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ELCDismissedPetition dated 24th October 2019 (amended 6th July 2021)· [2024] KEELC 487 (KLR)

Gatonye v Kenya National Highways Authority & 2 others (Environment & Land Petition 19 of 2019) [2024] KEELC 487 (KLR)

Environment and Land Court of Kenya
5 February 2024
4,147 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner's constitutional petition over compensation for acquired land failed because the court held such disputes belong in ordinary proceedings, not constitutional ones.

What this practically means

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Executive summary

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The Petitioner, claiming to be the registered owner of Plot No. 26 Total Market Center along the Nakuru-Eldoret Highway, petitioned the court in October 2019 (amended July 2021) alleging that the Respondents compulsorily acquired his plot in 2013 for the Northern Corridor Transport Improvement Project road expansion without adhering to the Land Acquisition Act and without full and prompt compensation, in breach of his right to property under Article 40 of the Constitution. He sought a declaration of illegality, compensation at current market value, interest at 12% per annum, mesne profits, general damages and costs. The 1st Respondent (KeNHA) denied that the plot was among the properties acquired, maintained that compensation is the 2nd Respondent's (NLC) statutory responsibility, and questioned the Petitioner's proof of ownership. Hearing proceeded by written submissions. The court, acting suo motu on jurisdiction following Nasra Ibrahim Ibren, found that the real dispute was purely one of compensation for compulsory acquisition. Applying Southlake Panorama and the constitutional avoidance principle in Communications Commission, it held such disputes raise no constitutional question under Article 40 and that the constitutional court therefore lacked jurisdiction. The orders sought could not be granted, and the Petition was dismissed with costs to the Respondents under Section 27 of the Civil Procedure Act. The merits of ownership, acquisition and compensation were not determined.

Key legal issues

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01

Whether the court has jurisdiction over the petition

Holding

The court lacks constitutional jurisdiction because the real dispute is one of compensation for compulsory acquisition, not infringement of Article 40 rights; constitutional avoidance applies.

Reasoning

Relying on Southlake Panorama, the court held that where a petitioner's complaint is essentially that compensation for compulsorily acquired land was not paid, paying just compensation would resolve the matter, so no constitutional angle arises. The Communications Commission principle of avoidance requires the court not to determine a constitutional issue where the matter may be decided on another basis. Sitting as a constitutional court, it therefore has no jurisdiction.

p. 9
02

Whether the Petitioner is entitled to the orders sought

Holding

No; the orders cannot be granted following the jurisdictional finding.

Reasoning

Having found that the constitutional court lacks jurisdiction over what is essentially a compensation dispute, the court did not reach the merits of ownership, compulsory acquisition or compensation, holding simply that the orders sought in the Petition cannot be granted.

p. 9
03

Who bears the costs of the petition

Holding

Costs to the Respondents, costs following the event under Section 27 of the Civil Procedure Act.

Reasoning

The court applied the settled principle that a successful party should ordinarily be awarded costs unless the court directs otherwise for good reason; the Respondents succeeded and were awarded costs.

p. 9

Legal principles established

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  • A court may raise and determine the issue of its own jurisdiction suo motu even where parties have not raised it.
  • Disputes over compensation for compulsorily acquired property are not constitutional questions and the doctrine of constitutional avoidance bars their being litigated as petitions.
  • Costs follow the event under Section 27 of the Civil Procedure Act.

Court orders

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  1. 1.This Petition is hereby dismissed with costs to the Respondents.
Jurisdiction invoked
Articles 22(1), 23 and 40 of the Constitution of Kenya, 2010 (constitutional petition jurisdiction)

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, "Gatonye v Kenya National Highways Authority & 2 others (Environment & Land Petition 19 of 2019) [2024] KEELC 487 (KLR)", Case Analysis (2024). Petition dated 24th October 2019 (amended 6th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/487/eng@2024-02-05

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