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ELCDismissedELC Petition Case No. 2 of 2019· [2020] KEELC 1606 (KLR)

Fredrick Manoah Egunza & 10 others v County Government of Vihiga & 6 others [2020] KEELC 1606 (KLR)

Environment and Land Court
28 July 2020
NMN.A. Matheka
2,679 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The court dismissed landowners' eviction compensation claim because their petition failed to identify the exact land or prove their connection to it.

What this practically means

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Executive summary

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Eleven petitioners, said to represent about 1,500 persons, petitioned the Environment and Land Court at Kakamega alleging that in 1985, without notice or due process, government agents forcefully evicted them from freehold parcels to make way for the Vihiga County Headquarters, County and Referral Hospital, Main Prison, Mbale Police Station and regional headquarters. They claimed homes were demolished and graves desecrated, that they were dumped at the edge of Kakamega Forest Reserve and resettled on un-surveyed forest land at Musunji village without compensation, contrary to Articles 28, 40 and 47(2) of the Constitution. They sought declarations that the respondents' actions were null and void, compensation at current market value for all 1,500 petitioners, prioritised settlement, and costs. The respondents countered that no certificates of title were produced, the searches annexed showed no nexus between the petitioners and the titles, alternative land had been given, and the petition, filed 35 years later, failed the constitutional petition threshold and was an abuse of process. The petition was determined on written submissions. The court applied the Anarita Karimi Njeru principle, as clarified in Trusted Society and reaffirmed in Mumo Matemu, and found the petition fatally lacking in precision: the schedule did not disclose the land in dispute and the search certificates did not link the 1,500 petitioners to the parcels. Following Hezekiah Mavisi Ondego, the court noted the petitioners were relocated to alternative parcels, their claim to the National Land Commission being for title deeds. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the constitutional petition met the required standard of precision

Holding

The petition failed the Anarita Karimi Njeru test because it did not identify with precision the particular property claimed

Reasoning

The court perused the annexed schedule and found the land under dispute was not disclosed. Several search certificates did not show the nexus between the land and the 1,500 petitioners. Since petitioners alleged violation of fundamental rights, they bore the duty to plead their case with particularity, identifying the property and the provisions said to be infringed. Without an identified parcel, the court could not determine the alleged contravention of Articles 28, 40 and 47(2).

p. 4
02

Whether prior relocation to alternative land defeated the claim

Holding

Acceptance of alternative parcels extinguished any residual claim, as in the Ondego case

Reasoning

It was not in dispute that the petitioners were relocated to and given alternative parcels at Musunji village. Following Hezekiah Mavisi Ondego, where petitioners relocated in exchange for their parcels, the court held that proprietary interest in the original land was extinguished and the petition unmerited. The petitioners' documents showed their claim to the National Land Commission was for issuance of title deeds, not compensation for unconstitutional deprivation.

p. 4

Legal principles established

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  • A person seeking redress on a constitutional matter must set out with reasonable precision the provision infringed and the manner of infringement
  • Where further facts are needed to resolve a dispute over land, the petitioner ought to bring a civil claim rather than a constitutional petition
  • The Universal Declaration of Human Rights has the force of law in Kenya and courts presume Parliament legislates in accordance with it

Court orders

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  1. 1.The petition is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40; Articles 28, 47(2), 64, 65, 27(4), 10; Chapter Five; repealed section 75
  • Land Act 2012Part VIII (Compulsory Acquisition of Interest in Land)
  • Land Acquisition Act Cap 295 (repealed)Section 3

Cases cited (6)

  • R vs Chief Immigration Officer
    (1976) 3 AER 843
  • Republic v Council of Legal Education Ex-parte Nyabira Oguta
    (2016) eKLR
  • Anarita Karimi Njeru vs. The Republic
    (1976-1980) eKLR 1272
  • Trusted Society of Human Rights Alliance vs. Attorney General & 2 others
    Petition No. 229 of 2012
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance and others
    Nairobi Civil Appeal No. 290 of 2012
  • Hezekiah Mavisi Ondego & 8 others vs. County Government of Vihiga & another
    (2018) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court under Article 40, 28 and 47(2) 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, "Fredrick Manoah Egunza & 10 others v County Government of Vihiga & 6 others [2020] KEELC 1606 (KLR)", Case Analysis (2020). ELC Petition Case No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1606/eng@2020-07-28

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