[2018] KEELC 407 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC PETITION NO. 776 OF 2017

(FORMELY NAIROBI HIGH COURT PETITION NO. 414 OF 2013)

JULIET WAMAITHA WAINAINA.................................................PETITIONER

VERSUS

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

THE COMMISSIONER OF LANDS...................................2ND RESPONDENT

GITHUNGURI CONSTITUENCY RANCHING CO. LTD....3RD RESPONDENT

NATIONAL LAND COMMISSION.........................................4TH RESPNDENT

JUDGMENT

1. In this Petition dated 30th July, 2013 and filed on 19th August, 2013, the Petitioner who is represented by Simba and Simba Advocates has sought the following orders:-

a.A declaration upholding the petitioner’s right of ownership and entitlement of property known as Title No. Ruiru/Ruiru East Block 1/2626. Title No. Ruiru/Ruiru East block 1/2626.

b.An order for the immediate degazettement of the 3rd respondent as registered owner of plot Title No. Ruiru/Ruiru East Block 1/2626 and a further order directing 1st and 2nd respondent to gazette the petitioner as the registered owner of plot Title No. Ruiru/Ruiru East Block 1/2626.

c.An order directed to the 1st and 2nd respondent to compensate the petitioner for her plot Title No. Ruiru/Ruiru East Block 1/2626 at a just valuation and such amount arrived at do attract interest at 6% per annum in accordance with the law.

d.Other orders and directions as the Honourable Court may deem just and appropriate in the circumstances of this case, bearing in mind the 3rd respondent is a public land buying company and not a private company.

e.An order directing the respondents to pay damages to the petitioner for violating the petitioner’s constitutional rights enumerated hereinabove.

f.The costs of this petition awarded to the petitioner.

2. The gist of the petition is that she is the registered proprietor of the suit land, L.R. No. Ruiru/Ruiru East Block 1/2626 having purchased the same for value from James Kamau Njoroge (the seller). That by a Kenya gazette Notice No. 16188 issue of 23rd December, 2011, the 2nd respondent compulsorily acquired various parcels of land including the suit land for the construction of Thika Highway. That the acquisition was done by the 2nd defendant in collusion with the 3rd defendant without the knowledge of the petitioner to deny her constitutional right to compensation.

3. The Petition is anchored on the petitioner’s supporting affidavit shown on 30th July 2013 and document marked JWW I, She has outlined constitutional foundation, the relevant registration, the facts of the petition and that were Constitutional right have been contravened by the respondent. She cited, interalia, Articles 22, 23, 40(3), 47(1) and 165(3) (b) and (6) of the constitution of Kenya, 2010.

4. The Petition is opposed by the 1st and 2nd respondents who sought its dismissal in their grounds of opposition dated 3rd August, 2016. The grounds include:-

a.That the Petitioner has not demonstrated before the Honourable court how the 1st and 2nd respondents have violated her constitutional Rights.

b.That similarly the Office of the Attorney General and Department of Justice has the mandate to promote, protect and uphold the rule of law and defend the public interest under Article 156 of the constitution of Kenya.

c.That the 2nd Respondent therefore did due deligence as required to compensate the persons with interest in the suit parcel of land.

5. The 3rd and 4th respondents were duly served. They did not respond to the Petition.

6. This Petition was transferred to this court on 3rd October, 2017. The petition came up for Notice to show cause issued on 29th October, 2018 on 5th November 2018. The parties agreed and it was directed and ordered that the petition be urgued by written submissions. The parties failed to adhere to the Court orders as at today 29th November, 2018 when the petition is fixed for mention to confirm compliance by the parties.

7. Ms Chibole for the 1st and 2nd respondents has sought dismissal of the petition. The reasons given are that the petitioner’s counsel was duly served on 28th November, 2018 as shown on affidavit of service sworn on 29th November, 2018 and that the petition lacks merit.

8. I have carefully studied the entire petition, the 1st and 2nd respondent grounds of opposition to the petition and the request by the 1st and 2nd respondents counsel to have the petition dismissed. Therefore, has the petitioner demonstrated that her constitutional rights have been violated as alleged in the petition?. Is the petitioner entitled to the reliefs sought in the petition?.

9. The Petitioner alleges that the respondents have violated her rights to property as detailed under Article 40(3) of the Constitutional of Kenya, 2010. That the respondents have failed to uphold the national values and principles of governance under Article 10 of the said constitution.

10. The 1st and 2nd respondents stated that the Petition does, not raise violation of the petitioner’s fundamental rights and freedoms. The right to fair hearing under article 50(1) of the constitution was accorded to the Petitioner on 26th November 2018. She did not argue or submit on the petition.

11. Be that as it may, I am guided by the following authorities:-

a.Articles 24(1), 25 of the Constitution of Kenya, 2010.

b.Articles 40, 35, 47 and other articles and sections of the constitution and the law cited in the petition.

c. The case of Onyango & others –Vs- Town Council of Awendo (2010)1EA of 321 that compulsory acquisition of property must be in strict conformity with Constitutional provisions and be carried out in good faith.

12. The material presented before this Court does not prove the allegations contained in the petition. I find no merit in the petition.

13. Accordingly, I dismiss the Petition with no Order as to Costs.

G.M.A ONG’ONDO

JUDGE

Dated, signed and delivered at Thika this 29th day of November, 2018.

Present:

Ms Chibole learned Counsel for 1st and 2nd Respondents

Court Clerk: Tom

G.M.A ONG’ONDO

JUDGE