https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4745

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC PETITION NO. E003 OF 2022** **IN THE MATTER OF ALLEGED CONTRAVENTIO OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 10, 40 & 47 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE LAND ACT NO. 6 OF 2012 AND THE LAND** **(ASSESSMENT OF JUST COMPENSATION) RULES, 2017** **BETWEEN** **EUNICE WANJIRU GATHITHI (the legal representative** **Of the Estate of the late FREDRICK GATHITHI KABUE………...PETITIONER** **AND** **THE NATIONAL LAND COMMISSION……………..………1ST RESPONDENT** **COUNTY GOVERNMENT OF KIAMBU……….………….2ND RESPONDENT** **DIRECTOR, LAND ADMINISTRATION** **MINISTRY OF LANDS AND PHYSICAL PLANNING…..….3RD RESPONDENT** **THE HONORABLE ATTORNEY GENERAL………………..4TH RESPONDENT** **JUDGMENT** 1. The Petitioner filed this Petition claiming to be the registered proprietor as Lesee of Land Reference Number Kikuyu Township/71 (hereinafter **“suit property”**). It is the Petitioner’s contention that the title over the suit property was issued by the Government of Kenya for a term of 99 years from 1/11/1975. That the said property was to be compulsorily acquired vide Gazette Notice No. 11990 dated 23/08/2013 following the construction of the Nairobi Southern By pass. That the compulsorily acquisition was halted and no longer needed and cancelled via Gazette Notice No. 8566 dated 28/11/2014. 2. However, that during the construction of the bypass, the access road to Kikuyu Town was improved by Kenya National Highways Authority resulting to an encroachment on the Petitioner’s property and his right to use, develop, sell and/or lease have therefore been violated as a result of the encroachment on the property. That no compensation was awarded. Therefore; the Petitioner seeks the following reliefs: 3. Declarations that: - 4. The Respondents' actions have rendered the Petitioner's property Title Number Kikuyu Township/7l virtually useless and uneconomical to use and amounts to compulsory acquisition by implication. 5. The Petitioner's proprietary interests in the entire suit property Title Number Kikuyu Township/71 were effectively compulsorily acquired by the State by implication as the Petitioner has been deprived of the use, benefit and enjoyment of the land. 6. The Petitioner is entitled to prompt, just and adequate compensation in full within the meaning and tenor of Article 40 (3) (b) (i) for the compulsory acquisition of the entire property known as Title Number Kikuyu Township/71 whose use has been compromised and rendered useless. 7. The Respondents breached Article 47 of the Constitution by failing to respond to the Petitioner's complaint in a just and expeditious manner. 8. An order of Mandamus do issue:- 9. Directing the NLC to conduct a valuation of Kikuyu Township/71 to ascertain the current market value of the property in accordance with the Land (Assessment of Just Compensation) Rules, 2017. 10. Directing the Respondents jointly and severally to forthwith promptly pay in full compensation to the Petitioner for the entire property known as Title Number Kikuyu Township/71 at the current market value. 11. The Kiambu County Government do refund Kes.57,240 paid by the Petitioner as license fees with interest at Court rates from 22nd July 2021 until payment in full. 12. Exemplary and aggravated damages by the Respondents. 13. Interest at Court rates on damages and compensation awarded from the date of Judgment until payment in full 14. Costs of the Petition with interest at Court rates from the date of Judgment. 15. When the parties appeared in Court on 8/12/2025 Counsels for the 1st, 2, 3rd and 4th Defendants sought leave to file responses for those who had not filed and written submissions thereafter. The Court granted the Respondents 30 days leave to file their responses and written submissions. A Judgment date was reserved on 10/03/2026 when the parties appeared before Court. 16. Further, the Petitioner during the various Court appearances also requested for a site visit and the Court granted leave on 8/11/2022 where the parties were directed by the Court that they take a date for the site visit before the DR. This was done. **Petitioner’s Case** 1. The Petitioner depones that her late husband was the registered owner of the property formally known as Title Number Kikuyu Township/71 (referred to as "the property"). To substantiate her claims, the Petitioner has submitted a comprehensive, sequentially numbered bundle of documents from pages 1 to 64, collectively marked as “**Exhibit EWG-1”**. Due to her advanced age and deteriorating medical condition, she directly implores the Court for an expedited hearing and determination of this matter. 2. She deposes that Petitioner’s family has maintained lawful, compliant ownership of the land for decades, which is demonstrated by several core documents within “**Exhibit EWG-1”**: 3. On 20/09/2011, the Petitioner formally obtained the Grant of Letters of Administration over her deceased husband’s estate, which is annexed at page 1. 4. The property, measuring approximately 0.0175 Hectares, was originally held as a leasehold from the Government of Kenya for a term of 99 years effective from 1/11/1975, attracting a revisable annual rent of Kshs 160. The formal Certificate of Lease was issued on 8/12/1988, and is produced at pages 2 to 3. 