Sawe v National Land Commission & 3 others (Environment and Land Petition E001 of 2022) [2026] KEELC 3524 (KLR)

2. The contention by the petitioner is that the subject property was among the parcels of land which were compulsorily acquired by the government in his absence to put up the Kitale-Ziwa-Eldoret highway by the respondents vide Gazette Notice No. 2706 of 13/5/1994. 3. The petitioner avers that before going through the process of inquiry and compensation under the repealed Sections 8 and 9 of the Land Acquisition Act Cap 295, he was arrested on 5/10/1994, detained in Kitale Police Station, arraigned in Kitale High Court in Criminal Case No. 74 of 1995 for an offence of murder, remained in custody, until he was convicted on 18/12/1997, and sentenced to death. 4. The petitioner pleads that he later lodged an appeal at the Court of Appeal in Nairobi Criminal Case No. 49 of 1999, which was dismissed on 10/3/2000. The petitioner says that Constitutional Petition No. he later filed a 46 of 2018, which was allowed on 3/3/2020, reviewing his sentence and setting him free. 5. The petitioner says that, except for him, all the other landowners whose land was compulsorily acquired JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 2

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were compensated. He now urges the court to compensate him for the value of the land at Kshs. 4 Million; otherwise, the land was taken in breach of his rights under Articles 27, 35, 47, 61, and 64 of the Constitution. 6. The petition is supported by a verifying affidavit sworn by Caleb Kiprotich Sawe in which he attaches copies of the title deed, certificate of search, area list, a copy of the gazette notice, area map, judgments in the initial criminal case, on appeal, and revision, certificate of imprisonment and a valuation report annexed and marked as CKS-5(a) and (b), CKS-(4), CKS-(5), CKS-(6), CKS-(7), CKS-(8), and CKS-(9) respectively. The 1st respondent opposes the petition through a replying affidavit sworn by Brian Ikol on 31/1/2024. It states that its existence came by virtue of Article 67(1) of the Constitution and the National Land Commission Act No. 5 of 2012, to manage public land on behalf of the National and County Governments. 7. The 1st respondent states that during the purported acquisition of the suit property, it had not been established by an Act of Parliament. The 1 st respondent deposes that the doctrine of eminent JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 3

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domain entitles the state to compulsorily acquire privately owned land for public use on behalf of the people of Kenya; for public use, previously through the Commission of Lands, now defunct, for public benefit and use. 8. The 1st respondent deposes that the acquisition process was conducted and concluded, paving the way for the construction of the Kitale - Ziwa - Eldoret Highway, which was in accordance with the law, and all individuals affected by the setting apart were duly compensated. 9. The 1st respondent deposes that the Land Acquisition Act and the Land Acquisition Tribunal existed to deal with land compensation claims, but the petition has not demonstrated that he filed pleadings therein, making his claim lacking merit. 10. The 1st respondent deposes that the petitioner is only out to cause disturbance and incite the public, whereas compulsory acquisition was concluded, and the affected persons were duly compensated. The 1 st respondent deposes that the respondents will suffer irreparable harm if the prayers sought are granted. 11. The petition is opposed by the 2 nd, 3rd, and 4th respondents through a response dated 9/10/2023 JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 4

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for not meeting the threshold of a constitutional petition as set out in Anarita Karimi Njeru vs Republic [1976-1980] KLR 1279, and in Mumo Matemu vs Trusteed Society of Human Rights Alliance & Others [2013] eKLR. 12. The 2nd, 3rd, and 4th respondents deny that the petitioner is the registered owner of the subject property, and if so, insist that the registration was procured through fraud, mistake, misrepresentation, and that it remains public land. 13. The 2nd, 3rd, and 4th respondents aver that the procedure for setting a part of the suit land under the repealed Land Acquisition Act Cap 295, was complied with and all the people who were likely to be affected by the settling apart were justly and promptly compensated in terms of monetary reward, resettlement, and improvements of common infrastructure such as construction of the Kitale-ZiwaEldoret Highway. 14. The 2nd, 3rd, and 4th respondents contend that the acquisition was not just for the suit land herein, but several other parcels of land as road reserves, diversions, and quarries, of which facts the petitioner JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 5

