Husnah Maccah Hassan (Suing as the personal representative of the Estate of Yusuf Hassan Bakari) v County Government of Bungoma & 3 others; National Land Commission (Interested Party) [2022] KEELC 1157 (KLR)
The bottom line
#A Kenyan court ruled Bungoma County illegally took a family's land 31 years ago and must pay fair compensation within six months or vacate it.
What this practically means
#Executive summary
#Key legal issues
#Compliance with the Anarita Karimi Njeru precision threshold
The Petition met the threshold as it clearly cited Section 75(1) and (2) of the retired Constitution and Articles 40(1)(3) and (4) and 259 indicating the alleged infringements
The court reiterated the requirement from Anarita Karimi Njeru as restated in Mumo Matemu that a party alleging constitutional infringement must plead with reasonable precision the provisions infringed and the particulars. The court found the Petitioner had pleaded the specific provisions and the manner of infringement, satisfying the test.
Whether the 31-year delay defeated the Petition
Delay did not bar the Petition; there is no limitation period for fundamental rights petitions, the Respondents were not prejudiced, and the Petitioner had continuously pursued the claim and lacked locus standi until obtaining the limited grant in 2020
The court noted neither the retired nor the 2010 Constitution prescribes a limitation period for rights petitions, though prompt filing is expected. Each case turns on its circumstances. Here the unchallenged evidence showed continuous pursuit of compensation and the Petitioner could not sue before obtaining letters of administration ad litem.
Whether the acquisition of parcel KIMILILI/KIMILILI/2131 was unconstitutional
Yes - the parcel was taken over by the defunct Bungoma County Council without compliance with the Land Acquisition Act or payment of compensation, violating Section 75 of the retired Constitution and Article 40 of the 2010 Constitution
The deceased held title to the parcel, protected under Sections 25 and 26 of the Land Registration Act and Article 40. There was no evidence of compliance with the repealed Land Acquisition Act sections 3-6 or the Land Act 2012. The uncontroverted evidence showed the land was taken without compensation; the court found it was in fact illegally grabbed rather than lawfully compulsorily acquired.
Whether mesne profits were recoverable
No - the claim for mesne profits was unavailable because it was not specifically pleaded nor proved
Mesne profits are defined in Section 2 of the Civil Procedure Act and constitute a special damages claim which must be specifically pleaded and proved with evidence of the actual amounts. The Petition contained no specific sum and no evidence, so despite the general success of the Petition that head of relief failed.
Legal principles established
#- A constitutional petition must set out with reasonable precision the constitutional provisions alleged to have been infringed and the particulars of the infringement
- Uncontroverted sworn averments are taken as admitted and may found a finding for the petitioner
- Compulsory acquisition of private land must strictly comply with constitutional and statutory procedures, including prompt payment of full just compensation
Court orders
#- 1.Declaration that the proprietary interest in the entire parcel of land NO KIMILILI/KIMILILI/2131 vests in the Estate of HASSAN SAKARI
- 2.Declaration that the compulsory acquisition of the land parcel without consent or compensation violated Section 75 of the repealed Constitution and Article 40 of the 2010 Constitution
- 3.Prayer (a) for mesne profits declined
- 4.Mandatory injunction directed at the 1st Respondent to immediately initiate, and together with the Interested Party ensure completion within six months, of the compulsory acquisition of the parcel for public purposes and payment of adequate and just compensation to the Estate
- 5.In default of the mandatory injunction, the 1st Respondent, its agents, servants or persons acting through it shall vacate or be evicted from the parcel, with assistance of the OCS Kimilili Police Station if resisted
- 6.Upon vacating or eviction, the 1st Respondent and those claiming through it permanently restrained from interfering with the Petitioner's and the Estate's quiet use, occupation and ownership of the parcel
- 7.The 1st Respondent to meet the costs of the Petition
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya 2010 and Section 75 of the retired Constitution (fundamental rights petition); Environment and Land Court jurisdiction over land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Husnah Maccah Hassan (Suing as the personal representative of the Estate of Yusuf Hassan Bakari) v County Government of Bungoma & 3 others; National Land Commission (Interested Party) [2022] KEELC 1157 (KLR)", Case Analysis (2022). Petition dated 12th March 2021 (filed 5th May 2021), Bungoma. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1157/eng@2022-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.