Shazmeer Enterprises Limited v County Government of Mombasa (Constitutional Petition E007 of 2022) [2024] KEELC 4382 (KLR)
The bottom line
#A Mombasa court ordered the County Government to shut an illegal road through private land and pay the owner KSh 10.5 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the constitutional pleading threshold
The Petitioner complied with the Anarita Karimi Njeru standard of reasonable precision
The court applied Article 259(1) interpretation principles and the Anarita Karimi Njeru standard as articulated in Mumo Matemu, holding that constitutional violations must be pleaded with reasonable precision. It found the Petition particularised the provisions of Articles 40 and 47 infringed, the manner of infringement and the reliefs sought, and therefore fully met the threshold for a constitutional petition.
Ownership of the suit property
The Petitioner is the rightful absolute proprietor holding an unimpeached certificate of lease
Relying on Section 26(1) of the Land Registration Act and Daudi Kiptugen, the court found the certificate of lease dated 17th September 1992 was never cancelled, revoked or invalidated under Section 80, and the Respondent adduced no contrary evidence. The Respondent's prescription/easement argument failed for want of evidence; the satellite images were undated, blurred and unaccompanied by a certificate under the Evidence Act.
Whether the Respondent's creation of a murram access road violated Articles 40 and 47
Yes - the Respondent trespassed and effectuated a de facto compulsory acquisition without the statutory process or compensation
The court held that even if the Respondent intended compulsory acquisition, the elaborate procedure under Part VIII, Sections 107 to 133 of the Land Act and Article 40(3) was not followed, no compensation was paid and the Petitioner was not notified. The acts amounted to trespass actionable per se and an unconstitutional, oppressive and irregular deprivation of property, also breaching the right to fair administrative action under Article 47.
Quantum of damages, exemplary damages and mesne profits
General damages of Kshs 5,500,000 and exemplary damages of Kshs 5,000,000 awarded; mesne profits refused
Following Duncan Nderitu Ndegwa and Park Towers, trespass being actionable per se, the court assessed general damages at Kshs 5,500,000. Applying Rookes v Barnard as adopted in Godfrey Julius Ndumba Mbogori, the Respondent's oppressive, arbitrary and unconstitutional conduct warranted exemplary damages of Kshs 5,000,000. Mesne profits failed for want of evidence and because the road generated no income.
Costs
Costs follow the event; the successful Petitioner was awarded costs
Applying Section 27(1) of the Civil Procedure Act and Rule 26 of the Mutunga Rules, together with Jasbir Rai Singh and Cecilia Karuru Ngayu, the court held that the Petitioner succeeded in establishing its case on a preponderance of probabilities and was therefore entitled to costs of the suit borne by the Respondent.
Legal principles established
#- Compulsory acquisition of land must follow the statutory procedure under the Land Act and Article 40(3), with prompt payment of just compensation; deprivation without compensation is unconstitutional
- Trespass to land is actionable per se and proof of specific damage is unnecessary
- A certificate of lease is prima facie evidence of absolute and indefeasible ownership under Section 26(1) of the Land Registration Act
Court orders
#- 1.Judgment entered in favour of the Petitioner as per the Petition dated 22nd February 2022 in its entirety
- 2.Declaration that Mombasa/M.S/Block 1/1674 is a private property owned by the Petitioner
- 3.Declaration that there is no public access and/or public road passing through Mombasa/M.S/Block 1/1674
- 4.Declaration that the Respondent breached the Petitioner's constitutional rights to acquire and own property under Article 40
- 5.Declaration that the Respondent unlawfully encroached and trespassed onto the suit property by creating a public access road
- 6.Permanent injunction restraining the Respondent, its agents, assigns, employees, officers and any person acting on its behalf from trespassing on or interfering with the suit property
- 7.Mandatory injunction compelling the Respondent to restore the suit property to its original state by covering up and blocking the murram road and fencing both ends within 14 days, in default of which the Petitioner may do so and recover costs
- 8.Order compelling the Respondent to block the murram access road and use its resources to prevent public access to the said road
- 9.Order that the OCS Likoni Police Station ensure compliance with the court orders and maintain peace, law and order
- 10.Order for compensation to the Petitioner under Articles 70(1), 2(c) and 23(3)(a) and (e) of the Constitution
- 11.General damages of Kenya Shillings 5,500,000 for trespass pursuant to Article 23(3)(b) and (e) of the Constitution as read with Section 13(7) of EMCA 1999
- 12.Exemplary damages of Kenya Shillings 5,000,000
- 13.Costs and interest of the Petition awarded to the Petitioner and borne by the Respondent
- Jurisdiction invoked
- Articles 23(1) and 165(3)(b) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shazmeer Enterprises Limited v County Government of Mombasa (Constitutional Petition E007 of 2022) [2024] KEELC 4382 (KLR)", Case Analysis (2024). Constitution Petition dated 22nd February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4382/eng@2024-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.