Automated Summary
Key Facts
The Petitioners, Shara Diana Chernel and others, are lawful registered owners of two leasehold plots (CR.26847 and CR.26848) in Kwale District. In 2011, the Respondents issued three new title deeds (Kwale/Ramisi Kinondo/110-112) overlapping the Petitioners' property without notice or compensation, violating Article 40 of the Constitution. The Petitioners inherited the land from their deceased father, Eugene Joseph Chernel, with proper transfers and payment of land rent. The new titles were created under a settlement scheme, leading to squatting and illegal occupation. The Petitioners sought compensation of Kshs 251,000,000 and general damages for loss of use from 2011.
Issues
- Whether the fundamental rights of the Petitioners were violated, threatened, infringed and denied and if yes, whether the parties are entitled to the reliefs sought.
- Whether the Constitution Petition dated 2nd June, 2022 by the Petitioners meets the Constitution thresholds of such Petitions.
- Who will bear the costs of the Petition.
Holdings
- The court found that the petitioners' fundamental rights were violated through unlawful deprivation of property (Article 40) and failure to provide fair administrative action (Article 47). The respondents' actions in issuing overlapping titles and failing to compensate were declared unconstitutional and null. Compensation of Kshs. 251,000,000 plus interest and general damages were awarded.
- The court ruled that the respondents must bear the costs of the petition jointly and severally, as the petitioners succeeded in their claims against all respondents.
- The court determined that the Constitution Petition meets the constitutional thresholds as the petitioners adequately pleaded the violation of their rights under Articles 40 and 47 of the Constitution, and the issues raised are substantial and concrete.
Remedies
- The court directed that the 1st, 2nd, 3rd, 4th, and 5th respondents jointly and severally bear the costs of the petition, following the principle that costs follow the event.
- The court ruled that the 1st respondent's dispossession of the subject property violated the petitioners' constitutional right to property (Article 40), rendering the action wrongful, illegal, unconstitutional, and null and void.
- The petitioners are required to surrender their land titles to the Government of Kenya after receiving the compensation amounts ordered in remedies (c) and (d), with the 1st and 2nd respondents ensuring the register reflects this surrender.
- The court issued a declaration affirming the petitioners' ownership of two parcels of land (CR.26847 and CR.26848) in Kwale District, confirming their title as valid and lawful.
- An order of mandamus was issued compelling the 3rd respondent (National Land Commission) to pay the petitioners Kshs. 251,000,000 in fair compensation plus 12% interest per annum from the date of judgment for unlawful land acquisition.
- The petitioners were awarded Kshs. 138,050,000 in general damages representing 5% of the quantified compensation amount (Kshs. 251,000,000) for loss of use of the property from 2011 to 2022.
Monetary Damages
251138050.00
Legal Principles
- The court applied judicial review principles to determine that the respondents' actions in issuing overlapping title deeds and settling squatters on the petitioners' property were ultra vires (beyond their legal authority). The court emphasized that the respondents violated constitutional rights under Article 40 (property rights) and Article 47 (fair administrative action) by failing to follow mandatory procedures for compulsory acquisition, including gazettement, notice, and compensation. The judgment also relied on the Land Act 2012, Part VIII, which requires prompt and full compensation for land acquisition.
- The court interpreted the Constitution of Kenya 2010 under a purposive approach, emphasizing the need to promote its purposes, values, and principles as outlined in Article 259. This approach was used to assess how the respondents' actions contravened the constitutional mandate to advance the rule of law, human rights, and good governance in land acquisition processes.
Precedent Name
- Kenya National Commission on Human Rights – Versus – Attorney General & others
- Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another
- Annarita Karimi Njeru – Versus – Republic
- Attorney General – Versus – Zinj Limited
Cited Statute
- Constitution of Kenya 2010
- Land Act 2012
Judge Name
LL Naikuni
Passage Text
- 23.4-23.5: 'That an order of mandamus do issue compelling the 3rd Respondent to pay to the Petitioner by way of a fair compensation the amount of Kshs. 251,000,000/= together with interest at 12% per annum from the date of Judgement. That the Petitioner herein is awarded a sum of Kshs. 138,050.00 as General Damages...'
- 23.2: 'That a declaration do issue that the Petitioners are the lawful registered owners of the parcel of land known as CR.26847 being LR No. 13433/115 AND CR. 26848 being LR No. 13433/116, and that their title to the same is valid.'