Wilfred Juma Wasike & 11 others v Ministry of Interior And Co-ordination & another [2022] KEELC 772 (KLR)

The court applied Anarita Karimi Njeru and Mumo Matemu, examining the pleadings to ascertain clarity and specificity rather than merits. The Petitioners identified the trespass, the Articles allegedly infringed (notably 40, 47 and 50) and described the manner of infringement in the Petition, affidavit and submissions. Judicial notice was taken of the irrelevant provisions.

The title deed and certificate of registration showed the Group existed when title was acquired; the 20/6/2020 date was an annual renewal. The Respondents adduced no evidence of fraud or irregular acquisition. Following Kipsiwo Community Self Help Group, members suing with a letter of authority have locus, since a Self-Help Group may own property but sues through its officials.

The Group is a private entity and the title contains no indication that it held the land in trust for the Government or any public body. Private land cannot be converted into public land by the Government asserting adverse possession; it can only become public land upon compulsory acquisition following the prescribed procedure.

The court reasoned from the state's radical title and Section 41 of the Limitation of Actions Act (which bars adverse possession over government land), invoking natural justice and fairness: the state cannot take private land by a mechanism it denies to citizens against itself. Adverse possession is a positive proprietary assertion requiring a counterclaim, which the Respondents never filed.

The Respondents never transferred the land, never gifted it (no donor or transfer documents), and took none of the steps under the Fair Administrative Action Act or the Land Acquisition Act - notice, hearing and prompt just compensation. Their unilateral occupation and erection of a police post on registered private land amounted to trespass and grave violation of property rights.

Guided by Gitobu Imanyara v Attorney General and Siewchand Ramanoop, the court held that constitutional damages are discretionary and aim to vindicate rights, not merely compensate. Loss of income was unproved, so a global award was made. Public interest in security services informed the alternative of negotiated compulsory acquisition.