Maduma & 2 others v County Government of Migori (Environment and Land Petition 3 of 2023) [2026] KEELC 1549 (KLR)
The bottom line
#A Kenyan court ordered the Migori County Government to pay landowners KShs 1.6 million for building a road on their property without permission or compensation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petition is merited
- 2.Whether the Petitioners are entitled to the reliefs sought
Key legal issues
#Whether the Petition met the constitutional pleading threshold (Anarita Karimi Njeru precision requirement)
The Petition was properly before the court; the Petitioners set out with reasonable precision the complaints, the provisions infringed and the manner of infringement
The court applied the Anarita Karimi Njeru threshold and held the Petition advanced constitutional issues. The Petitioners identified Articles 40, 43(1)(c) and 47 and the manner of violation. The Respondent's blanket denial that it built the road, without explaining how a road came to be on the Petitioners' land, undermined its defence.
Whether the Respondent trespassed on and destroyed property on the suit parcel
The Respondent encroached approximately 2 meters onto the suit parcel, amounting to trespass and infringement of the Petitioners' constitutional rights
The Petitioners produced a title deed, an unchallenged surveyor's report of 12th October 2022, a sketch map, and an unchallenged Forest Officer's report. The Respondent gave a blanket denial and did not challenge these reports or explain how the road was constructed on the Petitioners' land. There was no evidence of compulsory acquisition.
Whether special damages for destroyed trees were payable
Special damages of Kshs. 828,851/- allowed as specifically pleaded and proved
Special damages must be specifically pleaded and proved. The Petitioners proved the claim through the assessment of destruction of Eucalyptus and Ficus trees report by the Rongo Sub-County Forest Officer, which assessed the destruction at Kshs. 828,851/-. The report was not challenged.
Whether general damages for trespass and exemplary damages were payable
General damages of Kshs. 800,000/- awarded based on the valuation report; exemplary damages refused
The measure of damages for trespass is the difference in the value of the property immediately after the trespass or the cost of restoration, whichever is less. The valuation report dated 2nd August 2023 ascertained the value at Kshs. 800,000/-. Exemplary damages were refused because the profit-exceeding-compensation condition was not met.
Legal principles established
#- A party alleging a constitutional violation must demonstrate the nature of the right and how it was violated with reasonable precision
- Special damages must be specifically pleaded and proved
- Exemplary damages are discretionary and awarded with caution in limited situations
- Entering and erecting a structure on private land without the occupier's consent is an offence under the Trespass Act
Court orders
#- 1.Special damages of Kshs. 828,851/- awarded against the Respondent
- 2.General damages of Kshs. 800,000/- awarded for trespass
- 3.Exemplary damages - Nil
- 4.Total award of Kshs. 1,628,851/-
- 5.Petitioner awarded costs of the Petition
- 6.Interest on the award computed after 60 days from the date of delivery of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 40, 43(1)(c) and 47 of the Constitution of Kenya 2010
Relief refused
#Exemplary damages
The Petitioners did not meet the threshold for exemplary damages, particularly the profit-making condition
Compensation for the two demolished houses (not expressly addressed in the final awards)
No separate award made for the two houses; only special and general damages were awarded
Costs
The Petitioner is awarded costs of the Petition, payable by the Respondent.
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.
Petitioners are awarded damages to be paid by Respondent as follows; a) Special damages - Kshs. 828,851/- b) General damages - Kshs. 800 000/- c) Exemplary damages - Nil Total Kshs. 1,628,851/-
The Respondent is to pay interests on the figures mentioned in clause 1) which is to be computed after 60 days from the date of delivery of this judgment.
The Petitioner is awarded costs of the Petition.
the onus, in constitutional Petitions, as in other ordinary civil actions, is upon the petitioner or the plaintifi to establish a prima facie case, and thereafter the burden shifts to the respondents to justify the limitation to those rights
In addition, there is no evidence that the portion of the suit property was compulsorily acquired by the government to warrant encroachment by the Respondent.
Issues in the judgment
#Court name, station and case number are not stated in the judgment; the court is inferred from the judge and subject matter
Internal contradiction on the amount of special damages: the Forest Officer's report is twice stated as Kshs. 828,581 in submissions but assessed as Kshs. 828,851 in the analysis and award
The judgment inconsistently refers to a single Petitioner and multiple Petitioners without naming the parties or stating their number
Respondent's Replying Affidavit date is inconsistent, stated as both 3rd December, 2024 and 2nd December, 2024
Petitioner's submissions are dated 9th December, 2025 but the hearing timeline suggests December 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maduma & 2 others v County Government of Migori (Environment and Land Petition 3 of 2023) [2026] KEELC 1549 (KLR)", Case Analysis (2026). not stated in the judgment (Petition dated 4th October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1549/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.