[2017] KEHC 9636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 42 OF 2015

BETWEEN

ERASTUS NJONJO MOTE………………….......….….. 1ST PETITIONER

MARY NYAMBURA NYAGA………………........…..….... 2ND PETITIONER

JAMES NDUNGU KIARIE……………………........….… 3RD PETITIONER

BERNARD MBURU MUNYIRA……………......…..…….. 4TH PETITIONER

AND

THE HON. ATTORNEY GENERAL…….………..…..…1ST RESPONDENT

NATIONAL LANDS COMMISSION……………..…….2ND RESPONDENT

KENYA URBAN ROADS AUTHORITY………….…….3RD RESPONDENT

JUDGMENT

Introduction

1. The Amended Petition filed on 24 February 2016 concerns land acquired by the Government through the Land Acquisition Act (Cap 295) for various road projects. The acquisition was in 2010 and was for a specific purpose. The designated purpose was a road project. It is claimed that where compulsorily acquired land is not utilized for such projects, it should revert back to its previous owners as the right to property is guaranteed under Article 40 of the Constitution.

2. The Petitioners herein are among land owners whose parcels were acquired for purposes of construction of the Nairobi Northern By-Pass through Gazette Notice 2240 of 2 March 2010.

3. The 2nd Respondent is an independent Commission established under Article 67(1) of the Constitution operationalised by the National Land Commission Act No. 5 of 2012. It took over the duties that were performed by the now defunct Commissioner of Lands. The 3rd Respondent is a State Corporation under the Ministry of Transport and Infrastructure established by the Kenya Roads Act, 2007 whose mandate is among others, to develop all public roads in Kenya.

4. In reply to the Amended Petition, Affidavits were filed. Further, there were grounds of opposition filed by the 1st Respondent.

Brief background facts

5. Vide Gazette Notice No. 2240 dated 2 March 2010 and in pursuance of section 6 (2) of the Land Acquisition Act, the Commissioner of Lands gave notice to inter alia the Petitioners that the Commissioner of Lands gives notice of the Government’s intention to acquire various parcels of land for the construction of the Nairobi Northern By-Pass.

6. The Petitioners allege that the construction of the Nairobi Northern By-Pass has since been completed without the need for their land. They contend that they have a right to property as enshrined under Article of 40 of the Constitution and in particular, not to be arbitrarily deprived of property of any description or of any interest in or right over any property of any description.

The Petitioners’ case

7. The Petitioners case is largely contained in the Amended Petition and Supporting Affidavit deposed by the 3rd Petitioner on behalf of the 1st, 2nd and 4th Petitioners on 23 February 2016. There is also filed a further affidavit deposed by the 3rd Petitioner on 21 April 2016.

8. While it is acknowledged that the Petitioners’ land was acquired vide Gazette Notice 2240 and dated 2 March 2010, it is their case that the Nairobi Northern By-Pass has since been completed without the need for the Petitioners’ land. They contend that it is only fair and just that the aforesaid Gazette Notice be cancelled and the land reverted back to them.

9. It is the Petitioners’ case that the right to property is guaranteed under Article 40 of the Constitution and in particular, the right not to be arbitrarily deprived of property of any description or of any interest in or over, and any property of any description.

10. In the circumstances, the Petitioners sought for prayers, viz:

a) A declaration for protection of the petitioner/applicants property.

b) A declaration that the Gazette Notice No. 2240 and dated at Nairobi on 2nd March, 2010 is unconstitutional and hence invalid.

c) Costs of the Petition.

d) Any other orders, writs and directions the Honourable Court considers appropriate and just to grant for the purpose of the petitioner’s constitutional rights.

The Respondents’ case

11. The Respondents’ case is contained in the Replying Affidavits deposed by Abdulkadir Ibrahim Jatani, the Manager in charge of Surveys at the 3rd Respondent’s Authority dated 11 May 2016 and Brian Ikol, the 2nd Respondent’s Deputy Director, Legal Affairs and Enforcement dated 14 April 2016 and 29 April 2016.

12. The 1st Respondent has also filed grounds of opposition stating that the Petitioners have failed to demonstrate how their rights under the Constitution have been violated.

