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ELCDismissedEnvironment & Land Petition E002 of 2022· [2023] KEELC 15904 (KLR)

Khaoma & another (Suing as Personal Representatives of the Estate of the Late Nicasio Tengeye Makokha) v County Government of Bungoma & 4 others

Environment and Land Court
2 March 2023
5,006 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A family claiming compensation for land taken decades ago lost because they couldn't prove ownership or the acquisition, and waited too long to sue.

What this practically means

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Executive summary

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The petitioners, personal representatives of the late Nicasio Tengeye Makokha, petitioned the Environment and Land Court at Bungoma claiming that 15 acres of the deceased's ancestral land at Kimilili were compulsorily acquired by the Government between 1942 and 1949 through various Gazette Notices, and subsequently registered as L.R. Kimilili/Kimilili/771 in the name of the County Council of Bungoma in 1965, without compensation. They sought declarations of ownership and of violations of Articles 28, 29, 40, 47 and 48 of the Constitution and the UDHR, plus special damages of Kshs 80 million and Kshs 84 million, general damages of Kshs 50 million, costs and interest. Only the Agricultural Finance Corporation filed a reply; the other respondents did not respond. The court framed three issues: whether the petition met the constitutional threshold, entitlement to remedies, and costs. It held the petition met the Anarita Karimi Njeru precision threshold, but the petitioners failed to prove the deceased's interest in the suit land or the compulsory acquisition: the green card showed first registration in the County Council's name in 1965, and none of the gazette notices or correspondence identified the deceased as owner; the State agencies had in fact sought proof from him. The court further found an inordinate, unexplained delay of over 80 years (or 57 years from registration), holding that although no limitation applies to constitutional petitions, delay must be satisfactorily explained. The non-filing of replies by other respondents did not lighten the petitioners' burden. The petition was dismissed with costs to the 2nd Respondent.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru precision threshold

Holding

The petition met the threshold despite pleading inapplicable provisions such as Article 48

Reasoning

The court found that although some pleaded provisions were inapplicable, the petition had pleaded with reasonable precision the constitutional provisions allegedly violated, satisfying the Anarita Karimi Njeru standard.

02

Whether petitioners proved ownership of and compulsory acquisition of the suit land

Holding

No - only bare averments and documents that did not identify the deceased as owner were produced

Reasoning

The green card showed first registration in the County Council of Bungoma's name in 1965 with nothing suggesting acquisition from the deceased. Gazette notices and correspondence did not identify the deceased or his father as owners, and state agencies had in fact sought proof of acquisition from him.

p. 7
03

Whether the 80-year delay defeated the petition

Holding

Yes - the delay of over 80 years (or 57 years from registration) was inordinate and unexplained

Reasoning

Relying on Wellington Nzioka Kioko and James Kanyita Nderitu, the court held that although no limitation applies to constitutional claims, inordinate delay must be explained. None of the correspondence evidenced any admission by the State or explanation for the delay.

p. 9
04

Effect of most respondents not filing replies

Holding

Non-response did not lighten the petitioners' burden of proof

Reasoning

Citing Karugi v Kabiya and Gichinga Kibutha, the court held the burden remained on petitioners throughout; the 2nd Respondent's reply was in any event a sufficient rebuttal.

p. 9

Legal principles established

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  • A party alleging violation of rights in a constitutional petition must plead with reasonable precision the manner of violation
  • A claimant alleging unconstitutional compulsory acquisition must first prove a legal or equitable interest in the land and the acquisition itself
  • Undisputed or uncontroverted claims still require the claimant to discharge the burden of proof
  • Although no limitation period applies to constitutional petitions, inordinate delay must be satisfactorily explained

Court orders

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  1. 1.This Petition is devoid of merit. It is accordingly dismissed.
  2. 2.Costs to the 2nd Respondent.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2(5), 2(6), 21(1), 22, 23, 27(4), 28, 29, 40, 48, 64, 65, 159(2)(c), 162(2)(b), 165(b)
  • Repealed ConstitutionSections 70(a) and (b), 72(1), 75, 78(1), 79(1), 81(1), 84
  • Environment and Land Court ActSection 13(2)
  • Evidence ActSections 107, 108, 109
  • Land Acquisition ActCommenced 23rd August 1968 (repealed)
  • Government Proceedings ActSection 13(a)
  • Universal Declaration of Human Rights 1948Articles 3, 12, 17, 31
  • African Charter on Human RightsNot specified

Cases cited (6)

  • Anarita Karimi Njeru v R
    1976-1980 KLR 1272

    Precision required in pleading constitutional violations

  • Wellington Nzioka Kioko v A-G
    2018 eKLR

    No limitation for constitutional petitions but inordinate delay must be explained

  • James Kanyita Nderitu v A-G & Another
    Petition No. 180 of 2011

    Court entitled to consider inordinate delay in enforcing fundamental rights

  • James Kanyitta Nderitu v AG & Another
    CA Civil Appeal No. 96 of 2013 [2019 eKLR]

    Upholding the decision on delay on appeal

  • Karugi & Another v Kabiya & Others
    1987 KLR 347

    Burden of proof remains on plaintiff even where case undefended

  • Gichinga Kibutha v Caroline Nduku
    2018 eKLR

    Uncontroverted evidence does not relieve claimant of burden of proof

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act

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, "Khaoma & another (Suing as Personal Representatives of the Estate of the Late Nicasio Tengeye Makokha) v County Government of Bungoma & 4 others", Case Analysis (2023). Environment & Land Petition E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15904/eng@2023-03-02

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