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ELCDismissedConstitutional Petition No. 3 of 2018· [2020] KEELC 1117 (KLR)

Gregory Kiema Kyumaa v Cabinet Secretary, Ministry of Water and Irrigation & 2 others [2020] KEELC 1117 (KLR)

Environment and Land Court
7 October 2020
CMC. G. Mbogo
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his compensation claim because he never surveyed his land to prove how much was actually taken.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of Makueni/Kako/156 measuring 17.2 hectares, petitioned the Environment and Land Court at Makueni alleging that in 2017 the Respondents, through their agent Pioneer Engineering and Construction Company Limited, entered his land, excavated it to construct a water dam, created a public road through the parcel and fenced off the affected portion, all without notice, negotiation or compensation. He sought declarations that the Respondents' actions violated Articles 10, 40 and 47 of the Constitution and sections 107-133 of the Land Act, an award of damages, and orders directing a survey, valuation and compensation. The petition was undefended; the Respondents neither entered appearance nor filed replies, and it proceeded by written submissions. The court framed three issues: whether the Petitioner was arbitrarily deprived of his property without prompt and just compensation; whether the compulsory acquisition procedure was breached; and whether damages were payable. Holding that the Petitioner never procured a survey to establish the acreage taken or its value, and that his assertion that he 'believes' a portion was acquired was unsupported speculation, the court found the petition a fishing expedition. It also declined conservatory relief, noting it was never sought at the interlocutory stage and the project was complete. The petition was dismissed with no orders as to costs, given the Respondents' non-participation.

Key legal issues

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01

Whether the Petitioner's right to property under Articles 40 and 47 was violated by arbitrary deprivation without prompt and just compensation

Holding

The claim failed because the Petitioner did not prove that a portion of his titled land was taken; he conducted no survey and the evidence was speculative.

Reasoning

The Petitioner established registration of Makueni/Kako/156 measuring 17.2 hectares, but adduced no survey to show the extent of the alleged acquisition or its value. His deposition that he 'believes' a portion was compulsorily acquired, unsupported by evidence, could not sustain the claim. The court held the petition was a fishing expedition and doubted that a compensatable deprivation was proved. The land taken could even have been public land, though that too was speculation.

p. 3
02

Whether the Respondents breached the compulsory acquisition procedure under sections 107-133 of the Land Act

Holding

No breach could be surmised on the evidence, so damages could not be awarded.

Reasoning

The court reasoned that without proof of what land was acquired, it could not conclude that the statutory procedure for compulsory acquisition was breached. The Petitioner's counsel's submissions on the conservatory-order threshold were of no probative value, and the claim for damages premised on procedural breach necessarily failed with the petition.

p. 3

Legal principles established

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  • A petitioner alleging compulsory acquisition of land must adduce evidence, such as a survey, establishing the extent and identity of the land taken; mere belief that a portion was acquired is insufficient.
  • A party who fails to seek interim or conservatory relief during the pendency of a petition cannot obtain such relief at the point of final disposal, particularly where the impugned project is complete.

Court orders

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  1. 1.The Petition dated 26th March, 2018 was dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 10, 21, 22, 40, 40(3), 40(6), 43, 47, 165, 258, 259
  • Land ActSections 107-133

Cases cited (2)

  • Everlyn College of Design vs. Director of Children's Department & AG
    [2013] eKLR
  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
Jurisdiction invoked
Articles 22, 165, 258 & 259 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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Cite this brief

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Cite this brief

Caselaw, "Gregory Kiema Kyumaa v Cabinet Secretary, Ministry of Water and Irrigation & 2 others [2020] KEELC 1117 (KLR)", Case Analysis (2020). Constitutional Petition No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1117/eng@2020-10-07

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