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ELCPartially AllowedChuka ELC Constitution Petition Case No. 01 of 2019· [2020] KEELC 3731 (KLR)

Mutegi Mugwetwa v Chief Officer Lands, Physical Planning, Housing, Urban Development, Environment and Natural Resources & 4 others [2020] KEELC 3731 (KLR)

Environment and Land Court of Kenya
4 February 2020
11,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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A Kenyan county government was ordered to pay KES 4 million for demolishing a homeowner's wall without proper notice or a hearing.

What this practically means

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Executive summary

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The Petitioner, registered owner of parcel Karingani/Ndagani/3880 since 1996, petitioned against the demolition of his perimeter wall by Tharaka Nithi County officials on 2nd February 2019, under supervision of Administration Police, following a general notice dated 16th January 2019. He alleged breaches of Articles 10, 27, 40, 47 and 50 of the Constitution, sought declarations, injunction, prohibition, mandamus to reconstruct or compensation of Kshs. 12,000,000, and Chapter Six sanctions against officers. The 1st to 3rd Respondents filed a preliminary objection on jurisdiction, dismissed on 22nd May 2019 on the ground that the issues raised factual questions and the ELC has original jurisdiction over land matters. On the merits, the court found the Petitioner is the registered owner; that he was not given ample notice and was denied a fair hearing; the demolition was done without due process; and the notice of 16th January 2019 was unconstitutional. The 4th Respondent's supervision of the demolition without a court order was declared unconstitutional. Judgment was entered for the Petitioner against the 1st to 3rd Respondents: permanent injunction, orders of prohibition and judicial review, three declarations of unconstitutionality, and compensation of Kshs. 4,000,000 (not the Kshs. 12,000,000 claimed). Prayers for reconstruction of the wall, the alternative Kshs. 12,000,000 mandamus, and Chapter Six disqualification of officers were refused as unmerited. Costs were awarded to the Petitioner. The 4th and 5th Respondents filed appearance but did not otherwise participate.

Key legal issues

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01

Registered ownership of the suit property

Holding

The Petitioner is the registered owner of Land Parcel No. Karingani/Ndagani/3880, title issued 3rd May 1996

Reasoning

The Petitioner produced a title deed issued by the Land Registrar on 3rd May 1996 (Exhibit MM-1), and the ownership was not controverted. Article 40 protects property rights, Article 60(1)(b) enshrines security of land rights and Article 64 recognises private land ownership, subject to lawful deprivation under Article 40(3).

p. 17
02

Whether ample notice was given before demolition

Holding

No; the demolition was done without due process

Reasoning

The only notice was a general notice dated 16th January 2019 affixed on the wall and served on the day of demolition, not addressed to the Petitioner personally or stating reasons. The Respondents produced no evidence of proper service of an enforcement notice under Section 45 of the Physical Planning Act, shifting the burden to them under Section 107 of the Evidence Act.

p. 17
03

Whether a fair hearing was accorded before demolition

Holding

No; the Petitioner was not accorded a fair hearing

Reasoning

Article 47(1) and (2) entitle a person to lawful, reasonable and procedurally fair administrative action and to written reasons. The Respondents did not give the Petitioner a hearing, did not explain the markings on the wall, did not provide documents relied on, and produced no minutes evidencing public participation, violating natural justice.

p. 17
04

Whether constitutional rights were breached and compensation payable

Holding

Yes; breaches of Articles 10, 27, 40, 47 and 50 established and compensation awarded

Reasoning

Having found the demolition unlawful and without fair administrative action, the court held the Petitioner's rights were breached, entitling him to compensation under Article 23. However, the court was not satisfied prayers g, h and i were merited and awarded Kshs. 4,000,000/- rather than the claimed Kshs. 12,000,000/-.

p. 18
05

Preliminary objection on jurisdiction (decided 22nd May 2019)

Holding

Preliminary objection dismissed; grounds raised factual issues and the ELC has original jurisdiction over land matters

Reasoning

The court found grounds 1 and 2 of the objection invited factual argument not fit for a pure point of law, and ground 3 (pecuniary jurisdiction) failed because the ELC has original and appellate jurisdiction over all land and environment matters. Costs were in the cause.

p. 17

Legal principles established

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  • A person facing demolition of property must be given ample notice and the demolition must comply with due process; failure to accord notice and a fair hearing renders the demolition unconstitutional
  • Demolition of private property without a court order and without fair administrative action breaches Articles 40 and 47 of the Constitution and attracts constitutional compensation
  • A party supervising demolition without a court order acts unconstitutionally

