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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 15 (KLR)

Kubai v Ministry of Public Health & 2 others; National Land Commission (Interested Party) (Environment & Land Petition 145 of 2018) [2022] KEELC 15 (KLR)

Environment and Land Court
5 May 2022
MNMwangi Njoroge
4,096 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner whose land was occupied by a public health facility won Ksh 20 million in damages plus compensation, but could not evict the facility.

What this practically means

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Executive summary

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Christine Kubai petitioned the Environment and Land Court at Nakuru claiming that her parcels LR Nos Kijabe/Kijabe Block 1/4037 and 1/4038, registered in her name in 1991, were entered into and occupied by the 1st respondent in 1993 on an understanding that compensation equal to market value would be paid. Her late husband, a former MP, had pursued the compensation until his death in 1996. A health centre (Maai Mahiu Health Centre) was built on the land and is now run by the 3rd respondent following devolution of health services. The petitioner sought declarations of violation of Article 40, compensation, damages for trespass, and alternatively vacant possession. None of the respondents or the interested party filed responses; the matter proceeded on the petitioner's uncontroverted case and written submissions. The court found the petitioner's registered title protected under sections 28 RLA, 25(1) and 26(1) LRA and Articles 40(1) and 40(3) of the Constitution, holding that no compensation was demonstrated to have been paid and the occupation constituted trespass and a constitutional violation. It held the 3rd respondent equally liable with the 1st respondent. However, because an operational public health institution stands on the land, the court put public interest first and declined vacant possession. It awarded Ksh 20,000,000/= general damages for trespass (assessed by reference to the 9.98-acre size, prime Maai Mahiu location and 29 years of occupation), ordered the respondents to commence and perfect compulsory acquisition and pay just compensation within 365 days, and awarded the petitioner costs jointly and severally against the respondents.

Key legal issues

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01

Violation of the right to property under Article 40

Holding

The petitioner established ownership and uncontroverted deprivation of her land without compensation, violating Articles 40(1) and 40(3)

Reasoning

Certificates of official search showed the petitioner as registered proprietor since 1991 with no encumbrances. The respondents never filed responses, never asserted that compensation was paid, and failed to demonstrate any defect in title or a lawful compulsory acquisition. The statutes protecting sanctity of title (RLA s.28, LRA ss.25 and 26) safeguard the Article 40 rights. The 3rd respondent is equally liable as it now runs the health centre on the land under devolution.

p. 8
02

Liability of the 3rd respondent under devolution

Holding

The 3rd respondent, which now runs the health centre, is as liable as the 1st respondent

Reasoning

The health centre built by the 1st respondent is now operated by the 3rd respondent pursuant to the devolution of health services under the Constitution; since it will continue occupying the land, it is just to hold it equally liable with the 1st respondent.

p. 7
03

Quantum of damages for trespass

Holding

General damages for trespass assessed at Ksh 20,000,000/= having regard to the size, location and duration of occupation

Reasoning

Trespass being actionable per se, damages are assessed on the facts of each case. The court drew on Park Towers, Aster Holdings and Belgo Holdings, noting the suit lands measure 9.98 acres in a prime, fast-expanding urban location and have been occupied for 29 years without compensation. The petitioner's own valuation reports could not be used as conclusive proof of value as they were not properly before the court.

p. 8
04

Vacant possession versus public interest

Holding

Vacant possession refused because an operational public health facility occupies the land; prompt compensation ordered instead

Reasoning

Though the declarations were deserved, issuing an eviction-type order would close a health institution. Public health is a matter of serious public interest, as the COVID-19 pandemic demonstrated, so the court elected for declarations, damages and an order to commence and perfect compulsory acquisition with payment within 365 days.

p. 5

Legal principles established

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  • A registered proprietor's title is indefeasible and the State may not deprive a person of property without prompt payment of just compensation in accordance with Article 40(3)
  • Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages
  • Where the State wrongfully occupies private land on which a public institution stands, the court may order compensation and damages rather than eviction, putting public interest first

Court orders

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  1. 1.Declaration that the 1st and 3rd respondents' taking of possession of LR Nos Kijabe/Kijabe Block 1/4037 and 1/4038 amounts to trespass and a gross violation of Article 40
  2. 2.Declaration that the respondents have no right to interfere with the suit properties without due process of compulsory acquisition under Article 40(3)
  3. 3.Declaration that the respondents are liable to compensate the petitioner for acquisition and deprivation of her properties
  4. 4.General damages of Ksh 20,000,000/= for trespass and violation of constitutional rights from 1993 to date, payable by the 1st and 3rd respondents
  5. 5.The respondents and interested party to commence and perfect compulsory acquisition of the suit properties and promptly pay appropriate compensation within 365 days
  6. 6.Respondents to jointly and severally pay the petitioner's costs
Jurisdiction invoked
Article 40 of the Constitution of Kenya 2010 (protection of right to property), enforced by petition in the Environment and Land Court

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, "Kubai v Ministry of Public Health & 2 others; National Land Commission (Interested Party) (Environment & Land Petition 145 of 2018) [2022] KEELC 15 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15/eng@2022-05-05

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