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ELCPartially AllowedConstitutional Petition 29 of 2022· [2023] KEELC 20809 (KLR)

Barnabas East Africa v County Government of Mombasa & 2 others

Environment and Land Court at Mombasa
12 October 2023
LNL.L Naikuni
14,806 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ordered the County Government to pay Kshs. 27.15 million for building a road through private land without buying it or compensating the owner.

What this practically means

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Executive summary

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Barnabas East Africa, a church registered under the Societies Act and registered proprietor of CR:2283/I PLOT NO.VIMN/809 in Magongo, Mombasa, petitioned the Environment and Land Court alleging that the Respondents unlawfully entered its land in 2018 and constructed a cabro public access road without consent, consultation or compensation, in breach of Article 40 of the Constitution. It sought declarations, compensation, permanent and mandatory injunctions, revision of land rates, damages and mesne profits. The 1st Respondent, through its County Planning Officer, denied trespass, asserting the access road had existed for over 26 years (evidenced by a 2008 Google Earth image), that the cabro works were merely for planning purposes, that the Petitioner itself used the road, and that any easement had been acquired by adverse possession; it relied heavily on the Abdalla Mohamed Abdalla decisions. Naikuni J framed three issues: whether the Petition met the constitutional pleading threshold, whether it had merit, and costs. Applying Anarita Karimi Njeru, the court found the Petition properly pleaded. Relying on a surveyor's report that the land was private and never set aside as a public utility, the court held the Respondents should have invoked Sections 107 and 110 of the Land Act for compulsory acquisition and Section 148 for compensation, and that their arbitrary appropriation breached Article 40(3). It distinguished the Abdalla authorities on the facts. Trespass being actionable per se, the court awarded Kshs. 27,150,000/= compensation based on the County's own valuation, granted declarations, permanent and mandatory injunctions to block and fence the road, an order revising land rates, and costs against all Respondents jointly and severally. Mesne profits were refused for lack of evidence, the road generating no income.

Key legal issues

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01

Whether the Petition met the constitutional pleading threshold

Holding

The Petition complied with the Anarita Karimi Njeru standard of reasonable precision.

Reasoning

The court applied Article 259(1) interpretive principles and the Anarita Karimi Njeru precision requirement as restated in Mumo Matemu, finding the Petitioner's Article 40 claims pleaded with sufficient particularity, including the specific acts of creating the access road, charging unrevised rates and failing to compensate.

02

Whether the creation of the cabro access road violated Article 40

Holding

Yes - the Respondents appropriated private land for a public road without compulsory acquisition or compensation, breaching Article 40(3).

Reasoning

The court found the suit property was private, not a road reserve, per the surveyor's report. The Respondents never invoked Sections 107 and 110 of the Land Act to compulsorily acquire the land through the National Land Commission, nor paid compensation under Section 148 of the Land Act. Arbitrary appropriation without due process breached Article 40.

p. 21
03

Whether the Abdalla Mohamed Abdalla authority distinguished

Holding

Distinguished - unlike that case, no access road pre-existed here and the land was private, not road reserve.

Reasoning

The court enumerated factual differences: in Abdalla an access road already existed and the land was public road reserve; here no road existed, the land was private, and the purpose of taking was unclear, so the precedent did not assist the 1st Respondent.

p. 23
04

Entitlement to damages and reliefs

Holding

Petitioner entitled to compensation of Kshs. 27,150,000/= plus declarations and injunctions; mesne profits refused for lack of evidence.

Reasoning

Trespass being actionable per se, the court assessed compensation based on the County Government's own valuation of Kshs. 27,150,000/=, holding that had due process been followed the Petitioner would have been compensated for the portion taken for the road. Mesne profits failed because the road generated no income and no evidence was tabled.

p. 21

Legal principles established

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  • A State organ that takes private land for a public road must invoke the compulsory acquisition process under the Land Act; arbitrary appropriation without due process violates Article 40 and the owner cannot be remediless because the act is a fait accompli.
  • Trespass to land is actionable per se; once trespass is proved no proof of specific damage is needed for an award of damages.
  • Constitutional violations must be pleaded with a reasonable degree of precision (Anarita Karimi Njeru threshold).