13. It is not in dispute that government acquired parcels of land from the Petitioners. However, it is the Respondents’ case that such acquisition was done in accordance with the law. In particular, the 2nd Respondent contends that it is the body in charge of ensuring that the owners of the compulsory acquired land were compensated. Upon taking possession and payment of just compensation in full, it is the Respondents’ case that the acquired land vests in the national or county governments absolutely free from encumbrances.

14. The Respondents contend that the process of acquisition was legal and did not breach Article 40 (3) (b) of the Constitution nor the Land Acquisition Act, Cap 295. Further, that once the acquisition was completed by just, full and prompt payment of compensation, the land became and still is public land as pronounced by the provisions of the Land Act, 2012 and Article 62 of the Constitution.

15. It is the Respondents’ case that the 3rd Respondent is mandated to, among others to develop all public roads. Further that it may acquire land required for this purpose through negotiation and agreement with the registered owner or if the land is public, by notifying the minister in charge of public land that the land is required for the Authority’s purposes.

16. With regard to reversion of unutilized land, it is the Respondents’ case that the fact that the acquiring body has not utilized the land does not mean that it does not intend to do so. In any event, it was stated that the 3rd Respondent intends to use the reminder of the land during the dualing phase.

17. It is the Respondents’ case that the Amended petition is ill conceived and without basis because the Respondents have neither breached nor threatened to contravene any of the Petitioners’ constitutional rights.

Arguments in court

The petitioners’ submissions

18. Prof. Wangai, Counsel for the Petitioners in urging their case submitted that the compensation to the Petitioners was never adequate as there was no valuation done. Further, that the payments have been arbitrary. Counsel expressed the Petitioners’ concern that since their land was not utilized, it may very well be allocated to other people. The Petitioners submit that they want the land back or alternatively, that an independent valuation of the property be undertaken for purposes of compensation as no valuation was done during the acquisition stage.

The Respondents’ submissions

19. Mr. Sekwe urged the 1st and 3rd Respondents’ case while Ms Masinde appeared for the 2nd Respondent.

20. In opposing the Amended petition, it was Counsel’s submission that there is an unchallenged notice advertising and calling for tenders for the construction of the 2nd Phase of the Northern By-Pass. Additionally that the Petitioners’ land was acquired in 2011 and subsequently they were adequately compensated. Thus, seeking further compensation is outrageous. It was also submitted that there was no demonstration as to how the rights under Article 40 of the Constitution have been violated.

21. In further opposition of the Amended Petition and in support of arguments by the 1st & 3rd Respondents, Ms. Masinde in urging the 2nd Respondents case submitted that the 2nd Respondent acquired the land on behalf of the 3rd Respondent wherein, proper procedures were followed. The court was told that there were never any complaints raised during the acquisition process. Further that after valuation, compensation was paid in 2011 with no complaints at the time. While submitting that Article 40 of the Constitution was not violated, it was Counsel’s submission that the land was acquired for public purposes and cannot be allocated to any other party or returned to the Petitioners for that matter.

Discussion & Analysis

22. I have considered the Petition as well as the response by the Respondents. There are only two issues for determination. Is the Petition competent in so far as the drafting and framing of a constitutional issue is concerned? Secondly, have the Petitioners’ rights under Article 40 been violated.

23. Firstly, I will consider the issue of competence of the Petition on the allegation that the Petitioners have failed to demonstrate how their rights under the Constitution have been violated.

24. The Petitioners state that the Respondents have breached their rights under Article 40 of the Constitution. In particular, they state that they have been arbitrarily deprived of their property and as such, the Respondents are in violation of this right.

25. In the oft cited case of Anarita Karimi Njeru vs. Republic [1976-80] KLR 1272, the court stated how constitutional petitions ought to be crafted. There is need for some reasonable precision. A petition however need not be elegantly crafted. As long as a petitioner is able to state with some degree of clarity that there has been a violation or threat of violation and breach of right or freedom guaranteed under Constitution and the court is able to painlessly discern the issues, the threshold would be deemed to have been met. See Mumo Matemu vs. Attorney General & 5 Others [2014] eKLR, Felix Kiprono Matagei vs. Attorney General & 3 others [2016] eKLR.

