[2017] KEELC 2064 (KLR)

[2017] KEELC 2064 (KLR)

The court found that the Petitioner.s late husband was the registered proprietor of the suit property and that the lodging of a caution by the 1st Respondent and continued occupation by the 3rd Respondent constituted an unwarranted infringement of the Petitioner.s right to property under Article 40 of the Constitution. The Respondents failed to provide any lawful justification for their actions or respond to the Petitioner.s claims, despite ample opportunity. The 1st and 2nd Respondents also violated the Petitioner.s right to fair administrative action under Article 47 by failing to remove the caution or provide reasons for its maintenance. The Petitioner, as legal administrator, was...

Citation
[2017] KEELC 2064 (KLR)
Parties
Applicant: Milkah Muthoni Wagoco (Administrator of the Estate of the late Wagoco Kabinga); Respondent: The County Council of Kirinyaga; Respondent: The Attorney General; Respondent: Peter Mbwe Kibiritu
Court
Environment and Land Court
Court Station
Environment and Land Court at Kerugoya
Jurisdiction
Kenya
Judgment Date
16 June 2017
Case Number
Environment & Land Case 34 of 2012
Procedural Posture
Constitutional Petition / Judgment
Outcome
Petition allowed in part; declarations granted; orders for removal of caution, vacant possession, general and exemplary damages, and costs issued; claim for mesne profits rejected.
Judges
BN Olao
Legal Topics
Right to Property, Administrative Action, Land Registration, Trespass, Damages for Trespass, Removal of Caution
Source Language
English
Land and Property Constitutional Law Right to Property Administrative Action Land Registration Trespass Damages for Trespass Removal of Caution

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Parties

Milkah Muthoni Wagoco (Administrator of the Estate of the late Wagoco Kabinga)

Applicant

The County Council of Kirinyaga

Respondent

The Attorney General

Respondent

Peter Mbwe Kibiritu

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the Respondents contravened the Petitioner.s right to property under the Constitution and former Constitution.
  2. 2 Whether the 1st and 2nd Respondents violated the Petitioner.s right to fair administrative action under Article 47 of the Constitution.
  3. 3 Whether the caution lodged on land parcel KIRINYAGA/GATHIGIRIRI/151 should be removed.

Ratio Decidendi

The court found that the Petitioner.s late husband was the registered proprietor of the suit property and that the lodging of a caution by the 1st Respondent and continued occupation by the 3rd Respondent constituted an unwarranted infringement of the Petitioner.s right to property under Article 40 of the Constitution. The Respondents failed to provide any lawful justification for their actions or respond to the Petitioner.s claims, despite ample opportunity. The 1st and 2nd Respondents also violated the Petitioner.s right to fair administrative action under Article 47 by failing to remove the caution or provide reasons for its maintenance. The Petitioner, as legal administrator, was...

Court Disposition

Petition allowed in part; declarations granted; orders for removal of caution, vacant possession, general and exemplary damages, and costs issued; claim for mesne profits rejected.

Orders

  • A declaration that the Respondents have contravened the Petitioner.s right to property under Section 75 and 82 of the former Constitution and Article 40(1) and (3) of the current Constitution.
  • A declaration that the 1st and 2nd Respondents have contravened the Petitioner.s right under Article 47 of the Constitution to fair administrative action.