1.The petitioner in this case, Christine Kubai, filed a further amended petition dated 10/10/2017 on 13/10/2017. The further amended petition states on its face that it is supported by an affidavit of the petitioner sworn on 8/8/12 which is supposed to be attached thereto but which is not. Despite this element of inadvertence, succour is sought and obtained by this court from the original affidavit attached to the original petition. The summary of what the further amended petition and the original affidavit state is as follows: that the petitioner is the proprietor of parcel numbers LR Nos Kijabe /Kijabe Block 1/4037 and Kijabe /Kijabe Block 1/4038; the petitioner’s husband, now deceased, and former Member of Parliament for Naivasha Constituency, had during his lifetime allowed the 1st respondent to enter into possession of the suit lands on the understanding that the 1st respondent would compensate the petitioner with a pecuniary amount equal to the open market value of the properties, which is now said to be an estimated Ksh 407,000,000/=; that the 1st respondent developed the said parcel and built a public health centre; that the petitioner’s husband, who was following up on the compensation issue, passed on in 1996 before compensation was paid; that the petitioner was by then a housewife and was not aware of how far the process of compensation had gone; that after her husband’s demise she followed up with various government offices regarding the issue in vain. She states that the suit lands were forcefully acquired, that her rights under Article 40 of the constitution to enjoyment and use of the properties has been contravened and she terms it as an act of trespass for which the 1st respondent should compensate her. The petitioner asserts that the 2nd respondent failed to protect the violation of her rights by the 1st respondent. It is also the assertion of the petitioner that the 3rd respondent has been joined as a party in the petition due to devolution of health services under the constitution, and that this court should therefore decide who between the 1st and the 3rd respondents should bear liability for the petitioner’s claim.
2.I will set out verbatim the prayers that the petition seeks; they are as follows:1.A declaration that the act of trespassing into the petitioner’s properties and the threatened forceful acquisition of the petitioner’s parcels of land registered as LR Nos Kijabe /Kijabe Block 4037 and 4038 is a gross violation of her constitutional rights to private properties and infringement of protection afforded by article 40 of the constitution;2.A declaration that the respondents have no right in law to interfere with the petitioner’s private properties without following the due process of law in compulsory acquisition as set out in article 40(3) of the constitution;3.A declaration that the respondents are liable to compensate the petitioner for unlawful trespass to property, illegal acquisition and deprivation of her properties LR No Kijabe /Kijabe Block 4037 and 4038;4.The court do assess and make an award of compensation damage for unlawful acquisition and trespass to her properties by the 1st respondent and for 3rd respondent.Alternatively5.A declaration that the petitioner is entitled to vacant possession of her properties LR No Kijabe /Kijabe Block 4037 and 4038 and the 1st and 3rd respondents be compelled at their own costs to move out from the petitioner’s parcel of land within period of thirty (30) days or other reasonable period to be stipulated by the court.6.The respondents to pay the petitioner’s costs of these proceedings in any event.
3.Munene Wambugu & Kiplagat Advocates filed a notice of appointment of advocates on behalf of the 3rd respondent on 1/12/2014. That firm filed the 3rd respondent’s grounds of opposition on 20/2/2018.
4.The Attorney General through Ms Muthoni Kimani, Senior Deputy Solicitor General filed a memorandum of appearance on 10/9/2012 and no other document. Ms Khatambi appeared before court on behalf of the respondents on the 20th September 2013 and sought more time to respond to the petition. However, the 1st respondent, the 2nd respondent and the interested party had not filed any responses to the petition by the time of hearing of the petition. The court on 25th November 2021 ordered that the petition be disposed of by way of written submissions. A scrutiny of the court records shows that only the submissions of the petitioner, filed on 14/2/2022 are in the court file.
