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ELCPartially Allowednot stated in the judgment (Petition dated 4th October, 2023)

Maduma & 2 others v County Government of Migori (Environment and Land Petition 3 of 2023) [2026] KEELC 1549 (KLR)

Environment and Land Court
26 February 2026
2,950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioners, joint registered owners of LR NO Kamagambo/Kanyajuok/411, petitioned the County Government of Migori alleging that in November 2022 it forcibly destroyed their crops and trees and created a nine-meter road on their land without notice or compensation, seeking declarations, compensation for two demolished houses, exemplary damages and costs. The Respondent denied engaging any contractor, argued the Petition lacked specificity under the Anarita Karimi Njeru threshold, contended the claim was a civil trespass suit, and insisted no evidence linked it to the road construction. The court framed two issues: whether the Petition was merited and whether the reliefs were available. Holding that the Petition pleaded the violations with reasonable precision, the court found the surveyor's report of 12th October 2022 and the Rongo Sub-County Forest Officer's report of 30th November 2022 unchallenged, established an encroachment of approximately 2 meters, and found no evidence of compulsory acquisition. The Respondent's blanket denial was insufficient. The actions amounted to trespass infringing the Petitioners' constitutional rights. Special damages of Kshs. 828,851/- (proved by the tree assessment report) and general damages of Kshs. 800,000/- (based on the valuation report) were awarded, totalling Kshs. 1,628,851/-. Exemplary damages were refused as the threshold was not met. The Petitioner was awarded costs, with interest on the award computed after 60 days from judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition is merited
  2. 2.Whether the Petitioners are entitled to the reliefs sought

Key legal issues

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01

Whether the Petition met the constitutional pleading threshold (Anarita Karimi Njeru precision requirement)

Holding

The Petition was properly before the court; the Petitioners set out with reasonable precision the complaints, the provisions infringed and the manner of infringement

Reasoning

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.

p. 5
02

Whether the Respondent trespassed on and destroyed property on the suit parcel

Holding

The Respondent encroached approximately 2 meters onto the suit parcel, amounting to trespass and infringement of the Petitioners' constitutional rights

Reasoning

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.

p. 6
03

Whether special damages for destroyed trees were payable

Holding

Special damages of Kshs. 828,851/- allowed as specifically pleaded and proved

Reasoning

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.

p. 6
04

Whether general damages for trespass and exemplary damages were payable

Holding

General damages of Kshs. 800,000/- awarded based on the valuation report; exemplary damages refused

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Special damages of Kshs. 828,851/- awarded against the Respondent
  2. 2.General damages of Kshs. 800,000/- awarded for trespass
  3. 3.Exemplary damages - Nil
  4. 4.Total award of Kshs. 1,628,851/-
  5. 5.Petitioner awarded costs of the Petition
  6. 6.Interest on the award computed after 60 days from the date of delivery of the judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 40, 43(1)(c) and 47 of the Constitution of Kenya 2010

Relief refused

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Exemplary damages

The Petitioners did not meet the threshold for exemplary damages, particularly the profit-making condition

p. 7

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

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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/-
p. 7final orders - damages award
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.
p. 7final orders - interest
The Petitioner is awarded costs of the Petition.
p. 7final orders - costs
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
p. 5burden of proof in constitutional petitions
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.
p. 6compulsory acquisition

Issues in the judgment

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minor

Court name, station and case number are not stated in the judgment; the court is inferred from the judge and subject matter

material

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

minor

The judgment inconsistently refers to a single Petitioner and multiple Petitioners without naming the parties or stating their number

minor

Respondent's Replying Affidavit date is inconsistent, stated as both 3rd December, 2024 and 2nd December, 2024

minor

Petitioner's submissions are dated 9th December, 2025 but the hearing timeline suggests December 2024

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, "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.