Makoko v County Government of Taita Taveta (Environment and Land Petition 1 of 2025) (Environment and Land) [2025] KEELC 6282 (KLR)
The bottom line
#A Kenyan court ordered Taita Taveta County to vacate private land it used for a water borehole without the owner's consultation or consent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was adequate consultation and or consent obtained from the Petitioner prior to the commencement of the Malukiloriti 'A' Water Project.
- 2.Whether there was any violation of the Petitioner's right in respect to the actions undertaken by the Respondent.
- 3.Whether the Petitioner is entitled to the reliefs sought in the amended Petition.
Key legal issues
#Whether consent obtained from the Petitioner's wife amounted to valid consent/consultation
No - there was no evidence the owner was consulted or consented, nor that he authorized his wife to consent on his behalf.
The Respondent conceded consultation was only with the Petitioner's wife. The court found no evidence that the Petitioner instructed or allowed her to consent. The Petitioner's letter of 29th January 2018 showed he had not been consulted. The Respondent knew he was the owner and ought to have consulted him directly.
Whether the Respondent's actions violated Article 40
Yes - the failure to consult or compensate amounted to a violation of the Petitioner's right to property.
Article 40 protects the right to property and prohibits arbitrary deprivation without due process. Having found no consultation or compensation, the court held the Respondent's actions violated the right. Incarceration did not affect entitlement to the protection.
Whether the Petitioner is entitled to the reliefs sought
Yes - the court granted the declaration and an order to vacate within 90 days.
The Respondent's suggestion that the community benefits and the Petitioner should pursue compensation via the National Land Commission was rejected as callous, since the Respondent undertook the project without consultation or compensation. The Petition was held merited and reliefs granted.
Legal principles established
#- Once a proprietary interest is lawfully acquired, Article 40 guarantees that no person shall be arbitrarily deprived of property.
- A registered owner's consent must be personally obtained before a project is undertaken on his land; consent by a spouse without authority does not suffice, and imprisonment does not diminish the right to property.
Court orders
#- 1.A declaration that the commencement and continued implementation of the project devoid of consultation amounts to violation of the Petitioner's rights under Article 40(3)(b)(ii) of the Constitution.
- 2.The Respondent to vacate the suit parcel Taveta/Mahoo/473 within 90 days, failing which an eviction order shall issue.
- 3.Costs of the Petition awarded to the Petitioner.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya 2010 (petition alleging violation of the right to property)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A declaration be and is hereby issued that the commencement and continued implementation of the said project, devoid of consultation amounts to violation of the Petitioner's rights under Article 40(3)(b)(ii) of the Constitution.
The Respondent be and is hereby ordered to vacate the suit parcel being Taveta/Mahoo/473 within 90 days from today, failure of which an eviction order shall issue.
Costs of the Petition are hereby awarded to the Petitioner.
the Respondent failed to obtain any consent nor consult with the Petitioner prior to the commencement of the said project.
it did not matter whether or not the Petitioner was serving a life sentence since he was still entitled to the said right and protection of his property.
Issues in the judgment
#The Petition sought a declaration for violation of Article 40(3)(b)(i), but the declaration granted references Article 40(3)(b)(ii).
The Respondent's grounds of opposition attribute the project to Coast Water Service Board (a national entity), yet the Petition was against the County Government, and the judgment does not resolve the misjoinder objection despite granting reliefs against the Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makoko v County Government of Taita Taveta (Environment and Land Petition 1 of 2025) (Environment and Land) [2025] KEELC 6282 (KLR)", Case Analysis (2025). Petition dated 3rd April 2019 (amended 10th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6282/eng@2025-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.