James Shikwati Shikuku v County Government of Kakamega & 3 others; Isaac Shivachi Mutoka & 2 others (Interested Parties) eKLR [2019] KEELC 4131 (KLR)
The bottom line
#Kakamega County took land for a road without following compulsory acquisition rules, so the court ordered it to compensate the landowners.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents' conduct amounted to compulsory acquisition without compliance with Article 40(3) and the Land Act
Yes; the 1st and 2nd respondents' actions were illegal as they neither complied with the compulsory acquisition procedure nor made any compensation inquiry
The court held that compulsory acquisition rights flow from Article 40 of the Constitution and sections 107 to 133 of the Land Act. The 1st and 2nd respondents did not prove their actions were in accordance with the law, produced no Environmental Impact Assessment, and had not even commenced a compensation inquiry. The surveyor's report established encroachment, so the acquisition was unconstitutional and compensation must be paid.
Whether compensation is due to the petitioner and the interested parties
Yes; both the petitioner and interested parties have a right to compensation, the interested parties upon establishing proof of ownership
Because the taking was effected without consultation or compensation, the court found the right to compensation accrued. The orders extend to the interested parties but are conditional on their establishing proof of ownership of the parcels said to have been compulsorily acquired. Compensation must be prompt, in full and just, consistent with Article 40(3) and the Land Act.
Whether liability attaches to the 3rd and 4th respondents
No; no infringement by the 3rd (contractor) and 4th (Attorney General) respondents was established
The court found the evidence did not establish how the contractor and the Attorney General infringed the petitioner's rights, so the declarations and compensation order were confined to the 1st and 2nd respondents. The 4th respondent had argued the petition was fatally defective against it and did not disclose violations by it.
Legal principles established
#- The State may not deprive a person of property unless the deprivation is for a public purpose or in the public interest, carried out in accordance with the Constitution and an Act of Parliament requiring prompt payment in full of just compensation and access to a court of law
- In cases of compulsory acquisition the government must strictly adhere to the constitutional and statutory procedure, including prompt payment in full of just compensation; failure renders the acquisition illegal
Court orders
#- 1.A declaration that the Petitioner's protected right to property has been violated by the respondent's acts of encroachment onto, trespass upon and damage to the petitioner's property
- 2.A declaration that the encroachment onto, trespass upon and expropriation of the petitioner's property known as MARAMA/INAYA/1165 by the respondents for the expansion of the Elukaka-Mushilongo path without consultation of the petitioner is illegal and unconstitutional
- 3.The 1st and 2nd Respondents are ordered to adequately compensate the petitioners and interested parties for compulsorily acquiring their parcels
- 4.Cost of the petition to be borne by the 1st and 2nd Respondents
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act No. 19 of 2011; Articles 22 and 23 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Shikwati Shikuku v County Government of Kakamega & 3 others; Isaac Shivachi Mutoka & 2 others (Interested Parties) eKLR [2019] KEELC 4131 (KLR)", Case Analysis (2019). ELC Petition Case No. 8 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4131/eng@2019-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.