5. A Certificate of Official Search, attached at **page 4**, verifies the estate's clean and ongoing root of title. 6. According to historical records provided by the Director of Surveys in a letter dated 22/05/2019, the plot was originally identified as FR174178 and LR No. 231158 before its structural conversion into Kikuyu Township171. This historical narrative and accompanying Google satellite images of the land are preserved at pages 43 to 45. 7. The family has consistently met its civic duties by paying land rates to the local authority, evidenced by the most recent Rates Clearance Certificate issued by the County Government of Kiambu in 2021, found at page 5. 8. She additionally depones that the conflict concerning this parcel of land dates back over a decade. The Petitioner previously instituted constitutional proceedings under **Nairobi ELC Petition No. 58 of 2018** (which originally commenced as Constitutional & Human Rights Division Petition No. 264 of 2014) against the National Land Commission (NLC). This early litigation was triggered when the State published Gazette Notice No. 11990 on 23/08/2013, declaring its intention to compulsorily acquire land within Kikuyu Township to pave the way for the construction of the Nairobi Southern Bypass. Following this, on 29/05/2014, the NLC published a newspaper advertisement in *The Standard*, assuring the public that the acquisition process had been concluded and that final compensation payouts were merely awaiting the disbursement of funds from the Kenya National Highways Authority (KeNHA). 9. However, it is her contention that after the Petitioner moved to Court to protect her interests, the state authorities revealed that her specific plot was no longer required for the Southern Bypass project. The state subsequently withdrew the compulsory acquisition notice, and the initial Petition was formally marked as withdrawn by mutual consent of the parties. The complete dynamic of this prior legal battle is documented within the bundle at pages 6 to 38, which contains: 10. The original Petition dated 11/06/2014 (pages 6 to 11). 11. The Notice of Motion filed alongside it (pages 12 to 14). 12. The Petitioner's Supporting Affidavit and its accompanying verifications (pages 15 to 27). 13. The formal Replying Affidavit filed by the NLC on 13/10/2014 (pages 28 to 37). 14. The final signed Consent Letter dated 10/07/2019, which officially brought the suit to a close (page 38). 15. Thus, that the current constitutional grievance arose after the first case was settled. Despite promising not to take the land for the bypass, state entities physically moved onto the plot to construct public infrastructure without acquiring the land legally or compensating the family. Through her legal Counsel, the Petitioner dispatched a formal complaint to KeNHA on 23/10/2020 (pages 40 to 41), requesting an urgent site visit. This letter detailed how a newly improved municipal access road leading into Kikuyu Town had been paved directly over her land, physically superimposing tarmac onto her private property. This complaint explicitly referenced an earlier communication from KeNHA dated 15/12/2025, which is attached at page 39. Furthermore, the letter pointed out that the County Government of Kiambu had laid a major public sewer line directly underneath the surface of her plot, a subterranean placement that stripped the land of any safe structural foundation or commercial utility. KeNHA responded on 23/11/2022, via a letter compiled at page 42, in which the authority dispositioned blame, stating that it was never involved in designing or executing the access road and had merely performed routine surface dressing on top of an already existing roadway. 16. The Petition further states that to establish the irrefutable physical facts of the encroachment, the Petitioner filed an application under **Kikuyu ELC No. 11 of 2020** against the County Surveyor of Kiambu, an action in which an interested neighbor also sought a formal joinder. These specific chamber applications are indexed at pages 46 to 52. Acting under an explicit Court order issued on 18/09/2020, the Kiambu County Surveyor joined forces with national surveyors from the Survey of Kenya to conduct an official site verification. On 22/10/2020, the County Surveyor issued a definitive report, which is annexed at page 53. This statutory report conclusively proved that two of the primary boundary beacons marking the Petitioner's land lie on top of the nearby tarmac road. 17. That the surveyor then advised the elderly Petitioner to navigate the bureaucratic channels of the various roads authorities to find a solution. This infrastructural intersection has entirely frozen the property’s viability. Although the Petitioner paid a sum of Kshs 57,240 to the Kiambu County Government on 22/07/2021, to secure development and construction licenses verified by the official payment receipt at page 64 she is legally blocked from executing any building plans. Local authorities cannot grant structural approvals because the underlying public sewer line prevents any excavation or foundation works, while the paved road has physically shrunk the usable dimensions of the parcel. The land can neither be built upon, sold, nor leased, rendering it entirely useless. 