Khaoma & another (Suing as Personal Representatives of the Estate of the Late Nicasio Tengeye Makokha) v County Government of Bungoma & 4 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition met the Anarita Karimi Njeru precision threshold
The petition met the threshold despite pleading inapplicable provisions such as Article 48
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.
Whether petitioners proved ownership of and compulsory acquisition of the suit land
No - only bare averments and documents that did not identify the deceased as owner were produced
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.
Whether the 80-year delay defeated the petition
Yes - the delay of over 80 years (or 57 years from registration) was inordinate and unexplained
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.
Effect of most respondents not filing replies
Non-response did not lighten the petitioners' burden of proof
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.
Legal principles established
#- 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
#- 1.This Petition is devoid of merit. It is accordingly dismissed.
- 2.Costs to the 2nd Respondent.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.