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ELCDismissedConstitutional Petition No. 02 of 2018 (formerly Machakos Constitutional Petition No. 48 of 2013)· [2020] KEELC 3467 (KLR)

Billy Kikonde v National Land Commission & 2 others; N. Mbai & 10 others (Interested Parties) [2020] KEELC 3467 (KLR)

Environment and Land Court of Kenya
28 February 2020
MGMBOGO C. G.
3,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a man's claim to a settlement plot because he paid a deposit before ever receiving an offer letter, so no allocation was proved.

What this practically means

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Executive summary

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The Petitioner, Billy Kikonde, petitioned the Environment and Land Court at Makueni (the petition originally filed in Machakos as Petition No. 48 of 2013) seeking declarations that Plot No. 184 Masongaleni Settlement Scheme was lawfully allocated to him in or about 1990-1993, and that any subsequent allocation of the same plot to the eleven Interested Parties was null and void, with cancellation of any titles issued to them. He relied on Articles 27, 40 and 47 of the Constitution, alleging discrimination, deprivation of property and unfair administrative action after the 2nd Respondent allegedly reallocated the plot without hearing him. The 2nd and 3rd Respondents filed grounds of opposition, denying any constitutional violation and asserting the Petitioner had not proved an allocation; the 1st Respondent did not respond and the Interested Parties were never served. At the hearing by written submissions, the Respondents' counsel framed two issues: whether constitutional violations existed and whether the Petitioner was lawfully allocated the land. The court examined the letter of offer dated 16th October 1992 and the receipt showing payment of the 10% deposit on 11th February 1991 - nearly two years before the offer - and found the Petitioner could not explain the contradiction. Applying Wade and Forsyth on legitimate expectation, the court held no legitimate expectation arose from conduct predating any offer, and that the Petitioner failed to prove an allocation or any constitutional violation. The petition was dismissed with costs to the 2nd and 3rd Respondents on 28th February 2020.

Key legal issues

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01

Whether the Petitioner proved violation of Articles 27, 40 and 47

Holding

No constitutional violation was demonstrated; the Petitioner did not prove a lawful allocation of the plot

Reasoning

The court examined the letter of offer dated 16th October 1992 and the receipt for the 10% deposit paid on 11th February 1991, over a year before the offer. The Petitioner offered no explanation for this contradiction, so the court found no legitimate expectation and no proof of allocation, and held no constitutional violations were demonstrated.

p. 4
02

Whether the Petitioner had a legitimate expectation protecting the alleged allocation

Holding

No legitimate expectation arose because the deposit was paid before any offer was made

Reasoning

Relying on H.W.R. Wade and C.F. Forsyth on administrative law, the court reasoned that for an expectation to be legitimate it must be founded on a promise or practice by the public authority. Since no letter of offer existed when the deposit was paid, the Petitioner's expectation could not be legitimate and could not bind the 2nd Respondent.

p. 4

Legal principles established

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  • A party alleging contravention of a constitutional right must set out the right infringed and the particulars of the infringement; an expectation founded on conduct predating an official offer cannot be a legitimate expectation

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition are awarded to the 2nd and 3rd Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21, 27, 40, 47, 67, 156, 248(2)(b); Chapter 15

Cases cited (8)

  • Commissioner of Lands vs. Kunste Hold Ltd
    [1997] eKLR
  • John Mbugua Gitau vs. Simon Parkoyiet Mokare & 6 Others
    [2014] eKLR
  • J.P. Bansal vs. State of Rajastan & another
    Civil Appeal 5982 of 2001
  • Council of Civil Service Unions vs. Minister for Civil Service (CCSU case)
    (1985) AC 374 (408-409)
  • Vekariya Investments Ltd vs. Kenya Airports Authority & 2 others
    [2014] eKLR
  • Gitwany Investment Limited vs. Tajmal Limited and 3 Others
    Nairobi HCCC No. 1114 of 2002 [2006] eKLR
  • Wreck Motors Enterprises vs. Commissioner of Lands
    C.A No. 71/1997 (unreported)
  • Annarita Karimi Njeru
    [1979] KLR 154 and [1979] KLR 162
Jurisdiction invoked
Articles 21, 27, 40 and 47 of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms)

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, "Billy Kikonde v National Land Commission & 2 others; N. Mbai & 10 others (Interested Parties) [2020] KEELC 3467 (KLR)", Case Analysis (2020). Constitutional Petition No. 02 of 2018 (formerly Machakos Constitutional Petition No. 48 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3467/eng@2020-02-28

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