18. Between June and November of 2021, the Petitioner’s Advocates made persistent attempts to engage the state organs in an amicable settlement, referencing the alternative dispute resolution mandates of Article 159 of the Constitution. However, the Respondents met these attempts with absolute silence. The timeline of these ignored institutional demands is documented within the bundle as follows: 19. Pages 54 to 57: Statutory demand letters dated 17/06/2021, delivered directly to the NLC and copied to the Kiambu County Director of Lands, Housing, and Physical Planning. 20. Pages 58 to 59: Explicit written reminders dispatched to the NLC on 25/06/2021, and 23/09/2021. 21. Pages 60 to 63: A final, formal Statutory Demand Notice dated 10/11/2021, served upon both the Attorney General of the Republic and the Kiambu County Director of Lands, Housing, and Physical Planning. 22. The Petitioner depones that based on the expert Counsel of her Advocate, **Allen Waiyaki Gichuhi** (Senior Partner at **Wamae & Allen Advocates**), the Respondents have actively violated her fundamental rights. She argues that because the State issued a valid 99-year leasehold title, it has a binding constitutional duty under Article 40 to protect her private property from arbitrary intrusion. By running a public highway and a public sewer line through her land, the state has de facto ousted her family from the use, benefit, and enjoyment of their property. The Petitioner maintains that this total annihilation of her property's economic value amounts to a compulsory acquisition by implication under Article 40(3)(b)(i) of the Constitution, which automatically triggers a right to prompt, just, and full financial compensation at current market value. 23. Additionally, she deposes that the Respondents' complete refusal to answer her administrative appeals throughout 2021 constitutes a blatant breach of her right to Fair Administrative Action under Article 47. It also violates the foundational national values of equity and social justice enshrined under Article 10(2)(b). Concluding her affidavit, the Petitioner affirms her total belief in the truth of these facts and prays that the Environment and Land Court exercise its clear jurisdiction to award her full compensation for the value of the entire property, special damages for lost commercial profits, and exemplary and aggravated damages to punish the oppressive conduct of the state agencies. **Respondent’s Case** 1. In opposition to the Petition, only the 2nd Respondent filed a Replying Affidavit sworn on 29/0/2022. The Replying Affidavit of Daniel Kirathe, serves as the formal response of the 2nd Respondent to the Petition dated 12/02/2022. Mr. Kirathe, begins by establishing his legal standing and authority to execute the document. He affirms his role as the County Solicitor at the County Government of Kiambu, stating that this professional position duly authorizes him to swear the affidavit on behalf of the 2nd Respondent. 2. Addressing the physical reality of the dispute, Mr. Kirathe requests that the Honourable Court to grant an indulgence to undertake a judicial site visit to the suit property, identified as L.R. No. Kikuyu Township/71. He asserts that this visual inspection is necessary for the Court to fully appreciate the exact position on the ground. To support the contention that a site visit will clarify the matter, he explicitly deposes that the sewer line constructed by the 2nd Respondent in Kikuyu Township does not pass anywhere near the subject parcel. In support of this statement, he introduces and refers to critical documentary evidence, specifically attaching copies of the maps of the parcel property and the Kikuyu Trading Centre, which are annexed to the affidavit and marked as Annexure **"DK 1"** and Annexure **"DK 2"** respectively. 3. Furthermore, Mr. Kirathe addresses the regulatory and environmental compliance measures undertaken prior to the commencement of the infrastructural works. He notes that in April 2019, before the construction of the sewer line, an Environmental Impact Assessment (EIA) Study Report was commissioned. He highlights the specific recommendations of the expert panel, quoting that the EIA experts recommended the proposed project be allowed to proceed and be issued an EIA license, subject to adherence to the outlined mitigation measures, the implementation of the Environmental Management and Monitoring Plan (EMMP), and fulfillment of all necessary approval conditions. He formalizes this reference by attaching an extract of the EIA Study Report for the Proposed Construction of the IRLI-Mutego Main Sewer Trunk in Kikuyu Municipality, Kiambu County, which is marked and annexed as Annexure **"DK 3"**. 