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ELCDismissedPetition (Amended) dated 26th October 2022· [2024] KEELC 3494 (KLR)

Fresco Bushlands (K) Limited v National Police Service & 4 others (Constitutional Petition 35 of 2019) [2024] KEELC 3494 (KLR)

Environment and Land Court
25 April 2024
5,027 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A company claiming police evicted it from Kenyan land lost its Kshs 74.3 million petition because it had no evidence proving the police were involved.

What this practically means

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Executive summary

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The Petitioner, a lessee of some 95,000 acres being Kilifi LR No. 14248 under a Lease dated 26th May 2010 with the Agricultural Development Corporation, petitioned the Environment and Land Court at Malindi claiming that officers under the command of the National Police Service Respondents evicted its agents, demolished houses and structures, carted away property and chicken worth about Kshs 4,200,000/- and seized 774 cows valued at Kshs 70,000,000/-. It sought declarations of violation of Articles 26, 27, 28, 29, 40, 47 and 50(1) of the Constitution, an order of judicial review quashing the alleged eviction decision, compensation of Kshs 74,300,000/-, punitive damages and costs. The Respondents, through affidavits of police officers and grounds of opposition, denied that any police officers carried out the impugned acts, contending that the Petitioner's cattle were seized by auctioneers in an ongoing dispute with a third party, Vital Bio-Energy, and the lessor. The Court framed three issues: whether the rights relied on were violated, whether the reliefs were merited, and costs. Relying on Section 107 of the Evidence Act and the authorities on burden of proof, the Court held that the Petitioner did not witness the alleged acts, had no receipts or OB numbers, produced no evidence of any police orders or directives, and did not identify the officers involved. The Petition was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Respondents violated the Petitioner's rights under Articles 26, 27, 28, 29, 47 and 50(1)

Holding

No violation proved; the Petitioner failed to prove police involvement in the alleged eviction, demolition and seizure

Reasoning

PW1 admitted he did not witness the demolitions or carting away of cattle, had no receipts, no OB numbers, and relied only on reports from agents. The Petitioner produced no evidence of any police orders or directives and could not identify the officers involved. DW1 denied any eviction orders. Without proof that police conducted the impugned acts, no rebuttal was required and no violation could be found.

p. 9
02

Whether the Respondents violated fair administrative action under Article 47

Holding

No violation; there was no evidence of any order by the 2nd Respondent requiring reasons to be given

Reasoning

Article 47 requires prior notice, hearing and reasons for adverse administrative action. However, the Petitioner produced no evidence of any written or oral eviction order or instruction by the 2nd Respondent. A witness could not identify who issued such orders. Without proof of an actual administrative decision or action by the Respondents, there was no requirement to give notice or reasons.

p. 7
03

Whether the Petitioner was entitled to damages/compensation of Kshs 74,300,000/-

Holding

No; the losses were not specifically proved

Reasoning

The Petitioner's witness conceded under cross-examination that he had no receipts to prove ownership or value of the items claimed. The Court applied Gitobu Imanyara requiring liquidated losses to be proved by receipts, bank statements or invoices. Since the substantive claims of violation collapsed and damages were not proved, all heads of damages collapsed with the Petition.

p. 10
04

Whether the police have a role in enforcement of civil orders and seizures

Holding

The police role in civil processes is limited to maintaining law and order, such as police assistance for auctioneers under Rule 9 of the Auctioneers Rules

Reasoning

The Court noted the police mandate under Section 24 of the National Police Service Act and held that police must act within constitutional and legal limits. In civil disputes such as auctions, the police role is limited to providing assistance to prevent breach of the peace under Rule 9 of the Auctioneers Rules, not to evict or seize property on behalf of private parties.

p. 8

Legal principles established

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  • The burden of demonstrating that a right was infringed lies on the person alleging the violation, and only shifts once a prima facie case is made out
  • Mere allegations of constitutional violation without tangible evidence cannot sustain a petition
  • Damages in constitutional petitions must be specifically pleaded and proved with documentary evidence such as receipts and invoices
  • The police, while exercising their mandate, must act within the Constitution and the law

Court orders

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  1. 1.Petition dismissed
  2. 2.Petitioner to shoulder the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 23, 24, 25, 26, 27, 28, 29, 40, 47, 50(1), 238(2), 243, 244, 245
  • Evidence ActSection 107
  • Fair Administrative Action ActSections 4(1), (2) and (3)
  • National Police Service ActSection 24
  • Auctioneers RulesRule 9
  • Land Registration Actgeneral
  • Land Actgeneral

Cases cited (6)

  • Benson Wekesa Milimo v National Land Commission & 2 others
    [2021] eKLR
  • Njeri & 8 others v Nyakiongora & 3 others; National Land Commission & another (Interested Parties)
    (Environment & Land Petition 47 of 2018) [2022] KEELC 2366
  • Mohammed Abduba Dida v Debate Media Limited and another
    [2018] eKLR
  • Standard Newspaper Ltd & Another v Attorney General & 4 Others
    [2013] eKLR
  • Christian Juma Wabwire v Attorney General
    [2019] eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
Jurisdiction invoked
Article 23 of the Constitution (enforcement of Bill of Rights); Articles 26, 27, 28, 29, 40, 47 and 50(1) alleged violations

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, "Fresco Bushlands (K) Limited v National Police Service & 4 others (Constitutional Petition 35 of 2019) [2024] KEELC 3494 (KLR)", Case Analysis (2024). Petition (Amended) dated 26th October 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3494/eng@2024-04-25

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