Fresco Bushlands (K) Limited v National Police Service & 4 others (Constitutional Petition 35 of 2019) [2024] KEELC 3494 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Respondents violated the Petitioner's rights under Articles 26, 27, 28, 29, 47 and 50(1)
No violation proved; the Petitioner failed to prove police involvement in the alleged eviction, demolition and seizure
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.
Whether the Respondents violated fair administrative action under Article 47
No violation; there was no evidence of any order by the 2nd Respondent requiring reasons to be given
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.
Whether the Petitioner was entitled to damages/compensation of Kshs 74,300,000/-
No; the losses were not specifically proved
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.
Whether the police have a role in enforcement of civil orders and seizures
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
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.
Legal principles established
#- 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
#- 1.Petition dismissed
- 2.Petitioner to shoulder the costs of the Petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.