4. The affidavit also brings into focus the position of other state agencies and the lack of a legal foundation for the Petitioner's claims. Mr. Kirathe points out that the Kenya National Highways Authority has on numerous occasions averred that the suit property was entirely unaffected by the construction of the Nairobi Southern Bypass, cross-referencing various institutional correspondences already contained in the Petitioner's own List of Documents. He argues that the Petitioner has failed to arguably demonstrate how the parcel of land was effectively or compulsorily acquired by the State, undermining their claim to prompt, just, and adequate compensation. 5. Relying on legal Counsel from the 2nd Respondent's Advocate on record, which he verily believes to be true, Mr. Kirathe characterizes the Petition of 12/02/2022, as a non-starter that lacks merit and constitutes an abuse of the Court process, maintaining that the 2nd Respondent dutifully and diligently executed its legal mandate. He concludes by praying for absolute dismissal of the Petition with costs awarded to the 2nd Respondent. 6. The Environmental Impact Assessment (EIA) Study Report marked as **“DK-3”** for the Proposed Construction of the IRLI-Mutego Main Sewer Trunk in Kikuyu Municipality establishes that the project will not cause any unmitigable environmental damage, noting that any unforeseen impacts can be adequately addressed through mandatory annual environmental audits. To ensure optimal compliance and safety standards, both the proponent and the contractor must commit to executing the Environmental Management and Monitoring Plan (EMMP) while strictly adhering to all relevant national and international environmental, health, and safety regulations. Consequently, the EIA experts firmly recommend that the project be approved and granted an official EIA license, provided that these comprehensive mitigation measures are actively maintained throughout the lifetime of the project. **Site Visit Report** 1. During the site visit conducted on 1/08/2023, led by Deputy Registrar Hon. M. Kurumbu and accompanied by Court Assistants, a Police Officer, Legal Counsels, and technical representatives from various water and land institutions convened at the suit land, though the Court was unable to establish the exact physical measurements of the property due to the absence of the 3rd Respondent's Surveyor. 2. Despite this limitation, the Court observed that the County sewer line runs entirely along the road and sits clearly outside the area designated as the suit property by the Petitioner's son, Mr. Kihara Gathithi. Instead, the manhole covers pointed out by Mr. Gathithi on the structureless plot were small, active fixtures serving an adjacent building, and the two concrete spots he identified as beacons could not be verified without a government officer present. Furthermore, while all parties observed the access road alleged to have encroached upon the suit land, its custodian could not be determined, leading to a collective agreement that the Petitioner must identify and join the responsible party to the suit. Consequently, following these factual findings on the ground, the Counsel for the 2nd Respondent requested that his client's name be struck out from the suit for which he was advised to file a formal application before the parties ultimately agreed to schedule the matter for a mention on September 28, 2023. 3. Following the directions issued about the Petitioner needing to find the custodian of the access road which is said to have encroached on the suit property, the Petitioner swore a supplementary affidavit on 26/08/2024. In the Affidavit she explains that the Court had previously granted several adjournments to allow her to ascertain which entity holds jurisdiction over the access road neighboring the suit property. To resolve this question, her Advocates initiated an extensive chain of correspondence with the Kenya Urban Roads Authority (KURA) and sought intervention from the Commission on Administrative Justice (Office of the Ombudsman) to secure access to information due to KURA's initial non-responsiveness. 4. This investigative effort is fully documented in a 26-page composite bundle produced under Exhibit EWG-1, which details letters and reminders stretching from February to August 2024, including complaints to the Ombudsman (pages 7–10), subsequent compliance orders issued by the Ombudsman to KURA (pages 14–15), and various administrative responses. The culmination of this correspondence is an official letter from KURA dated 9/08/2024, attached at page 26 of the bundle, which clarifies that pursuant to the 2016 subsidiary legislation on road classification, the suit property borders a local Class F Road registered as Kikuyu Street 55 (Road Number F2012) and explicitly states that this road falls under the jurisdiction and responsibility of the County Government of Kiambu rather than KURA or KeNHA. Backed by the legal Counsel of **Allen Waiyaki Gichuhi SC**, the Petitioner affirms that since the proper road authority has now been definitively identified as the Kiambu County Government, the Court should proceed to determine the Petition on its merits based on the documents on record and ultimately grant the orders prayed for in the Petition. **Submissions** **Petitioner’s Submission** 1. The Petitioner through the Firm of **Wamae & Allen LLP Advocates** filed written submissions dated 15/09/2025. Counsel for the Petitioner outlined a concise recapitulation of the Petitioner’s case against the Respondents. He stated that the Petitioner’s submissions in support of the Constitutional Petition are anchored upon the compelling and unrebutted affidavit evidence deponed by Eunice Kabue on the 12/02/2022 and the 26/08/2024 respectively. It is urged upon this Honourable Court that the Petition stands entirely unopposed by the 1st, 3rd and 4th Respondents following their absolute failure to comply with the strict timelines mandated by the Court order of 28/07/2025, which required all responses to be filed by 30/08/2025 under pain of being expunged from the record. 