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ELCPartially AllowedPetition dated 12th March 2021 (filed 5th May 2021), Bungoma· [2022] KEELC 1157 (KLR)

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)

Environment and Land Court
21 February 2022
4,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, administratrix ad litem of the Estate of Hassan Sakari (deceased), petitioned the County Government of Bungoma, the County Land Registrar, the Cabinet Secretary for Lands, the Attorney General and the National Land Commission, seeking declarations that parcel KIMILILI/KIMILILI/2131 vests in the Estate and that its taking without consent or compensation breached Section 75 of the retired Constitution and Article 40 of the 2010 Constitution, plus mandamus for mesne profits, a mandatory injunction, a permanent injunction and costs. No respondent filed a reply; the court applied the Anarita Karimi Njeru precision test and found it satisfied, and held the roughly 31-year delay excusable given continuous pursuit of the claim and the recent grant of limited letters of administration. Relying on uncontroverted affidavit evidence, the court found the deceased held registered title to the parcel, which the defunct Bungoma County Council took over for the Kimilili market without compliance with the Land Acquisition Act or compensation, terming the taking an illegal grab rather than lawful compulsory acquisition, in violation of Section 75 and Article 40. Declarations of ownership and unconstitutionality were granted, and a mandatory injunction was issued requiring the 1st Respondent, with the National Land Commission, to complete lawful compulsory acquisition and pay just compensation within six months, failing which it and its agents must vacate or face eviction with police assistance, thereafter remaining permanently restrained. However, the claim for mesne profits failed for want of specific pleading and proof as special damages. The 1st Respondent was ordered to bear the Petitioner's costs.

Key legal issues

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01

Compliance with the Anarita Karimi Njeru precision threshold

Holding

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

Reasoning

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.

p. 3
02

Whether the 31-year delay defeated the Petition

Holding

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

Reasoning

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.

p. 3
03

Whether the acquisition of parcel KIMILILI/KIMILILI/2131 was unconstitutional

Holding

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

Reasoning

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.

p. 4
04

Whether mesne profits were recoverable

Holding

No - the claim for mesne profits was unavailable because it was not specifically pleaded nor proved

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Declaration that the proprietary interest in the entire parcel of land NO KIMILILI/KIMILILI/2131 vests in the Estate of HASSAN SAKARI
  2. 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. 3.Prayer (a) for mesne profits declined
  4. 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. 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. 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. 7.The 1st Respondent to meet the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya (retired Constitution)Section 75(1) and (2)
  • Constitution of Kenya 2010Articles 40(1),(2),(3),(4),(6), 65, 27(4), 159, 259
  • Registered Land Act (repealed) CAP 300Sections 27 and 28
  • Land Registration Act 2012Sections 25 and 26
  • Land Act 2012Sections 107 to 133
  • Land Acquisition Act (repealed)Sections 3, 4, 5 and 6
  • Civil Procedure Act CAP 21Sections 1A and 1B; Section 2 (definition of mesne profits)
  • Appellate Jurisdiction Act CAP 9Sections 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 252 of 1990 [1997] eKLR
  • PETER MWANGI MBUTHIA & ANOTHER .V. SAMOW EDIN OSMAN
    2014 eKLR
  • SANDE .V. KCC
    (1992) LLR 314 (CAK)
  • COSMOAIR .V. DIANI BEACH
    (1998) LLR 757 (CAK)
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

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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, "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.