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 Misc. Case No. 2 of 2017· [2019] KEELC 3863 (KLR)

Christopher T Lilungu v County Government of Kakamega [2019] KEELC 3863 (KLR)

Environment and Land Court
19 March 2019
NMN. A. Matheka
3,048 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Kakamega county government illegally built a road on private land and the court ordered it to pay the owner Ksh. 332,701.50 plus costs.

What this practically means

#

Executive summary

#
The applicant, owner of land parcel Kakamega/Malava/1450, brought an originating summons before the Environment and Land Court at Kakamega alleging that the County Government of Kakamega, through its contractors, employees and agents, constructed a road on his land on 15/12/2016, measuring 134 metres by 8 metres, violating his property rights under Article 40 of the Constitution. He sought a declaration of violation, special damages of Ksh. 332,701.50 (itemised as land, barbed wire fencing, gate, trees and crops), general damages and costs. The respondent offered no defence but submitted the suit was incompetent, having been commenced by originating summons rather than a petition under the Mutunga Rules, relying on Godfrey Paul Okutoyi. The court held that although the procedure adopted contravened the Mutunga Rules, Article 22(3) and Article 159(2)(d) required substantive justice over procedural technicalities, so the matter proceeded on the merits. Applying the Anarita Karimi Njeru threshold, the court found the pleadings sufficiently particularised. Unchallenged evidence from the valuer, forest officer and surveyor established the encroachment. The respondent failed to demonstrate that its actions accorded with Article 40(3) and compulsory acquisition procedures, producing no Environmental Impact Assessment report. The court characterised the case as compulsory acquisition without compensation, declared the applicant's Article 40 rights violated, awarded special damages of Ksh. 332,701.50, ordered adequate compensation for the compulsory acquisition, and awarded costs to the applicant. General damages were refused as unproved.

Key legal issues

#
01

Whether an enforcement-of-rights claim filed by originating summons rather than petition under the Mutunga Rules should be struck out

Holding

The procedural lapse did not defeat the suit; the court considered the matter on the merits in the interest of substantive justice

Reasoning

Although the Mutunga Rules require an application under rule 4 to be by petition, Article 22(3) requires that formalities be kept to a minimum and that courts not be unreasonably restricted by procedural technicalities. Article 159(2)(d) reinforces that substantive justice prevails over procedure, so the originating summons was entertained on the merits.

p. 3
02

Whether the respondent's construction of a road on the applicant's land violated Article 40

Holding

The respondent's actions were illegal and in contradiction with Article 40; the applicant's rights were violated and he is entitled to compensation

Reasoning

The applicant and corroborating witnesses (valuer, forest officer, surveyor) established encroachment of 134 metres by 8 metres through a survey report. The respondent called no defence and produced no evidence, including no Environmental Impact Assessment report, proving its actions were in accordance with the law or that compulsory acquisition procedures under Article 40(3) and the Land Act were followed.

p. 4
03

Whether special damages of Ksh. 332,701.50 were proved

Holding

Special damages were proved by the valuation, forest and survey reports and were awarded

Reasoning

The damages were itemised (land 0.0563HA, barbed wire fencing, gate, trees, crops) and supported by the valuation report, the forester's report and the survey report, all produced as exhibits and corroborated by expert witnesses, satisfying the requirement of reasonable certainty and particularity in pleading and proof.

p. 3
04

Whether general damages should be awarded

Holding

General damages were refused as unproved

Reasoning

Although the applicant sought general damages for the constitutional violation, the court found these were not proved and declined to award them, granting only the special damages quantified by the reports.

p. 4

Legal principles established

#
  • Lapses in procedure ought not hinder the determination of the underlying dispute; courts must administer justice without undue regard to procedural technicalities
  • A constitutional petition must set out with a reasonable degree of precision the provision infringed and the manner of infringement (Anarita Karimi Njeru principle)
  • Property may not be deprived by the State without prompt payment in full of just compensation for a public purpose conducted in accordance with the Constitution

Court orders

#
  1. 1.A declaration that the applicant's fundamental rights under article 40 of the Constitution of Kenya have been contravened and violated by the respondent whose contractors, employees, and agents constructed a road on his land parcel number Kakamega/Malava/1450 on 15/12/2016
  2. 2.The Respondent is ordered to adequately compensate the petitioner for compulsorily acquiring his land
  3. 3.The Applicant is entitled to special damages incurred as a result of the violation amounting to Ksh. 332,701.50
  4. 4.Costs of the petition to be borne by the Respondent

Authorities

#

Legislation

  • Constitution of KenyaArticles 10, 20, 21, 22, 23, 27(4), 40(1)-(3), 65, 159(2)(d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 4(1), 10(1); Legal Notice No. 117 of 28 June 2013
  • Land ActSections 107 to 133; section 111 (as 'section III')
  • Land Acquisition Act (Cap 295, repealed)Section 3
  • Civil Procedure Act
  • County Government Act
  • Universal Declaration of Human Rights (1948)Article 17(1) and 17(2)

Cases cited (11)

  • Godfrey Paul Okutoyi vs. Habil Olaka & Central Bank of Kenya
    Petition No. 457 of 2015
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KRR 1272
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 Others
    (2013) eKLR
  • 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
  • Patrick Musimba vs. The National Land Commission and 5 others
    Petition No. 613 of 2014
Jurisdiction invoked
Articles 22, 40 and 159 of the Constitution of Kenya; Article 23 jurisdiction of the High Court (concurrent jurisdiction of the Environment and Land Court) for enforcement of the Bill of Rights

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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, "Christopher T Lilungu v County Government of Kakamega [2019] KEELC 3863 (KLR)", Case Analysis (2019). ELC Misc. Case No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3863/eng@2019-03-19

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