26. In the instant case, I am relatively satisfied with the way the Petition was crafted. It is clear that the Petitioners set to complain about their right to property under Article 40 of the Constitution. It is also clear that the Petitioners were complaining that a violation has occurred and may continue to occur unless the court intervened. The Petitioners complain about the Respondents conduct and insist that it continues to violate their Article 40 rights. The Petition as crafted, merits aside, meets the drafting threshold.

27. Secondly, is the issue of violation of rights. Have the Respondents breached the Petitioners’ right under Article 40 of the Constitution?

28. Article 40 (1) of the Constitution guarantees the right of every person either individually or in association with others to acquire and own property subject to section 65 of the Constitution. Article 40(2) instructs Parliament not to enact law that permits the State or any person to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description. However, Article 40 (3) gives the State power to interfere with this right. It states that;

The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-

(a) results from an acquisition of land or an interest in land or conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that-

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

29. Further to the constitutional dictates as to compulsory acquisition of land, Parliament enacted the Land Act, 2012. Part VIII of the Act is devoted to compulsory acquisition of interests in land. This part sets out inter alia, the process of acquisition of land by the national or county government as well as compensation of such acquired land. The National Land Commission is required to prescribe the criteria and guidelines to be adhered to by the acquiring authorities in the acquisition of land.

30. The Petitioners contention is two pronged. Firstly, while they do not impugn the way their land was acquired, they state that since the construction of the Nairobi Northern By-Pass has been completed without the need for their land, it should revert to them. Secondly, they state that the compensation to the Petitioners was never adequate as there was no valuation on the land acquired. On this issue, they seek that an independent valuation of the land be undertaken.

31. The Respondents on the other hand contend that having taken possession and compensation being made in full, the acquired land vests in the national or county governments absolutely free from encumbrances. Further that the land became and still is public land in accordance with the provisions of the Land Act, 2012 and Article 62 of the Constitution.

32. Section 120 (4) of the Land Act, 2012 provides that;

Upon taking possession and payment of just compensation in full, the land shall vest in the national or county governments absolutely free from encumbrances.

33. On the first issue of reversion of the land back to the Petitioners, I am of the considered view that under section 120 (4) of the Land Act, 2012 the land currently vests in the national government. The Respondents do not acknowledge the Petitioners’ contention that the land is idle and will remain idle. Instead, the Respondents state that the land is a road reserve and will shortly be used. The 3rd Respondent states that they intend to use the remainder of the land during the dualing phase of the same road project for which the land was acquired. There is affidavit evidence that the process is under way. There is also affidavit evidence that the Petitioners were compensated when the land was acquired in 2010. In such eventuality it is clear that the land cannot, even if the Petitioners wanted, revert back to them. In any event, the land currently vests in the national and/or county government and having been duly compensated, the Petitioners have no rights over the same.

34. On the contention by the Petitioners that although they were compensated, the same was not adequate since there was no valuation, I do not view such contention to raise a constitutional question worthy of determination by this court. It is an issue which the Petitioners ought to have raised at the time of acquisition or with the Environment and Land Court.

35. It is true that the twin sister of compulsory acquisition is just compensation. Section 111 of the Land Act provides for compensation. It states that;

(1) If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined.

(2) The Commission shall make rules to regulate the assessment of just compensation.

36. It is unclear why the Petitioners did not then raise the issue of valuation or challenge the amount of compensation offered. It is however important that court takes cognizance of the fact that this land was acquired through Gazette Notice 2240 dated 2nd March, 2010. Of importance is the date of this gazette notice, the year 2010. I believe that the process of acquiring the Petitioners’ land started at the time. Since the construction of the Nairobi Northern By-Pass has since been concluded awaiting a dualing phase, I am of the considered view that asking for another valuation some seven years down the road is questionable. If, after being compensated, the Petitioners were not satisfied, they should have aired their grievances then, before the land vested in the national and/or county government or before the process was completed and construction commenced. To state the same now is late in the day. Equity aids the vigilant, not those who slumber on their rights. I am of the view that the Petitioners are not being genuine on this issue.

37. Consequently, I am of the view that the Petitioners have not made out and proved a case of violation of their constitutional rights to the required standard. They are not entitled to any of the reliefs they seek.

38. Thus, the Amended Petition ought to be dismissed and I do dismiss it. On costs, I do order that each party shall bear its own costs of the petition.

Dated, signed and delivered at Nairobi this 14th day of November, 2017.

J.L.ONGUTO

JUDGE