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ELCPartially AllowedPetition dated 14th July 2021 (number not stated in judgment)· [2022] KEELC 1050 (KLR)

Abdallah Ali Were & another v County Government of Bungoma & 4 other [2022] KEELC 1050 (KLR)

Environment and Land Court
21 February 2022
BOBoaz N. Olao
3,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered Bungoma County to pay full compensation for land it took in 1990, or vacate within six months.

What this practically means

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Executive summary

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The Petitioners, co-administrators of the estate of the late Abdallah Wambwere, sued in a petition dated 14th July 2021 claiming that in 1990 the then Town Council of Kimilili compulsorily acquired a slaughter house and a portion of land parcel KIMILILI/KIMILILI/2097, paying only Kshs.151,226.85 out of Kshs.371,220, with no further compensation. After devolution the County Government of Bungoma took over the slaughter house on parcel KIMILILI/KIMILILI/7397, registered in the 1st Petitioner's name, and continues to earn income from it. Only the 1st Respondent entered appearance; no responses were filed, so the Petition was uncontested. The court found the Petition met the Anarita Karimi Njeru precision threshold and was not defeated by the 31-year delay, as partial payment created a legitimate expectation of compensation and no prejudice was shown. Relying on uncontroverted affidavit evidence, the court held that the compulsory acquisition without consent or compensation violated Section 75 of the retired Constitution and Article 40 of the 2010 Constitution, since neither the repealed Land Acquisition Act nor the Land Act procedures were invoked. A declaration that the proprietary interest in parcel 7397 vests in the 1st Petitioner was granted. However, the claim for mesne profits failed for want of specific pleading and proof. The court issued a mandatory injunction requiring the 1st and 4th Respondents to complete compulsory acquisition and pay just compensation within six months, failing which the 1st Respondent would vacate or be evicted with police assistance. The 1st Respondent was ordered to meet the costs of the Petition.

Key legal issues

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01

Precision of constitutional pleadings

Holding

The Petition satisfies the Anarita Karimi Njeru threshold as it identified the constitutional provisions and particulars of infringement

Reasoning

The court applied Anarita Karimi Njeru as reiterated in Mumo Matemu. The Petition anchored its claims on Section 75(1) and (2) of the retired Constitution and Articles 40(1), (3), (4) and 259 of the 2010 Constitution, and set out the alleged violations of the right to property and acquisition without compensation, satisfying the precision requirement.

p. 4
02

Laches and delay in filing the Petition

Holding

The 31-year delay did not defeat the Petition since there was legitimate expectation of compensation and no prejudice to the Respondents

Reasoning

While constitutional petitions should be filed promptly, there is no statutory limitation for such claims. Partial payment at the time of acquisition recognised entitlement to compensation, creating a legitimate expectation. No prejudice to the Respondents was demonstrated, so each case turns on its peculiar circumstances.

p. 4
03

Violation of property rights through uncompensated compulsory acquisition

Holding

The compulsory acquisition without consent or full compensation violated Section 75 of the retired Constitution and Article 40 of the 2010 Constitution

Reasoning

The 1st Petitioner holds an indefeasible title under Section 26(1) of the Land Registration Act. The uncontroverted affidavit showed only partial payment of Kshs.151,226.85 out of Kshs.371,220. The statutory procedures under the repealed Land Acquisition Act (Sections 3-6) and the Land Act (Sections 107-133) were never invoked, so constitutional and statutory requirements for acquisition were breached.

p. 4
04

Mesne profits claim

Holding

The claim for mesne profits fails because it was not specifically pleaded or proved

Reasoning

Mesne profits under Section 2 of the Civil Procedure Act are profits received or receivable by a person in wrongful possession. As an ascertainable and quantifiable special damages claim, it must be specifically pleaded and supported by tangible evidence, following Mbuthia, Sande v KCC and Cosmo-Air v Diani Beach. The Petitioners pleaded no specific sum.

p. 5
05

Remedy for occupation of the land by the 1st Respondent

Holding

A mandatory injunction was issued requiring completion of acquisition and payment of compensation within six months, failing which eviction would follow

Reasoning

The 1st Respondent, having acquired the land without paying full compensation, is essentially a trespasser entitled to be removed or to pay compensation under Article 40(3)(b)(i). Because the land serves a public purpose, immediate eviction was tempered by a six-month window to lawfully acquire the land and pay just compensation, balancing private rights and public interest.

p. 5

Legal principles established

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  • A constitutional petition must set out with reasonable precision the provisions alleged to have been infringed and the particulars of the infringement
  • Uncontroverted facts deponed in an affidavit are admitted and sufficiently prove a claim
  • Compulsory acquisition of private land must adhere to both the Constitution and the relevant statutory procedures
  • There is no limitation period for constitutional petitions alleging breach of fundamental rights, but such petitions should be filed promptly

Court orders

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  1. 1.A Declaration that the proprietary interest in the land parcel NO KIMILILI/KIMILILI/7397 on which the KIMILILI slaughter house stands together with the buildings and other structures thereon and which is popularly known as MACHINJONI absolutely vests in the 1st Petitioner
  2. 2.A Declaration that the compulsory acquisition of the land parcel NO KIMILILI/KIMILILI/7397 without consent or compensation violated Section 75 of the repealed Constitution and Article 40 of the 2010 Constitution
  3. 3.Prayer for payment of mesne profits is declined
  4. 4.A mandatory injunction is issued directed at the 1st Respondent to immediately initiate, and together with the 4th Respondent, ensure that the process of compulsorily acquiring the land parcel NO KIMILILI/KIMILILI/7397 for public purposes and the payment of adequate and just compensation to the 1st Petitioner is completed within six (6) months from the date of the Judgment
  5. 5.In default of (4), the 1st Respondent, its agents, servants or any other persons acting through it shall vacate from the land parcel NO KIMILILI/KIMILILI/7397 or be evicted therefrom in accordance with the law, with the assistance of the OCS Kimilili Police Station if there is resistance
  6. 6.The 1st Respondent shall meet the costs of this Petition

Authorities

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Legislation

  • Constitution of Kenya (revised)Section 75(1) and (2)
  • Constitution of Kenya, 2010Articles 40(1), (2), (3), (4), (6), 259, 27(4), 159
  • Land Registration ActSection 26(1)
  • Registered Land Act (repealed)Section 27
  • Land Acquisition Act (repealed)Sections 3, 4, 5 and 6
  • Land ActSections 107 to 133
  • Civil Procedure Act (Cap 21)Sections 1A, 1B and 2 (definition of mesne profits)
  • Appellate Jurisdiction Act (Cap 9)Sections 3A and 3B

Cases cited (7)

  • Anarita Karimi Njeru v R
    1976-80 KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance & Others
    2013 eKLR
  • David Kibet Mutai & Others v Attorney General
    C.A Civil Appeal No 95 of 2016 [2019 eKLR]
  • Commissioner of Lands & Another v Coastal Aquaculture Ltd
    C.A Civil Appeal No 253 of 1990 [1997 eKLR]
  • Peter Mwangi Mbuthia & Another v Samow Edin Osman
    2014 eKLR
  • Sande v K.C.C
    1992 LL.R 314 (CAK)
  • Cosmo-Air v Diani Beach
    1998 LL.R 757 (CAK)
Jurisdiction invoked
Articles 40(1), (3), (4) and 259 of the Constitution; Section 75(1) and (2) of the retired Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdallah Ali Were & another v County Government of Bungoma & 4 other [2022] KEELC 1050 (KLR)", Case Analysis (2022). Petition dated 14th July 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1050/eng@2022-02-21

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