Mutegi Mugwetwa v Chief Officer Lands, Physical Planning, Housing, Urban Development, Environment and Natural Resources & 4 others [2020] KEELC 3731 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Registered ownership of the suit property
The Petitioner is the registered owner of Land Parcel No. Karingani/Ndagani/3880, title issued 3rd May 1996
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).
Whether ample notice was given before demolition
No; the demolition was done without due process
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.
Whether a fair hearing was accorded before demolition
No; the Petitioner was not accorded a fair hearing
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.
Whether constitutional rights were breached and compensation payable
Yes; breaches of Articles 10, 27, 40, 47 and 50 established and compensation awarded
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/-.
Preliminary objection on jurisdiction (decided 22nd May 2019)
Preliminary objection dismissed; grounds raised factual issues and the ELC has original jurisdiction over land matters
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.
Legal principles established
#- 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
#- 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.Order of prohibition issued barring the Respondents from further trespassing, encroaching, demolishing and/or further dealing with the suit property
- 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.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.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.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.The 1st, 2nd and 3rd Respondents condemned to pay the Petitioner Kshs. 4,000,000/= for breach of his constitutional rights
- 8.Costs of the petition awarded to the Petitioner
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.