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Juma v County Government of Kisumu & 2 others (Environment & Land Petition 18 of 2021) [2023] KEELC 277 (KLR) (26 January 2023) (Judgment)
Neutral citation:
[2023] KEELC 277 (KLR)
Republic of Kenya
Environment & Land Petition 18 of 2021
A Ombwayo, J
January 26, 2023
IN THE MATTER OF LAND PARCEL, NO.N. NYAKACH/EAST
AGORO/37
IN THE MATTER OF GRADING WORK ON OFF KATITO-
NYANGWESO ACCESS ROAD AROUND MARCH 2021
AND
IN THE MATTER OF THE LAND ACT, 2012
AND
IN THE MATTER OF ALLEGED VIOLATION OF THE RIGHT TO
PROPERTY
IN THE MATTER OF THE UNIVERSAL DECLARATION OF
HUMAN RIGHTS, 1948
AND
ELC PETITION NO. 18 OF 2021 1
IN THE MATTER OF THE AFRICAN CHARTER OF HUMAN AND
PEOPLE’S RIGHTS, 1981
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA
Between
Silper Yoto Juma
Petitioner
and
County Government of Kisumu
1st Respondent
Executive Committee Member Public Work, Roads and Transport
2nd Respondent
County Attorney County Govenemnt of Kisumu
3rd Respondent
Judgment
1Silper Yoto Juma (hereinafter referred to as the petitioner) has come to court claiming that from September 23, 2009 to date, she has been the registered proprietor of the land parcel number N.Nyakach/East Agoro/37, measuring approximately 0.8 hectares ( hereafter referred to as the property). The property is located in Warieha Village, North Nyakach Ward within Kisumu County. That on or around March 2021, the 1st respondent, through the 2nd respondent and /or its agents and/or its contractors, conducted grading work on off Katito-Nyangweso access road. The said access road serves or adjoins the petitioner’s property. However, a surveyor engaged by the petitioner established that the said road grading wok resulted in the said graded road encroaching into approximately 0.04 hectares of the petitioner’s property. Consequently, the ground position of the said graded road, more so next to the petitioner’s property, does not match the correct position of the said road as per the Registry Index Map. The said encroachment by the respondents was/is a violation of the petitioner’s right to property, as enshrined under article 40 of the Constitution of Kenya, article 17 of the Universal Declaration of Human Rights and article 14 of the African Charter on Human and People’s Rights.
2The petitioner laments that the said actions and/or omissions of the respondents, jointly and/or severally, amount to unconstitutional and/or unlawful acquisition of the said approximately 0.04 hectares of the petitioner’s property for public use. For instance, the petitioner has not received any compensation in respect of acquisition of the said 0.04 hectares of the property. By reason of the matter aforesaid, the petitioner suffered and continues to suffer grave loss and damage including special damages. The respondent, jointly and/or severally have refused or failed or neglected to make good the petitioners against them. This is despite being given adequate opportunity to do so.
3The petitioner prays that a declaration be and is hereby made that the encroachment into approximately 0.04 hectares of the petitioner’s land parcel number N. Nyakach/East Agoro/37 by the respondent and/or the 2nd respondent and/or their agents and/or contractors during the grading work on off Katito-Nyangweso access road on or around March 2021 violated the petitioner’s right to property under article 40 of the Constitution of Kenya, article 17 of the Universal Declaration of Human Rights and article 14 of the African Charter on Human and Peoples Rights.
4Last but not least, the petitioner prays that an order be issued directing the respondents to correct the section of the off Katiti-Nyangweso access road adjoining the petitioner’s land parcel N.Nyakach/East Agoro/37 so that the ground position of the said access road matches the correct position of the said access road as per the Registry Index Map.
5An order for general and/or exemplary damages, and interest thereon at court rates until payment in full, be and is hereby issued against the respondents for violation of the petitioner’s right to property.
6An order for special damages in the sum of Kshs20,000 and interest thereon at court rates from the date of judgment until payment in full, be and is hereby issued against the respondents. Costs of this petition, and interest thereon at court rates from the date of judgment until payment in full, be borne by the respondents. The respondents were served but did not file any document. The court went out of its way to accommodate the respondents to participate in this matter but the respondent did not.
7I have considered the petitioners supporting affidavit and do find that the petitioner is the registered owner of the suit property. The petitioner has demonstrated that the respondents excised 0.04 hectares from the petitioners land during the grading of the public road adjacent thereto. This was unconstitutional and a breach to the petitioner’s rights enshrined in article 40 (1) of the Constitution of Kenya. Article 40 (1) provides:-
8The import of article 40 is to protect proprietary rights under the law. In the event the State wishes to compulsorily acquire the land, article 40(3) provides the terms under which the land can be so acquired. The issue in this case is whether the State, which has issued a title, can excise part of the land and construct a road therein without following the right procedure or due process. The respondents have not responded to the petition hence the allegations by the petitioner are not controverted. This court finds that the petitioner rights were violated by the respondents by excising part of his parcel of land.
9I do grant a declaration that the encroachment into approximately 0.04 hectares of the petitioner’s land parcel number N. Nyakach/East Agoro/37 by the respondent and/or the 2nd respondent and/or their agents and/or contractors during the grading work on off Katito-Nyangweso access road on or around March 2021 violated the petitioner’s right to property under article 40 of the Constitution of Kenya, 2010 . Moreover, that an order be and is hereby issued directing the respondents to correct the section of the off Katiti-Nyangweso access road adjoining the petitioner’s land parcel N.Nyakach/East Agoro/37 so that the ground position of the said access road matches the correct position of the said access road as per the Registry Index Map.
10I do award exemplary damages of Kshs 500,000, and interest thereon at court rates until payment in full, against the respondents for violation of the petitioner’s right to property. I do grant an order for special damages in the sum of Kshs20, 000 and interest thereon at court rates from the date of judgment until payment in full. Last but not least, I do award costs of this petition, and interest thereon at court rates from the date of judgment until payment in full, to be borne by the respondents.
Judgment dated, signed and delivered virtually at Kisumu this 26th day of January 2023.A O OMBWAYOJUDGE
| ELC PETITION NO. 18 OF 2021 | 0 |
