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ELCPartially AllowedPetition dated 12th April 2018 (Further Amended Petition dated 6th April 2023)· [2024] KEELC 6088 (KLR)

Gatabaki & another v Attorney General & 8 others (Environment & Land Petition 44 of 2018) [2024] KEELC 6088 (KLR)

Environment and Land Court
23 September 2024
OMOguttu Mboya
19,177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~77 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court awarded a Gatabaki family KES 300 million because the Northern Bypass was built on their land without following Kenya's compulsory acquisition process.

What this practically means

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Executive summary

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The Petitioners, co-administratrices of the estate of Dr. Samuel Mundati Gatabaki, claimed that their rights to L.R No. 5980 and L.R No. 4508/1 were violated when the Respondents subdivided and excised portions of L.R No. 5980 and constructed the Northern Bypass on L.R No. 4508/1 without compulsory acquisition, seeking declarations and compensation of over KES 1.8 billion. The 1st Respondent filed a Cross-Petition asserting that L.R Nos. 5980/1 and 5980/2 were public land surrendered for public utility and road reserve. The court framed four issues and held that L.R No. 5980 ceased to exist upon the registered sub-division into four portions, so no rights subsist over it and the claim on that title failed. On L.R No. 4508/1, the court found no gazette notice, no notice of intention to acquire and no public inquiry; the parcel gazetted was L.R 4808 in Nakuru. The construction of the Northern Bypass therefore constituted trespass and a violation of Article 40. The court awarded general damages of KES 200,000,000 and exemplary damages of KES 100,000,000 against the 6th Respondent, with interest, and directed the 5th Respondent to commence compulsory acquisition under sections 107-113 of the Land Act within 60 days and pay just compensation in addition. The global claim of KES 1,865,300,000 failed as the valuation was omnibus; mesne profits and aggravated damages were refused as duplicative; and the dam claim failed as unproved special damages. The Cross-Petition succeeded: L.R Nos. 5980/1 and 5980/2 were declared public land, Deed Plan No. 465367 was quashed, and the Petitioners were ordered to vacate L.R 5980/1 within 90 days, failing which eviction may issue.

Key legal issues

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01

Whether L.R No. 5980 still exists as a title capable of being violated

Holding

L.R No. 5980 ceased to exist upon the registered sub-division into L.R Nos. 5980/1 to 5980/4; no rights attach to it and no claim for its breach lies.

Reasoning

PW1 conceded the sub-division scheme of 1979 was approved and PW2, the surveyor who undertook the sub-division, confirmed the land was divided into four portions, two of which were surrendered to the government. The sub-divisions were never cancelled. The Petitioners bore the burden under sections 107, 108 and 109 of the Evidence Act of proving the title existed and was breached, and failed to displace the evidence of sub-division.

p. 19
02

Whether L.R No. 4508/1 was compulsorily acquired with due process

Holding

L.R No. 4508/1 was never compulsorily acquired; the gazetted acquisition concerned L.R No. 4808 in Njoro, Nakuru. The construction of the Northern Bypass on it was therefore trespass and a violation of Article 40.

Reasoning

No gazette notice for L.R 4508/1 was produced, and none was published; the notice relied on related to L.R 4808 in Nakuru, which the Northern Bypass does not traverse. No notice of intention to acquire was served and no compensation paid. Compliance with sections 3, 5, 6 and 9 of the Land Acquisition Act (now repealed) was mandatory. The 6th Respondent thus entered and constructed the road on the land without lawful basis, amounting to trespass.

p. 22
03

What reliefs and compensation are due to the Petitioners

Holding

The Petitioners were awarded general damages of KES 200,000,000 and exemplary damages of KES 100,000,000 for trespass, with interest, payable by the 6th Respondent, and the 5th Respondent directed to commence compulsory acquisition and payment of just compensation within 60 days.

Reasoning

The trespass has been continuing since 2010. The valuer's report was omnibus and could not isolate the value of L.R 4508/1, so the global claim of KES 1,865,300,000 failed; computation of compensation for compulsory acquisition is for the National Land Commission. Aggravated damages were refused as duplicative of exemplary damages; mesne profits could not be combined with general damages; the dam claim failed as unproved special damages.

p. 26
04

Whether the Cross-Petition declaring L.R Nos. 5980/1 and 5980/2 public land is merited

Holding

The Cross-Petition succeeded to the extent that L.R Nos. 5980/1 and 5980/2 were surrendered to the government and are public land; the Petitioners must vacate L.R 5980/1, the impugned Deed Plan No. 465367 was quashed, and resultant titles are null and void.

