Gatonye v Kenya National Highways Authority & 2 others (Environment & Land Petition 19 of 2019) [2024] KEELC 487 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court has jurisdiction over the petition
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.
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.
Whether the Petitioner is entitled to the orders sought
No; the orders cannot be granted following the jurisdictional finding.
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.
Who bears the costs of the petition
Costs to the Respondents, costs following the event under Section 27 of the Civil Procedure Act.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.