Gerishon v Commissioner of Lands & 4 others; County Government of Meru & 2 others (Interested Parties)
The bottom line
#Kenya's Environment and Land Court ruled a 1977 land acquisition unconstitutional, awarding the owner Kshs 15 million even decades later.
What this practically means
#Executive summary
#Key legal issues
#Whether the compulsory acquisition of LR No Ntima/Igoki/2963 in 1977 was unconstitutional
Yes - the notice misdescribed the registered owner, no notice of acquisition, inquiry, compensation or title cancellation was served on the petitioner, and the respondents failed to rebut his evidence.
The copy of records showed the petitioner as registered owner at the time of the gazette notice, yet the notice named the 2nd respondent who had transferred the land in 1976. The 2nd respondent confirmed he was never paid for that parcel. The 3rd, 4th and 5th respondents filed no replying affidavits and called no evidence, so the petitioner's testimony stood uncontroverted and the burden of proving statutory compliance was not discharged.
Whether the petition was time barred or barred by laches/acquiescence
No - there is no limitation for constitutional petitions and no estoppel against the Constitution; the petitioner explained the delay, having occupied the land and held his original title until 2016.
Following Chief Land Registrar v Nathan Tirop Koech, the Limitation of Actions Act is inapplicable to constitutional petitions and the only limit is Article 24. The petitioner produced his original unsurrendered title and was never asked to vacate until 2016, providing a sufficient explanation for the delay.
Quantum of compensation and damages
General damages of Kshs 10,000,000 and compensation of Kshs 5,000,000 awarded; the Kshs 70,000,000 valuation was rejected as the report lacked credentials and particulars, and special damages were not pleaded or strictly proved.
Special damages must be specially pleaded and strictly proved; the valuation report omitted the valuer's qualifications and ignored the 2011 sale of the land at Kshs 5,000,000, which formed the government valuation basis. The report was generalized and based on assumption, so the court could not accept its figure.
Liability of the 2nd and 3rd interested parties as purchasers
No liability - they are innocent purchasers holding valid certificates of lease protected by the Land Registration Act, with no fraud pleaded against them.
The 2nd interested party bought the land in 2011 for Kshs 5 million, took vacant possession and developed a warehouse. No claim of fraud, illegality or corrupt scheme was pleaded against him, so his title is protected and the trespass claim fails.
Legal principles established
#- There is no limitation period for a constitutional petition; the Limitation of Actions Act does not bar enforcement of fundamental rights, the only limitation being Article 24 of the Constitution.
- There can be no estoppel, acquiescence or waiver against the Constitution; a citizen cannot relieve the state of its obligation to respect the Bill of Rights.
- The burden of proving compliance with statutory notice requirements for compulsory acquisition lies on the acquiring authority; uncontroverted affidavit evidence may be accepted as proved.
Court orders
#- 1.Declaration that the compulsory acquisition of LR No Ntima/Igoki/2963 was unconstitutional
- 2.General damages of Kshs 10,000,000 for breach of constitutional rights
- 3.Compensation for the land at Kshs 5,000,000
- 4.Sums to be paid by the 3rd respondent out of the Consolidated Fund
- 5.Costs and interest to the petitioner paid by the 3rd, 4th and 5th respondents and the 1st interested party jointly and severally
- Jurisdiction invoked
- Articles 22 and 23 of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gerishon v Commissioner of Lands & 4 others; County Government of Meru & 2 others (Interested Parties)", Case Analysis (2022). Environment & Land Petition 01 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13725/eng@2022-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.