Court orders

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  1. 1.Permanent injunction issued restraining the Respondents, their servants and/or agents from further trespassing upon, encroaching, demolishing and/or dealing with Title Number Karingani/Ndagani/3880 measuring 0.405 Hectares
  2. 2.Order of prohibition issued barring the Respondents from further trespassing, encroaching, demolishing and/or further dealing with the suit property
  3. 3.Declaration that the Respondents' decision to demolish the Petitioner's perimeter wall was unconstitutional, null and void for breach of Articles 40, 47, 50 and 60 of the Constitution
  4. 4.Declaration that the 1st to 3rd Respondents' notice dated 16th January 2019 was unconstitutional, null and void for failure to serve the Petitioner with notice pursuant to Article 25(c), 47(2) and 50 of the Constitution
  5. 5.Declaration that the 4th Respondent's actions of supervising the demolition without a Court Order were unconstitutional, null and void pursuant to Article 10 of the Constitution
  6. 6.Order of judicial review in the form of prohibition barring the Respondents from carrying on further destructions, demolitions and/or interference with the Petitioner's residential home on the suit property
  7. 7.The 1st, 2nd and 3rd Respondents condemned to pay the Petitioner Kshs. 4,000,000/= for breach of his constitutional rights
  8. 8.Costs of the petition awarded to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21, 22, 23, 25, 25(c), 27, 29, 31, 33, 40, 40(1), 40(3), 47, 47(1), 47(2), 50, 60, 60(1)(b), 64, 65, 159, 162(2)(b), 176, 180, 243, 258, 259, 260; Chapter Five; First and Fourth Schedules
  • Land Registration ActSections 24, 25, 26, 26(1)
  • Physical Planning ActSections 45, 52 (and 'Section 455' as cited by respondents)
  • Land ActSection 152(2)
  • County Government ActSection 95
  • Environment and Land Court ActSections 4, 13, 13(2)
  • Evidence ActSections 107, 108
  • Civil Procedure ActSection 11
  • Magistrates' Court ActSection 7(1)(a)
  • National Police Service Actnot specified
  • Local Government ActCap 265
  • The Local Government (Adoptive By-Laws) (Building) Order 1968Section 3
  • Registered Land Act (repealed)Section 23(1) (via case citation)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 13, 19, 23

Cases cited (19)

  • Rumba Kinuthia v Attorney General
    Nairobi HCCC 1408 of 2004 (unreported)
  • Wreck Motors Enterprises v The Commissioner of Lands and Others
    Nairobi LLR 5066 (Civil Appeal No. 71 of 1997)
  • Dr. Joseph N.K. Arap Ng'ok v Justice Moijo ole Keiwua & 4 Others
    Civil Application No. NAI.60 of 1997 (unreported)
  • Dry Associates Ltd v Capital Markets Authority & Ano
    Petition No. 328 of 2011
  • Judicial Service Commission v Mbalu Mutava & Another
    [2015] eKLR, Civil Appeal 52 of 2014
  • Baker v Canada (Minister of Citizenship & Immigration)
    2 S.C.R. 817
  • Kenya Revenue Authority v Menginya Salim Murgani
    Civil Appeal No. 108 of 2009
  • Virenda Ramji Gudila & Ano v The Attorney General
    ELC No. 480 of 2011
  • Isaac Gathungu Wanjohi v The Attorney General & Others
    HCC Petition No. 154 of 2011
  • Cycad Properties Limited & Anor v Attorney General & 4 others
    [2013] eKLR
  • Base Titanium Limited v County Government of Mombasa & another
    [2018] eKLR, Civil Appeal 69 of 2017
  • Anarita Karimi Njeru v Republic (No.1)
    [1979] KLR 154
  • Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others
    [2014] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors
    (1969) EA 696
  • Hasan Ali Joho & Anor v Suleiman Said Shabhal & 2 Others
    Petition No. 1 of 2013 (2014) eKLR
  • Independent Electoral & Boundaries Commission v Jane Cheperen & 2 Others
    (2015) eKLR
  • Hassan Nyanje Charo v Khatib Mwashetani & 3 others
    Civil Application No. 23 of 2014 (2014) eKLR
  • Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others
    Application No. 50 of 2014 (2015) eKLR
  • CA. No. 287 of 2016 (unnamed authority on magistrates' courts' land jurisdiction)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (constitutional petition under Articles 22, 23 - enforcement of Bill of Rights)

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, "Mutegi Mugwetwa v Chief Officer Lands, Physical Planning, Housing, Urban Development, Environment and Natural Resources & 4 others [2020] KEELC 3731 (KLR)", Case Analysis (2020). Chuka ELC Constitution Petition Case No. 01 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3731/eng@2020-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.