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ELCDismissedPetition No. 640 of 2015· [2019] KEELC 4588 (KLR)

Jandu Investment Limited v Attorney General & 2 others [2019] KEELC 4588 (KLR)

Environment and Land Court
4 February 2019
BEB M Eboso
2,765 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan landowners cannot claim compensation from the state for squatters until they first obtain an eviction order through the courts.

What this practically means

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Executive summary

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Jandu Investments Limited, the registered leasehold proprietor of L.R. No. 209/9633 in Nairobi's Industrial Area, petitioned the court seeking declarations that its property rights had been violated by the respondents' inaction in failing to evict approximately 5,000 squatters, that the continued occupation amounted to a constructive taking requiring compliance with Article 40(3) of the Constitution and Part VIII of the Land Act, and orders for full compensation including mesne rents since 2004. The respondents opposed, contending the petitioner bought the land aware of the squatters, failed to develop it within the period required by a special condition in the Grant, and had compromised related suits with the squatters through consent orders which it had failed to implement. The respondents also noted pending litigation between the petitioner and the squatters. The court, per B M Eboso J, held that although Article 40 guarantees the right to property, the duty to enforce that right lies with the property owner, who must assert it through the criminal justice process under the Trespass Act or the civil judicial process by obtaining an eviction order. Parliament's 2016 eviction framework (sections 152A-152H of the Land Act) reinforced this. The state's obligation to assist arises only after an eviction order has been obtained and enforcement support is refused. Since there was no evidence the petitioner had asserted or exhausted these remedies, the petition was premature and the prayers were declined, with each party bearing its own costs.

Key legal issues

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01

Whether the state's failure to evict squatters constitutes a constructive taking under Article 40(3)

Holding

No. The petitioner must first exhaust the legal remedies of obtaining and enforcing an eviction order before the state can be held liable for deprivation of property

Reasoning

The court held that enforcement of property rights lies with the owner, who must pursue the criminal justice process under the Trespass Act or civil judicial process to evict trespassers. Only where the state fails to support enforcement of an eviction order can the owner point an accusing finger at the state. The petitioner had taken no such steps, so its claim of constructive taking was premature.

p. 4
02

Effect of the eviction framework in sections 152A-152H of the Land Act

Holding

The statutory framework requires a landowner to serve an eviction notice and apply due process; it does not oblige the state to evict squatters on the owner's behalf

Reasoning

Parliament's 2016 framework expressly prohibits unlawful occupation of land and prescribes eviction procedures for public, community and private land. For private land, the owner or person in charge may serve a notice of not less than three months. This framework informed the court's view that the petitioner, not the state, must initiate eviction proceedings.

p. 3

Legal principles established

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  • Although the Constitution grants the right to own and enjoy property, the duty to enforce that right lies with the property owner, who must assert property rights through due process
  • A state's constitutional duty to protect property rights is triggered only after a landowner has obtained an eviction order and the state fails to assist in enforcing it

Court orders

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  1. 1.Prayers sought in the petition declined
  2. 2.Each party to bear own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20, 27, 35, 40, 43(1)(b), 47, 48, 65
  • Land ActPart VIII; Sections 152A to 152H
  • Trespass ActGeneral

Cases cited (2)

  • Muungano Wa Wanavijiji v Jandu Investments Limited
    Petition Number 402 of 2012
  • Peter Kengara v Jandu Investments Limited
    Constitutional Petition Number 869 of 2012
Jurisdiction invoked
Articles 10, 20, 27, 35, 40, 47 and 48 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Jandu Investment Limited v Attorney General & 2 others [2019] KEELC 4588 (KLR)", Case Analysis (2019). Petition No. 640 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4588/eng@2019-02-04

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