2. That while the 2nd Respondent filed a Replying Affidavit dated 29/08/2022, the Petitioner contends that its material facts failed to displace the irrefutable evidence establishing that the suit property, Title Number Kikuyu Township/71 (originally registered as a 99-year lease from 1/11/1975 to the late Fredrick Gathithi Kabue), was extensively encroached upon. This structural encroachment was verified by both the Director of Surveys via a letter dated 22/05/2019 and the Sub-County Surveyor of Kiambu County on 22/10/2020, the latter explicitly confirming that the two boundary beacons of the suit property now physically lie beneath the existing tarmac road. 3. The jurisdictional accountability for the offending road infrastructure was conclusively laid at the doorstep of the 2nd Respondent after the Kenya Urban Roads Authority (KURA), acting on a directive from the Commission on Administrative Justice, issued a statutory clarification dated 9/08/2024 confirming that the suit parcel borders a local Class F road, designated as Kikuyu Street 55 (Road Number F2012), which falls squarely within the exclusive legal mandate of the County Government of Kiambu pursuant to Paragraph 5 of Part 2 of the Fourth Schedule to the Constitution of Kenya. 4. Flowing from these uncontroverted facts, the Petitioner submits that the construction of the public access road across the privately owned land constitutes a *de facto* compulsory acquisition that has stripped the property of all its economic viability, thereby severely infringing upon the Petitioner's fundamental right to property as guaranteed under Article 40 of the Constitution. To substantiate this limb, the Petitioner places reliance on Section 122(3) of the Land Act, Cap 280 Laws of Kenya, alongside the progressive jurisprudence of the Land Acquisition Tribunal in **Mdari v National Land Commission (Tribunal Case E005 of 2024) [2024] KELAT 831 (KLR) and Igainya Limited v National Land Commission & 2 others; County Government of Machakos (Interested Party) (Tribunal Case 2 of 2024) [2024] KELAT 809 (KLR),** both of which affirm that where a partial acquisition leaves the remaining portion of land completely unusable or disproportionately diminished in value, the acquiring entity is legally bound to acquire the entire parcel and provide full compensation. 5. The Petitioner further posits that any arbitrary deprivation of land executed outside the strict, mandatory procedural constraints laid down under Part VIII of the Land Act violates the supreme law of the land, a position robustly vindicated by the Supreme Court of Kenya in **Attorney General v Zinj Limited (Petition 1 of 2020) [2020] eKLR** and the High Courtin **Christabel Akinyi Anyango vs. Kenya Airports Authority [2014] eKLR, Isabel Waithira Njoroge vs. Permanent Secretary Ministry of State for Provincial Administration & Internal Security & 4 Others [2014] eKLR,** and **Veronicah Waithira Trustee of Inter-Christian Churches & 3 Others vs. Kenya National Highways Authority [2014] eKLR**. Moreover, the Respondents' total failure to address the Petitioner’s grievances in an efficient and timely manner is structurally characterized as a blatant breach of the right to fair administrative action under Article 47 of the Constitution and a defeat of legitimate expectation, attracting an adverse evidentiary inference under the authority of **Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 Others [2012] eKLR**, and **Kimotho v Kenya Commercial Bank [2003] 1 EA 108,** due to the Respondents' deliberate withholding of rebutting evidence uniquely within their custody. 6. In seeking appropriate remedies to redress these gross constitutional infractions, the Petitioner prays for an Order of Mandamus compelling the National Land Commission to conduct a formal valuation of Title Number Kikuyu Township/71 under the Land (Assessment of Just Compensation) Rules, 2017, and directing the Respondents, jointly and severally, to make prompt payment of the current market value in full, in line with the precedent set in **Muchai v National Land Commission (Tribunal Case E055 of 2025) [2025] eKLR and Mathatani Limited v Commissioner of Lands & 5 Others [2013] eKLR.