Tsui & another v County Government of Kilifi

JUDGMENT 1. The Petitioner led a Petition dated 2 May 2023, seeking: a. A declaration that the Respondent's actions are illegal, unconstitutional, and constitute trespass on private land. b. Declaration that the Respondent has violated Articles 2, 10, 19, 20, 21, 28, 40, 42, 47, and 50 (1) of the Constitution of Kenya 2010 and the provisions of the Fair Administrative Actions Act. c. In the alternative, the Respondent compensates the Petitioners for the market value of the suit property, which is the sum of Kshs—70,000,000/= as per the valuation report dated 21 April 2022. d. An order for mandamus compelling the Respondent to immediately vacate the Petitioners' property known as Buni/Kisimani/258, remove any structures built thereon, and hand over possession to the Petitioners. e. An order of eviction of the Respondent from the suit property. f. General damages for violation of the Petitioners' fundamental rights. g. Exemplary and aggravated damages. h. Costs of the Petition. 2. The petition is supported by the adavits of Tsui Lewa Tsui and Mkambe Mkauma Gongo, the 1st and 2nd Petitioners, respectively. These adavits were accompanied by the following documents: a copy of the title deed for the suit property, Buni/Kisimani/258; a copy of an ocial search; the grant of Letters of Administration ad litem led for this suit; a demand letter sent to the Respondent via the Petitioners' legal representatives; a valuation report prepared by Phina Valuers dated 21 April 2022; and a survey report by Edward Kiguru Land Surveyors dated August 2021. 3. The Petitioners contend that, at all material times, the registered owners of the suit property were Lewa Tsui Tsui and Jaka Juma Jaka (both deceased). The Petitioners have been duly appointed as administrators of the deceased's estates and have obtained a grant of Letters of Administration ad litem to institute this petition. 4. Petitioners aver that the suit property is in a prime location, bordering the Constituency Development Fund (CDF) and the Rabai Sub-County Member of National Assembly (MNA) oces. It is also near the Kenya Power and Lighting Company (KPLC) booster station. 5. They claim that the Respondent unlawfully trespassed onto the aforementioned land and constructed buildings thereon, now known as Rabai Health Centre. This hospital has been operational for a considerable period. Despite the Petitioners' eorts to remove the Respondent from the property, they were unable to do so. As a consequence of this extended encroachment, the Petitioners have suered a loss of use for over twenty years. Furthermore, the property holds substantial sentimental value to the Petitioners, who possess a lawful inheritance claim despite being unlawfully dispossessed. They therefore seek appropriate compensation from the Respondent as outlined in the petition. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18612/eng@2025-12-10 2

page 2 of 6

6. The Respondent led a replying adavit, sworn on May 8, 2025, to oppose the petition and contended that the Petitioner's suit is statute-barred because it was led more than 12 years after the Respondent took possession of the portion of the suit property in 1997, during the lifetime of Jaka Juma Jaka and Tsui Juma Jaka. 7. That the Petitioners have been fully aware of the Respondent's occupation and have never instituted any proceedings against the Respondent in respect of the said occupation. 8. That the Petitioners reside on a portion of the property, and the Respondent's occupation of a portion of the property has not aected the Petitioners in any way. The allegations that the Petitioners' rights are being aected are not only false but also an afterthought. That the Petitioners are estopped from raising claims of trespass and of alleged compensation, as they failed to raise the same when the Respondent took possession, began construction of the health facility, and developed the same over the years. That, contrary to the Petitioners' case, the Respondent's occupation of the subject property does not constitute trespass, as the registered owners of the subject property are Lewa Tsui Lewa and Jaka Juma Jaka, both now deceased. 9. That the Petitioners are fully aware that the portion of the parcel of land occupied by the health facility was claimed by the registered proprietors as a precondition for using it for the benet of the community, and that the position was reiterated during the survey conducted by the Respondent on 20 March 2024 through the County Valuer. The Respondent procured a valuation of the portion of the property occupied by the Respondent from the National Land Commission, which carried out a valuation to establish the actual market value of the property and established that the suit property is valued at Kshs. 6,500,000. The National Land Commission established that the portion of the property that the Respondent has occupied measures approximately 1.01 Hectares. The Respondent avers that the value of Khs. 55,000,000 is erroneous and grossly exaggerated. That the value by the Petitioners is inclusive of the facilities already erected on the portion of the property, and that these developments or facilities do not belong to the Petitioners. The facility on the portion of the suit property has, over the years, beneted not only the Petitioners but also the entire community by providing quality, aordable, and accessible healthcare. 10. That the Petitioners are still in occupation of the remaining portion of the property, and the occupation of part of the property does not prejudice their occupation or deprive the Petitioners of the benets realized from the said usage. The Respondent should not be prejudiced for its delay in transferring the portion of the property to itself after it was donated to it by the original owners of the property. That the Petitioners, having armed the construction, development, and operation of the facility, are not entitled to the prayers seeking vacant possession and the handing over of the developments. That, without prejudice, if the Honorable Court is inclined to issue orders in respect to compensation, Respondent contends that the Court arrive at the value of 6,500,000 as awarded by the National Land Commission vide the Report dated 17 November 2024. 11. I received submissions from learned counsel for the Petitioners, Mr. Gikandi, and from learned counsel for the Respondents, Mr. Gathu. I appreciate their industry, as the submissions went a long way toward assisting the court in reaching its verdict. 12. Based on the materials and submissions presented before me, the issues I designate for the determination of this court are whether the petition submitted meets the criteria for a constitutional petition under the Mutunga Rules, whether the Respondent's actions concerning the suit property were unlawful or unconstitutional, whether the Petitioner's constitutional rights have been infringed, and whether the Petitioners are entitled to compensation or damages. Costs https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18612/eng@2025-12-10 3

