[2023] KEELC 21319 (KLR)

Ogoti v County Government of Nyamira & another (Environment and Land Constitutional Petition E001 of 2022) [2023] KEELC 21319 (KLR) (18 October 2023) (Judgment)

Neutral citation: [2023] KEELC 21319 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyamira

Environment and Land Constitutional Petition E001 of 2022

JM Kamau, J

October 18, 2023

IN THE MATTER OF ARTICLES 2,3,10,19,20,21,22 (1),23 (1), (3), 27 (2), and 92), 28,29 (d) and (f), 31(b), 39(3), 40, (1) and (2) (3), 42, 47, 48, 69, 70, 159, (1) (2) (a) (b) and (e), 165 (3) (a), (b) and 258 of the Constitution of Kenya, 2010 AND IN THE MATTER of contravention of fundamental rights and freedoms under articles 20,21,22 (1), 26, 27 (10 and (2), 28,29 (s), 31 (b), 39 (3), 40 (1), (2) and (3), 47, and 48, of the Constitution of Kenya, 2010

Between

Christopher Ontiri Ogoti

Petitioner

and

The County Government Of Nyamira

1st Respondent

The Chief Officer Roads, Transport And Public Works Cournty Government Of Nyamira

2nd Respondent

Judgment

1. In this Petition dated the 24/08/2021, the Petitioner claims that he is the absolute proprietor of the property known as L.R. WEST MUGIRANGO/SIAMANI/6952 and that the Respondents forcefully constructed an access road measuring 12 metres without Notice and that the same was excavated, murramed, compacted and upgraded into a major feeder road for public use. The road cuts across the Petitioner’s property. There was no Notice of compulsory acquisition and the Petitioner was greatly injured. He also adds that the process was carried out without public participation. The project was carried out contrary to the Constitutional rights of the Petitioner, mainly Article 40 of the Constitution of Kenya, 2010 i.e. violation of property rights. Accordingly, the Petitioner prays for the following orders: -1. A declaration that the Petitioner’s right to acquire and own property without arbitrarily being deprived of the same as guaranteed by Article 40 of the Constitution have been contrasted and/or violated.2. A declaration that the Respondent’s acts are in violation of the Petitioner’s rights to equality before the law and the right to equal benefit and protection of the law as enshrined in the Article 27 of the constitution.3. An order for prompt payment in full of just compensation for the unlawful deprivation of property to the Petitioner pursuant to the express provisions of Article 40 of the Constitution.4. An order for general damages.5. Costs of this Petition.6. Any other relief the Honorable court may deem fit and just to grant.

2. In response, the Respondents filed a Replying Affidavit on 25/10/2012 sworn by the 2nd Respondent where he deponed that the 1st Respondent has never set aside funds for the construction of access road through the suit land i.e. L.R. NO. WEST MUGIRANGO/SIAMANI/6952 and that no road was ever constructed past the suit property and that therefore the suit is not sustainable, frivolous and otherwise an abuse of the process of the court and the same ought to be dismissed with costs.

3,On her part, the 1st Respondent filed her Replying Affidavit through the County Surveyor, Robert Torori which was filed on 29/03/2023 where he attached his Report explaining that WEST MUGIRANGO/SIAMANI/6952 is a resultant sub division of WEST MUGIRANGO/SIAMANI/4270. WEST MUGIRANGO/ SIAMANI/ 6952 is approximately 6. 024 Hectares which is accessible through an unscaled road and that it borders WEST MUGIRANGO/SIAMANI/4271. WEST MUGIRANGO/ SIAMANI/4270 is bordered by WEST MUGIRANGO/SIAMANI/4271 and 2 roads and that there are inconsistencies in the 2 primary documents which are apparent and untenable.

4. 0n 08/12/2022, the Petitioner filed a Supplementary Affidavit and insinuated that the Respondents were in charge of the construction of the impugned feeder road and that it is the 1st Respondent’s mandate and responsibility to construct, maintain and rehabilitate feeder roads in the County as provided for under part 2 (5) of the 4th Schedule of the Constitution of Kenya, 2010.

5. On 29/09/2022, I allowed the parties to file written Submissions is support of their rival positions which I have considered.

6. In Re Application by Bahadur [1986] LRC [Const]. the Court expressed itself as follows: -“The Courts have said time and again that where infringement of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and notthe constitution. This case highlights the un-wisdom of ignoring that advice ............................”In Aliela v Kenton College Trust & another (Employment and Labour Relations Petition E084 of 2022) [2023] KEELRC 226 (KLR)(26 January 2023) (Judgment) Justice Ocharo Kebira held as follows:“……..The common thread across all the decisions cited above is that the constitutional litigation path is one that is narrow, only to be travelled in exceptional and very necessary situations. Not every grievance or dispute shall be litigated underthe Constitution. Where a dispute can be litigated under common law or statute, the best course is to have it litigated thereunder. It matters not that alternatively it can be litigated under the Constitution…………………Considering the premises hereinabove……………………….The suit ought to have been pursued in the ordinary manner under statute……………………….”

7. Having observed as I have hereinabove I must point out that the shortcut used by the Petitioner herein does not augur well for his case. The case is highly contentious and required adducing of Evidence and not to be heard by way of Affidavit Evidence which makes it difficult to get to the root of the matter and I therefore dismiss the same. Each party to bear its own costs.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 18TH DAY OF OCTOBER, 2023. MUGO KAMAUJUDGE