Wangai Gacheru v Kenya National Highways Authority & 2 Others [2020] KEELC 3109 (KLR)
The bottom line
#The Environment and Land Court dismissed a Kshs 45 million land compensation claim filed nearly 50 years after the acquisition, because the delay was inexcusable.
What this practically means
#Executive summary
#Key legal issues
#Limitation and inordinate delay in constitutional petitions
The Petition brought 46 years after the cause of action, or 33 years after the Petitioner's release from prison, was time barred and the delay inexcusable
The Petitioner failed to appeal under the Land Acquisition Act subsidiary rules after release in 1985 and did not act until 2016/2018. Relying on Joan Akinyi Kabaselleh and other authorities, the court held the delay unexplained, prejudicial to the Respondents given passage of time, and the petition an afterthought and abuse of process.
Ownership of Muguga/Gitaru/T.260
The Petitioner is not the lawful proprietor; the parcel was compulsorily acquired in 1972 as part of road works and the 2010 re-issued title was likely fraudulently obtained
The parcel was the subject of compensation correspondence in 1972. The Petitioner claimed loss of title only in 2010, some 25 years after release from prison, casting doubt on his claim that the title was lost while incarcerated. The court inferred the 2010 re-issue was obtained by misleading the Land Registrar.
Whether the compulsory acquisition was procedural
The court found the two parcels were procedurally acquired
Although the parcels did not appear in the gazette notices, there was a private agreement dated 24th May 1972 for the sale of 0.46 acres of L.R 161 to Milligan Company acting for the Commissioner of Lands, and T.260 was a road reserve for which ex gratia compensation of Kshs. 62 was paid. The Petitioner did not appeal the process when he could have.
Whether the Petitioner was compensated
The court found the Petitioner was duly compensated through his nominated mother, Mrs Kanyi Gacheru
Correspondence showed Kshs. 62 for T.260 and Kshs. 2,143 for L.R 161 were payable to Mrs Kanyi Gacheru, nominated by the Petitioner in a 1972 document. The Petitioner claimed she was a stranger but adduced no evidence to disprove she was his mother, failing to discharge the burden under sections 107 and 109 of the Evidence Act.
Violation of constitutional rights
No violation of Articles 40, 47, 50 or 27 was established
Having found the claim time barred, an abuse of process, the acquisition procedural and compensation paid, the court concluded the Petitioner's rights were never violated and he was not entitled to the orders sought.
Legal principles established
#- Although there is no limitation period for filing proceedings to enforce fundamental rights, a court is entitled to consider whether there has been inordinate and unexplained delay in lodging the claim
- A delay of 33 years after the Petitioner was released from prison, with no explanation, is inordinate and inexcusable; converting stale grievances into a constitutional petition is an abuse of process
- A party who alleges a fact bears the burden of proving it under sections 107 and 109 of the Evidence Act
Court orders
#- 1.The Petition is dismissed entirely with costs to the Respondents
- Jurisdiction invoked
- Article 40, 47, 50 and 27 of the Constitution of Kenya 2010 (constitutional petition enforcing fundamental rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wangai Gacheru v Kenya National Highways Authority & 2 Others [2020] KEELC 3109 (KLR)", Case Analysis (2020). Petition dated 7th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3109/eng@2020-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.