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ELCPartially AllowedPetition dated 29/5/2023, amended 9/6/2023 (Nyamira ELC Constitutional Petition)· [2024] KEELC 6193 (KLR)

Gekara v County Government of Nyamira (Petition E002 of 2023) [2024] KEELC 6193 (KLR)

Environment and Land Court
25 September 2024
MKMugo Kamau
4,207 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Nyamira's county government must pay a landowner KES 5.2 million for illegally demolishing his houses without compulsory acquisition or compensation.

What this practically means

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Executive summary

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The Petitioner, a retired civil servant and registered proprietor of L.R. No. West Mugirango/Siamani/2273, petitioned the Environment and Land Court at Nyamira after the County Government of Nyamira demolished his two houses in May 2020 while constructing a road, claiming declarations of rights violations, compensation, mesne profits and costs. The Respondent maintained the houses encroached on a road reserve. The court framed five issues, including ownership of the affected portion, damage, compensation, availability of special damages in a petition, and entitlement to reliefs. On the evidence, including the title deed and surveyor's report showing the new road was not in the Survey of Kenya maps, the court found the land remained the Petitioner's private property and that the Respondent could only have acquired it through compulsory acquisition with compensation. The court held that Articles 40(3), 47(2), 28 and 57(c) were infringed, noting the night-time notice and dawn demolition of an elderly citizen. It found special damages could be awarded in a petition converted to a viva voce suit. However, the valuer's Kshs.11,568,519 figure was discredited and the court awarded Kshs.5,000,000/= for the two houses, Kshs.192,000/= for alternative accommodation at Kshs.6,000/= monthly from 1/5/2020 to 31/12/2022, interest at court rates from filing, and costs. Mesne profits and general or exemplary damages were refused for want of proof and pleadings. Judgment delivered 25/9/2024 by Mugo Kamau J.

Key legal issues

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01

Whether the demolished houses stood on a road reserve/public land or on the Petitioner's private land

Holding

The Petitioner was the registered proprietor and no road of access appeared in the Survey of Kenya maps; the land remained his private property

Reasoning

The Petitioner produced a Title Deed issued 23/9/1988, an official search and green card. His surveyor's report showed the new road occupying 0.010 hectares was not on the P.I.D. map. The Respondent's gazette notices were too general and its witness did not produce any notice of intention to open road reserves. Absent a mapped road provision, the Petitioner was entitled to every inch of his soil.

p. 5
02

Whether the Respondent violated the Petitioner's constitutional rights

Holding

Yes - Article 40(3) property rights, Article 47(2) fair administrative action/right to be heard, Article 28 dignity and Article 57(c) rights of older persons were infringed

Reasoning

The Respondent demolished the houses without lawful compulsory acquisition, without adequate notice or an opportunity to be heard, having alerted the Petitioner only at night, and sent demolition crews at 6.00 a.m., subjecting an elderly citizen to humiliating treatment inconsistent with his inherent dignity.

p. 5
03

Whether special damages are awardable in a suit commenced by petition

Holding

Yes, by way of appropriate relief under Article 23(3), especially where the petition has been converted into a viva voce suit; the Supreme Court has affirmed compensation for property rights violations

Reasoning

Article 23(3) permits an order for compensation among appropriate reliefs. The court directed viva voce evidence, effectively converting the petition into an ordinary suit, so pleaded special damages could be assessed on evidence. The Supreme Court in Petition No. 1 of 2020 affirmed compensation for violation of the right to property.

p. 7
04

Quantum of compensation and alternative accommodation

Holding

Kshs.5,000,000/= for the two houses and Kshs.192,000/= for alternative accommodation at Kshs.6,000/= per month from 1/5/2020 to 31/12/2022

Reasoning

The valuer's figure of Kshs.11,568,519 was unreliable since the buildings had already been demolished and the valuer did not show how he arrived at the figure. Relying on photographs and pleadings, the court allowed only the bungalow and rental block. Mesne profits as pleaded failed for want of proof; only the proved alternative-accommodation tenancy was awarded, limited by the duty to mitigate.

p. 8

Legal principles established

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  • Government may only assume ownership of private land for a road by compulsory acquisition subject to adequate compensation under Article 40
  • Public participation must be concluded and its outcome communicated to the public
  • Evictions must comply with the Constitution and Sections 152G and 152H of the Land Act, protecting the dignity of evictees

Court orders

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  1. 1.A declaration that the demolition of the Petitioner's houses on L.R. No. West Mugirango/Siamani/2273 in order to create a road thereon is in violation of the Fair Administrative Actions Act, the Constitution of Kenya, 2010 and therefore illegal
  2. 2.Compensation of Kshs. 5,000,000/= for demolition of the 2 houses by way of Special Damages
  3. 3.Kshs. 192,000/= being alternative accommodation for the period 1/5/2020 to 31/12/2022 at Kshs.6,000/= per month
  4. 4.Costs of the Petition to the Petitioner
  5. 5.Interest on the awards of compensation and alternative accommodation at Court rates from the date of filing suit to payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10, 19(2), 20(4), 21(1), 22, 23(3), 24(1), 258, 27, 28, 29(f), 40(3)(4), 47, 50, 57(c), 159, 160, 176, 259
  • Fair Administrative Actions Actgenerally
  • Land Act No. 6 of 2012 (as amended by Land Laws (Amendment) Act No. 28 of 2016)Sections 152A, 152B, 152G, 152H
  • Civil Procedure RulesOrder 4, rule 6

Cases cited (3)

  • Petition No. 1 of 2020 (Supreme Court of Kenya)
  • Uhuru Muigai Kenyatta v National Star Publications Limited
    [2013] eKLR
  • Christopher Ontiri v The County Government of Nyamira & Others, Nyamira ELC Constitutional Petition No. E001 of 2022
Jurisdiction invoked
Articles 22, 23 and 40 of the Constitution of Kenya, 2010 (constitutional petition enforcement of Bill of Rights)

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, "Gekara v County Government of Nyamira (Petition E002 of 2023) [2024] KEELC 6193 (KLR)", Case Analysis (2024). Petition dated 29/5/2023, amended 9/6/2023 (Nyamira ELC Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6193/eng@2024-09-25

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