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ELCPartially AllowedConstitutional Petition dated 17/8/2023 (Nyamira)· [2024] KEELC 6859 (KLR)

Teya & 2 others v County Government of Nyamira & 2 others (Environment & Land Petition E001 of 2023) [2024] KEELC 6859 (KLR)

Environment and Land Court
15 October 2024
MKMugo Kamau
2,603 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed families' ownership of a Keroka market plot, awarded Kshs 3 million against Nyamira County for demolishing buildings, but refused larger unpleaded damages.

What this practically means

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Executive summary

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The three Petitioners, purporting to act for the estates of three brothers (Barnabas Teya Ruoti, Andrew Maranga Ondieki and Sitima Teya Nyamaiko), petitioned over Plot No. 3 Keroka Market in Nyamira County. They claimed the deceased developed permanent commercial units on the plot and collected rent until 20/3/2020, when the County Government erected a road and demolished the structures. They sought declarations that the proprietary interest vests in the estates, that the seizure without consent or compensation was unconstitutional, a permanent injunction, mesne profits, general damages for trespass and costs. The 1st Respondent raised a preliminary objection (res judicata and locus standi) dismissed with costs on 30/5/2024, and contested the Petition on the basis that a registry search showed the parcel as County land and that the administrators were strangers to the property. The court cautioned against constitutional avoidance but found weighty breaches of fundamental rights were manifest and proceeded. On the evidence - a 2010 allotment letter referencing a 1952 council minute, a 1962 business name registration, a 2018 County letter confirming the plot belonged to Sitima Teya (Bosoroko Co.), and confirmed grants and letters of administration - the court held the Petitioners had locus and that lawful allocation was uncontradicted despite the official search. The court granted Prayers 1(a), 1(b) and 2, including declarations and a permanent injunction, and awarded Kshs. 3,000,000/= general damages for trespass against the 1st Respondent. Prayer 3 (mesne profits of Kshs. 6,055,500/= per the valuation report) failed as special damages were not specifically pleaded. Costs were awarded to the Petitioners. Judgment delivered at Nyamira on 15/10/2024 by Mugo Kamau J.

Key legal issues

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01

Constitutional avoidance and whether the Petition should have been brought under statute

Holding

The doctrine of constitutional avoidance was engaged but did not defeat the Petition because weighty breaches of fundamental rights were manifest and the reliefs were supported by affidavit evidence.

Reasoning

The court acknowledged the settled doctrine that disputes capable of resolution under statute should be litigated under statute. However, it found that in this Petition weighty breaches of fundamental rights were manifest, the declarations sought could only issue in a constitutional petition, and the reliefs were supported by the affidavits and documentary evidence. Turning away the Petitioners would not serve the interest of justice.

p. 5
02

Locus standi of the 1st and 3rd Petitioners

Holding

The Petitioners satisfied the court they had locus, holding confirmed grants and letters of administration ad litem for the three estates whose names appeared on the allotment letter.

Reasoning

The court noted the Certificate of Confirmation of Grant for the Estate of Barnabas Teya Ruoti and Letters of Administration Ad Litem for the estates of Andrew Maranga Ondieki and Sitima Teya Nyandiko. Combined with the 2010 allotment letter, the business name registration and the County Government's 2018 letter confirming the plot belonged to Sitima Teya (Bosoroko Co.), the Petitioners established their standing.

p. 5
03

Ownership of Plot No. 3 Keroka Market

Holding

Despite the official search showing East Kitutu/Mwamangera/1128 in the name of Nyamira County Council, sufficient uncontradicted evidence showed the plot was allocated to the estates the Petitioners represent and was lawfully acquired and developed by them.

Reasoning

The court weighed the official search against the allotment letter dated 31/5/2010 referencing Africa district council Ruksa Minute No. 447 of 23/5/1952, the 1962 business name registration of Bosoroko Trading Company, the register of Keroka Township plots, the County Government letter of 24/1/2018 confirming ownership and payment of rates, photographs of developments, and the 2020 demand letter. Nothing contradicted the Petitioners' evidence of lawful acquisition and destruction by the 1st Respondent.

p. 6
04

General damages for trespass

Holding

General damages for trespass awarded at Kshs. 3,000,000/= against the 1st Respondent, guided by the principles that damages are the difference in value or cost of restoration, whichever is less, with no mathematical formula.

