Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. 8 of 2016· [2019] KEELC 2549 (KLR)

Peter Andera Masakhalia v County Government of Kakamega [2019] KEELC 2549 (KLR)

Environment and Land Court
4 July 2019
NMN.A. Matheka
1,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that a county government must pay a landowner for building a road through his land without following the legal compulsory acquisition process.

What this practically means

#

Executive summary

#
The plaintiff, registered owner of land parcel North Wanga/Lung'anyiro/91 measuring approximately 2.63 hectares, sued the County Government of Kakamega alleging that on or about 24 March 2016 the defendant, without his consent, entered his land, constructed the Lung'anyiro Bulander public road through it, felled 163 trees and damaged his food crops. He sought a declaration that the encroachment was illegal and unlawful, compensation of Ksh. 250,000 for the 0.275 acres taken for the road, and special damages of Ksh. 1,688,089.80, with costs and interest. The defendant's ward administrator admitted in evidence that a portion of the plaintiff's land was hived off to create a public road, and the court noted that despite a restraining order the defendant proceeded with construction. Applying Article 40(3) of the Constitution and the compulsory acquisition framework, the court held that this was a compulsory acquisition of private property whose proper procedure was never followed, entitling the owner to prompt payment in full of just compensation. The plaintiff's unchallenged evidence - a valuer's report valuing the land taken at Ksh. 250,000, a forestry officer's report valuing destroyed trees at Ksh. 1,630,000 with fees of Ksh. 20,000, and an Agricultural Officer's report valuing crops at Ksh. 23,089.80 - proved special damages of Ksh. 1,688,089.80. The court entered judgment for the plaintiff on a balance of probabilities, granting the declaration, compensation of Ksh. 250,000, special damages of Ksh. 1,688,089.80, and costs with interest.

Key legal issues

#
01

Unlawful taking of private land for a public road without compulsory acquisition

Holding

The construction of the road through the plaintiff's land without following compulsory acquisition procedure was a violation of Article 40(3) and was illegal and unlawful, entitling the plaintiff to compensation

Reasoning

The court noted the defendant's ward administrator admitted a portion of the plaintiff's land was hived off to create a public road, and that despite a court order restraining the defendant, the road was constructed. This constituted compulsory acquisition of private property without following the proper procedure under Article 40(3) of the Constitution and the Land Act, requiring prompt payment of just compensation.

p. 3
02

Proof of special damages

Holding

The plaintiff proved special damages of Ksh. 1,688,089.80 for destroyed trees, food crops and valuation fees through valuation and forestry reports, which evidence was unchallenged

Reasoning

The court applied the principle that damages must be pleaded and proved with reasonable certainty and particularity. It found the plaintiff's evidence unchallenged: the valuer valued the land taken at Ksh. 250,000/= with valuation fees of Ksh. 15,000; the forestry officer confirmed damage to trees at Ksh. 1,630,000 with fees of Ksh. 20,000; and the Agricultural Officer valued damaged crops at Ksh. 23,089.80, totaling Ksh. 1,688,089.80.

p. 3

Legal principles established

#
  • Deprivation of property is permissible only for a public purpose carried out in accordance with the Constitution with prompt payment in full of just compensation
  • Compulsory acquisition of private property requires strict adherence to the prescribed constitutional and statutory procedure

Court orders

#
  1. 1.A declaration that the invasion or encroachment on L.R. No. North Wanga/Lung'anyiro/91 from 24/3/2016 by the defendant's agents or servants in creating a public road thereon was illegal and unlawful, and that the plaintiff is entitled to compensation for the loss of 0.275 acres forming part of the suit land
  2. 2.The defendant to compensate the plaintiff for the value of the 0.275 acres portion occupied by the public road created on 23/4/2016 at Ksh. 250,000/=
  3. 3.Special damages of Ksh. 1,688,089.80
  4. 4.Costs and interest of the suit

Authorities

#

Legislation

  • Constitution of KenyaArticle 40
  • Land ActSections 107 to 133
  • Land Acquisition ActSection 3
  • Universal Declaration of Human RightsArticle 17(1), 17(2)

Cases cited (7)

  • Virendra Ramji Gudka & 3 Others v Attorney General
    [2014] eKLR
  • R vs 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, 40
  • Raticliffe vs Evans
    (1892) QB 524
  • Commissioner of Lands & Another vs Coastal Aquaculture Ltd
    Civil Appeal No. 252 of 1996 KLR (E&L 264)
  • Arnacherry Limited v Attorney General
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; constitutional claim under Article 40(3) of the Constitution and the Land Act, No. 6 of 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Peter Andera Masakhalia v County Government of Kakamega [2019] KEELC 2549 (KLR)", Case Analysis (2019). ELC Case No. 8 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2549/eng@2019-07-04

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