Charles Opondo Ochieng & 2 others (All Suing on Their Own Behalf and on Behalf of Jacob Pepela & 112 others v Kabarak Farm Ltd & 19 others; County Government of Trans Nzoia & 7 others (Interested Parties) [2021] KEELC 4730 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a 2005 forced eviction of 26 farmers was illegal, awarding them damages, but refused to cancel the land titles.
What this practically means
#Executive summary
#Key legal issues
#Adequacy of pleading a constitutional petition
The petition, though prolix, satisfied the Anarita Karimi Njeru threshold by identifying the grievance, the constitutional provisions and the manner of infringement.
The court stressed that at the threshold stage only the manner of pleading matters, not the merits. The petition narrated the grievance (fraudulent transfer and eviction), cited the specific Articles and explained the manner of violation. Excess quotations and material were deprecated but did not defeat the petition.
Laches and multiplicity of suits
Laches was not established; the petitioners prosecuted Kitale HCCC No. 3 of 2006 (OS) from 2006 until its withdrawal in 2016 and filed the petition within about a year thereafter.
The claim was premised on the 2005 eviction. The prior suit, naming the first four respondents, remained alive until 2016, and the delay was not attributable to the petitioners. This also disposed of the multiplicity-of-suits objection.
Jurisdiction over historical land injustice claims
The ELC has jurisdiction; the NLC's mandate over historical injustices does not oust constitutional petitions before it.
Relying on Section 13 of the ELC Act and persuasive dicta of Munyao J in Kipsiwo, the court held that where the foundation of the case is land and a violation of rights relating to land is alleged, the ELC may hear the petition even where the historical-injustice mandate of the NLC is also engaged.
Propriety of the transfer of the suit land to the 20th respondent and derivative titles
Undeterminable in a petition; the court could not declare the titles of the 1st-6th respondents and third parties lawful or unlawful.
The copy of title was disorganised and omitted entries preceding the transfer to Kapsitwet. Alleged fraud and undervaluation needed documentary proof and cross-examination in a proper suit; the only other suit was a withdrawn adverse possession claim in which title challenge is impermissible.
Occupation and eviction of the petitioners
Only 26 petitioners proved on a balance of probabilities that they occupied the suit land and were evicted; the eviction was unlawful and effected by the 6th and 20th respondents.
Lacking identification documents, the court improvised a cross-referencing test across the petition, the criminal case charge sheet and the withdrawn 2006 civil suit; 26 names appeared consistently. No court order or notice preceded the eviction, which should have followed civil process.
Legitimate expectation of resettlement
Not established; no promise by the SFT or government to settle the petitioners was proved.
The Ndungu Commission Report showed settlement required purposing of land and applications to the SFT. The petitioners admitted they never applied for allocation, and no overt acts such as registration or balloting were shown. The expectation could not override existing registered private title.
Violations established and remedies
The rights to non-discrimination (Article 27), dignity, security, housing, socio-economic rights (Articles 28, 29, 43), fair administrative action and property (Article 40, limited to occupation and structures) were violated; unlawful arrest and malicious prosecution were proved against the 6th, 14th, 15th, 17th and 20th respondents; compensation awarded.
Eviction without notice or court order was cruel, inhuman and degrading and violated fair administrative action. Horizontal application of the Bill of Rights bound the 6th and 20th respondents as non-state actors. Following Mitubell, compensation was the appropriate remedy for completed evictions; declarations and monetary awards were granted accordingly.
Legal principles established
#- A constitutional petition founded on a historical land injustice is properly before the ELC notwithstanding the NLC's mandate over historical injustices.
- The right to housing need not be predicated upon title to land; government must protect those in informal occupation.
- A constitutional petition is not an ideal forum for determining contentious issues of fact requiring documents and cross-examination.
- Eviction without notice or court order of long-standing occupiers amounts to cruel, inhuman and degrading treatment contrary to Article 29(f).
- The Bill of Rights applies horizontally between private citizens.
Court orders
#- 1.Declaration that the named 26 petitioners were illegally and wrongfully evicted from land parcel No. LR. 2046 (IR No. 318/1) and their dwellings illegally demolished by the 6th and 20th respondents in collusion with the 14th, 15th and 17th respondents.
- 2.Declaration that the demolition and forced eviction without notice violated the petitioners' rights to human dignity, security of the person, housing, sanitation, health care, clean and safe water, freedom from hunger and fair administrative action under Articles 28, 29, 43(1), 20(5), 21 and 47.
- 3.Declaration that the 26 petitioners' right to acquire and own property was violated by their eviction.
- 4.Declaration that the arrest and prosecution of 15 petitioners in Kitale Criminal Case No. 1272 of 2005 was illegal and malicious.
- 5.General damages of Kshs.100,000 each awarded to the 15 petitioners for unlawful arrest, payable by the 6th, 14th, 15th, 17th and 20th respondents jointly and severally.
- 6.General damages of Kshs.100,000 each awarded to the 15 petitioners for malicious prosecution, payable by the 6th, 14th, 15th, 17th and 20th respondents jointly and severally.
- 7.General damages of Kshs.300,000 each awarded to the 26 petitioners for forcible and illegal eviction, borne jointly and severally by the 6th and 20th respondents only.
- 8.Costs of the petition borne by the 6th, 14th, 15th, 17th and 20th respondents jointly and severally.
- 9.Claims against the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 16th, 18th and 19th respondents and all interested parties dismissed with no orders as to costs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Charles Opondo Ochieng & 2 others (All Suing on Their Own Behalf and on Behalf of Jacob Pepela & 112 others v Kabarak Farm Ltd & 19 others; County Government of Trans Nzoia & 7 others (Interested Parties) [2021] KEELC 4730 (KLR)", Case Analysis (2021). Kitale ELC Petition No. 2 of 2017 (Amended Petition dated 8/10/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4730/eng@2021-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.