5.In her submissions, the petitioner through her counsel, apparently out of abundance of caution, submitted on among other issues, the matters raised in the 3rd respondent’s grounds of opposition. The petitioner reiterated the contents of the petition and the supporting affidavit as analyzed herein before. Her further submissions are that since the contents of the petition are not being controverted by the respondents then the orders sought should be granted. She stated that she had valuations attached to her applications for amendment of the petition but the respondents had not opposed her valuation or brought their own valuations. She cited the decisions in Anagherry Ltd v Attorney General  eKLR, David Gitau Njuguna & 9 others v Attorney General  eKLR and Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others  eKLR in response to the claim that the petition was time barred. She also responded to the issue of laches by citing Peter M. Kariuki v Attorney General  eKLR. Regarding the ground that the orders sought are against public interest she cited Mike Maina Kamau v Attorney General  eKLR as well as Article 47 of the Constitution. As to whether there is a cause of action established against the 3rd respondent the petitioner’s submission is that the test to be applied under the Constitution of Kenya 2010 is whether a petition raises issues so insubstantial and attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged, and that that test needs no mathematical precision.
7.I have considered the petition and the submissions before me. It is the correct position that the factual basis of the petition has not been controverted either by the respondents or by the interested party. I have noted that the suit properties are registered in the name of the petitioner. Registration thereof was, according to the copies of certificates of official search dated 4/7/2012 annexed to the petition, issued in the name of the petitioner on 8/8/1991. No encumbrances are recorded thereon. The petition states that the 1st respondent took possession of the suit properties in the year 1993 after that registration and erected thereon a health centre by the name Maai Mahiu Health Centre on the understanding that compensation would be paid to the petitioner. I have not heard the respondents or the interested party assert that the petitioner or even her husband received any compensation.
11.It is clear that the successive law in the land statutes cited above has been intent on protecting the sanctity of title to land. The Land Registration Act 2012 was enacted after the Constitution of Kenya 2010, and must therefore be taken to be, as far as real property is concerned, one of the statutes that safeguard the citizen’s rights under Articles 40(1) and 40 (3) of the Constitution 2010.
13.Article 40 (3) provides as follows:
14.The petitioner has clearly established that she owns the suit lands and that she is entitled to protection under the law and under the constitution as per the cited provisions above. On the other hand, the 1st and 3rd respondents have failed to demonstrate that the petitioner’s title has any defect of any kind that would invalidate her claim; neither have they demonstrated that they purchased or compulsorily acquired the suit properties and promptly paid the petitioner compensation for the same, yet they are in possession thereof.
15.In this court’s view the petitioner has established that her fundamental rights under Article 40(1) and Article 40(3) of the Constitution have been violated, and will continue being violated for as long as the respondents are in occupation, and she deserves a remedy. However, the petitioner admits that there has been erected on the suit properties a medical institution no doubt established by the 1st respondent for public benefit. In the light of that admission what orders are best to issue in the circumstances of this case?
16.I have noted that no valuation report is attached to the main petition by way of affidavit. It is also important to point out that were it even the case that such valuations had been presented appropriately, an award of compensation for compulsory acquisition should be left to the appropriate legal mechanisms and institutions mandated under the law and be referred to this court only if there is dissatisfaction on the petitioner’s part.
17.This court is left with only declarations to make and if deserved, an award of damages for trespass to property. The declarations sought in prayers no 1, 2, 3, and 5 can in appropriate circumstances be made in favour of a deserving citizen litigant against the State. However, this court ought to weigh carefully the impact of its orders before it issues them. In this case declarations sought in prayers 1 and 2 are clearly deserved, but the court has to elect between the issue of declaration of liability to compensate as contrasted with the issue of declaration that the petitioner is entitled to vacant possession and that the 1st and 3rd respondents should vacate. The latter order would be virtually an eviction order. I have considered that there is a health institution on the land. Matters of public health are matters of public interest and they have to be taken seriously. Nothing has taught the world a better lesson towards that end than the recent pandemic that ravaged the entire globe, not sparing our country, and the role of health institutions and professionals in saving people’s lives was quite appreciated during that period. Having said that, this is a case in which this court must put public interest first. In the case of Mike Maina Kamau (Supra) the court held as follows:
18.Mindful that this court has not been informed of the progress of negotiations or the degree at which of pursuit of the process of compensation stalled, this court cannot conclude that there is willful refusal to compensate the petitioner but that there was wrongful entry into the suit properties by the 1st respondent without compensation to the petitioner. In the circumstances, the most efficacious prayer that should be granted is not that of vacant possession of the suit land on which an operational public institution is located but an order for prompt compensation as well as an order for damages for trespass to the premises.
