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 Petition 28 of 2017 (formerly Kisumu High Court Petition No. 19 of 2010)· [2019] KEELC 3045 (KLR)

George Osanyo Opondo v Attorney General & another [2019] KEELC 3045 (KLR)

Environment and Land Court
12 June 2019
SKS.M. Kibunja
2,551 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled the government unlawfully took a man's leased land without acquisition or compensation, awarding him Kshs 314,000 with interest and costs.

What this practically means

#

Executive summary

#
The Petitioner, registered proprietor of a 99-year lease over Ukwala Township/15, petitioned under Section 75 of the repealed Constitution, alleging that the 2nd Respondent, the District Commissioner, Ugenya, stopped his approved development and took over the plot for the District Headquarters without compulsory acquisition or compensation. He sought declarations, an injunction, or alternatively Kshs. 2,845,100/= in compensation. The Respondents maintained the Town Council of Ukwala had lawfully repossessed the undeveloped plot via gazette notice and letter in October 2009 and allocated it for the District Headquarters, that no compulsory acquisition occurred, and that the Petitioner was guilty of laches and should have sued the Council (now Siaya County Government). The court found the allocation and registration regular, the Petitioner's rent arrears cleared and building plans approved by the same Town Clerk who issued the repossession notice, indicating no effective repossession. No evidence of reallocation to the 2nd Respondent existed, and compulsory acquisition procedures were admittedly not followed. The court held the Petitioner's Section 75 rights were violated. Compensation was limited to the proven market value (Kshs. 300,000/=) and materials (Kshs. 14,000/=), totalling Kshs. 314,000/= with interest and costs; the claim for projected profits of Kshs. 2,160,000/= failed for want of proof. Judgment delivered on 12th June 2019 by S.M. Kibunja, J.

Key legal issues

#
01

Whether the suit property was lawfully repossessed or compulsorily acquired

Holding

The property was neither lawfully repossessed nor compulsorily acquired; the 2nd Respondent's taking was unlawful and un-procedural.

Reasoning

The allocation and registration of the lease to the Petitioner in 1994 were regular. The Town Council's repossession claim was undermined by its approval of the Petitioner's building plans ten days after the 21-day notice lapsed, and no evidence (allotment letter, PDP, minutes) proved reallocation to the 2nd Respondent. No compulsory acquisition procedure under the Land Acquisition Act was followed, and the Respondents admitted none occurred.

p. 3
02

Whether the Petitioner's Section 75 rights were violated and what compensation is due

Holding

The Petitioner's rights under Section 75 were violated; he is entitled to market value of the land plus materials, but not speculative profits.

Reasoning

The 2nd Respondent unlawfully stopped the Petitioner's approved development and fenced the plot into the District Headquarters without acquisition or compensation. The valuation figures were unchallenged except the projected profits, which lacked proof. Compensation of Kshs. 300,000/= for the land and Kshs. 14,000/= for materials was awarded.

p. 4

Legal principles established

#
  • A certificate of lease is prima facie evidence of indefeasible and absolute ownership unless lawfully challenged.
  • Government may only take private land through compulsory acquisition with full compensation under Section 75 of the former Constitution and the Land Acquisition Act.

Court orders

#
  1. 1.A declaration that the Petitioner's rights under Section 75 of the repealed Constitution were violated by the 2nd Respondent's unlawful taking of the suit property.
  2. 2.Compensation of Kshs. 314,000/= to the Petitioner, comprising market value of the suit property (Kshs. 300,000/=) and reimbursement of materials (Kshs. 14,000/=), with interest.
  3. 3.Costs of the petition to the Petitioner.

Authorities

#

Legislation

  • Constitution of Kenya (repealed)Section 75
  • Registered Land Act (repealed)Sections 28, 30, 32
  • Land Acquisition Act (repealed)Section 6
  • Land Registration Act No. 3 of 2012Section 26

Cases cited (2)

  • James Joram Nyaga & Another vs The Attorney General & another
    [2007] eKLR
  • Ocean View Plaza Ltd vs Attorney General
    [200] IKLR (E & L)
Jurisdiction invoked
Alleged contravention of fundamental rights and freedoms under Section 75 of the (repealed) Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "George Osanyo Opondo v Attorney General & another [2019] KEELC 3045 (KLR)", Case Analysis (2019). ELC Petition 28 of 2017 (formerly Kisumu High Court Petition No. 19 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3045/eng@2019-06-12

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