Mercy Munjiru Waiguru v Julias Musili Mawathe & 3 others [2022] KEELC 300 (KLR)
The bottom line
#A Nairobi court awarded a landowner over Kshs. 38 million because the government demolished her buildings without proving they encroached on a road reserve.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the Petitioner's title over the suit properties
The Petitioner followed lawful due process in obtaining title, and her titles are legal and legitimate.
The suit properties were subdivided from a larger private parcel registered to Orbit Chemical Industries Limited; the vendor engaged expert surveyors who liaised with the Director of Survey, prepared the mutation, survey plan, Part Development Plan and instruments, and the Petitioner was registered and issued with title documents. The court held the sanctity of title, issued under the seal of the Republic, could not be washed away by mere allegations, and adopted the Ocean View Plaza decision on compulsory acquisition.
Whether the suit properties encroached onto the nine-metre road reserve
The Respondents failed to prove the alleged encroachment because no survey report or demolition notice was exhibited.
Although the 3rd and 4th Respondents averred that surveyors had marked encroaching structures and that the Petitioner was notified to remove them, neither a survey report nor a copy of the notice was annexed to the Replying Affidavit. Applying Sections 107 and 108 of the Evidence Act, the court held that the Respondents, as the parties asserting encroachment, bore the burden of proof and had failed to discharge it, rendering their averments hollow and of no probative value.
Whether the properties were illegally acquired and thus outside Article 40 protection
The allegation that the suit properties were illegally acquired public land was a red herring; the Petitioner is entitled to Article 40 protection.
The larger parcel belonged to a private developer and was private land. No governmental agency had commenced proceedings to declare it public or illegally acquired, and no proceedings challenged the legality of the Orbit Chemical Industries title. Citing Isaac Gathungu Wanjohi, the court held that the State must use due process to establish illegality, since Article 40(6) contemplates a finding of unlawfulness by due process, and admonished state organs to respect private property.
Compensation and quantum
The Petitioner was awarded Kshs. 18,256,365 as restoration costs per an uncontroverted valuation report, and Kshs. 20,000,000 as damages for violation of Article 40(1) rights; the rental income claim was dismissed.
The demolition, which was not denied, violated the Petitioner's constitutional rights and caused quantifiable loss. The valuation report by registered valuer Robert S. Nzioki was never challenged or controverted, so the court adopted its total value. The continued heaping of soil in front of the premises was held a continuing violation of Article 40(1), justifying Kshs. 20,000,000 in constitutional damages. The claim for lost rental income was not proven.
Legal principles established
#- A registered owner's title can only be taken away through due process of law, including compulsory acquisition, and not by unilateral state action.
- A party alleging that land was illegally acquired or is public land must establish that assertion through due process before a court; it cannot simply be asserted as a defence to a property-rights claim.
- A party asserting encroachment bears the burden of proving it; unproved averments unsupported by survey reports or notices have no probative value.
Court orders
#- 1.A Declaration that the demolition of the Petitioners/Applicants properties Nairobi/Block/263/961, Nairobi/Block/263/962, and Nairobi/Block/263/963 situated in Mukuru by the Respondents is illegal, irregular, unprocedurally and contrary to Articles 27, 28, 40, and 43 of the Constitution and is therefore null and void.
- 2.A Declaration that the forceful, irregular and unlawful eviction and demolition of the Petitioners/Applicants property and the tenants therein, without a relocation option is illegal, oppressive and violates the rights of the Petitioner's tenants.
- 3.A Declaration that the intended forceful, irregular and unlawful eviction and demolition of the petitioner's property and the tenants therein is illegal, oppressive and violates the rights of the Petitioner and those of her tenants.
- 4.A Declaration that the intended plan by the Respondents to further demolish, evict, harass, threaten and interfere with the Petitioner and her Tenants' use, occupation and quiet enjoyment of the property is illegal, oppressive and violates rights under Article 40.
- 5.An Order restraining any further Demolition and/or forceful Eviction by the Respondent against the Petitioner and her tenants.
- 6.An Order of immediate restitution of the Petitioners and her tenants into the suit property.
- 7.Compensatory damages of Kshs. 18,256,365.00 being the cost of restoration of the demolished premises to the status ante.
- 8.Damages for breach, violation and/or infringement of constitutional rights in the sum of Kshs. 20,000,000.
- 9.Costs of the Petition awarded to the Petitioner.
- 10.The claim for loss of rental income dismissed as unproven.
- Jurisdiction invoked
- Constitution of Kenya, 2010 - Articles 23, 27, 28, 40 and 43 (bill of rights enforcement petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mercy Munjiru Waiguru v Julias Musili Mawathe & 3 others [2022] KEELC 300 (KLR)", Case Analysis (2022). Amended Petition dated 24th November 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/300/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.