[2012] KEHC 5522 (KLR)

[2012] KEHC 5522 (KLR)

The court found that although the notice was ostensibly addressed to hawkers and unlicensed traders, the marking of the petitioner's property by the 3rd respondent created a real and justified apprehension of imminent demolition or interference. Given the country's history of forced evictions and demolitions, the petitioner's fear was not unfounded. The court held that the petitioner was entitled to take preventive action to protect its constitutional right to property under Article 40. Furthermore, the court emphasized that fair administrative action under Article 47 requires the road authority to specifically identify properties alleged to be encroaching on the road reserve, as the...

Citation
[2012] KEHC 5522 (KLR)
Parties
Petitioner: Kieran Holdings Limited; Respondent: The Attorney General; Respondent: Ministry of Roads and Public Works; Respondent: Kenyan Urban Roads Authority
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
26 October 2012
Case Number
Petition 71 of 2012
Procedural Posture
Constitutional Petition / Judgment
Outcome
Petition allowed. Respondents restrained from interfering with the petitioner's property. Costs awarded to the petitioner.
Legal Topics
Right to Property, Fair Administrative Action, Road Reserve Encroachment
Source Language
English
Constitutional Law Land and Property Right to Property Fair Administrative Action Road Reserve Encroachment

Case Brief

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Parties

Kieran Holdings Limited

Petitioner

The Attorney General

Respondent

Ministry of Roads and Public Works

Respondent

Kenyan Urban Roads Authority

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the notice issued by the 3rd respondent constitutes a threat to the petitioner's right to property under Article 40 of the Constitution.
  2. 2 Whether the respondents' actions or threatened actions amount to a breach of the petitioner's constitutional rights.
  3. 3 Whether the requirements of fair administrative action under Article 47 were met in the issuance of the notice.

Ratio Decidendi

The court found that although the notice was ostensibly addressed to hawkers and unlicensed traders, the marking of the petitioner's property by the 3rd respondent created a real and justified apprehension of imminent demolition or interference. Given the country's history of forced evictions and demolitions, the petitioner's fear was not unfounded. The court held that the petitioner was entitled to take preventive action to protect its constitutional right to property under Article 40. Furthermore, the court emphasized that fair administrative action under Article 47 requires the road authority to specifically identify properties alleged to be encroaching on the road reserve, as the...

Court Disposition

Petition allowed. Respondents restrained from interfering with the petitioner's property. Costs awarded to the petitioner.

Orders

  • The respondents, jointly and severally, are restrained from interfering in any manner whatsoever with LR No. 209/8300 (IR 27006) for the purposes of the Jogoo Road Rehabilitation Project.
  • The petitioner shall have the costs of the petition.