Susan Kakai (substituted with Simon Kampala Kakai) v Ministry of Co-operative Development & 2 others [2020] KEELC 694 (KLR)
The bottom line
#Kenya's courts can order the government to pay for land taken decades ago without compensation — even 47 years later.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit parcels and violation of Article 40(3)
Both parcels belonged to the Petitioner's family and portions were acquired by the Respondents without compensation, in violation of Article 40(3) of the Constitution
The Petitioner's sworn averments were not controverted by any replying affidavit; the Respondents' unsworn 'response to Petition' was not a proper rebuttal. The Green Cards, the former Chief's letter and the Government's surrender of the land after the co-operative society collapsed confirmed the family's ownership. Once the Petitioner alleged non-payment of compensation, the onus shifted to the Respondents, who had knowledge of any payment.
Limitation and delay in filing the Petition
There is no limitation period for petitions enforcing fundamental rights; the 47-year delay did not disentitle the Petitioner as there was no prejudice to the Respondents and the family had continuously pursued compensation
The causes of action arose 47 and 21 years earlier, but fundamental rights claims are not subject to the Limitation of Actions Act. The Petitioner and her husband were repeatedly assured of compensation and pursued their rights through Government offices. The Respondents filed no replying affidavit, so no prejudice from delay was shown. Equity and the national values in Article 10 weighed against allowing laches to defeat the claim.
Quantum of compensation
Special damages limited to the pleaded and proved valuation of Kshs. 350,000/=, and general damages of Kshs. 2,500,000/= awarded as reasonable
The valuation report by Chrisca Real Estates valued the freehold interest at Kshs. 350,000/= (Kshs. 300,000 for parcel 1014 and Kshs. 50,000 for the 0.06 Ha from parcel 811). As a special damage claim, the Court could award only what was pleaded and proved. Counsel's proposed figures of Kshs. 2,000,000/= and Kshs. 500,000/= for general damages were found reasonable.
Legal principles established
#- Where an affidavit is not challenged, the facts averred therein are essentially admitted
- The Limitation of Actions Act does not apply to claims for enforcement of fundamental rights and freedoms unless expressly stated in the Constitution
- In civil proceedings, facts especially within a party's knowledge must be proved or disproved by that party
- In special damage claims the court can only grant what was specifically pleaded and proved
Court orders
#- 1.A declaration that the manner in which the Petitioner's land was acquired was unconstitutional and contravened Article 40(3) of the Constitution
- 2.Special damages of Kshs. 350,000/=
- 3.General damages of Kshs. 2,500,000/=
- 4.Costs of the Petition to the Petitioner
- 5.Interest on (2) and (3): interest on special damages from the date of filing the Petition and interest on general damages from the date of Judgment
- Jurisdiction invoked
- Original constitutional jurisdiction under Article 40 of the Constitution (petition for enforcement of fundamental rights); Article 159(2)(d) invoked on case management
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.
- Miriam Wanjiru Ndiangui v Kenya Electricity Transmission Co Ltd[2023] KEELC 20125 (KLR)19 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Susan Kakai (substituted with Simon Kampala Kakai) v Ministry of Co-operative Development & 2 others [2020] KEELC 694 (KLR)", Case Analysis (2020). Petition dated 14th April 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/694/eng@2020-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.