** To restore the estate to its original position, a full refund of the development license fees amounting to Kenya Shillings Fifty-Seven Thousand, Two Hundred and Forty (Kshs. 57,240) paid to the Kiambu County Government on 22/07/2021 is sought, alongside a flat interest award of 14% simple interest per annum on the compensation sum to insulate the Petitioner against inflationary losses and the time-value of money, borrowing from the statutory philosophy of Section 117(1) of the Land Act. 7. In addition, the Petitioner moves the Court to award exemplary and punitive damages as a consequence of the oppressive, arbitrary, and unconstitutional conduct exhibited by the state organs, citing the classic test articulated in **Rookes v Barnard [1964] 1 All ER 367,** the Court of Appeal decision in **Obongo and Another v Municipal Council of Kisumu [1971] EA 91** as adopted in **Stanley Munga Githunguri v Kenya National Highways Authority & 2 Others [2014] eKLR,** and the exemplary award granted by the High Court in **Multiple Hauliers East Africa Limited v Attorney General & 10 Others [2013] eKLR.** Finally, the Petitioner invokes Section 27 of the Civil Procedure Act, Cap 21 Laws of Kenya, and the hallowed judicial principle that costs must follow the event, as sustained by the High Court in **Chemilabs v Lalji Bhimji and Shamji Jinabhai Patel (High Court Civil Case 1062 of 1973),** the Court of Appeal in **Kholi and Others v Bachulal Popatlal [1964] EA 219,** and **Universal Engineering Works v Mohamedali Suleiman Essaji [1951] 2 LRK 99,** humbly urging this Honourable Court to allow the Petition with costs awarded to the Petitioner. **3rd and 4th Defendant Submissions** 1. The 3rd and 4th Defendants in opposition to the Constitutional Petition through their submissions dated 9/03/2026 submit that the Petitioner has failed to discharge the requisite legal and evidential burden to warrant the declarations and compensation sought under Article 40(3) of the Constitution. They contend that the Petitioner has not demonstrated that the suit property, Title Number Kikuyu Township/71, has been compromised or rendered economically useless. 2. They posit that the site visit conducted on 22/05/2023 yielded no evidence of economic or commercial sterility; instead, the record indicates that the Petitioners actively utilize the very access road in dispute to access the subject property, an infrastructural feature that has arguably enhanced the commercial valuation of the land. Furthermore, the 3rd and 4th Respondents argue that the process of compulsory acquisition was never consummated or sustained by the National Government, pointing to the Petitioner's own admission that the initial state directive under Gazette Notice No. 11990 of 23/08/ 2013 was formally rescinded and the property degazetted via Gazette Notice No. 8565 of 28/11/2014. In the absence of a statutory notice of intention to acquire the land published under Section 107 of the Land Act, No. 6 of 2012, the property cannot be deemed to have been acquired either historically or constructively by the state. 3. On the question of alleged constitutional violations, they submit that the Petitioners have completely failed to establish a precise factual or legal nexus linking the National Government institutions to any systemic infringement of their rights. Invoking the strict pleading standards established in the locus classicus of **Anarita Karimi Njeru v Attorney General (1979) KLR 154** and reaffirmed in **John Mining Temoi & another v Governor of Bungoma County & 17 Others [2014] eKLR and Chief Land Registrar & 4 Others v Nathan Tirop Koech & 4 Others [2018] eKLR,** it is argued that a party seeking constitutional redress must set out with a reasonable degree of precision the specific provisions infringed and the exact manner of such violation. Given the Petitioner’s explicit structural admission that the access road falls exclusively under the regulatory jurisdiction of the County Government of Kiambu rather than the National Government, no cause of action can lie against the Third and Fourth Respondents. 4. Relying on the judicial reasoning in **Veronicah Waithira Trustee of Inter-Christian Churches & 3 Others v Kenya National Highways Authority [2014] eKLR,** which recognizes rights of compulsory acquisition as overriding interests under Section 28(e) of the Land Registration Act, No. 3 of 2012, the Respondents maintain that because no statutory acquisition procedure was ever triggered by them, the claim for compensation against the National Government is entirely misconceived, unfounded, and should be dismissed in its entirety with costs. 5. No other Respondent filed written submissions despite the Court having granted the requisite leave and time allocation for the exercise. **Issues for Determination** 1. *Whether physical encroachment by public infrastructure without formal statutory gazettement constitutes a constructive or de facto compulsory acquisition under Article 40 of the Constitution, and whether it renders the property unusable.* 2. *Whether the Petitioner has established constitutional violations with the requisite precision against each Respondent.* 3. *Whether the Petitioner is entitled to prompt, just, and adequate compensation, a refund of development fees, and exemplary damages.