence they were ever stopped from utilising it; they had settled the third-party caution by paying Kshs 1,083,000/-. Compensation restores a claimant to a prior position, and where no deprivation occurred there is nothing to restore. The court also noted the Petitioners paid outside the prescribed allotment period and benefited from the Government's initial allocation.

p. 4

Legal principles established

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  • Article 40 does not protect property that has been unlawfully acquired
  • Compensation under Article 40(3) is meant to restore the claimant to the position existing prior to the complained-of action, while protecting the public treasury against improvidence

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya (repealed)protection of property rights

Cases cited (3)

  • Multiple Hauliers East Africa Ltd –vs- The Attorney General & 10 Others
    (2013) eKLR
  • Isaac Gathungu Wanjohi & Another –vs- Attorney General & 6 Others
    Petition 154 of 2011 (2012) eKLR
  • Patrick Musimba –vs- National Land Commission & 4 Others
    (2016) eKLR
Jurisdiction invoked
Constitution of Kenya 2010, Article 40 (protection of right to property), Petition first instituted in the High Court and transferred to the Environment and Land Court

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, "Mikaal Limited & another v Attorney General & another; Daniel Runya Gamba(Interested Party) [2019] KEELC 1325 (KLR)", Case Analysis (2019). Petition No. 14 of 2011 (originally filed at High Court Mombasa; transferred to ELC Malindi 22nd October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1325/eng@2019-10-24

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