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ELCPartially AllowedPetition dated 28th March, 2018 (number not stated in judgment)· [2020] KEELC 395 (KLR)

Jamii Telecommunication Ltd v County Government of Uasin Gishu [2020] KEELC 395 (KLR)

Environment and Land Court of Kenya
9 December 2020
6,216 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Uasin Gishu County wrongly demolished Jamii Telecom's cables without notice, but because the cables lacked proper permits, the company won only Kshs.1 million, not Kshs.25 million.

What this practically means

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Executive summary

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Jamii Telecommunications Limited petitioned the Environment and Land Court at Eldoret against the County Government of Uasin Gishu, alleging that on 27th March 2018 county officers destroyed its optic fibre cables and poles at Elgon View Estate and other areas without notice, despite granted wayleaves. It sought a permanent injunction, declarations of unconstitutionality, restoration of infrastructure, Kshs.25,000,000 compensation, and damages for infringement of Articles 40 and 47. The Respondent countered that the Petitioner laid cables overhead without a development permission under Section 33 of the Physical Planning Act, and that its officers merely stopped unlawful works; it also raised non-exhaustion of internal remedies under the Fair Administrative Actions Act. The Court framed three issues: unlawfulness and breach of Articles 40 and 47; entitlement to relief; and costs. It found the wayleave permits authorised underground cable-laying by micro-tunneling and trenching, not overhead construction, and the Petitioner produced no permit for overhead works, defeating the Article 40 claim and the injunction, declaration and restoration prayers. However, the Respondent served no enforcement notice under Section 38 of the Physical Planning Act, thereby infringing the Petitioner's Article 47 right to fair administrative action and rendering the exhaustion objection untenable. Balancing both parties' blame, the Court awarded Kshs.1,000,000 for the Article 47 infringement, dismissed all other prayers, and ordered each party to bear its own costs. The judgment was delivered virtually at Eldoret on 9th December 2020 by S. M. Kibunja, Judge.

Key legal issues

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01

Whether the Petitioner had valid permits/wayleaves covering the overhead optic cable infrastructure

Holding

The permits issued authorised underground laying of cables by micro-tunneling and trenching, not overhead construction on poles; the Petitioner produced no permit for overhead cables.

Reasoning

The Court examined the three 'PERMIT TO LAY FIBRE OPTIC CABLE' documents and the 'APPLICATION FOR WAY LEAVE' letters. The permit conditions contemplated trenching, laying cable at depth and reinstatement of the ground, not planting of poles. The photographs showed poles being brought down, not excavation of underground cables. The Petitioner also did not show compliance with permit conditions such as KURA concurrence.

p. 5
02

Whether the Respondent's action without an enforcement notice infringed the Petitioner's rights under Articles 40 and 47

Holding

The Article 40 claim failed (no permit for the overhead works), but the failure to serve an enforcement notice under Section 38 of the Physical Planning Act infringed the Petitioner's right to fair administrative action under Article 47.

Reasoning

The Respondent did not avail evidence of an enforcement notice requiring the Petitioner to stop or comply before acting. The absence of the notice deprived the Petitioner of the right of appeal under Section 38(4) and (5), which would have triggered automatic discontinuance of works and stay of execution under subsection (7). Thus the Petitioner was denied fair administrative action, though its own conduct was also unlawful.

p. 8
03

Whether the petition was premature for failure to exhaust internal appeal mechanisms under the Fair Administrative Actions Act and the Physical Planning Act

Holding

Exhaustion would only have been required had an enforcement notice been served; since none was, the petition was not premature.

Reasoning

The Respondent argued the Petitioner should have appealed to the County and National Liaison Committees under Sections 13 and 15 of the Physical Planning Act and exhausted internal mechanisms under the Fair Administrative Actions Act. The Court held that those appeal routes are triggered by an enforcement notice under Section 38; without such notice the requirement of exhaustion does not arise and the petition was competent.

p. 7
04

What remedies flow from the infringement of Article 47

Holding

Nominal/moderate compensation of Kshs.1,000,000 awarded under prayer (e); the Kshs.25,000,000 claim and other prayers dismissed.

Reasoning

Guided by Miguna Miguna, Edward Akong'o Oyugi and Moi Education Centre, compensation for proved rights violations may be awarded to restore rights and deter violations. However, since the Petitioner lacked a permit for the overhead infrastructure, a large award would amount to profiting from public coffers for acting outside the law. Considering both parties' blame, Kshs.1,000,000 was deemed sufficient.

p. 8

Legal principles established

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  • A public body must act in accordance with statutory procedure (including service of an enforcement notice under Section 38 of the Physical Planning Act) before taking enforcement action against unapproved development; two wrongs do not make a right.
  • Where an enforcement notice under Section 38 of the Physical Planning Act has not been issued, the requirement to exhaust appeals to the County and National Liaison Committees before coming to court does not apply.
  • Compensation may be awarded for violation of constitutional rights where damage is proved, in the court's judicious discretion, to restore violated rights and deter future violations.
  • A party who acts outside the law cannot profit from public coffers by way of constitutional damages for loss flowing from its own unpermitted activities.

Court orders

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  1. 1.The Petitioner is awarded Kshs.1,000,000 against the Respondent for infringement of its constitutional right under Article 47 of the Constitution (Fair Administrative Action) as per prayer (e).
  2. 2.All the other prayers were found not proved and were rejected/dismissed.
  3. 3.Each party to bear its own costs.
Jurisdiction invoked
Article 22 and 258 of the Constitution (petition for enforcement of Bill of Rights); Section 93 of the Physical and Land Use Planning Act No. 13 of 2019 vesting disputes relating to physical and land use planning in the Environment and Land Court

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, "Jamii Telecommunication Ltd v County Government of Uasin Gishu [2020] KEELC 395 (KLR)", Case Analysis (2020). Petition dated 28th March, 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/395/eng@2020-12-09

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