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ELCPartially AllowedConstitutional Petition 21 of 2021· [2023] KEELC 21885 (KLR)

Husainiz Investment Limited v County Government of Mombasa

Environment and Land Court of Kenya
28 November 2023
17,755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~71 min to read original · ~4 min brief

The bottom line

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Mombasa's county government was ordered to pay over Kshs. 67 million for demolishing a building without notice or compensation.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of Plot No. 1436 Section XVII, Mombasa Island under a 99-year lease, obtained approvals and constructed a commercial-cum-residential house and perimeter wall. On 6th March 2021, during the Respondent's 'Urban Renewal and Re-development of Old Estates within Mombasa County' project around Buxton Estate, the Respondent demolished the Petitioner's house and wall without notice, fenced off the land and commenced construction. The Respondent later issued Gazette Notice No. 4671 dated 13th May 2021 purporting to cancel the Petitioner's sub-lease, contending it retained freehold ownership and that the Petition was res judicata given prior Buxton litigation. The Respondent filed no submissions. The court framed four issues and held the Petition met the Anarita Karimi Njeru pleading threshold. On the competing titles, it found the Petitioner's title first in time and held that cancellation of title is permissible only by a court under Section 80 of the Land Registration Act, rendering the Gazette Notice cancellation irregular and illegal. The demolition without notice and acquisition without prompt compensation violated Articles 10, 40, 47 and 50(1) and the Fair Administrative Actions Act. The court awarded Kshs. 53,000,000/- as market value of the land, Kshs. 12,092,310.09/- for the demolished structures and Kshs. 2,650,000/- general damages for loss of use, subject to surrender of the leasehold title, but declined Kshs. 200,000/- special damages for want of receipts. Costs were awarded to the Petitioner.

Key legal issues

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01

Whether the Petition met the constitutional pleading threshold

Holding

The Petition met the threshold, having pleaded the violations with reasonable precision per Anarita Karimi Njeru

Reasoning

The court applied Article 259(1) interpretive principles and the Anarita Karimi Njeru standard as restated in Mumo Matemu. The Petitioner pleaded specific violations of Articles 10, 40, 47 and 50 with the constitutional text set out, satisfying the requirement of reasonable precision for constitutional petitions.

p. 20
02

Ownership of the suit property and validity of the competing titles

Holding

The Petitioner holds the bona fide, first-in-time title; the Respondent's later title and Gazette Notice cancellation were unlawful

Reasoning

The Petitioner's Certificate of Lease issued 7th June 2018 (lease from 1st December 1993) preceded the Respondent's title issued 28th May 2021. The Respondent called no evidence. Cancellation of title by Gazette Notice No. 4671 without a court order under Section 80 of the Land Registration Act was irregular, wrongful and illegal, and being a nullity could found no subsequent valid action.

p. 23
03

Whether the Respondent's acquisition and demolition violated the Constitution

Holding

The demolition without notice and acquisition without compensation violated Articles 10, 40, 47 and 50(1) and the Fair Administrative Actions Act

Reasoning

Compulsory acquisition must follow Sections 107-133 of the Land Act, 2012 with prompt payment in full of just compensation per Article 40(3). The Respondent demolished the Petitioner's developments, fenced off the land and commenced construction without notice, hearing or compensation, breaching fair administrative action and property rights.

04

Whether special damages of Kshs. 200,000/- for valuation were payable

Holding

Special damages declined for failure to strictly prove with receipts

Reasoning

Applying Hahn v Singh, special damages must be specifically pleaded and strictly proved. Courts require actual receipts, not invoices or reports. The Petitioner attached no receipts for the valuation of the demolished properties and the suit property, so the claim failed.

