Munyao Sila & another v County Government of Kakamega & another [2019] KEELC 1657 (KLR)
The bottom line
#Kakamega county illegally demolished a private wall and took land for Bukhungu Stadium, and must pay the owners Sh43 million compensation.
What this practically means
#Executive summary
#Key legal issues
#Validity of the petitioners' title
The petitioners hold a good, valid and lawful title; the claim of fraud by the respondents was an unproved afterthought
The burden of proving fraud lay on the respondents under Section 107 of the Evidence Act. The petitioners traced the root of title to the first allottee registered in 2002, produced a survey plan and a register; the leasehold existed since 2002 and the 2011 document was only a certificate of lease in their names. No evidence of fraud or irregular registration was adduced.
Status of the land - private or public
The suit land is private land under Article 64 of the Constitution, not public land
Land held under leasehold tenure is private land under Article 64(a) and (b). The letters purporting to make the land public were dated 2019, long after the leasehold title had been in existence since 2002, and could not retrospectively convert it.
Whether the respondents' actions amounted to compulsory acquisition without due process
The respondents' actions constituted a taking of the petitioners' property without following the laid-down compulsory acquisition procedure, entitling them to compensation
The respondents entered the land, annexed it to Bukhungu Stadium and converted it to public use without invoking Part VIII (Sections 107-133) of the Land Act, 2012 or complying with Article 40(3) of the Constitution. The 24-hour Enforcement Notice was arbitrary. Unrebutted valuation fixed the land at Ksh. 40,500,000/= and the wall at Ksh. 2,400,000/=.
Estoppel arising from the planning approval
Having approved the wall by letter of 18th November, 2016 and by conduct, the respondents are estopped from denying that approval was given
The court found as a fact from documentary evidence that the 1st and 2nd respondents granted planning approval for the perimeter wall. Having induced the petitioners to erect the wall, the respondents could not resile from that approval and then demolish it as unauthorised.
Legal principles established
#- A registered proprietor whose root of title is challenged must go beyond the instrument of title to prove the legality of acquisition
- A certificate of title is conclusive and indefeasible except on grounds of fraud or misrepresentation to which the owner is a party, or illegal, unprocedural or corrupt acquisition
- Compulsory acquisition must strictly follow the constitutional and statutory procedure, including prompt payment in full of just compensation
- A public authority which grants planning approval and acts upon it is estopped from denying that approval was given
Court orders
#- 1.A declaration that the respondents acted illegally and unconstitutionally in facilitating the demolition of the perimeter wall to plot No. Kakamega Municipality Bloc III/7
- 2.A declaration that the respondents, jointly and/or severally, are in violation of Articles 2, 3, 10, 19, 20, 21, 27, 28, 40, 47, 50(1) of the Constitution and the Fair Administrative Actions Act, the Physical Planning Act, the Land Act, the Land Registration Act and International law
- 3.A declaration that the actions of the respondents constitute an eviction and/or constructive eviction and/or a taking and/or constructive taking of the property of the petitioners for which they are liable to pay full compensation
- 4.An order that the petitioners are entitled to full compensation for the value of the suit property in the sum of Ksh. 40,500,000/= subject only to the petitioners surrendering the leasehold title to the 1st respondent
- 5.Payment of Ksh. 2,400,000/= being the costs incurred by the petitioners to put up the demolished wall
- 6.Special damages of Ksh. 60,000/= for the valuation report
- 7.Interest on the above from the date of filing suit to full payment
- 8.Costs of the petition to be borne by the 1st and 2nd Respondents
- Jurisdiction invoked
- Original constitutional petition jurisdiction under Articles 19, 20, 22 and 23 of the Constitution of Kenya, 2010, read with Article 40 (protection of property rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyao Sila & another v County Government of Kakamega & another [2019] KEELC 1657 (KLR)", Case Analysis (2019). ELC Petition Case No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1657/eng@2019-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.