Mutegi Mugwetwa v Chief Officer Lands, Physical Planning, Housing, Urban Development, Environment and Natural Resources & 4 others [2020] KEELC 3731 (KLR)
The bottom line
#A Kenyan county government was ordered to pay KES 4 million for demolishing a homeowner's wall without proper notice or a hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner is the lawfully registered owner of the suit parcel of land known as Karingani/Ndagani/3880 situated at Tharaka Nithi County
- 2.Whether the Petitioner was given ample notice in respect of demolition of his perimeter wall
- 3.Whether the Petitioner was granted a fair hearing before demolition of his perimeter wall
- 4.Whether the Petitioner's rights under the Constitution have been breached and therefore he is entitled to compensation
- 5.Whether the Petitioner is entitled to immediate compensation and damages
- 6.Who shall bear the costs of the Petition
Key legal issues
#Registered ownership of the suit property
The Petitioner is the registered owner of Land Parcel No. Karingani/Ndagani/3880, title issued 3rd May 1996
The Petitioner produced a title deed issued by the Land Registrar on 3rd May 1996 (Exhibit MM-1), and the ownership was not controverted. Article 40 protects property rights, Article 60(1)(b) enshrines security of land rights and Article 64 recognises private land ownership, subject to lawful deprivation under Article 40(3).
Whether ample notice was given before demolition
No; the demolition was done without due process
The only notice was a general notice dated 16th January 2019 affixed on the wall and served on the day of demolition, not addressed to the Petitioner personally or stating reasons. The Respondents produced no evidence of proper service of an enforcement notice under Section 45 of the Physical Planning Act, shifting the burden to them under Section 107 of the Evidence Act.
Whether a fair hearing was accorded before demolition
No; the Petitioner was not accorded a fair hearing
Article 47(1) and (2) entitle a person to lawful, reasonable and procedurally fair administrative action and to written reasons. The Respondents did not give the Petitioner a hearing, did not explain the markings on the wall, did not provide documents relied on, and produced no minutes evidencing public participation, violating natural justice.
Whether constitutional rights were breached and compensation payable
Yes; breaches of Articles 10, 27, 40, 47 and 50 established and compensation awarded
Having found the demolition unlawful and without fair administrative action, the court held the Petitioner's rights were breached, entitling him to compensation under Article 23. However, the court was not satisfied prayers g, h and i were merited and awarded Kshs. 4,000,000/- rather than the claimed Kshs. 12,000,000/-.
Preliminary objection on jurisdiction (decided 22nd May 2019)
Preliminary objection dismissed; grounds raised factual issues and the ELC has original jurisdiction over land matters
The court found grounds 1 and 2 of the objection invited factual argument not fit for a pure point of law, and ground 3 (pecuniary jurisdiction) failed because the ELC has original and appellate jurisdiction over all land and environment matters. Costs were in the cause.
Legal principles established
#- A person facing demolition of property must be given ample notice and the demolition must comply with due process; failure to accord notice and a fair hearing renders the demolition unconstitutional
- Demolition of private property without a court order and without fair administrative action breaches Articles 40 and 47 of the Constitution and attracts constitutional compensation
- A party supervising demolition without a court order acts unconstitutionally
Court orders
#- 1.Permanent injunction issued restraining the Respondents, their servants and/or agents from further trespassing upon, encroaching, demolishing and/or dealing with Title Number Karingani/Ndagani/3880 measuring 0.405 Hectares
- 2.Order of prohibition issued barring the Respondents from further trespassing, encroaching, demolishing and/or further dealing with the suit property
- 3.Declaration that the Respondents' decision to demolish the Petitioner's perimeter wall was unconstitutional, null and void for breach of Articles 40, 47, 50 and 60 of the Constitution
- 4.Declaration that the 1st to 3rd Respondents' notice dated 16th January 2019 was unconstitutional, null and void for failure to serve the Petitioner with notice pursuant to Article 25(c), 47(2) and 50 of the Constitution
- 5.Declaration that the 4th Respondent's actions of supervising the demolition without a Court Order were unconstitutional, null and void pursuant to Article 10 of the Constitution
- 6.Order of judicial review in the form of prohibition barring the Respondents from carrying on further destructions, demolitions and/or interference with the Petitioner's residential home on the suit property
- 7.The 1st, 2nd and 3rd Respondents condemned to pay the Petitioner Kshs. 4,000,000/= for breach of his constitutional rights
- 8.Costs of the petition awarded to the Petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (constitutional petition under Articles 22, 23 - enforcement of Bill of Rights)
Relief refused
#Order of mandamus compelling the Respondents to reconstruct the demolished perimeter wall at their cost and restore the land to its original condition
Not satisfied that this prayer was merited
Alternative mandamus compelling the Respondents to compensate the Petitioner in the sum of Kshs. 12,000,000/= with interest
Court awarded Kshs. 4,000,000/= instead, finding the full claimed amount not merited
Declaration that all officers who authorized, enforced and/or supervised the demolition breached Chapter 6 of the Constitution and be permanently barred from occupying public office
Not satisfied that this prayer was merited
General damages (as separately prayed)
Subsumed in the Kshs. 4,000,000/= award; general damages not separately granted
Costs
Costs of this petition are awarded to the Petitioner. (On the preliminary objection, costs were 'in the cause'.)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
From the submissions filed by the parties, my unequivocal finding is that the petitioner was not given ample notice before his perimeter wall was demolished and that the demolition was done without obeisance to due process.
The answer is that the petitioner was not accorded a fair hearing before the perimeter wall was demolished.
A declaration is hereby issued that the Respondents decision to demolish the Petitioner's perimeter wall on property known as Karingani/Ndagani/3880 situated at Tharaka Nithi County is unconstitutional, null and void for being in breach of Articles 40, 47, 50 and 60 of the Constitution of Kenya, 2010.
For breach of the petitioner's constitutional rights, the 1st, 2nd and 3rd respondents are condemned to pay the sum of Kshs. 4,000,000/= to the petitioner.
Costs of this petition are awarded to the Petitioner.
In the circumstances, this Preliminary Objection is dismissed.
Issues in the judgment
#The judgment's preamble and 'MATTER OF' heading refer to Title 'KARINGA/NDAGANI3018' while the body of the petition and the orders consistently refer to parcel 'Karingani/Ndagani/3880' - an apparent typographical discrepancy in the parcel number
The Respondents' submissions cite 'Section 455 of the Physical Planning Act' while the Petitioner and the petition cite Section 45 of the same Act, an evident mis-citation in the record
The petitioner's own submissions inconsistently date the demolition, pleading it occurred on 2nd February 2019 while elsewhere describing it as 'Saturday, the 2nd February,2019' and in the submissions as 'Saturday,2nd February 2019'; 2nd February 2019 was a Saturday, so the references are reconcilable but inconsistently framed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutegi Mugwetwa v Chief Officer Lands, Physical Planning, Housing, Urban Development, Environment and Natural Resources & 4 others [2020] KEELC 3731 (KLR)", Case Analysis (2020). Chuka ELC Constitution Petition Case No. 01 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3731/eng@2020-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.