* **Analysis and Determination** 1. This constitutional dispute centers on the intersection of private property rights, public infrastructural expansion, and the doctrine of de facto or inverse condemnation within our jurisprudence. The Petitioner, acting as the legal administrator of the estate of her late husband, seeks constitutional redress and compensation under Article 40 of the Constitution of Kenya. She contends that the structural execution of a public access road being Kikuyu Street 55/Road Number F2012) and a subterranean municipal sewer line have encroached upon her leasehold land, Title Number Kikuyu Township/71, rendering it commercially sterile and structurally unusable. 2. The Respondents present a fragmented and contradictory defense. The 2nd County Government of Kiambu relies on a County Solicitor's affidavit and an Environmental Impact Assessment (EIA) report to argue that its mainline trunk sewer sits outside the suit property. However, this defense is undermined by the physical evidence recorded during the judicial site visit. The 3rd and 4th Respondents (National Government entities) assert that because the formal compulsory acquisition process initiated via Gazette Notice No. 11990 of 2013 was rescinded via Gazette Notice No. 8565 of 2014, no statutory or constructive taking occurred. 3. They disclaim liability by pointing to an official communication from the Kenya Urban Roads Authority (KURA) dated 9/08/2024, which confirms that the encroaching road is a Class F Street falling exclusively under the jurisdiction of the County Government of Kiambu pursuant to Part 2 of the Fourth Schedule to the Constitution. 4. Thus, while the State's formal, de jure acquisition was aborted by degazettement, the physical, de facto reality established by statutory surveys confirms that public infrastructure occupies portions of private land, freezing its development potential despite the Petitioner paying development license fees. 5. The 3rd and 4th Respondents argue that since no formal notice of intention to acquire was published under Section 107 of the Land Act (No. 6 of 2012), no acquisition occurred. This argument is legally unsound and ignores the globally recognized doctrine of inverse condemnation. *Black’s Law Dictionary* (11th Edition) defines inverse condemnation as: ***"An action brought by a property owner seeking compensation for land taken for public use when the taker of the property has not initiated eminent domain proceedings."*** 1. Article 40(3) of the Constitution of Kenya strictly protects against the arbitrary deprivation of property. Deprivation does not require a formal transfer of title; it occurs when the state's actions permanently destroy the economic substance of the property. 2. The statutory survey report dated 22/10/2020, compiled by the Kiambu County Surveyor and national surveyors, confirms that two primary boundary beacons of Kikuyu Township/71 physically lie beneath the existing tarmac road. Furthermore, the presence of active municipal sewer fixtures on the plot prevents structural excavation. 3. In **Ngundo & 4 Others v National Land Commission & 4 Others [2026] KELAT 16 (KLR**, the Court observed: ***"In response, the Claimants submit that the suit is based on constructive compulsory acquisition... the 1st Respondent has engaged in a process that is fatally devoid of procedure provided for compulsory acquisition and in the process exposed the Claimants' land to invasion."*** 1. Additionally, in **Virenda Ramji Gudka & 3 Others v Attorney General [2014] KEHC 7612 (KLR**the State physically dismantled and restricted access to commercial premises without following formal gazettement and statutory notices. The Court noted that such severe physical or regulatory interference, stripping land of its economic use, constitutes a compensable, unlawful taking under Article 40, as quoted in the source: ***"Where the state physically takes possession or inflicts regulatory burdens that completely strip the land of its economic use without formal statutory procedures, it amounts to a constructive taking..."*** 1. Similarly, the Supreme Court of India in **Sukh Dutt Ratra v. State of Himachal Pradesh (2022) 7 SCC 508** held: ***"The State cannot shield itself behind technicalities of not issuing a formal acquisition notice when it has physically seized and utilized private land for public infrastructure. Such informal expropriation is an anthema to the rule of law."*** 1. The partial physical taking by the road, combined with the subterranean restriction of the sewer line, has caused total commercial sterility. Because the remaining portion of the 0.0175-hectare plot cannot support a foundation or secure structural approvals, the acquiring authority is legally obligated to acquire the entire parcel. This aligns with Section 122(3) of the Land Act and the decisions of the Land Acquisition Tribunal in **Mdari v National Land Commission [2024] KELAT 831 (KLR) and Igainya Limited v National Land Commission & 2 Others [2024] KELAT 809 (KLR).** 2. The Respondents rely on the classic principle in **Anarita Karimi Njeru v Attorney General (1979) KLR 154** to argue that the Petition lacks precision. In that case, the High Court held**:** ***"We would hold that a person seeking redress in a matter involving reference to the Constitution should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they have been infringed."