page 3 of 6

13. Mr. Gathu, for the Respondents, is of the view that a constitutional petition is not the proper forum for resolving contested property disputes, particularly where ownership, occupation, or public use is in dispute. In Gabriel Mutava & 2 others v Managing Director, Kenya Ports Authority & another [2016] eKLR, Civil Appeal 67 of 2015, the Court held that where alternative remedies exist or the dispute is private in nature, the constitutional forum should not be used as a substitute for ordinary civil litigation. See also Abdalla & 601 others (All being members of Boni/Sanye CBO - BOSACO) v National Land Commission & 11 others [2025] KEELC 131 (KLR). 14. On this point, the issue raised in the petition is straightforward. The Petitioners, as heirs to the suit property, are entitled to its use. Still, the Respondent, without following the proper procedure for compulsory acquisition, entered the land in question and built a health center without just compensation to the Petitioners or their predecessors, thereby depriving them of their property. 15. The petition to me is properly before this court. As there is no contention that the land in question belongs to the petitioners, it is private land rather than public land, and could not be acquired in the manner the Respondent did. 16. While on that point, the Respondent raised an issue that the Petitioners' claim is time-barred because the Respondent took over the portion in contention in 1997, and that 12 years have since lapsed for recovery of the same as provided by the law. 17. Considering the nature of the Petitioners' claim, they assert that the ongoing presence of the health center constitutes an ongoing trespass, thereby rendering the statute of limitations inapplicable. I concur with this position: if the health facility remains and is utilized without appropriate compensation to the Petitioners, the Respondent's action constitutes a continuing trespass, and consequently, the statute of limitations shall not apply in this instance. Refer to, for example, Maina v Waweru & 2 others [2025] KEELC 791 (KLR). Where the court held: “ On limitation of action, whereas a cause of action based on tort must be brought within 3 years after accrual, the court said in case of continuing trespass, a trespass consists of a series of acts done on consecutive days that are exact and that are renewed or continued from day to day, aggregate from one indivisible harm. The court cited the Jowitts Dictionary of English Law 2nd Edition that a continuing trespass is permanent in its nature, as where a person builds on his land so that part of the building overhangs his neighbor's land and in Clerk & Lindsel on Torts 16th Edition, that every continuance of a trespass was a fresh trespass, raising a new cause of action from day to day as long as the trespass continues. 48. The court held that any unauthorized entry, whether present or continuous, was trespass; in the instant case, there was no dispute that the appellant entered into and had remained in continuous occupation from the rst day of entry without authorization; hence, it was a trespasser, which acts of trespass could not be time-barred.” 18. This now leads me to the subsequent inquiry into whether the Petitioners' rights have been infringed and whether the circumstances warrant the various declarations and orders sought in the petition. 19. The Petitioners have demonstrated that the Respondents occupied this property without adhering to the legal procedures for compulsory acquisition. The Respondent has provided no evidence to substantiate that the land was obtained as a gift from the Petitioners' predecessors. The Respondent's utilization of its authority to seize the Petitioners' property clearly constitutes an abuse of power. Therefore, pursuant to Article 165 of the Constitution of Kenya, 2010, the court possesses the authority https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18612/eng@2025-12-10 4