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is aware but has decided not to disclose before the court. 15. The 2nd, 3rd, and 4th respondents deny the contents of paragraphs 8, 9, 10, 11, 12, 13, and 14 of the petition and, in particular, deny that the petitioner’s land was acquired without just or full compensation to him. The 2nd, 3rd, and 4th respondents dispute the contents of the valuation report attached as CKS-(9) for purposes of compensation, since the claim has no legal basis, justification, and the valuation report lacks truth, basis, methodology, and or source. 16. The 2nd, 3rd, and 4th respondents term the valuation report as full of assumptions and as offending settled judicial principles in assessing current market value. 17. The 2nd, 3rd, and 4th respondents deny violating any of the petitioner’s fundamental rights and freedoms to be liable for the reliefs sought; otherwise, the subject property remains public land as per Article 62 1(b) (1), (m) and (11) of the Constitution. 18. The 2nd, 3rd, and 4th respondents aver that the petitioner has not demonstrated by evidence or at all how any of his constitutional rights and freedoms were violated when the suit property was set apart under the repealed Section 117 JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 of the old 6

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Constitution and under the provisions of the repealed Cap 295. 19. The 2nd, 3rd, and 4th respondents contend that the petition is based on falsehoods, lacks an iota of truth, lacks evidence of violation of the said rights by the respondents, the petitioner cannot feign ignorance of the process of acquisition, which he was involved in and promptly compensated, and that his claim is time-barred and presented in bad faith to defraud public funds. 20. The 2nd, 3rd, and 4th respondents insist that the law on compulsory acquisition of the suit property was complied with, with no objection ever received from anyone, including the petitioner. The 2 nd, 3rd, and 4th respondents aver that upon taking possession of the suit land under Sections 19 and 20 of the repealed Land Acquisition Act, the government of Kenya became the absolute owner of the 0.593 Ha of the suit land free of any encumbrances. 21. The 2nd, 3rd, and 4th respondents aver that the petitioner was inciting members of the public to unlawfully grab public land, and this petition may open a floodgate of similar claims against the government. The 2nd, 3rd, and 4th JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 respondents 7

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contend that public interest in having infrastructural development outweighs the petitioner’s selfish and undisclosed interests in the 0.593 Ha as stated in the petition and its supporting affidavit. 22. The 2nd, 3rd, and 4th respondents term the petition as an afterthought, brought in bad faith after an inordinate and unreasonable delay, based on a supporting affidavit whose attempt is to evade the issue of limitation of time to institute such proceedings. The 2nd, 3rd, and 4th respondents termed the reliefs sought as against public interest, public policy, and national security. 23. This petition was directed through consent of the parties to be disposed of, and indeed proceeded by way of viva voce evidence. Caleb Kiprotich Sawe testified as PW1. He relied on the supporting affidavit to the petition, sworn on 18/2/2022 as his evidence in chief, and produced a copy of a title deed for land parcel No. Chepsiro/Kibuswa Block 2/Kiptenden/280, as P. Exhibit No. (1), official search certificate as P. Exhibit No. (2), area list as P. Exhibit No. (3), Kenya Gazette Notice No. 2707 of 13/5/1994 as P. Exhibit No. (4), judgment in Criminal Case No. 9 of 1997 as P. Exhibit No. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 8

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(5), judgment in Court of Appeal No. 49 of 1999 as P. Exhibit No. (6), ruling in Kitale High Court Petition No. 46 of 2018, as P. Exhibit No. (7), and a valuation report as PMFI-(8). 24. PW1 said that he was not compensated since he was in jail for 26 years, with effect from 4/10/1994, yet his land was converted from private use to a public road of access. PW1 said that if any government officers visited his home after his arrest, they did not find or inform him of the acquisition and compensation process, including the area chief, whose attempts at pricing were futile. PW1 said that the names in the gazette notice did not belong to him, compared to what is on his ID No, since his full name is Caleb Kiprotich Sawe. 25. PW1 said that the land initially belonged to Hosea and himself, but the portion taken exclusively belonged to him. PW1 said that he acquired the title deed for the land on 20/1/2022, while the road was still in existence. PW1 said that before he was arrested between May and October 1994, he had not lodged a complaint over the land, since road officers had not moved in. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 9