*** 1. The Petitioner has met this standard. She cited Article 40 (Right to Property) and Article 47 (Fair Administrative Action) and supported them with concrete evidence: survey reports showing submerged beacons, municipal receipts for unapproved development plans, and unanswered statutory demands. 2. However, liability must be properly assigned based on institutional mandates. The KURA letter of 09/08/2024 clarifies that the road in question is Kikuyu Street 55 (Road Number F2012), a Class F Road. Under Paragraph 5 of Part 2 of the Fourth Schedule to the Constitution of Kenya, County planning and County roads fall exclusively under the jurisdiction of the County Governments. 3. Therefore, the physical encroachment via the road and the local sewer system is an act of the 2nd Respondent (County Government of Kiambu). The 3rd Respondent, National Land Commission is the statutory body empowered to manage compulsory acquisitions on behalf of County governments under Section 107 of the Land Act, while the 4th Respondent, the Attorney General is joined as the principal legal adviser to the national government. No specific tortious or constitutional infraction is proved directly against the execution arms of the National Government; liability for the physical taking rests on the Kiambu County Government. 4. Under Article 23(3) of the Constitution, this Court has wide powers to grant appropriate remedies, including compensation. Since the land has been rendered useless by public infrastructure, an order of Mandamus must issue to compel the National Land Commission to conduct a formal valuation to facilitate compensation by the Kiambu County Government. 5. The claim for a refund of Kshs 57,240 paid for development licenses is legally justified. The County Government accepted these fees on 22/07/2021 despite knowing that its own subterranean sewer line and roads infrastructure prevented any structural approvals, resulting in a total failure of consideration. 6. However, the prayer for exemplary and aggravated damages must be denied. The classic test in **Rookes v Barnard [1964] 1 All ER 367,** adopted by the Court of Appeal in **Obongo and Another v Municipal Council of Kisumu [1971] EA 91,** restricts exemplary damages to oppressive, arbitrary, or unconstitutional actions by government servants. While the 2nd Respondent’s bureaucratic silence and poor infrastructure planning are regrettable, they do not meet the high threshold of malicious or high-handed misconduct required for a punitive damages award. Just compensation at current market value plus interest will sufficiently restore the Petitioner's estate. 7. Accordingly, this Court finds that the Petitioner has proved her case on a balance of probabilities against the 2nd Respondent. The physical encroachment of a public road over the boundary beacons of Title Number Kikuyu Township/71, combined with the placement of a municipal sewer network that prevents building approvals, constitutes a constructive, *de facto* compulsory acquisition of the entire property. 8. Accordingly, Judgment is entered for the Petitioner against the 2nd and 3rd Respondents as follows: 9. ***A declaration is hereby issued that the 2nd Respondent’s actions in constructing public infrastructure over and underneath land parcel Title Number Kikuyu Township/71 have rendered the property entirely unusable and commercially sterile, amounting to a de facto compulsory acquisition of the entire property by implication.*** 10. ***A declaration is hereby issued that the Petitioner is entitled to prompt, just, and adequate compensation in full from the 2nd Respondent for the constructive compulsory acquisition of Title Number Kikuyu Township/71 pursuant to Article 40(3) of the Constitution of Kenya.*** 11. ***An order of mandamus is hereby issued directing the 3rd Respondent, the National Land Commission to enter upon the suit property within sixty (60) days of this Judgment to conduct a formal valuation of Title Number Kikuyu Township/71 in accordance with the Land (Assessment of Just Compensation) Rules, 2017, to ascertain its current market value.*** 12. ***An order is hereby issued directing the 2nd Respondent the County Government of Kiambu, to pay the full compensation value ascertained by the National Land Commission directly to the Petitioner within thirty (30) days of the publication of the valuation report, alongside interest at Court rates 12% per annum from the date of this Judgment until payment in full.*** 13. ***An order is hereby issued directing the 2nd Respondent to refund to the Petitioner the sum of Kenya Shillings Fifty-Seven Thousand, Two Hundred and Forty (Kshs 57,240) paid as development license fees, together with interest at Court rates from the date of the application 22/07/2021 until payment in full.*** 14. ***The claims for exemplary and aggravated damages are hereby dismissed.*** 15. ***The costs of this Petition are awarded to the Petitioner, to be borne exclusively by the 2nd Respondent.*** Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 22ND DAY OF JULY 2026.** **…………………….** **MOGENI J** **JUDGE** **In the virtual presence of**: Mr. Otieno holding brief for Mr. Gichuhi, SC for the Petitioner 1st, 2nd, 3rd and 4th Respondents – Absent Mr. Melita - Court Assistant **...........................** **MOGENI J** **JUDGE**