page 4 of 6

to interpret and enforce the Constitution. This was exemplied in the case Attorney General v Zinj Limited (Petition 1 of 2020) [2021] KESC 23 (KLR) (Civ) (3 December 2021) (Judgment). In that instance, Zinj's land was abruptly appropriated by the government in 2007, and portions of it were subsequently allocated to third parties. After a lapse of time, Zinj led a constitutional petition on August 28, 2015, in the Environment and Land Court in Malindi, where Olola J. granted the petition, awarding Kes. 413,844,248 as compensation for the encroached land and Kes. 51,129,000 as general damages for breach of Zinj's right to property under Article 40 of the Constitution of Kenya, 2010. 20. On appeal to the Court of Appeal and the Supreme Court, the appeal was denied with minimal disruption to Olola J's award. 21. The matter is in pari materia with the current petition, where the Supreme Court Judgment states that Zinj Limited was clearly the registered owner of the property in question, which was later registered in the name of the Government. The controversy centered around the irregularity of such acquisition by the Government, as the Government was unable to prove that its acquisition was lawful. As a result, the Government violated Zinj's fundamental rights protected by Article 40 of the Constitution of Kenya, 2010. 22. Tsui Lewa Tsui and Mkambe Gongo are in precisely the same position as Zinj Limited; the Respondent unlawfully took over the Petitioners' portion of land measuring 0.96 hectares. This takeover was neither a valid compulsory acquisition nor a purchase. The Supreme Court decision directly aects this Court. Clearly, the Respondent has violated the petitioners’ fundamental rights, specically their right to property under Article 40 and their socioeconomic rights under Article 43 of the Constitution of Kenya, 2010. 23. These violations are ongoing and will persist as long as the respondent continues to provide medical services at the Rabai Health Centre. Furthermore, in Zinj's case (supra), it was held that, since the Government had already assigned parts of Zinj's land illegally to third parties: “ The most appropriate remedy in our view was an award of damages...." 24. Similarly, because the Respondent provides medical services to many third parties from the facility on the suit property, the most eective remedy is an award of damages rather than evicting the Respondent or demolishing the medical center. 25. It is now an established legal principle that no wrong can exist without an available remedy. In the present matter, the Respondent shall retain possession and operation of the Rabai Health Centre on the land parcel measuring 0.96 hectares (specically, following the issuance and settlement of any decree that may be rendered herein), and such portion shall be excised accordingly. The title deed for this parcel will be transferred to the Respondent, whereas the Petitioners shall retain their designated land portion measuring 0.71 hectares. 26. Based on the valuation report prepared by Phina Valuers, which has not been challenged, and on the fact that the valuation by NLC, as alleged by the Respondent, was not attached to the adavit in support, after reviewing the physical le and the court records, the Respondent is hereby ordered to pay the Petitioners the sum of Kshs—40,239,520, representing the value of the 0.96-hectare it occupies. 27. For General damages, I will award Kshs. 10,000,000 for breach of the Petitioners’ right to property under Article 40 of the Constitution. 28. The Petitioners will also get costs and interest at court rates. 29. In summary, this will be the nal orders of the court: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18612/eng@2025-12-10 5

page 5 of 6

a. A declaration that the Respondent's actions to occupy the Petitioners' portion of land without just compensation are illegal, unconstitutional, and constitute trespass on private land. b. A Declaration that the Respondent violated the Petitioners' rights enshrined in Article 40 and their socioeconomic rights under Article 43 of the Constitution of Kenya, 2010. c. An order is issued that the Respondent compensate the Petitioners for the market value of the suit property, which is the sum of Kshs 40,239,520, representing the value of the portion occupied by the health centre. d. General damages for the violation of the Petitioners' fundamental right to own property, pursuant to Article 40, amounting to Kshs 10,000,000. e. Costs and interest to the Petitioners. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 10, 2025. ............................................ E. K. MAKORI JUDGE In the presence of: Mr. Otieno for the Petitioners Mr. Gathu for the Respondent Happy: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18612/eng@2025-12-10 6

page 6 of 6