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26. Between 2020 and 2022, PW1 said that he did not file a claim at the Lands Acquisition Tribunal because he was still gathering his supporting documents. PW1 said that his family members were also not compensated for the land. PW1 said that his land is nine acres, inclusive of the portion taken up by the public road of access. PW1 said that the gazette notice does not indicate the compensation amount. 27. PW1 said that he is currently occupying the balance of the land, which was not compulsorily acquired. PW1 said that he had no title deed for LR No. 2216 in 1994, which was later subdivided to produce LR No. 280. 28. Francis Kariuki testified as PW2. He told the court that after the petitioner in March 2022 contracted him to value the disputed land, he visited the land on 9/3/2020, prepared a valuation report, and produced it as P. Exhibit No. (8), together with its attachments. PW2 told the court that he had not attached copies of his certificates and licences in the valuation report, including CR 12, to ascertain that he was a director of the company that generated the report. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 10

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29. PW2 said that he valued the land as of 2022 and not as of 1994 when it was compulsorily acquired. PW2 said that he used the comparison on methodology as per the government Black Book to arrive at a figure of Kshs. 4 million. PW2 said that the land at the time of valuation was vacant with no visible improvements on it by the 2nd respondent. 30. Though the respondents were given a chance to present witnesses to sustain their responses to the petition, they failed to show up. In the absence of the appearance of witnesses from the respondents, the defence case was marked as closed on 4/3/2026. Parties were then directed to file and exchange written submissions on set deadlines. Only the petitioner complied on time. The petitioner relies on written submissions dated 31/3/2026. Reliance is placed on Article 40(3) of the Constitution, Sections 107(1) and 111(1) and (2) of the Land Act, KNHA vs Katra Jama Issa & Others, Samuel Githegi Mbugua & 4 others v National Land Commission & 2 others [2016] KEHC 3539 (KLR). JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 11

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31. Based on the pleadings, the evidence tendered, and written submissions, the issues calling for my determination are: (1) If the petition meets the threshold of a constitutional petition. (2) If the petitioner is guilty of the doctrine of non-exhaustion of alternative dispute mechanisms. (3) If the petition is statute-barred. (4) Whether the petitioner has proved breach of his constitutional rights and freedoms. (5) Whether the petitioner is entitled to the reliefs sought. (6) What is the order as to costs? 32. A party seeking relief for breach of constitutional rights and freedoms must abide by the Constitution of Kenya (Protection of Rights and Freedoms) (Practice and Procedure Rules 2013), generally and in particular Rule 10 thereof, by disclosing the petitioner’s names and address, facts relied upon, constitutional provisions violated, nature of injury caused, and details of past or pending suits over the matter. 33. A constitutional petition must be drafted with a reasonable degree of precision, clarity, and specificity. It must state what a petitioner complains JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 12

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about, against whom, the provisions said to be infringed, and the manner in which they are alleged to be infringed. See Anarita Karimi Njeru vs The Republic [1976-1980] KLR 1272. Reinforcing the principle of the Anarita Karimi case, the court in Mumo Matemu vs the Trusted Society of Human Rights Alliance & Others [2013] eKLR , said that the doctrine of precision is applied to ensure that upon proper definition of the issues in a constitutional petition, the court can apply its mind to the real issues at hand, thereby saving on judicial resources. Applying petitioner has the foregoing substantially caselaw, complied with the the procedural law. The respondents were also able to extensively respond to the petition without seeking better particulars. 34. The next issue is whether the petitioner exhausted any available alternative mechanisms outside the constitutional court. The doctrine of constitutional avoidance is invoked to strike out claims presented before the court where it is shown that there exist alternative, sufficient, and adequate avenues for parties to ventilate their grievances. Courts have persistently maintained that when a party has an JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 13

