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ELCPartially AllowedELC Petition Case No. 8 of 2016· [2019] KEELC 4131 (KLR)

James Shikwati Shikuku v County Government of Kakamega & 3 others; Isaac Shivachi Mutoka & 2 others (Interested Parties) eKLR [2019] KEELC 4131 (KLR)

Environment and Land Court
20 March 2019
3,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, registered proprietor of Marama/Inaya/1165 in Kakamega County, petitioned under Articles 22, 23, 27, 40, 47 and 50 of the Constitution after the 1st and 2nd respondents, through the 3rd respondent contractor, encroached on his land in April 2016 to expand the Elukaka-Mushilongo path into a road, without consultation or compensation, and demolished his fence in breach of an interim court order. He sought declarations of violation and illegality, a permanent injunction, restitution, damages and costs; the interested parties supported the petition, claiming similar takings. The 1st and 2nd respondents argued the claim was a boundary dispute requiring a civil suit, that public interest prevailed, that the surveyor's report was inconclusive, and that the petition was overtaken by events. The Attorney General contended the petition disclosed no violation by it. The court characterised the matter as compulsory acquisition and held that such acquisition must strictly follow Article 40(3) of the Constitution and the Land Act, including prompt payment in full of just compensation. Since the respondents neither complied with that procedure nor even commenced a compensation inquiry, their actions were illegal and unconstitutional. The injunction was refused as overtaken by events, and no orders were made against the 3rd and 4th respondents. The court declared the petitioner's right to property violated and the expropriation illegal and unconstitutional, ordered the 1st and 2nd respondents to adequately compensate the petitioner and interested parties (the latter upon proof of ownership), and awarded costs against the 1st and 2nd respondents.

Key legal issues

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01

Whether the respondents' conduct amounted to compulsory acquisition without compliance with Article 40(3) and the Land Act

Holding

Yes; the 1st and 2nd respondents' actions were illegal as they neither complied with the compulsory acquisition procedure nor made any compensation inquiry

Reasoning

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.

p. 4
02

Whether compensation is due to the petitioner and the interested parties

Holding

Yes; both the petitioner and interested parties have a right to compensation, the interested parties upon establishing proof of ownership

Reasoning

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.

p. 4
03

Whether liability attaches to the 3rd and 4th respondents

Holding

No; no infringement by the 3rd (contractor) and 4th (Attorney General) respondents was established

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.The 1st and 2nd Respondents are ordered to adequately compensate the petitioners and interested parties for compulsorily acquiring their parcels
  4. 4.Cost of the petition to be borne by the 1st and 2nd Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 27, 40(1)-(3), 42, 47, 50(1), 65, 162(2)(b), Sections 2, 2(4), 3
  • Environment and Land Court ActSection 13 (Act No. 19 of 2011)
  • Land ActSections 107 to 133; section 111 (No. 6 of 2012)
  • Land Acquisition Act (re repealed)Section 3 (Cap 295)
  • Government Proceedings ActSection 16
  • Universal Declaration of Human RightsArticle 17(1) and 17(2)

Cases cited (12)

  • Kenya Guards & Allied Workers Union vs. Security Guards Services and 38 others
    HC. Misc. No. 1159 of 2003
  • Kenya Bus Services Ltd & 2 others vs. Attorney General & Another
    Misc. Civil Suit No. 413 of 2005
  • David Ramogi & 4 others vs. C.S. Ministry of Energy & Petroleum & 7 others
    (2017) eKLR
  • Rodgers Muema Nzioka vs. Attorney General
  • 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
  • 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
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

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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, "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.