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ELCPartially AllowedConstitutional Petition filed 17/10/2018 (Kilgoris ELC)· [2021] KEELC 2273 (KLR)

Nguruman Ltd v Attorney General & another (Environment and Land Petition 18 of 2018) [2021] KEELC 2273 (KLR)

Environment and Land Court
28 July 2021
3,850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's government must pay Nguruman Limited over Kshs 647 million plus yearly ecotourism losses because police failed to stop invasions of its land.

What this practically means

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Executive summary

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Nguruman Limited, the registered proprietor of LR Narok/Nguruman/Kamorora/1 measuring 26,993 hectares, petitioned under Articles 19, 20, 21, 22 and 258 of the Constitution, alleging that armed invasions of its land in 1991, 2000 and 2014 by members of Shompole and Ol Kiramatian Group Ranches amounted to arbitrary deprivation of property under Article 40, and that the state, particularly the Inspector General of Police and the County Commissioner, failed to enforce numerous court orders directing eviction of the occupiers and protection of the property. The petitioner sought declarations of violation of Articles 40, 29(c), 10 and 50 and compensation exceeding Kshs. 1.1 billion plus US dollar ecotourism revenue losses. The Attorney General opposed, arguing abuse of process, that enforcement was the petitioner's responsibility, and cross-petitioned for rectification of the title to reflect an adjudicated acreage of 6,970 hectares. By consent the petition proceeded to full trial, with the petitioner's director and a valuer testifying, and five defence witnesses including the former County Commissioner and the OCPD. The court framed two issues: whether the invasion constituted deprivation contrary to Article 40, and whether compensation was payable. Holding that the police totally failed in their statutory duty and applying Arnacheny Limited v Attorney General, the court found the petition proved on a balance of probabilities. It declared a violation of Article 40 and awarded Kshs. 33,350,000 for the land plus damages for destroyed lodges, infrastructure, assets, vehicles and trees and annual ecotourism revenue losses based on the uncontroverted valuation, with costs to the petitioner. Several heads of claim and the cross-petition were not granted.

Key legal issues

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01

Whether the invasions of the petitioner's land constituted deprivation of property contrary to Article 40

Holding

Yes - the respondents violated and infringed the petitioner's right to own property and its protection, and the petitioner proved its petition on a balance of probabilities

Reasoning

It was undisputed that invasions occurred in 1991, 2000 and 2014. Under Section 24 of the National Police Service Act, the police had a duty to maintain law and order and protect life and property, which they totally failed to discharge despite court orders directed at specific officers. Courts have no police force of their own and always call upon the National Police Service, so failure of that magnitude is an indictment on those charged with protecting citizens' property. Reliance was placed on Arnacheny Limited v Attorney General.

p. 7
02

Whether the petitioner is entitled to compensation

Holding

Yes, in part - compensation awarded for the land and for destructions and lost ecotourism revenue proved by an uncontroverted valuation report

Reasoning

The court accepted the valuation evidence of PW2, Mr Joseph Wanjau, which was not controverted by the respondents, and awarded the claimed sums for destroyed lodges, infrastructure, assets, vehicles and trees, plus annual ecotourism revenue loss in US dollars, with interest. Several other heads claimed (transport infrastructure, agricultural revenue, general and aggravated damages) were not granted.

p. 7

Legal principles established

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  • The state is liable where property of an individual is at stake to be taken by others without due process, and the National Police Service has a constitutional and statutory duty to protect property which it can be indicted for failing to discharge
  • The protection of the right to property under Article 40(1) and 40(3) is in absolute terms and can only be interfered with as stipulated in law

Court orders

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  1. 1.A declaration that the petitioner's rights to protection of property as guaranteed under Article 40 of the Constitution of Kenya 2010 was violated by the state
  2. 2.An order of compensation for LR Narok/Nguruman/Kamorora/1 of Kshs. 33,350,000
  3. 3.Kshs. 340,000,000 compensation for lodges and ancillary buildings destroyed pursuant to the invasion commenced 31/10/2014
  4. 4.Kshs. 162,000,000 compensation for electric power, water supply and reticulation infrastructure destroyed
  5. 5.Kshs. 61,177,196 compensation for loose assets, furniture and consumables destroyed or stolen
  6. 6.Kshs. 11,250,000 compensation for motor vehicles destroyed or stolen
  7. 7.Kshs. 39,470,400 for perennial trees destroyed or died
  8. 8.United States Dollars 9,198,000 per year from 1st November 2014 until date of judgment for loss of potential ecotourism revenue, with interest thereon until payment in full
  9. 9.Costs of the petition to the petitioners
Jurisdiction invoked
Articles 19, 20, 21, 22 and 258 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, "Nguruman Ltd v Attorney General & another (Environment and Land Petition 18 of 2018) [2021] KEELC 2273 (KLR)", Case Analysis (2021). Constitutional Petition filed 17/10/2018 (Kilgoris ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2273/eng@2021-07-28

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