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appropriate forum before which to seek redress, it is incumbent upon him to exhaust those alternative avenues before invoking the constitutional jurisdiction of the court, which should ideally be the fora of last resort. See Geoffrey Muthinja vs Mungai Henry & Others [2015] KECA 304 , Speaker of the National Assembly vs Stanley Karume Macharia [1992 KECA 42 KLR]. 35. In Nicholus Abitha vs AG and others; NEMA(IP) [2023 KESC 113 KLR], the court said that the doctrine should apply on a case-by-case basis, courts should adopt a nuanced approach, especially where the alternative forum is not efficacious or capable of granting adequate relief, and also to avoid blocking parties from constitutional accessing rights and justice where their freedoms have been violated. 36. The petitioner is blamed by the respondents for not exhausting the repealed Land Acquisition Act and or approaching the Land Acquisition Tribunal, which at the time of the alleged compulsory acquisition were in existence. The petitioner, on the other hand, says that at the time of the compulsory acquisition, he was either in remand or in prison with effect from 4th JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 14

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or 5th October 1994 to March 2020, when he was set free, hence he was at the time incapable of utilising those avenues. 37. In answer to that explanation, the respondents aver and submit that the petitioner is using his incarceration as a means to avoid the inordinate and unreasonable delay in lodging the claim. In the alternative, the respondents aver that the petitioner actively and fully participated and or was privy to the compulsory acquisition, following which he was fully compensated for the land alongside the rest of the affected parties. 38. A constitutional petition as a starting point must raise constitutional questions or issues. A constitutional issue, matter, or question was defined in CNM vs WGM [2018] eKLR as one that compels a court to consider constitutional rights, freedoms, values, and principles, organs of the state, and not statutory breaches. 39. In Maya Duty Free Ltd vs Hon. Attorney General Petition No.45 of 2017, the court said that it is inappropriate for parties constitutional petitions alleging constitutional rights freedoms, and to rush JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 to institute violation of when such 15

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petitions raise no constitutional issues at all for the court’s determination. 40. In Arthur Njuguna Kamau vs Eunice Wangari Karanja & Another SCOK Petition No. E005 of 2024, the court said that to ascertain whether or not the jurisdiction of the court has been properly invoked, the court will consider the nature of the pleadings and the remedies sought. The superior court had made a finding that the petition did not set out with a reasonable degree of precision the constitutional rights that had been violated or threatened, the specific constitutional provisions alleged to have been violated, or the reliefs sought. 41. The SCOK said that though the grievances were presented as a constitutional question, there were no constitutional issues invoked that required the ELC’s interpretation or application, which was simply, who between the appellant and the 1 st respondent was entitled to the suit property. The court said that, looking at the pleadings, all the issues raised in the petition were purely factual and the reliefs sought had no bearing on the application or interpretation of the Constitution at all. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 16

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42. In this petition, the question posed by the petitioner is whether his rights to ownership of land were violated in compulsorily acquiring his land while he was in prison. 43. The question in my view is not restricted to the procedures of compulsory land acquisition under the repealed Land Acquisition Act. Indeed, the retired Constitution had clear constitutional provisions, outlawing compulsory acquisition of private land for public use without just and prompt compensation. 44. In Hon. Attorney General vs Zinj Ltd SCOK Petition No. 1 of 2020, the issue was whether the respondent’s rights to property under Article 40(1) (a) and (b) were affected by the government's issuance of titles to third parties, and if so, whether the respondent was entitled to compensation. The court said that the only way the government could lawfully deprive the respondent of part or all of its property was through a compulsory acquisition, in conformity with the provisions of Article 40(3) of the Constitution and the procedure stipulated in the repealed Land Acquisition Act, which was the applicable law at the time. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 17

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45. The court said that compulsory acquisition ought to have commenced with a requisite notices to the respondent and any other person claiming interest in the land, the public purpose for which the land was to be acquired, ought to have been clearly stated, the resultant acquisition ought to have been attended with prompt payment in full of a jut compensation to the respondent, and that in the absence of any records to show that those processes were followed, the issuance of titles over a portion of the suit property in favour of third parties was unlawful, unprocedural, and an aggression violation of the respondent’s rights to property. 46. On damages, the court said that an injury or loss suffered by a person either through a tortious act, omission, or breach of contract attracts redress in a court of law and that under Articles 22(1) and 23(3)(e) of the Constitution, a court upon proof of violation of a fundamental right, may order for compensation depending on the nature of the right that I proved to have been violated to the extent of the violation used, the gravity of the injury caused. 47. Looking at the petition before the court, the petitioner claims that he was in remand or prison for JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 18