Reasoning

The court applied the Trespass Act, Cap 294, and the authorities on the measure of damages for trespass. Since exact pre- and post-trespass values were not proved, the court exercised discretion in the circumstances, guided by Nakuru Industries and Willesden Investments, and fixed a reasonable award of Kshs. 3,000,000/= rather than the Kshs. 6,055,500/= in the valuation report, which failed as unpleaded special damages.

p. 6
05

Mesne profits/special damages (Prayer 3)

Holding

Prayer 3 failed because special damages were not specifically pleaded notwithstanding the valuation report.

Reasoning

Although a Valuation Report by Damon Appraisers valued the demolitions and loss at Kshs. 6,055,500/=, the court held that attaching figures to documents without specifically pleading them as special damages is insufficient. Special damages must both be specifically pleaded and strictly proved, and since that was not done, the mesne profits claim failed.

p. 6

Legal principles established

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  • Where a rights claim can be founded in substantive law, the proper course is to bring the claim under such law and not the Constitution (constitutional avoidance), though the doctrine yields where weighty breaches of fundamental rights are manifest.
  • Special damages must be both specifically pleaded and proved; a valuation report attached to documents without specific pleading suffices not.
  • Trespass to land entitles the person in possession and ownership to general damages, measured by the difference in property value or cost of restoration, whichever is less.

Court orders

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  1. 1.Declaration that the proprietory interest in Plot No. 3 Keroka Market, Nyamira County vests in the Estates of Barnabas Teya Ruoth, Andrew Maranga Ondieki and Sitima Teya Nyamaiko and their respective beneficiaries (Prayer 1(a))
  2. 2.Declaration that the Respondents' seizure/acquisition of the property without consent or compensation was unconstitutional and void (Prayer 1(b))
  3. 3.Permanent injunction restraining the Respondents from destroying or interfering with the Petitioners' ownership and possession of Plot No. 3 Keroka Market (Prayer 2)
  4. 4.General damages for trespass of Kshs. 3,000,000/= against the 1st Respondent
  5. 5.Costs of the Petition to the Petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1)(2), 3(1), 10(1)(c), 10(2)(b) and (c), 12(1), 20(1)(2), 22(1)(2), 23, 27(1), 35(1)(a), 35(3), 40(1), 40(2), 46, 47(1), 47(2), 48, 64, 238
  • Land ActSections 107, 108, 111, 112, 114, 115
  • Government Proceedings Act (Cap 40)Section 16
  • Land Registration Act, 2012Section 25
  • Trespass Act, Cap 294Section 3(1)
  • Civil Procedure Rules, 2010Order 51 Rule 14(1); Order 29(2)(d); Order 11

Cases cited (8)

  • In Re Application by Bahadur
    [1986] LRC [Const]
  • Aliela v Kenton College Trust & another
    (Employment and Labour Relations Petition E084 of 2022) [2023] KEELRC 226 (KLR)
  • Christopher Ontiri Ogoti v The County Government of Nyamira
    Nyamira Constitution ELC Petition No. E001 of 2022
  • James Obino Teya v The County Government of Nyamira, Director, Physical and Land Use Planning Nyamira County and the National Land Commission
    Nyamira ELC Petition No. E008 of 2022
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Hostler v Green Park Development Co.
    986 S.W 2d 500 (No. App. 1999)
  • Nakuru Industries Limited v S S Mehta & Sons
    [2016] eKLR
  • Willesden Investments Limited v Kenya Hotel Properties Limited
    NBI H.C.C. No. 367 of 2000
Jurisdiction invoked
Articles 22, 23 and 40 of the Constitution of Kenya, 2010 (constitutional petition for violation of property 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, "Teya & 2 others v County Government of Nyamira & 2 others (Environment & Land Petition E001 of 2023) [2024] KEELC 6859 (KLR)", Case Analysis (2024). Constitutional Petition dated 17/8/2023 (Nyamira). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6859/eng@2024-10-15

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