Legal principles established

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  • A title can only be cancelled or revoked by a court of law on grounds of fraud, mistake or omission under Section 80 of the Land Registration Act; cancellation by Gazette Notice is irregular and illegal
  • Where there are two competing titles over the same parcel, the first in time prevails
  • A public authority must act within the law; no administrative or executive action may be taken capriciously, arbitrarily or without due process
  • Compulsory acquisition of land requires prompt payment in full of just compensation under Article 40(3) of the Constitution and Sections 107-133 of the Land Act, 2012

Court orders

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  1. 1.Judgment entered in favour of the Petitioner as per the terms of the filed Constitution Petition dated 24th May, 2021 against the Respondent in its entirety
  2. 2.A declaration that the Respondent acted illegally and unconstitutionally in facilitating the demolition of the house and the perimeter wall on plot number 1436 Section XVII, Mombasa Island
  3. 3.A declaration that the Respondent violated Articles 2, 3, 10, 19, 20, 21, 28, 40, 47 and 50(1) of the Constitution and the Fair Administrative Actions Act in demolishing the house and perimeter wall and fencing off the suit property
  4. 4.An order that the Petitioner is entitled to full compensation for the value of plot number 1436 Section XVII, Mombasa Island subject to surrendering the leasehold title to the Respondent
  5. 5.Kshs. 53,000,000/- as the current market value of the suit land
  6. 6.Kshs. 12,092,310.09 as the value of the destruction of the Petitioner's property
  7. 7.Kshs. 2,650,000/- as general damages for loss of use (5% of the quantified damages)
  8. 8.Upon compensation, the Petitioner to surrender the original Certificate of Lease for the suit land to the Respondent
  9. 9.Costs of the Petition to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 19, 20, 21, 22, 23, 259(1), 27, 28, 40, 47, 50(1), 65
  • Land Registration ActSections 24, 25, 26, 28, 79, 80
  • Land ActSections 107-133, 111
  • Evidence ActSection 107
  • Fair Administrative Actions Act
  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26(1) and (2)
  • Land Acquisition Act (repealed)

Cases cited (35)

  • Onyango v Attorney General [1986-1989] EA 456
    [1986-1989] EA 456

    A decision in breach of natural justice is not cured by holding the decision would otherwise have been right

  • Pastoli v Kabale District Local Government Council & Others (2008) 2 EA 300
    (2008) 2 EA 300

    Procedural impropriety is failure to act fairly in the decision-making process

  • Republic v The Honourable The Chief Justice of Kenya & Others Ex-Parte Moijo Mataiya Ole Keiwua, HCMA No. 1298 of 2004
    HCMA No. 1298 of 2004

    The right to be heard has intrinsic and instrumental facets

  • De Souza v Tanga Town Council (1961) E.A 377
    (1961) E.A 377

    A decision made in violation of natural justice is no decision

  • Commissioner of Lands & Another v Coastal Aquaculture Ltd Civil Appeal No. 252 of 1996
    Civil Appeal No. 252 of 1996 KLR (E&L 264)

    In compulsory acquisition the government must strictly adhere to constitutional and statutory provisions

  • Arnacherry Limited v Attorney General (2014) eKLR
    (2014) eKLR

    The State cannot participate in forceful take-over of property without due compensation

  • Linus Nganga Kiongo & 3 others v Town Council of Kikuyu [2012] eKLR
    [2012] eKLR

    Uncontroverted evidence stands as truth where a party fails to adduce evidence

  • Rahimkhan Afzalkhan Rahimkhan & 4 others v Chief Land Registrar & 2 others [2017] eKLR
    [2017] eKLR

    Petitioners whose rights were violated are entitled to full compensation at current market value

  • Rhoda S. Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited [2019] eKLR
    [2019] eKLR

    Quantum of general damages for violation of constitutional rights

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

    Standards of proof and pleading precision in constitutional petitions

  • Anarita Karimi Njeru v Republic [1980] eKLR 154
    [1980] eKLR 154

    Constitutional violations must be pleaded with a reasonable degree of precision

  • Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009
    Civil Appeal No. 239 of 2009

    A registered proprietor whose root of title is challenged must prove legality of acquisition beyond the title instrument

  • Dennis Kuria & Anor v The Attorney General, Misc Civil Application No. 663 of 2006
    Misc Civil Application No. 663 of 2006