Reasoning

PW2 confirmed the deed plans for 5980/1 and 5980/2 were surrendered and never released back to him, and RW1 and RW2 confirmed the surrender was lodged and registered with the Director of Survey (deed plan 125787 dated 7th March 1986). Surrendered land becomes public land subject to public trust principles and cannot revert to private ownership, so any subsequent deed plan created by the Petitioners' surveyor was void ab initio - ex nihilo nihil fit.

p. 34

Legal principles established

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  • The burden of proving the existence of property and breach of constitutional rights lies on the petitioner, who must lay substantial material before the court before any burden shifts to the respondent
  • Once a mother title is sub-divided into new titles, the original parcel ceases to exist as an independent title and no legal rights or interests attach to it
  • Compulsory acquisition of private land requires strict compliance with statutory procedures - gazettement, notice of intention to acquire and a public inquiry - failing which the taking is unlawful
  • Entry upon and construction on private land before compulsory acquisition constitutes trespass and infringes the right to property
  • Land surrendered to the government becomes public land held under public trust principles and cannot be claimed by, or compensated to, the former owners
  • A claimant cannot simultaneously recover both general damages for trespass and mesne profits; the court may award only one
  • Special damages must be specifically pleaded and particularly proved

Court orders

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  1. 1.Declaration that L.R No. 5980 ceased to exist following registration of the sub-division scheme; the Petitioners' portion is L.R No. 5980/3
  2. 2.Declaration that no rights accrue to the Petitioners in respect of L.R No. 5980 capable of being breached
  3. 3.Declaration that L.R No. 4508/1 lawfully belongs to the Petitioners and was never compulsorily acquired in accordance with the Land Acquisition Act
  4. 4.Declaration that the construction of the Northern Bypass on L.R No. 4508/1 constitutes trespass to property
  5. 5.General damages of KES 200,000,000 awarded to the Petitioners for trespass to L.R No. 4508/1
  6. 6.Exemplary damages of KES 100,000,000 awarded to the Petitioners for trespass to L.R No. 4508/1
  7. 7.Interest on the awards at court rates from the date of judgment until payment in full
  8. 8.Awards of general and exemplary damages to be borne by the 6th Respondent
  9. 9.The 5th Respondent ordered to commence compulsory acquisition of L.R 4508/1 under Sections 107-113 of the Land Act 2012 and generate the requisite award within 60 days
  10. 10.Compensation from compulsory acquisition payable in addition to the general and exemplary damages
  11. 11.Dismissal of the claim for compensation for 16.38 acres of KES 1,865,300,000
  12. 12.Dismissal of the claims for loss of user, aggravated damages and mesne profits
  13. 13.Dismissal of the claim for compensation for the dam
  14. 14.Petitioners awarded half costs of the Petition, borne by the Respondents jointly and/or severally
  15. 15.Declaration that L.R No. 5980/2 is public land surrendered for a road and not available for allocation for private use
  16. 16.Declaration that L.R No. 5980/1 (7.340 hectares, Deed Plan 125786) was surrendered for public utility and is public land
  17. 17.Declaration that the procurement and creation of Deed Plan No. 465367 dated 24th March 2023 in respect of L.R 5980/74 was unlawful, illegal and unconstitutional
  18. 18.Quashing of Deed Plan No. 465367 dated 24th March 2023 in respect of L.R No. 5980/74
  19. 19.Declaration that the Respondents to the Cross-Petition are not entitled to compensation by way of compulsory acquisition as there was a surrender of L.R No. 5980/2
  20. 20.Respondents to the Cross-Petition ordered to vacate and hand over vacant possession of L.R No. 5980/1 to the 1st Respondent on behalf of the People of Kenya within 90 days
  21. 21.Liberty to the 1st Respondent to levy eviction with costs certified by the Deputy Registrar upon default
  22. 22.Any sub-division arising from L.R No. 5980/1 declared null and void
  23. 23.Chief Land Registrar and Directorate of Survey mandated to revoke any deed plan and certificate of title arising from L.R No. 5980/1 and expunge them from their records
  24. 24.1st Respondent awarded half costs of the Cross-Petition, borne by the Respondents to the Cross-Petition jointly and/or severally
Jurisdiction invoked
Original constitutional petition jurisdiction under Article 40 of the Constitution (right to property) and Article 165(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gatabaki & another v Attorney General & 8 others (Environment & Land Petition 44 of 2018) [2024] KEELC 6088 (KLR)", Case Analysis (2024). Petition dated 12th April 2018 (Further Amended Petition dated 6th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6088/eng@2024-09-23

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