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ELCPartially AllowedPetition E006 of 2022· [2023] KEELC 20074 (KLR)

Chesingei v County Land Registrar, Elgeyo Marakwet County & 3 others

Environment and Land Court of Kenya
25 September 2023
LWL. N. Waithaka
3,695 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that land taken by government without proper legal procedures is unlawful, and ordered compensation or regularization within nine months.

What this practically means

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Executive summary

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The petitioner, registered proprietor of Elgeyo Marakwet/Moiben/Kapsowar/1981, petitioned under Articles 22 and 40 alleging that a restriction lodged on his title by the County Land Registrar, following a purported compulsory acquisition of the land for the Kapsowar Divisional Headquarters pursuant to a verbal directive of the late President Daniel Arap Moi, violated his property rights. He sought a declaration of violation, mandamus to remove the restriction, and alternatively that the IEBC vacate the one acre it occupies or pay Kshs.15,000,000/-. The respondents raised the Anarita Karimi Njeru pleading threshold, lack of jurisdiction given statutory dispute resolution mechanisms, constitutional avoidance, prematurity and merit. The court framed four issues and held that the acquisition was carried out pursuant to an oral presidential directive with no gazette notices, inquiry, valuation or prompt adequate compensation, rendering it unlawful and null and void, applying the Supreme Court's decision in Attorney General v. Zinj Limited. Consequently, the petitioner could not be required to exhaust statutory remedies premised on a lawful acquisition, defeating the exhaustion and constitutional avoidance objections. The court declared that the respondents jointly and severally violated the petitioner's right to own property and right against arbitrary deprivation. However, balancing the demonstrated public purpose, it gave the NLC and IEBC nine months to regularize the acquisition under the Land Act, 2012 and the Land Value (Amendment) Act, 2019; failing which the IEBC must pay Kshs.13,000,000/- (per the valuation report, not the Kshs.15,000,000/- sought) or vacate, and mandamus shall then issue for removal of the restriction. The petitioner was awarded costs.

Key legal issues

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01

Compliance with law and procedure in the purported compulsory acquisition

Holding

The acquisition was carried out pursuant to an oral directive of the former President, with no gazette notices, inquiry, valuation or prompt adequate compensation, and was therefore unlawful and null and void

Reasoning

The court reviewed the evidence against the requirements of the Land Acquisition Act (then applicable): gazette notices, inquiries, valuation, and prompt adequate compensation. The respondents produced no evidence of compliance; the acquisition rested on a verbal presidential directive. The respondents' own evidence showed compensation remained unregularized, which could not amount to prompt and adequate compensation.

02

Whether the petitioner was obliged to exhaust statutory dispute resolution mechanisms

Holding

No, because there was no lawful acquisition on which those statutory processes could hinge

Reasoning

The exhaustion and constitutional avoidance objections failed because they presupposed a lawful acquisition. Having found the acquisition null and void, the court held the petitioner could not be expected to pursue mechanisms under the Land Acquisition Act, the Land Act or the Land Value (Amendment) Act, 2019, since those processes hinge on a lawful acquisition.

p. 6
03

Whether the petitioner proved violation of his property rights

Holding

Yes; the respondents' activities on the land violated his constitutional and legal rights, warranting a declaration of joint and several violation

Reasoning

Flowing from the finding that the acquisition was unlawful, the court held the respondents' activities on the petitioner's land violated his constitutional and legal rights. The petitioner, as registered proprietor, was entitled to a declaration that his right to own property and right against arbitrary deprivation were violated jointly and severally by the respondents.

p. 6
04

Appropriate remedies

Holding

Declaration granted; mandamus on removal of restriction deferred for nine months to allow regularization; compensation fixed at Kshs.13,000,000/- per the valuation report if regularization fails

Reasoning

Balancing the petitioner's established rights against the demonstrated public purpose, the court fashioned a conditional remedy: nine months for the NLC and IEBC to regularize the acquisition under the Land Act, 2012 and Land Value (Amendment) Act, 2019; failing which the IEBC pays Kshs.13,000,000/- or vacates, and mandamus issues for removal of the restriction.

p. 7

Legal principles established

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  • A compulsory acquisition not carried out in accordance with the Constitution and the Land Acquisition Act is unlawful, null and void and amounts to arbitrary deprivation of property under Article 40(3)
  • Where a purported acquisition is unlawful and void, the landowner cannot be required to exhaust statutory dispute resolution mechanisms premised on a lawful acquisition

Court orders

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  1. 1.Declaration that the respondents jointly and severally violated the petitioner's right to own property and right against arbitrary deprivation of property (prayer (a))
  2. 2.The 4th respondent in conjunction with the 3rd respondent directed to regularize the acquisition of the suit property in total compliance with the Land Act, 2012 and the Land Value (Amendment) Act, 2019 within nine (9) months from delivery of the judgment
  3. 3.Failing regularization within nine months, the 3rd respondent shall pay the petitioner Kshs.13,000,000/- for the one acre it occupies or vacate the suit property
  4. 4.The prayer for removal of the restriction shall abide the outcome of the regularization order; if regularization is not done within nine months and the 3rd respondent does not compensate or vacate, an order of mandamus shall forthwith issue compelling the 1st respondent to remove the restriction
  5. 5.Petitioner awarded the costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 27(1), 40, 40(3), 40(3)(a) and (b)
  • Land Registration ActSections 24(a), 25(1)
  • Land Acquisition Act (repealed)Section 29
  • Land Act
  • Land Value (Amendment) Act, 2019Sections 133A, 133C, 133D

Cases cited (7)

  • Richard Kimaiyo Kiyeng v. Land Registrar, Elgeyo Marakwet County & another
    (2018) eKLR

    Court lifted a restriction where the law was not complied with in the purported compulsory acquisition underlying the restriction

  • Anarita Karimi Njeru v. Attorney General

    Threshold for a constitutional petition - precision in pleading violations

  • Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR

    Threshold for a constitutional petition

  • Kenya Highway Authority v. Shalien Masood Mughal & 5 others
    (2017) eKLR

    Jurisdiction of the court limited to appeals from the Land Acquisition Tribunal

  • Communication Commission of Kenya & Others v. Royal Media Services Limited & 5 others
    (2014) eKLR

    Principle of constitutional avoidance

  • Republic v. Attorney General & Another ex parte Jackson Musyoka Munyalo
    (2015) eKLR

    Demand is a prerequisite to grant of an order of mandamus

  • Attorney General v. Zinj Limited
    (Petition 1 of 2020) (2021) KESC 23 (KLR) (CIV) (3 December 2021)

    Requirements of a lawful compulsory acquisition: notice, stated public purpose, prompt payment of just compensation; otherwise unlawful deprivation

Jurisdiction invoked
Articles 22 and 40 of the Constitution of Kenya, 2010 (alleged contravention of fundamental rights and freedoms)

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, "Chesingei v County Land Registrar, Elgeyo Marakwet County & 3 others", Case Analysis (2023). Petition E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20074/eng@2023-09-25

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