19.In regard to the issue of damages for trespass I note that in the case of Park Towers Ltd v John Mithamo Njika & 7 others  eKLR, J.M Mutungi J., stated as follows: -
20.In the case of Duncan Nderitu Ndegwa v KP&LC Limited & another  eKLR, P. Nyamweya J. held: -
22.It is clear from the foregoing that the petitioner deserves damages, but what is the measure of damages to be awarded?
23.In the case of Park Tower v Moses Chege & others (supra) the Hon Justice Mutungi held as follows: -
24.In Aster Holdings Limited v City Council of Nairobi & 4 others  eKLR the court held as follows:
25.I have considered the submission of the petitioner, citing Anagherry (supra) and I agree as in that cited case that the respondents’ trespass on the petitioner’s land has been continuous and has transcended the last two constitutional regimes we have had in this country and that the present constitution applies in so far as the complaints still subsist to date. There is no doubt that the 1st respondent is liable having taken the land away from the petitioner and having developed it to be a health centre. The third respondent now runs the health centre on the suit premises and will continue to do so for the foreseeable future under the devolution system in the constitution and for that reason it must be held just as liable as the 1st respondent.
26.This court cannot rely on the valuation reports attached to the interlocutory applications made in the proceedings in its final judgment in the matter as conclusive proof of the value of the properties though may be utilized for another purpose, say, identifying the location of the suit lands to enable the court form its own assessments as to damages. In the case of Ochako Obinchu vs Zachary Oyoti Nyamongo 2018 eKLR the court citing the case of Philip Aluchio vs chrispinus Ngayo 2014 eKLR and awarded damages in the sum of Ksh 100,000/=. In the case of Belgo Holdings Ltd vs Kenya Urban Roads Authority & another  eKLR the court citing the Philip Aluchio case awarded Ksh 2,000,000/= for trespass on 21.8 acres for a period beginning 2011 and the judgment was delivered in 2020 issuing a mandatory injunction for the defendants to vacate the land in that case, after a period of occupation of around 9 years.
27.Having in mind the considerations addressed by the court in the Park Tower and the Aster Holdings cases (supra), I observe that the suit lands measure in aggregate 4.04 ha which translates to 9.98 acres and it is credible that the respondents have been on the current petitioner’s land for a period of 29 years from 1993 to date. The suit lands in this case are located in Maai Mahiu Township to the south of Naivasha Town, and are described in the valuation report in the record as residential/commercial/agricultural properties in an exclusive prime location within a fast expanding urban set-up. In the circumstances of this case I would assess the proper sum of damages for trespass at Ksh. 20,000,000/=.
28.Consequently, I am of the view that the petitioner has established her claim against the respondents and the interested party of violation of her rights to own property under Article 40(1) and the right not to be deprived of that property under Article 40(3) of the constitution to the required standard and I enter judgment in the petitioner’s favour and I issue the following orders:1.A declaration that the 1st and 3rd respondents’ act of taking possession of parcels of land known as LR Nos Kijabe /Kijabe Block 1/ 4037 and Kijabe /Kijabe Block 1/ 4038 by the 1st and 3rd respondents amounts to trespass on the said properties and it is a gross violation of her constitutional right to own private property and not to be deprived thereof and is therefore an infringement of protection afforded by Article 40 of the constitution;2.A declaration that the respondents have no right in law to interfere with LR Nos Kijabe /Kijabe Block 1/ 4037 and Kijabe /Kijabe Block 1/ 4038 without following the due process of law in compulsory acquisition as provided in Article 40(3) of the Constitution;3.A declaration that the respondents are liable to compensate the petitioner for acquisition and deprivation of her properties LR Nos Kijabe /Kijabe Block 1/ 4037 and Kijabe /Kijabe Block 1/ 4038;4.An order that the 1st and 3rd respondents shall pay to the petitioner Ksh 20,000,000/= (in words Twenty Million Shillings only) being general damages for their act of trespass upon LR Nos Kijabe /Kijabe Block 1/ 4037 and Kijabe /Kijabe Block 1/ 4038 and violation of the petitioner’s constitutional rights from the year 1993 to date;5.The respondents and the interested party shall set into motion the mechanisms required to commence and perfect the compulsory acquisition of the suit properties and shall promptly pay the petitioner the appropriate compensation therefor within 365 days from the date of this judgment.6.The respondents shall jointly and severally pay the petitioner’s costs of these proceedings.It is so ordered.