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ELCAllowedELC Petition No. 3 of 2019· [2020] KEELC 1469 (KLR)

Braeburn Schools Limited v County Commissioner, Laikipia County & 5 others [2020] KEELC 1469 (KLR)

Environment and Land Court
23 July 2020
MOM.C. Oundo
5,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Braeburn Schools Limited petitioned the Environment and Land Court at Nyeri, alleging that on 23rd July 2019 the County Commissioner, Laikipia County, acting on the direction and sanction of the Cabinet Secretaries for Industry, Trade and Co-operatives and for Interior, and the Inspector General of Police, invaded its property L.R. No. 12503 Nanyuki, evicted it and its tenants without notice, reason or hearing, and stationed police officers on the land for three months until a consent of 17th October 2019 secured their withdrawal. The Petitioner, registered owner since 28th September 2009 after purchasing the complex from Kenya Fiber Corporation (in receivership) for Ksh 40,000,000/=, sought declarations, a permanent injunction and damages. The Respondents, despite leave and directions, never filed responses or submissions, so the petition proceeded unopposed. The court, framing three issues, applied the Anarita Katimi Njeru standard, found the pleadings precise, and held that the Petitioner's title under sections 24, 25 and 26(1) of the Land Registration Act was indefeasible and unimpeached; that even allegedly illegally acquired property cannot be dispossessed without due process; and that the eviction without notice or hearing violated Articles 40, 47 and 50(1) of the Constitution and section 4 of the Fair Administrative Actions Act. Noting the absence of valuation evidence, the court nonetheless awarded Ksh 1,000,000/= as prayed, reasoning the trespass was oppressive, arbitrary and unconstitutional action by servants of government, and awarded costs at a lower scale given the undefended petition.

Key legal issues

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01

Whether the Respondents' invasion, eviction and continued stationing of police officers on L.R. No. 12503 Nanyuki violated the Petitioner's constitutional rights

Holding

Yes. The uncontroverted evidence established that the 1st to 4th Respondents, acting without colour of right, notice or hearing, trespassed on and evicted the Petitioner from its property, violating Articles 40, 47 and 50(1) of the Constitution and section 4 of the Fair Administrative Actions Act.

Reasoning

The Petitioner proved it was the registered owner of the suit land since 28th September 2009, having purchased it from Kenya Fiber Corporation (in receivership) for Ksh 40,000,000/=. Its title, protected under sections 24, 25 and 26(1) of the Land Registration Act, was never impugned. The Respondents filed no response, so the facts were uncontroverted. The consent of 17th October 2019 confirming withdrawal of police officers proved the trespass. Deprivation of property without notice, reasons or hearing breached Article 40(3) and the fair administrative action guarantees.

p. 7
02

Whether the Petitioner, as a bona fide purchaser for value, was entitled to protection of its title

Holding

Yes. The Petitioner purchased the property for value without notice of fraud or illegality, and no evidence was led to show the title was procured fraudulently or through a corrupt scheme.

Reasoning

The court invoked section 26(1) of the Land Registration Act, which makes a certificate of title prima facie evidence of absolute and indefeasible ownership, and the Court of Appeal decision in Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua. With no response filed, no evidence established fraud, misrepresentation or corrupt acquisition, so the title could not be challenged and the Petitioner's possessory rights fell within Article 40's protection.

p. 8
03

What damages were payable for the constitutional trespass

Holding

General damages of Ksh 1,000,000/= as prayed, the trespass constituting oppressive, arbitrary and unconstitutional action by servants of government justifying exemplary damages.

Reasoning

Although the Petitioner adduced no evidence of the value of the property after the trespass, making assessment of ordinary general damages difficult, the court invoked the principle in Mikidadi v Khaigan that exemplary damages are available for oppressive, arbitrary or unconstitutional action by servants of government. The Respondents' three-month occupation of the land after the eviction qualified, and the sum of Ksh 1,000,000/= sought was awarded.

p. 8

Legal principles established

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  • A registered proprietor holds an indefeasible title that cannot be dispossessed without due process, even where the property is alleged to have been unlawfully acquired.
  • State deprivation of property without notice, reasons or a hearing violates Articles 40, 47 and 50(1) of the Constitution and section 4 of the Fair Administrative Actions Act.
  • A constitutional petitioner must plead with reasonable precision the provisions infringed and the manner of infringement, as per Anarita Katimi Njeru.

Court orders

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  1. 1.Petition allowed as prayed
  2. 2.Permanent injunction restraining the Respondents and any other public officers acting on their instructions from entering, breaking, demolishing, destroying, evicting, defacing, flattening or in any way interfering with the Petitioner's property on L.R. No. 12503 Nanyuki
  3. 3.Declarations that the 1st to 4th Respondents' actions of invading, trespassing upon and evicting the Petitioner and its tenants from L.R. No. 12503 Nanyuki on 23rd July 2019 were unconstitutional and violated the Petitioner's rights under Articles 40, 47 and 50(1) of the Constitution
  4. 4.General damages of Kshs 1,000,000/= awarded to the Petitioner for the oppressive, arbitrary and unconstitutional trespass by servants of the Government
  5. 5.Costs of the petition awarded at a lower scale since the petition was undefended

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 40, 47, 50(1), 60(v), 65, 162(2), 258 and 68(v)
  • Land Registration ActSections 24(a), 25(1), 26(1)(a) & (b), 28
  • Fair Administrative Actions ActSections 4(1), (2), (3), (4) and 6
  • Trespass ActSection 3(1)
  • Lands ActCap 2012 (as cited in the cause title)
  • National Land Commission Act2012

Cases cited (12)

  • Milka Muthoni Wagoco vs County Council of Kirinyaga & 2 Others
    [2017] eKLR
  • David Mawura Mawngi vs County Government of Kiambu & Another
    [2019] eKLR
  • Kiplangat Shelisheli Mutarakwa vs Joseph Rotich Kones
    [2018] eKLR
  • Peter Okenagwa Oyaro vs National Land Commission & Another
    [2019] eKLR
  • Elizabeth Wambui Githinji & 29 Others v Kenya Urban Roads Authority & 4 Others
    [2019] eKLR
  • Katende vs Haridar & Company Limited
    [2008] 2 EA 173
  • Anarita Katimi Njeru vs The Republic
    (196-1980) KLR 1272
  • Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 Others
    [1997] eKLR
  • Adan Abdirahani Hassan and 2 Others v The Registrar of Titles and Others
    [2013] eKLR
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Hostler – VS – Green Park Development Co.
    986 S.W 2d 500 (No. App. 1999)
  • Mikidadi – vs – Khaigan and Another
    [2004] eKLR 496
Jurisdiction invoked
Articles 10, 22, 23, 162(2) and 258 of the Constitution of Kenya

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, "Braeburn Schools Limited v County Commissioner, Laikipia County & 5 others [2020] KEELC 1469 (KLR)", Case Analysis (2020). ELC Petition No. 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1469/eng@2020-07-23

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