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ELCDismissedEnvironment & Land Petition E007 of 2020· [2023] KEELC 20174 (KLR)

Cosmas Makau Munyao v Inspector General of Police & 3 others

Environment and Land Court
27 September 2023
ANA. Nyukuri
2,773 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 dismissed a family's compensation claim over land occupied by Matuu Police Station because they could not prove the deceased actually owned it.

What this practically means

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Executive summary

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The Petitioner, administrator of the estate of Munyao Nzeki Ikuku, petitioned the Environment and Land Court at Machakos claiming that in 1990 the then Commissioner of Police arbitrarily took possession of 2.2 hectares of the deceased's land, on which Matuu Police Post (later gazetted as Matuu Police Station in 1992) was built, without compulsory acquisition procedures or compensation. He sought declarations that the occupation was unlawful and amounted to compulsory acquisition, payment of the current value of the land with interest, restoration of possession, and mesne profits. None of the four Respondents entered appearance or filed a response; the petition proceeded by written submissions. The court framed three issues: whether the land was arbitrarily and compulsorily acquired, whether the deceased's rights were violated, and whether the Petitioner was entitled to the orders sought. Examining the title deeds, the court found that the original parcel Machakos/Matuu/650 was registered on 5 April 1993, three years after the police post was established, and the title to Machakos/Matuu/9127 issued only on 10 August 2021, 31 years after occupation. No surveyor's report linked parcel 9127 to the land on which the police station stands, and the valuation report lacked the survey maps it referenced, giving it no probative value. The court held the Petitioner failed to prove ownership of the occupied land and could not be compensated for what does not belong to him. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the land on which Matuu Police Station stands was compulsorily acquired from the deceased

Holding

The Petitioner failed to prove that the deceased owned the land at the time of the 1990 encroachment; the original title was registered only in 1993 and no surveyor's report linked parcel 9127 to the police station land

Reasoning

The court examined the registration dates of the titles: the original parcel 650 was registered on 5 April 1993, three years after the police post was established. The title to parcel 9127 issued in 2021, 31 years after occupation. The valuation report lacked attached survey maps and thus had no probative value. Without proof of the nexus between the parcels and the occupied land, the claim failed.

p. 6
02

Whether the deceased's rights under Section 75 of the repealed Constitution and Article 40(3) were violated

Holding

No violation established because ownership of the allegedly acquired land was not proved

Reasoning

The court set out the constitutional protection against compulsory acquisition without prompt payment of full compensation under both the repealed and current Constitutions, but held that the protection is only available to a person with an interest in the property taken. Since ownership was not demonstrated, no rights violation could be found.

Legal principles established

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  • The state cannot deprive a person of property without full, prompt and just compensation
  • A claimant in a compulsory acquisition claim must first prove ownership of the land allegedly acquired

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 21, 22(1), 23, 40(3), 47, 60, 64, 165, 258
  • Repealed Constitution of KenyaSection 75(1) and (2)
  • Land Registration ActSection 26
  • Land Acquisition Act Cap 295 (repealed)Sections 3 and 8
  • Civil Procedure ActSection 2

Cases cited (8)

  • Elijah Makeri Nyangara v Stephen Mungau Njuguna & another
    [2013] eKLR

    Title is conclusive evidence of proprietorship and can only be challenged on fraud, misrepresentation or corrupt scheme

  • Isaiah Otiato & 6 others v County Government of Vihiga
    [2018] eKLR

    In compulsory acquisition the Government must follow legal procedures and fully and promptly compensate the owner

  • Commissioner of Lands & another v Coastal Aquaculture Limited
    [1996] KLR

    Compulsory acquisition requires compliance with procedure and full and prompt compensation

  • Republic v National Police Service Commission Ex Parte Daniel Chacha Chacha
    [2016] eKLR

    Compulsory acquisition must not violate principles of natural justice

  • Rajan Shah t/a Rajan S. Shah & Partners v Bipin P. Shah
    [2016] eKLR

    Mesne profits

  • Lucy Kochuvareed v P. Mariappa Gounder
    AIR 1979 SC 1214

    Mesne profits

  • Patrick Musimba v National Land Commission & 5 others
    Petition No 613 of 2014

    Full and prompt compensation for compulsorily acquired land

  • Attorney General v Zinj Limited
    Petition 1 of 2020 [2021] KESC 23 (KLR) (Civ) (3 December 2021)

    Where land is compulsorily acquired there must be full and prompt compensation by the state

Jurisdiction invoked
Articles 21, 22(1), 23, 60, 64, 165 and 258 of the Constitution of Kenya 2010

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, "Cosmas Makau Munyao v Inspector General of Police & 3 others", Case Analysis (2023). Environment & Land Petition E007 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20174/eng@2023-09-27

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