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ELCPartially AllowedELC Petition Case No. 8 of 2018· [2019] KEELC 1680 (KLR)

Anthony Milimu Lubulellah v County Government of Kakamega Land Registrar Kakamega County & another [2019] KEELC 1680 (KLR)

Environment and Land Court of Kenya
26 September 2019
NMN.A. Matheka
7,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Kenyan county government that takes your land without following compulsory acquisition rules must pay you full compensation, even years later.

What this practically means

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Executive summary

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The petitioner, registered proprietor of leasehold title Kakamega Municipality/Block III/2 under a 99-year lease from the County Council of Kakamega issued in 1992, petitioned the Environment and Land Court at Kakamega after the County Government of Kakamega occupied, levelled, fenced and converted the plot into a parking area serving Bukhungu Stadium. He sought declarations that the entry and occupation violated Article 40(3), mandatory and permanent injunctions, mesne profits, general damages and costs. The 1st respondent contended that the lease had lapsed for breach of special conditions requiring development, that the petitioner was in rates arrears of Kshs. 11,855,316.19, and that the petition was statute-barred, the cause of action having arisen more than twelve years earlier. The 2nd and 3rd respondents filed no substantive response. The court framed five issues and held that: (1) constitutional petitions founded on the Bill of Rights are not subject to a limitation period, though delay is relevant, so the petition was not time barred; (2) the petitioner's certificate of lease was a valid, indefeasible title under sections 24-26 of the Land Registration Act, never cancelled, and the respondent was estopped from denying it; (3) leasehold land is private land under Article 64 and could not be unilaterally declared public utility land; and (4) the respondent's occupation amounted to an arbitrary, unconstitutional compulsory acquisition without following the Land Act procedure or paying just compensation, and without affording the petitioner fair hearing under Articles 47 and 50. The petition was allowed in part: declarations of violation were issued, the respondents were ordered to adequately compensate the petitioner, and costs were awarded to the petitioner. Mesne profits and general damages were refused for want of proof, and no injunction was ultimately granted.

Key legal issues

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01

Whether the petition was statute-barred given events dating from 2002 and suit filed in 2018

Holding

The petition is not time barred; constitutional claims under the Bill of Rights carry no limitation period, though delay is a relevant circumstance

Reasoning

Relying on Peter M. Kariuki, Peter Ngari Kagume, David Gitau Njau and Re Estate of Thomas Kipkosgei Yator, the court held that neither the repealed Constitution nor the current one prescribes a limitation period for enforcement of fundamental rights. However, promptness is expected and unexplained delay causing prejudice may amount to abuse of process; on the facts the delay did not defeat the petition.

p. 6
02

Whether the petitioner's title to Kakamega Municipality/Block III/2 is valid and lawful

Holding

The petitioner holds a good, valid title; the lease and certificate of lease issued in 1992 were never cancelled or revoked and the 1st respondent is estopped from denying it

Reasoning

The court applied sections 24, 25 and 26 of the Land Registration Act 2012 and the Torrens indefeasibility principle as stated in Dr. Joseph Arap Ngok and David Peterson Kiengo. No fraud, misrepresentation or corrupt scheme was proved against the petitioner. Having accepted rates and issued the lease, the Council could not resile by internal decisions; the land is private land under Article 64.

p. 7
03

Whether the petitioner's property rights under Article 40 were infringed

Holding

Yes - the 1st respondent's entry, occupation, fencing and conversion of the plot into a parking lot for Bukhungu Stadium was arbitrary and unconstitutional

Reasoning

The court found the 1st respondent used and fenced the plot without consent or compensation, and that no compulsory acquisition procedure under sections 107-133 of the Land Act was followed. The respondent's reliance on undeveloped-lease special conditions failed because the petitioner had a right to fair hearing under Article 50(1) and fair administrative action under Article 47 and the Fair Administrative Action Act before forfeiture or re-entry.

p. 12
04

Whether the petitioner is entitled to compensation

Holding

Yes - the petitioner is entitled to compensation for the compulsory acquisition, but not mesne profits or general damages which were unproved

