[2012] KEHC 5497 (KLR)

[2012] KEHC 5497 (KLR)

The court found that while the respondent was within its statutory and constitutional mandate to repossess the property due to the applicant's failure to develop it within the stipulated twelve months, the respondent breached Article 47 of the Constitution by failing to respond to the applicant's correspondence and...

Source-derived case information.

Citation
[2012] KEHC 5497 (KLR)
Parties
Applicant: Rachel Auma Owiti; Respondent: Municipal Council of Kisumu
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
13 July 2012
Case Number
Petition 52 of 2011
Procedural Posture
Constitutional Petition / Judgment
Outcome
Petition partly allowed.
Legal Topics
Right to Fair Administrative Action, Land Allocation and Allotment, Public Interest Property Repossession, Procedural Fairness, Damages for Constitutional Breach
Source Language
english
Constitutional Law Land and Property Right to Fair Administrative Action Land Allocation and Allotment Public Interest Property Repossession Procedural Fairness Damages for Constitutional Breach

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Summary, issues, holding and outcome

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Parties

Rachel Auma Owiti

Applicant

Municipal Council of Kisumu

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the respondent's failure to approve the applicant's building plans violated Article 47 of the Constitution.
  2. 2 Whether the respondent's repossession of the suit property was lawful and in accordance with the conditions of allotment and the Constitution.
  3. 3 Whether the applicant is entitled to damages for breach of constitutional rights.

Ratio Decidendi

The court found that while the respondent was within its statutory and constitutional mandate to repossess the property due to the applicant's failure to develop it within the stipulated twelve months, the respondent breached Article 47 of the Constitution by failing to respond to the applicant's correspondence and continuing to receive payments after revocation. The respondent's non-responsiveness was deemed inefficient, unlawful, unreasonable, and procedurally unfair. The court held that the applicant was not entitled to reinstatement of the allotment or mandamus to compel approval of the plans, as the repossession was lawful and in the public interest. However, the applicant was...

Court Disposition

Petition partly allowed.

Orders

  • The respondent shall pay the applicant Kshs. 150,000 as general damages for breach of Article 47 of the Constitution within thirty (30) days.
  • The respondent shall refund to the applicant all monies received from her from 19th February 2011 (date of revocation) within thirty (30) days.