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ELCDismissedPetition dated 30th January 2018 (transferred from High Court, Homa-Bay, to the Environment and Land Court)· [2021] KEELC 1768 (KLR)

Shem Ogola Okech v Homa-Bay County Government & 2 others [2021] KEELC 1768 (KLR)

Environment and Land Court
28 September 2021
GOG. M. A. Ongondo
2,767 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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A Homa Bay landowner lost his constitutional claim over road works on his land because his petition was vague and his damages claim unproven.

What this practically means

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Executive summary

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The petitioner, Shem Ogola Okech, registered proprietor of title No. West Karachuonyo/Koko/B/343 in Homa Bay County, petitioned alleging that on 27th July 2016 employees of the 1st respondent (Homa-Bay County Government) entered his property without notice and destroyed his homestead during expansion of the Kanaam Nyangweso URA-22 road, a project contracted to the 3rd respondent (Nairobi Logistics and Construction Company Ltd) and associated with the 2nd respondent (Kenya Rural Roads Authority). He sought a conservatory order, declarations that the entry contravened Article 40, general damages, an injunction and costs. Originally lodged in the High Court at Homa-Bay, the petition was transferred to the Environment and Land Court. The respondents opposed: the 1st respondent contended part of the property was road reserve acquired for public purpose under Articles 24 and 40(3) and the Land Act; the 2nd and 3rd respondents denied the claim and sought dismissal. Deciding on affidavit evidence and written submissions, and adopting the issues framed by the 1st respondent, Ongondo J held the petitioner failed to plead his complaint with the precision required by Anarita Karim Njeru v Republic, rendering the petition speculative. The petitioner also failed to plead and prove special damages despite a valuation report estimating damage at Kshs. 545,000, which the court treated as merely persuasive, and failed to prove entitlement to the conservatory order, declaration, injunction and general damages. The petition dated 30th January 2018 was dismissed in its entirety, and, invoking the proviso to section 27(1) of the Civil Procedure Act, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the petitioner's Article 40 right to property was violated

Holding

The petition failed because the petitioner did not plead and prove the violation with the precision required; the petition was dismissed

Reasoning

Applying Anarita Karim Njeru, the court found the petitioner failed to demonstrate with reasonable precision the complaint, the provisions infringed and the manner of infringement. The petition was speculative, echoing Wang'ondu. The claim for conservatory order, declaration, injunction and general damages was not proved, and special damages were neither pleaded nor proved.

p. 4
02

Whether special damages of Kshs. 545,000 per the valuation report was payable

Holding

No - special damages must be pleaded and proved; the valuation was merely persuasive

Reasoning

The valuation report by Dantu Valuers Ltd estimating damage at Kshs. 545,000 was held to be merely persuasive. Relying on Great Lakes Transport v KRA, the court reiterated that a claimant must both plead and prove special damages; the petitioner did neither, so no damages could be awarded.

p. 4
03

Whether entry onto the suit property for road works violated Article 40

Holding

Deprivation of private property for public purpose is permissible under Article 40(3) and (4) subject to due process and just compensation; but the petitioner's claim failed on proof

Reasoning

The court acknowledged that state deprivation of private property for public purpose is permitted if done in conformity with the Constitution and an Act of Parliament with prompt and just compensation, citing Onyango v Town Council of Awendo and the Shalien Mughal decision. Entry upon land is governed by sections 151 and 152 of the Land Act requiring notice. However, the petitioner's case failed on precision and proof rather than on this ground alone.

p. 3

Legal principles established

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  • A constitutional petition must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement
  • Compulsory acquisition of private property must strictly conform with constitutional provisions and be done in good faith
  • A claimant must plead and prove special damages
  • The constitutional court should not be used to determine ordinary civil disputes masquerading as rights litigation

Court orders

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  1. 1.The petition dated 30th January 2018 is dismissed
  2. 2.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 3, 6(3), 22(1), 23(3), 24, 25, 258(1), 27, 28, 40, 48, 159(2)(a),(d),(e)
  • Land ActSections 107, 110, 151, 152, 152(2)
  • Environment and Land Court Act, 2015 (2011)Sections 13(3), 19(1)
  • County Governments ActSection 95
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 2 (definition of 'Suit'); Section 27(1) proviso

Cases cited (12)

  • Kiambu County Tenants Welfare Association vs Attorney General and another
    (2017) e KLR
  • Gujral Sandeep Singh Ragbir vs Minister of Public works Roads and Transport County Government of Kajiado and another
    (2018) e KLR
  • Kenya National Highway Authority vs Shakien Masood Mughai and 5 others
    (2017) e KLR
  • Ernest C.O. Muga vs Attorney General
    (2018) e KLR
  • John Githinji Wangondu and 6 others vs Nyeri South Sub County Co-operative officer and 3 others
    (2019) e KLR
  • Anarita Karim Njeru vs Republic
    (1979) eKLR
  • Great Lakes Transport Company (U) Ltd vs Kenya Revenue Authority
    (2009) KLR 720
  • Christopher Gatuiri vs Commissioner of Police
    (2008) eKLR
  • Isaac Gathungu Wanjohi and another vs The Honourable Attorney General and 6 others
    (2012) eKLR
  • Eunice Grace NJambi Kamau and another vs The Hon. Attorney General and others
    (2013) eKLR
  • Onyango and others vs Town Council of Awendo
    (2010) 1 EACA 321
  • Re Kisima Farm Ltd
    (1978) KLR 36
Jurisdiction invoked
Articles 22(1), 23(3) and 258(1) of the Constitution; section 13(3) of the Environment and Land Court Act, 2015 (petition transferred from the High Court under Article 159(2)(a),(d),(e))

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, "Shem Ogola Okech v Homa-Bay County Government & 2 others [2021] KEELC 1768 (KLR)", Case Analysis (2021). Petition dated 30th January 2018 (transferred from High Court, Homa-Bay, to the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1768/eng@2021-09-28

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