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ELCPartially AllowedPetition dated 12th May 2021 (Bungoma)· [2022] KEELC 1218 (KLR)

Simon Masika Makokha v County Government of Bungoma & 4 others [2022] KEELC 1218 (KLR)

Environment and Land Court
21 February 2022
BOBoaz N. Olao
3,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, suing as personal representative of the Estate of Moses Makokha Sabuni alias Musa Makokha Wekola, petitioned the County Government of Bungoma, the County Land Registrar, the Cabinet Secretary Ministry of Lands, the National Land Commission and the Attorney General, claiming that a portion of land parcel KIMILILI/KIMILILI/442, registered to the deceased in 1969, was taken in the 1990s by the then Municipal Council of Kimilili without consent or compensation, on which Lutaso Market and the Kimilili Ward Administration Office now stand. None of the Respondents filed responses, so the Petition was uncontroverted. The court found the Petition met the Anarita Karimi Njeru precision test, excused the thirty-one year delay on the ground of continuous pursuit of compensation and absence of prejudice, and upheld the Petitioner's locus standi under a limited grant issued in 2020. Relying on unrebuted affidavit evidence, the court held that the taking was an arbitrary deprivation of property violating Section 75 of the retired Constitution and Article 40 of the 2010 Constitution, since no compulsory acquisition procedure was followed. It declared the proprietary interest vested in the Estate and the acquisition unconstitutional, ordered the 1st Respondent to complete compulsory acquisition and payment of adequate compensation within six months, failing which it must vacate and return the land. However, the claim for mesne profits failed for want of specific pleading and proof, as did any quantified alternative compensation. Costs were awarded against the 1st Respondent.

Key legal issues

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01

Precision of pleading in constitutional petitions

Holding

The Petition met the Anarita Karimi Njeru test by citing Sections 75(1) and (2) of the retired Constitution and Articles 40(1)(3)(4) and 259 with the infringements in issue

Reasoning

The court applied Anarita Karimi Njeru and Mumo Matemu, noting precise pleading is required by the Mutunga Rules, and found the Petition satisfied the standard of precision since it identified the constitutional provisions and the particulars of infringement.

p. 3
02

Delay in filing the Petition

Holding

The thirty-one year delay was excused because the Petitioner had persistently pursued compensation and Respondents suffered no prejudice given their non-participation

Reasoning

Although constitutional petitions carry no limitation period, they should be filed promptly. The unrebuted averment that the Petitioner communicated with the 1st Respondent in 2012 and 2016, and that the Grant was only obtained in 2020, provided a reasonable and plausible explanation for the delay without prejudice to Respondents.

p. 3
03

Violation of property rights

Holding

The taking of the suit land without compensation was an arbitrary deprivation violating Section 75 of the retired Constitution and Article 40 of the 2010 Constitution

Reasoning

The deceased was the registered proprietor, and unrebuted evidence showed the Municipal Council of Kimilili took a portion without following the Land Acquisition Act procedure or paying compensation. Because no statutory procedure was followed, the taking was not compulsory acquisition in law but arbitrary deprivation, protected against by both constitutions.

p. 4
04

Mesne profits claim

Holding

The claim failed as it was not specifically pleaded or proved

Reasoning

Mesne profits under Section 2 of the Civil Procedure Act are special damages requiring specific pleading and strict proof. The Petitioner pleaded a general claim but no sum and no supporting evidence, so the remedy was unavailable.

p. 5

Legal principles established

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  • A constitutional petition must set out with reasonable precision the provisions infringed and the particulars of infringement
  • Uncontroverted sworn averments are taken as admitted factual evidence
  • Mesne profits are special damages that must be specifically pleaded and strictly proved
  • Taking of private property without following the statutory compulsory acquisition procedure is arbitrary deprivation of property

Court orders

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  1. 1.A declaration that the proprietary interests in the portion of land parcel KIMILILI/KIMILILI/442 on which Lutaso Market and Kimilili Ward Administration Office stand absolutely vests in the Estate of Moses Makokha Sabuni alias Musa Makokha Wekola
  2. 2.A declaration that the compulsory acquisition of the said portion without consent or compensation violated Section 75 of the old Constitution and Article 40 of the 2010 Constitution
  3. 3.The 1st Respondent shall immediately initiate and ensure that the process of compulsorily acquiring the land parcel and paying adequate compensation to the Estate by the 4th Respondent is completed within six months
  4. 4.In default, the 1st Respondent, its agents and servants shall vacate the land parcel and hand it back to the Estate
  5. 5.Costs of the Petition to be borne by the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya (retired)Sections 75(1) and 75(2)
  • Constitution of Kenya 2010Articles 27(4), 40(1), 40(2), 40(3), 40(4), 65, 159, 259
  • Registered Land Act (repealed)Sections 27 and 28
  • Land Registration Act 2012Sections 24, 25 and 26
  • Land Acquisition Act (repealed)Sections 3, 4, 5 and 6
  • Land ActSections 107 to 133
  • Civil Procedure Act Cap 21Sections 1A and 1B; Section 2 (definition of mesne profits)
  • Appellate Jurisdiction Act Cap 9Sections 3A and 3B

Cases cited (6)

  • ANARITA KARIMI NJERU .V. REPUBLIC
    1970 – 80 KLR 1272
  • MUMO MATEMU .V. TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE AND 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 1996 [1997 eKLR]
  • HAHN .V. SINGH
    1985 KLR 716
  • PETER MWANGI MBUTHIA & ANOTHER .V. SAMOW EDIN OSMAN
    2014 eKLR
Jurisdiction invoked
Articles 40(1), (2), (3), (4) and 259 of the Constitution of Kenya 2010; Section 75 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 (1)

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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, "Simon Masika Makokha v County Government of Bungoma & 4 others [2022] KEELC 1218 (KLR)", Case Analysis (2022). Petition dated 12th May 2021 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1218/eng@2022-02-21

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