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26 years, only to come out and find that during his absence, part of his land was compulsorily acquired for a public access road by the respondents. His complaint is that the process was done without notice to him and in violation of his constitutional rights to own property, and, if compulsorily acquired, the relevant constitutional provisions were clear that he should have been notified, involved promptly, and justly compensated. 48. The question of limitation of action in constitutional petitions has been determined by courts that there can be no limitation so long as it is sufficiently explained by the petitioner and the caselaw of is also not unreasonable. 49. Guided by Zehrabanu Janmohamed, suing as administratrix of D.T. Moi and another versus H.E Nathaniel Langat and others. Petition no 17 K of 20222 consolidated with petition 24 of 2022, and the Abitha case(supra), the court finds the petition not time-barred and that the explanation given by the petitioner for the delay is reasonable. Similarly, the court finds that the issues raised are constitutional in nature and transcend the repealed Land Acquisition JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 19

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Act and the Land Acquisition Tribunal. Moreover, the cited avenues, unlike this court, were incapable of granting constitutional relief as an alleged violation of the rights to property, among other rights alluded to in the petition. 50. The next issue is the procedures of whether the petitioner has proved a violation of his rights. The procedure of compulsory land acquisition in 1994 included notice of acquisition, marking out the land, payment of compensation, inquiry, and award of compensation, notice of award, grant of land in place of award, payment of compensation, survey of remaining land, and taking of possession and vesting as provided by Sections 6, 6A, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 25 of the repealed Land Acquisition Act Cap 295. 51. The petitioner has produced evidence before this court that the respondents have not challenged that he had no title to the suit land in 1994, and only acquired the same in 2022. 52. A titled deed under the law is to be taken as prima facie evidence of ownership. From the records produced, there is no evidence that a restriction was placed on the register as is required in law after the JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 20

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alleged compulsory acquisition, showing that part of the petitioner’s land was compulsorily acquired by the government during the period when the petitioner was in remand or jail, and efforts were made to trace him and or make payment for the land under his name in line with the law above stated. 53. The respondents are the ones alleging that the petitioner was ably, duly, and lawfully compensated for the land. The responses by the respondents did not attach any such evidence of compliance with the law on acquisition, which shows that the petitioner was duly compensated for the portion of his land that was acquired for public use. 54. There is no evidence that the procedures for the acquisition and eventual compensation as stipulated in the Land Acquisition Act, now repealed, were followed to the letter. Indeed, there is no evidence by way of a letter of award, a copy of a cheque paid to the petitioner, and particulars of the amount, names used, ID No, and the bank where the cheque was allegedly banked in the names of the petitioner. 55. The respondents do not deny that the petitioner has been deprived of the use of the land since 1994 to the present. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 21

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56. If then there was compulsory acquisition, it had to be carried out in a manner consistent with the law and the Constitution, cognizant of the petitioner’s rights. Irregular acquisition processes include a lack of notice and prompt payment of compensation, as held in the Commissioner of Lands & Another vs Coastal Aquaculture Ltd Civil Appeal No. 252 of 1996. In Patrick Musumba vs National Land Commission & [2016] KEHC 5956 (KLR), 4 the court others held that compulsory acquisition of the land was justified for the standard gauge railway project. In Joseph Nderitu & Others vs Attorney General Petition No. 29 of 2012, the court held that property can only be compulsorily acquired if it is for a public purpose or interest. 57. The petitioner’s rights under Article 24 of the Constitution can only be limited by law, but only to the extent that the limitation is reasonable and justifiable. In Saramaka People vs Suriname, before the Inter-American Court of Human Rights judgment of November 28th, 2017, the court said that the limitation to the right to property could only apply if the restriction had been established by law, JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 22

