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ELCDismissedPetition dated 4th December, 2020· [2022] KEELC 874 (KLR)

Patrick Kithinji Mugambi v National Land Commission & 2 others [2022] KEELC 874 (KLR)

Environment and Land Court
10 March 2022
MGM.N. Gicheru
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kitengela landowner lost his compensation claim because he couldn't prove his land was actually gazetted for compulsory acquisition or that the leftover portion was worthless.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of parcels KAJIADO/KITENGELA/38936, 38937 and 38938, petitioned for declarations that his rights under Articles 40(3) and 47(1) of the Constitution were violated, together with damages and fair compensation, arising from the compulsory acquisition of his land for the Standard Gauge Railway phase 2A. He alleged awards of Kshs. 1,704,300 made on 25th April 2018 were unilaterally cancelled by Gazette Notice 11371 of 2nd November 2018 and that revised Gazette Notices 1547 and 1548 of 15th February 2019 arbitrarily reduced the affected acreage. Only the second and third Respondents responded, contending among other things that the parcels were not in the initial acquisition notices and that compensation funds lay with the first Respondent. The court framed four issues: proof of compulsory acquisition, proof that the remainder had zero value, the propriety of the petition as a mode of commencing suit, and costs. It held the Petitioner failed to prove his land featured in the 2017/2018 acquisition notices and that he bore the burden of proof under Section 107 of the Evidence Act, with no valuer's report proving zero residual value. Applying the Anarita Karimi Njeru principle, the court also found the constitutional petition lacked reasonable precision and would have been better brought by plaint. The Petition was dismissed with each party bearing its own costs, the court noting the Petitioner may still bring the claim in another form.

Key legal issues

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01

Whether the Petitioner proved compulsory acquisition of his land

Holding

Not proved; the Petitioner's name and property first appear only in the Gazette Notice of 15th February, 2019, not in the acquisition notices of 2017/2018

Reasoning

The Petitioner could not show his parcels were included in Gazette Notice 12526 of 22nd December 2017 or the notice of 2nd March 2018, nor that any of the six grounds in Gazette Notice 11371 of 2/11/2018 applied to him. Under Section 107 of the Evidence Act he had to prove each averment, which he failed to do.

p. 4
02

Whether the remaining land had zero value

Holding

Not proved; no valuation report was adduced

Reasoning

The petition averred the remainder was economically useless, but no valuer's report was exhibited to prove this. Averments in pleadings must be proved by evidence; the absence of expert valuation evidence meant the claim failed on this limb.

p. 4
03

Whether a petition was the correct mode of commencing the suit

Holding

It was not; the claim required precise definition as in a civil suit

Reasoning

Applying Anarita Karimi Njeru, the Petitioner did not plead his constitutional claim with reasonable precision. Commencing by plaint would have compelled elaborate witness statements, valuation reports and photographs, defining the dispute more precisely. The court was also persuaded that not every matter raising a constitutional issue warrants petition proceedings.

p. 4

Legal principles established

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  • A party alleging constitutional violations must plead the claim with a degree of reasonable precision (Anarita Karimi Njeru principle)
  • A party alleging violation bears the burden of proving the claim on a balance of probabilities with cogent and consistent evidence

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40(3)
  • Constitution of KenyaArticle 47(1)
  • Land ActSection 122(3)
  • Evidence ActSection 107

Cases cited (2)

  • Anarita Karimi Njeru – vs- The Republic
    Miscellaneous Application Number 4 of 1979, (1979) eKLR
  • Hon. Uhuru Muigai –VS- Nairobi Star Publications Limited
    Petition Number 187 of 2012 (2013) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - petition for enforcement of Bill of Rights (Articles 40(3) and 47(1))

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, "Patrick Kithinji Mugambi v National Land Commission & 2 others [2022] KEELC 874 (KLR)", Case Analysis (2022). Petition dated 4th December, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/874/eng@2022-03-10

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