Court orders

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  1. 1.Judgment entered in favour of the Petitioner in its entirety.
  2. 2.Declaration that CR:2283/I PLOT NO.VIMN/809 is a private property owned by the Petitioner.
  3. 3.Declaration that there is no public access and/or public road passing through the suit property.
  4. 4.Declaration that the 1st Respondent breached the Petitioner's constitutional rights under Article 40.
  5. 5.Declaration that the 1st Respondent unlawfully encroached and trespassed onto the suit property.
  6. 6.1st, 2nd and 3rd Respondents jointly and severally to pay the Petitioner Kshs. 27,150,000/= within 90 days as prompt, adequate, just and fair compensation.
  7. 7.Permanent injunction restraining the Respondents from trespassing on or interfering with the suit property.
  8. 8.Mandatory injunction compelling the Respondents to restore the suit property by covering up and blocking the cabro road and fencing both ends within 14 days, failing which the Petitioner may do so and recover costs.
  9. 9.Order compelling the 1st, 2nd and 3rd Respondents to revise the land rates to the value of the portion not covered by the cabro access road.
  10. 10.Order that the OCS Changamwe Police Station ensure compliance with the court's orders and maintain peace and law and order.
  11. 11.Costs of the Petition borne by the 1st, 2nd and 3rd Respondents jointly and severally.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 22, 23(1), 23(3), 259(1), 40, 162(1), 162(2)(b), 165(2)(d)(ii), 165(3)(b)
  • Trespass Act, Cap 294Section 3(1)
  • Public Roads and Roads of Access Act, Cap 399Sections 9(1), 10(1)
  • Land Act, 2012Sections 107(1), 110(1), 140, 143, 145, 148(1), 148(4)
  • Land Registration ActSection 98
  • Civil Procedure Act, Cap 21Section 2, Section 27(1)
  • Civil Procedure Rules, 2010Order 21 Rule 13
  • Societies Act, Cap 108

Cases cited (22)

  • Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & another
    [2013] eKLR

    Trespass to land is actionable per se; no proof of damage necessary for general damages.

  • Keiyan Group Ranch v Samwel Oruta & 9 others
    [2021] eKLR

    Cited for the measure of damages for trespass.

  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR

    Measure of damages for trespass: difference in value or cost of restoration, whichever is less.

  • Park Towers Ltd v John Mithamo Njika & others
    (2014) eKLR

    Where trespass is proved, no need to prove specific damage; court assesses damages on the facts.

  • Dellian Langata Limited v Symon Thuo Muhia & others
    [2018] eKLR

    Distinction between public road and road of access; road of access requires application.

  • Jackson Kipngeny Kipkurere & another v David Busienei & another
    [2021] eKLR

    Procedure for creating public access roads under the Public Roads and Roads of Access Act and Section 98 Land Registration Act.

  • Johnbosco Muinde Kamali & 5 others v Stephen Katili & Another
    (2019) eKLR

    Procedure for creating a public access road; court cannot compel owner to grant easement.

  • Sheema Co-operative Ranching Society & 31 others v the Attorney General
    (2013) UGHC 35

    Government cannot enter private land without acquiring it and paying compensation.

  • Nicholas Kiplagat Mibei v Michael Kirwa Chepsoy & another
    [2019] eKLR

    Cited for the Sheema principle on entry onto land without acquisition.

  • Giella v Cassman Brown & Company Limited
    (1973) EA 358

    Conditions for grant of injunction: prima facie case, irreparable injury, balance of convenience.

  • Abdalla Mohamed Abdalla v County Government of Mombasa
    ELC Appeal No. 285 of 2015 (unreported)

    1st Respondent's authority that pre-existing access road and cabro improvement caused no deprivation.

  • Abdalla Mohammed v County Government of Mombasa
    Civil Appeal No. 114 of 2018 (2019) eKLR

    No Article 40(3) violation where property not taken away and no prejudice shown from cabro improvement.

  • Mumo Matemu v Trusted Society of Human Rights Alliance & Another
    (2013) eKLR

    Standards of proof in constitutional petitions; precision in pleading violations.

  • Anarita Karimi Njeru v Republic
    [1980] eKLR 154

    Constitutional violations must be pleaded with a reasonable degree of precision.

  • Thorp v Holdsworth
    (1886) 3 Ch. D 637

    Object of pleadings is to define issues and narrow the dispute.

  • Sir Chuntilal Mehta and Sons Ltd v The Century Spinning and Manufacturing Co. Ltd
    1962 AIR 1314

    Definition of a substantial question of law.

  • Maina Kiai & 2 Others v Independent Electoral and Boundaries Commission & Another
    (2017) eKLR

    Ingredients determining whether a matter raises a substantial point of law.

  • Attorney General v Halal Meat Products Limited
    [2016] eKLR

    When mesne profits may be awarded for wrongful deprivation of property.

  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    [2016] eKLR

    Principles on mesne profits; wrongful possession as essence of the claim.

  • Lutaaya v Sterling Civil Engineering

    Definition of trespass to land; only person in possession may sue.

  • Reids Heweet & Company v Joseph
    AIR 1918 Cal. 717

    Costs follow the event.

  • Myres v Defries
    (1880) 5 Ex. D. 180

    Costs follow the event; distributive reading where separate issues arise.

Jurisdiction invoked
Articles 23(1), 162(1), 162(2)(b) and 165(2)(d)(ii) 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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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Barnabas East Africa v County Government of Mombasa & 2 others", Case Analysis (2023). Constitutional Petition 29 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20809/eng@2023-10-12

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