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ELCPartially AllowedEnvironment & Land Petition E001 of 2023· [2023] KEELC 19058 (KLR)

Onditi & another v Kenya Rural Roads Authority & 2 others; National Land Commission (Interested Party)

Environment and Land Court
19 July 2023
EAE. Asati
5,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioners, joint registered owners of North Maragoli/Kedoli/1422 in Vihiga County, petitioned over the destruction of their gate, fencing and trees and a 0.02-hectare encroachment onto their land during construction of the Mago-Malulu/Wangulu (E240) road. They sought declarations of rights violations, mandamus to fix the boundary, compensation of Kshs.622,667.50 for alleged compulsory acquisition, prohibition against further road works, exemplary damages and costs. The 1st Respondent (KeRRA) denied vicarious liability, asserting the contractor was M'Big Company Limited, not the 2nd Respondent, and that the contractor exceeded instructions. The National Land Commission claimed misjoinder. The court framed seven issues. It held the NLC was wrongly joined as no blame was attributed to it. On vicarious liability, it found the 1st Respondent liable: the project was admittedly its undertaking, the contract document was not availed, the billboard naming the 2nd Respondent was not denied, and there was no evidence the contractor was independent. The petitioners' Article 40 right to property was violated by the unlawful encroachment. However, no compulsory acquisition was proved, as the statutory process under Part VIII of the Land Act was never initiated; accordingly compensation for acquisition was refused. The unchallenged valuation of Kshs.622,667.50 was payable less the land value of Kshs.245,000, leaving Kshs.377,667.50 for the destroyed property. Exemplary damages were refused as the conduct was not profit-driven. The petition succeeded partly: mandamus to restore the boundary, damages of Kshs.377,667.50, a permanent injunction against trespass, and costs to the petitioners.

Key legal issues

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01

Vicarious liability of the roads authority for its contractor's trespass

Holding

The 1st Respondent is vicariously liable for the contractor's actions

Reasoning

The project was admittedly undertaken by the 1st Respondent, which engaged a contractor. The contract document was not availed to disprove that the contractor was the 2nd Respondent, and the billboard naming the 2nd Respondent as contractor was not denied. The contractor trespassed and caused damage in the course of the road works. No evidence showed the contractor was independent, so an agency relationship was established.

p. 8
02

Violation of the right to property under Article 40

Holding

The petitioners' Article 40 right to property was violated by the unlawful encroachment and destruction

Reasoning

The petitioners' registered ownership was not disputed, entitling them to Article 40 protection. The contractor, acting as the 1st Respondent's agent, unlawfully encroached onto the land and destroyed property, denying the petitioners quiet enjoyment and the protection of the law. The court therefore found a constitutional violation.

03

Whether there was compulsory acquisition

Holding

No compulsory acquisition was proved

Reasoning

Compulsory acquisition follows the mandatory procedure in Part VIII of the Land Act. No evidence showed the process was initiated or that the trespassed portion was appropriated for the road; the 1st Respondent expressly said the road reserve was sufficient. The claim of compulsory acquisition therefore failed.

p. 9
04

Entitlement to compensation for compulsory acquisition

Holding

Only the value of destroyed property is payable, less the land value

Reasoning

Since there was no compulsory acquisition, compensation for acquisition was unavailable. The unchallenged valuation of Kshs.622,667.50 included the land value of Kshs.245,000; deducting it leaves Kshs.377,667.50 payable for the destroyed property.

05

Exemplary damages

Holding

Refused

Reasoning

Exemplary damages are awarded where a defendant's conduct was calculated to yield profit exceeding compensatory damages. The contractor's actions were not aimed at earning profit for the contractor or the 1st Respondent, so no basis existed for the award.

p. 9
06

Joinder of the National Land Commission

Holding

The Interested Party was wrongly joined

Reasoning

The petition attributed no specific blame or complaint to the Commission, and no evidence showed any role or obligation by it in the transaction. Its mandate under Article 67 concerns management of public land, not boundary disputes handled by the 3rd Respondent under section 18 of the Land Registration Act.

p. 6

Legal principles established

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  • A principal is vicariously liable for the trespass and damage caused by its contractor in the course of the contracted works where there is no evidence that the contractor was an independent contractor
  • Compulsory acquisition of land is a statutory process under Part VIII of the Land Act; unauthorised encroachment does not amount to compulsory acquisition and does not attract compensation for acquisition

Court orders

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  1. 1.Declaration that the Interested Party was wrongly joined in these proceedings
  2. 2.Order of Mandamus compelling the 3rd Respondent to fix the boundary of the suit land as it was before the actions complained of in the petition
  3. 3.Order for payment of Kshs.377,667.50 being the value of the destroyed property
  4. 4.Order of permanent injunction restraining the 1st and 2nd Respondents, their servants or agents, from constructing, maintaining or improving Mago-Mululu-Wangulu (E240) Road in a manner to trespass onto North Maragoli/Kedoli/1422
  5. 5.Costs of the petition awarded to the petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 2(2), 2(4), 10, 20(2), 20(3), 21(1), 22(1), 24(1)(d), 258(1), 27(1) and (2), 40, 64, 67, 249(1)
  • Land Registration Act No. 3 of 2012Sections 18, 19, 20, 21
  • Land Act No. 6 of 2012Part VIII, Sections 107, 110, 111, 112, 113, 115
  • National Land Commission Act No. 5 of 2012Part II, Section 5(1)(e)
  • Kenya Roads Act No. 2 of 2007Sections 6 and 7

Cases cited (6)

  • Board of Governors of St. Mary's School v Boli Festus Sio
    Civil Appeal 413 of 2017 [2020] eKLR

    A person employing another is not liable for the other's collateral negligence unless a master-servant relationship existed; right of control is decisive

  • Paul Muthui Mwavu v Whitestone (K) Ltd
    [2015] eKLR

    Restatement of the law on vicarious liability, adopting Morgans v Launchbury and Muwonge v A.G. of Uganda

  • Morgans v Launchbury & Others
    [1972] 2 ALL ER 607

    To fix liability on an owner for a driver's negligence, a servant or agency relationship must be shown

  • Muwonge v A.G. of Uganda
    [1967] EA 17

    Master liable for acts of driver committed in the course of duty even if contrary to general instructions

  • Benedict Munene Kariuki & 14 others v The Attorney General
    High Court Petition No. 722 of 2009

    Circumstances in which exemplary damages are awarded

  • D. K. Njagi Marete v Teachers Service Commission
    NRB CA Civil Appeal No. 316 of 2013 [2020] eKLR

    Circumstances in which exemplary damages are awarded

Jurisdiction invoked
Articles 20(3), 22(1) and 258(1) of the Constitution of Kenya, 2010; Environment and Land Court jurisdiction over land and environment constitutional petitions

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, "Onditi & another v Kenya Rural Roads Authority & 2 others; National Land Commission (Interested Party)", Case Analysis (2023). Environment & Land Petition E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19058/eng@2023-07-19

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