    History is relevant to establish legality of allotment and issuance of titles

  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others [2016] eKLR
    [2016] eKLR

    Where two or more titles exist, the court must investigate the root of title

  • Wreck Motors Enterprises v The Commissioner of Lands and Others, Civil Appeal No. 71 of 1997
    Civil Appeal No. 71 of 1997

    Where there are two competing titles the one registered earlier takes priority

  • Gitwany Investment Limited v Tajmal Limited & 3 Others (2006) eKLR
    (2006) eKLR

    First in time prevails where two titles issue over the same parcel by mistake

  • Macfoy v United Africa Company Ltd (1961) 3 All ER 1179
    (1961) 3 All ER 1179

    A void act is a nullity and every proceeding founded on it is incurably bad

  • Republic v Kombo and 3 Others Ex-Parte Waweru [2008] 3 KLR (EP) 478
    [2008] 3 KLR (EP) 478

    Every act of government power must be shown to have a strictly legal pedigree

  • Virendra Ramji Gudka & 3 Others v Attorney General (2014) eKLR
    (2014) eKLR

    Rights of compulsory acquisition conferred by Article 40 and Sections 107-133 of the Land Act

  • Patrick Musimba v National Land Commission & 4 others (2016) eKLR
    (2016) eKLR

    The statutory process of compulsory acquisition and the principle of just compensation

  • Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716
    [1985] KLR 716

    Special damages must be specifically pleaded and strictly proved

  • Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR
    [2015] eKLR

    An invoice is not proof of payment; only a receipt meets the test

  • Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR
    [2006] eKLR

    Receipts, not invoices, substantiate special damages

  • Sanya Hassan v Soma Properties Ltd

    Actual receipts required to substantiate loss or economic injury

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

    Costs follow the event

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

    Meaning of 'costs shall follow the event'

  • Jasbir Rai Singh v Tarchalans Rai Singh (2014) eKLR
    (2014) eKLR

    Costs follow the event

  • Legal Advice Centre & 3 Others v County Government of Mombasa and 4 others, Mombasa High Court Petition No. 39 of 2016 [2016] eKLR
    [2016] eKLR

    Cited by Respondent on res judicata regarding Buxton redevelopment litigation

  • Legal Advice Centre & 3 Others v County Government of Mombasa and 4 others, Mombasa Civil Appeal No. 46 of 2017

    Cited by Respondent on res judicata regarding Buxton redevelopment litigation

  • Peter Obhunga Wakoyo & 87 others v County Government of Mombasa & 3 Others, Constitutional Petition No. 58 of 2020

    Cited by Respondent on res judicata regarding Buxton redevelopment litigation

  • Justus Chai Mbaru & 12 Others v County Government of Mombasa & 3 Others, Constitutional Petition No. 28 of 2020

    Cited by Respondent on res judicata; issues of public participation already determined

  • Motex Knitwear Limited v Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCCC No. 834 of 2002
    HCCC No. 834 of 2002

    Consequences of a party failing to adduce evidence (as quoted within Linus Nganga Kiongo)

  • Trust Bank Limited v Paramount Universal Bank Limited & 2 Others, Nairobi (Milimani) HCCS No. 1243 of 2001
    HCCS No. 1243 of 2001

    Failure to call evidence leaves pleadings as mere statements of fact (as quoted within Linus Nganga Kiongo)

  • Horn v Sunderland Corporation [1941] 2 KB 26
    [1941] 2 KB 26

    Compensation must completely make up the loss (as quoted within Patrick Musimba)

  • Director of Buildings and Lands v Shun Fung Wouworks Ltd [1995] AC 111
    [1995] AC 111, 125

    Compensation quantified on the principle of equivalence (as quoted within Patrick Musimba)

Jurisdiction invoked
Articles 22 and 23 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights), read with Articles 2, 3, 10, 19, 20, 21, 27, 28, 40, 47 and 50(1)

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, "Husainiz Investment Limited v County Government of Mombasa", Case Analysis (2023). Constitutional Petition 21 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21885/eng@2023-11-28

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