Reasoning

The court characterised the respondent's actions as a de facto compulsory acquisition governed by Article 40(3) and sections 107-133 of the Land Act, citing Patrick Musimba and Virendra Ramji Gudka. Compensation must be prompt, full and just. The heads of mesne profits and general damages failed for want of proof of expected income or damage.

p. 11

Legal principles established

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  • The Constitution does not provide a time limit for claims founded on violation of Bill of Rights, but delay is material depending on the circumstances and nature of the claim
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal/unprocedural/corrupt acquisition
  • Land held under leasehold tenure is private land under Article 64 of the Constitution and cannot be unilaterally declared public land
  • The State may not deprive a person of property except through compulsory acquisition in accordance with the Constitution and the Land Act, with prompt payment in full of just compensation

Court orders

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  1. 1.A declaration that the entry onto, occupation and acquisition of the suit property is in contravention and violation of Article 40(3) of the Constitution of Kenya 2010 and therefore wrongful, illegal and unconstitutional
  2. 2.The Respondents are ordered to adequately compensate the petitioner for compulsorily acquiring his property
  3. 3.Costs of the petition to be borne by the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40 (including 40(3)), Article 22, Article 258, Article 47, Article 50(1), Article 64, Articles 10, 2, 2(4), 3, 27(4), Chapter Five, Article 65
  • Land Registration Act, 2012Sections 24, 25, 26, 28
  • Land Act, 2012Sections 107 to 133 (including 107, 108, 110, 111, 112, 113-119, 120-122)
  • Land Acquisition Act (repealed), Cap 295Section 3
  • Fair Administrative Action ActAct No. 4 of 2015
  • Registered Lands Act (repealed)Section 23(1)
  • Universal Declaration of Human Rights (1948)Article 17(1) and 17(2)

Cases cited (19)

  • Peter M. Kariuki v Attorney General
    (2014) eKLR, Civil Appeal No. 79 of 2012
  • Kamlesh Mansuklal Damji Pattni & Another v Republic
  • Peter Ngari Kagume & 7 Others v Attorney General
    (2016) eKLR, Constitutional Application 128 of 2006
  • Durity v Attorney General
    [2002] UKPC 20
  • David Gitau Njau & 9 others v Attorney General
    (2013) eKLR, Petition No. 340 of 2012
  • Re Estate of Thomas Kipkosgei Yator & Another (Deceased)
    (2016) eKLR
  • Joseph N. K. Arap Ngok v Justice Moijo Ole Keiuwa & 4 Others
    Civil Appl. No. 60 of 1996
  • Dr. Joseph Arap Ngok v Justice Moijo ole Keiwua & 5 Others
    Civil Appeal No. Nai. 60 of 1997
  • Wreck Motor Enterprise v The Commissioner of Lands & Others
    (1997) eKLR
  • David Peterson Kiengo & 2 Others v Kariuki Thuo
    Machakos HCCC No. 180 of 2011
  • Eunice Grace Njambi Kamau & Another v Attorney General & 5 Others
    (2013) eKLR
  • Virendra Ramji Gudka & 3 Others v Attorney General
    (2014) eKLR
  • Patrick Musimba v National Land Commission & 4 others
    (2016) eKLR
  • R v Chief Immigration Officer
    (1976) 3 AER 843
  • Republic v Council of Legal Education Ex-parte Nyabira Oguta
    (2016) eKLR
  • Horn v Sunderland Corporation
    (1941) 2 KB 26
  • Raticliffe v Evans
    (1892) QB 524
  • Commissioner of Lands & Another v Coastal Aquaculture Ltd
    Civil Appeal No. 252 of 1996, KLR (E&L 264)
  • Arnacherry Limited v Attorney General
    (2014) eKLR
Jurisdiction invoked
Articles 22 and 258 of the Constitution of Kenya 2010 (enforcement of Bill of Rights), within the jurisdiction of 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, "Anthony Milimu Lubulellah v County Government of Kakamega Land Registrar Kakamega County & another [2019] KEELC 1680 (KLR)", Case Analysis (2019). ELC Petition Case No. 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1680/eng@2019-09-26

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