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ELCPartially Allowednot stated in the judgment (Petition dated 4th October, 2023)· [2026] KEELC 1549 (KLR)

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.

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

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Constitution of Kenya 2010Article 43(1)(c)
  • Constitution of Kenya 2010Article 47
  • Constitution of Kenya 2010Articles 22 and 23(3)
  • Constitution of Kenya 2010Section 5, Schedule 4
  • Fair Administrative Actions Actnot specified
  • Trespass Act, Cap 294Section 3(1)
  • Civil Procedure RulesOrder 2 Rule 1(1)
  • Evidence ActSections 107, 108 and 109
  • Civil Procedure Actnot specified

Cases cited (11)

  • Anarita Karimi Njeru V Republic
    (1979) eKLR
  • Mumo Matemu V Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Manase Guyo & 260 others v Kenya Forest Services
    [2016] KEHC 3726 (KLR)
  • Lyomoki and Others vs Attorney—general
    [2005] E A 127
  • Interchemie EA Limited V Nakuru Vertinary Centre Ltd
  • Park Towers Ltd V John Mithamo Njika et all
    2014
  • Kookes V Barnard
    [1964] AC 1129
  • Willesden Investment Ltd V Kenya Hotel Properties
    Nrb HCCC No. 367 of 2000
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Hostler – VS – Green Park Development Co.
    986 S. W 2d 500 (No. App. 1999)
  • Mikidadi v Khaigan and Another
    [2004] eKLR 496
Jurisdiction invoked
Articles 22, 23, 40, 43(1)(c) and 47 of the Constitution of Kenya 2010

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.