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was necessary, proportionate, and to achieve a legitimate objective in a democratic society. 58. In Kichwa Indigenous People of Saragaku vs Ecuador, Inter-American Court of Human Rights Judgment on 27th June 2012, the court said that consultation should be conducted in good faith, with free prior and informed consent of the people concerned. 59. In Abdalla Akiio & Others vs Kenya Urban Road Authority Petition No. 53 of 2015, the court said that disputes relating to compulsory acquisition are to be resolved by the ELC Court. Government decisions to compulsorily acquire land are also subject to the court’s scrutiny, as held in Re Kisima Farm Ltd [1978] KLR 36. 60. The process of Compulsory acquisition of the petitioner’s land, according to the respondents, had fully complied with the law. The evidential burden as held in Raila Odinga vs IEBC [2017] eKLR, was on the respondents to prove that in compulsorily acquiring part of the petitioner’s land, the acquiring authority abided by the principles of free, prior, and informed consent (FPIC). The law is that the state can only deprive someone of their property if the JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 23

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deprivation is for a public purpose as defined in Section 2 of the Land Act and in Joseph K. Nderitu & Others vs Attorney General, Petition No. 29 of 2012. In the circumstances, the court finds that the petitioner has proved breach of his constitutional rights by the respondents. 61. On the reliefs sought, the petitioner has produced a valuation report which has not been challenged through a rival report by the respondents. A court in assessing an expert report focuses on its quality, rationality, reasoning, and consistency with other available evidence, as held in Stephen Kinini Wangondu versus the Ark Limited (2016)eKLR. The court finds no inconsistency in the valuation report and the testimony of PW2. 62. Just compensation, as held in Kanini Farm Ltd vs Commissioner of Lands [1986] KLR 310, and in Patrick Musumba vs National Land Commission & Others [2016] eKLR, is the market value of the land. Market value is defined as the price which a willing seller might be expected to obtain from a willing, reasonable purchaser, as held in Kanini Farm Ltd vs Commissioner of Land [1986] KLR 310. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 24

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63. In Limo vs Commissioner of Lands [KLR] E&L 175, the court said that one has to take into account the nearness of the land in question to the main town and its nearness to the road of access in determining its value. Compensation paid to the owner four years after acquisition is not prompt and or just as held in Mathatani Ltd vs Commissioner of Lands [2013] eKLR. 64. The principle of free, prior, and informed consent is an informed consent in an international human rights standard where there is no coercion, intimidation, or manipulation. 65. In this petition, there is no evidence that the petitioner was given advance notice of the intended compulsory acquisition while in remand or jail, of part of his land by the state. Further, the respondents have tendered no evidence that the petitioner personally or through an authorised agent willingly authorised or consented to the compulsory acquisition as required by law and or received compensation for the same. The easiest thing for the respondents was to avail the requisite notices, awards, and payments, which were made and or received in the name of the petitioner in 1994 to JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 25

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advance the theory that he is unjustly seeking to defraud the state, yet he was paid for his land. 66. In my view he respondents owed the petitioner a constitutional duty of free, prior, and informed consent before taking his land and converting it for public use. Equally, the respondents had a chance to explain to this court who, if not the petitioner, received the alleged compensation on his behalf or authorised the acquisition, yet he was in custody. Therefore, the court finds that the petitioner has substantiated a breach of the right to equality and non-discrimination, right to access information held by the state, fair administrative action, and right to private property ownership, which the respondents violated, to be entitled to the reliefs sought. 67. The court proceeds to declare that he is entitled to monetary compensation of Kshs. 4 million with interest at court rates from 2022. The petitioner, upon payment of the said sum, shall surrender a portion of his land measuring 0.593 Ha out of his title to the Cabinet Secretary in charge of Lands. 68. Costs of the petition to the petitioner. 69. Orders accordingly. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 26

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Judgment dated, signed, via Microsoft Teams/Open Court at Kitale on this 10th day of June 2026. HON. C.K. NZILI JUDGE, ELC KITALE. Judgment delivered via Microsoft Teams/Open Court at Kitale on this 10th day of June 2026. In the presence of: Court Assistant - Matui/Nancy Ms. Arunga for the petitioner Ms. Obino for the 1st respondent No appearance for the 2nd, 3rd, and 4th respondents. HON. G.M. GITONGA JUDGE, ELC KITALE. JUDGMENT: KITALE ELC PETITION NO. E001 OF 2022 – D.O.D. – 10/06/2026 27

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