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ELCPartially Allowed· [2022] KEELC 3110 (KLR)

Muchene (the sole Executrix of the Estate of George Muchene Kirumba and petitioning through Nancy Wanjiru Kirumba) v Attorney General & 4 others (Environment & Land Petition 14 of 2017) [2022] KEELC 3110 (KLR)

Environment and Land Court
28 July 2022
LMLUCY N. MBUGUA
3,480 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's government must pay a landowner Ksh. 3 million for building a road through his property without notice or compensation.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of land parcel Nairobi/Block/115/23 (0.0432 Ha) under a Certificate of Lease dated 11th November 2008, petitioned the court after discovering in February 2014 that the Government had constructed the Eastern Bypass Road through his property without notice, inquiry or compensation, contrary to Article 40(3) of the Constitution, the Land Act, 2012 and the repealed Land Acquisition Act. The petition, filed in April 2017 and amended in June 2020 to substitute the deceased original Petitioner, sought declarations that the acquisition and construction were unconstitutional and unlawful, and damages. The 1st-4th Respondents, through a Replying Affidavit of the Kenya Urban Roads Authority's Manager of Surveys, contended that the parcel was part of land allotted to Karagita Land Buying and Management Company, which was required to and did surrender an 80-metre road reserve that it misaligned; the Petitioner's title, they argued, was fraudulently processed over what remained public land. The 5th Respondent (National Land Commission) did not respond. The court framed two issues: whether the Respondents breached constitutional and statutory requirements in the acquisition, and the remedies due. It held the Respondents bore the burden of proving their challenge to the title and allegations of fraud, but their affidavit contained no annexures and no evidence of the surrender or misalignment; authorities adducing evidence through submissions were estopped. The KeNHA v Shalien Masood Mughai authority was distinguished for want of scientific evidence. The 2020 Gazette Notice seeking a further 0.015 Ha of the same parcel confirmed the land was never lawfully acquired. Following the Supreme Court's decision in Attorney General v Zinj Limited, the court found the acquisition un-procedural and unlawful, awarded the Petitioner Ksh. 3 million as compensation, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the compulsory acquisition of the suit property without notice, inquiry or compensation breached Article 40(3) of the Constitution and the Land Act

Holding

The acquisition was un-procedural, unlawful and violated the Petitioner's right to property, entitling him to compensation

Reasoning

The Petitioner was the registered proprietor, yet no notice of acquisition or inquiry was served and no compensation paid. The Respondents' claim that the land was a road reserve surrendered by Karagita was unsupported by any evidence - their affidavit had no annexures and no investigation results were produced. The 2020 Gazette Notice proposing to acquire a further 0.015 Ha of the same parcel showed the land remained private. Following the Supreme Court in Attorney General v Zinj Limited, the court found the deprivation of property unlawful.

p. 7
02

Whether the Respondents proved that the Petitioner's title was encumbered by a pre-existing public road reserve

Holding

No; the Respondents, having challenged the title, bore the burden of proof and adduced no evidence of the alleged surrender or misalignment

Reasoning

The Respondents made serious allegations of fraud but did not plead it in their Replying Affidavit and produced no evidence. Being the party challenging the Petitioner's title, the burden fell on them. The case of KeNHA v Shalien Masood Mughai was distinguishable because there scientific evidence from professional surveyors proved encroachment, whereas here there was not the slightest evidence of a road corridor on the Petitioner's land.

p. 6

Legal principles established

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  • Compulsory acquisition of private land must commence with notice to the owner, state the public purpose, and be attended with prompt payment in full of just compensation; otherwise it violates Article 40(3) of the Constitution.
  • A party challenging a registered title bears the onus of proving its challenge, and allegations of fraud must be strictly proved.

Court orders

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  1. 1.Judgment entered for the Petitioner against the Respondents for the sum of Ksh. 3 million being damages for compensation in respect of the unlawful acquisition of the Petitioner's land
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 27, 40(3), 47, 50
  • Land ActSections 107(5), 112, 113, 114
  • Land Acquisition Act (repealed)Sections 3, 6(2), 8, 9
  • Civil Procedure RulesOrder XIV

Cases cited (10)

  • Gami Properties Limited v National Land Commission
    [2017] eKLR
  • Mike Maina Kamau v Attorney General
    [2017] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    (2019) eKLR
  • Charles Lutta Kasamani v Attorney General & another
    (2019) eKLR
  • Kenya National Highways Authority v Shalien Masood Mughai & 5 Others
    [2017] eKLR
  • David Bagine vs Martin Bundi
    [1977] eKLR; Civil Appeal No. 283 of 1996
  • Patrick Musimba vs National Land Commission and 4 others
    [2016] eKLR
  • Galaxy Paints Company Ltd v Falcon Guards Ltd
    [2000] eKLR
  • R. G. Patel v. Lalji Makanji
  • Attorney General v Zinj Limited (Petition 1 of 2020)
    [2021] KESC 23 (KLR) (Civ)
Jurisdiction invoked
Article 40 and Article 47 of the Constitution of Kenya, 2010; Environment and Land Court jurisdiction over compulsory acquisition of land

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, "Muchene (the sole Executrix of the Estate of George Muchene Kirumba and petitioning through Nancy Wanjiru Kirumba) v Attorney General & 4 others (Environment & Land Petition 14 of 2017) [2022] KEELC 3110 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3110/eng@2022-07-28

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