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ELCPartially AllowedNot stated in the judgment (ruling on Notice of Motion dated 9th March 2020)· [2022] KEELC 2882 (KLR)

Kabungo (Suing as Registered Proprietor and Trustee of 35 Beneficiaries of LR. No. Aguthi/Gatitu/3447) v National Land Commission & another (Environment & Land Case 15 of 2020) [2022] KEELC 2882 (KLR)

Environment and Land Court
19 May 2022
2,210 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's government took private land in Nyeri without paying compensation, and the court ordered the State to surrender the title.

What this practically means

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Executive summary

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By a Notice of Motion dated 9th March 2020, Ephraim Gathuma Kabungo, the registered proprietor and trustee of 35 beneficiaries of LR No. Aguthi/Gatitu/3447, sought orders that the Court recall and retain custody of the certificate of title issued to the Government for the parcel, and damages for illegal interference with his title. The National Land Commission and the Ministry of Agriculture, sued as 1st and 2nd Defendants, neither entered appearance nor filed a response. The court found that the parcel, registered in the names of the Plaintiff and four others in 1999, was gazetted for compulsory acquisition in February 2007 for construction of the Wambugu Farmers Training Centre; a public inquiry on 12th April 2007 ascertained 35 beneficiaries eligible for compensation, a fact confirmed by the High Court on 23rd September 2015. The Green Card showed the land registered in the Government's name, and the Defendants have used it as a Farmers Training Centre since 2007 without paying any compensation. Relying on Article 40(3) of the Constitution and the Land Act framework as expounded in Patrick Musimba v National Land Commission, the court held that the title acquired by the Government was obtained contrary to law and in violation of the owners' rights. The application partially succeeded: the Defendants were directed jointly and severally to surrender the title(s) to the Court within 45 days, and the Plaintiff was awarded costs. The claim for general damages was refused for lack of supporting material at the interlocutory stage.

Key legal issues

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01

Whether the State's acquisition of private land without payment of compensation is lawful

Holding

The acquisition of the suit property without compensation to the Plaintiff and the 35 beneficiaries was contrary to the law and violated their rights; the title obtained by the Government on that footing was unlawfully obtained and had to be surrendered to the Court

Reasoning

The court adopted the framework in Patrick Musimba v National Land Commission, outlining the statutory process under Sections 107-122 of the Land Act. Following the 12th April 2007 inquiry and the High Court decision of 23rd September 2015 confirming the 35 beneficiaries, the Defendants could not deny having taken the land and used it as a Farmers Training Centre since 2007 without compensating the owners. Compensation is a constitutional prerequisite under Article 40(3).

p. 5
02

Whether general damages were payable for the interference with the title

Holding

The claim for general damages was refused as unsupported and premature at the interlocutory stage

Reasoning

The Plaintiff sought damages for illegal interference with his title but adduced no material substantiating the claim, and the court held there was no basis for such an award at that interlocutory stage of the proceedings.

p. 5

Legal principles established

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  • Where land is compulsorily acquired, just compensation must be paid promptly and in full to persons whose interests in the land have been determined, as required by Article 40(3) of the Constitution and Section 111 of the Land Act

Court orders

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  1. 1.The Defendants, jointly and severally, directed to produce and surrender the certificate of title (or titles) for LR No. Aguthi/Gatitu/3447 to the Court within 45 days
  2. 2.The Plaintiff awarded the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(3) (also Article 40 and Chapter Five referred to)
  • Land ActSections 107, 108, 110, 111, 112, 113-119, 120-122; Part VIII

Cases cited (1)

  • Patrick Musimba -vs- National Land Commission & 4 Others
    (2016) eKLR
Jurisdiction invoked
Article 40(3) of the Constitution and the Land Act, No. 6 of 2012 (compulsory acquisition and compensation); original civil 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, "Kabungo (Suing as Registered Proprietor and Trustee of 35 Beneficiaries of LR. No. Aguthi/Gatitu/3447) v National Land Commission & another (Environment & Land Case 15 of 2020) [2022] KEELC 2882 (KLR)", Case Analysis (2022). Not stated in the judgment (ruling on Notice of Motion dated 9th March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2882/eng@2022-05-19

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