Lucy Okenyuri Nyakeyo v Kisii County & 2 others [2020] eKLR Case Summary

Court
Environment and Land Court at Kisii
Category
Civil
Judge(s)
J.M. Onyango
Judgment Date
September 22, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
In the case of Lucy Okenyuri Nyakeyo v Kisii County & 2 others [2020] eKLR, explore the key legal principles and implications of the judgment. Gain insights into this significant ruling affecting local governance and community rights.


Case Brief: Lucy Okenyuri Nyakeyo v Kisii County & 2 others [2020] eKLR

1. Case Information:
- Name of the Case: Lucy Okenyuri Nyakeyo v. Kisii County Government & Others
- Case Number: ELC Case No. 43 of 2019
- Court: Environment and Land Court at Kisii
- Date Delivered: September 22, 2020
- Category of Law: Civil
- Judge(s): J.M. Onyango
- Country: Kenya

2. Questions Presented:
The central legal issues presented to the court include:
- Whether the Plaintiff is entitled to a temporary injunction to prevent the Defendants from demolishing developments on her father’s property pending the hearing and determination of the suit.
- Whether the Defendants followed the due process required for compulsory acquisition of the Plaintiff’s land.

3. Facts of the Case:
The Plaintiff, Lucy Okenyuri Nyakeyo, is the donee of a Power of Attorney from her father, Samwel Nyakeyo Ayego. She filed a suit against the Kisii County Government (1st Defendant) and two officials (2nd and 3rd Defendants) claiming that they commenced the construction of an urban road through her father’s land (parcel number WANJARE/BOMARENDA/1411) without due process. The Plaintiff contends that the Defendants have already demolished properties adjacent to the land and are poised to demolish developments on the suit property without notice or compensation, violating her father’s constitutional right to property.

4. Procedural History:
The Plaintiff filed her suit on December 10, 2019, along with a Notice of Motion seeking a temporary injunction. The 1st Defendant opposed the application, arguing that the road construction adhered to an approved development plan and denying any infringement on freehold titles. The Plaintiff submitted supplementary affidavits asserting that the Defendants did not comply with the compulsory acquisition procedures outlined in the Land Act. The application was heard through written submissions, with the Plaintiff highlighting relevant constitutional provisions and case law regarding compulsory acquisition.

5. Analysis:
- Rules: The court considered the following legal frameworks:
- Article 40(2)(3), Article 60, and Article 61 of the Kenyan Constitution regarding the right to property.
- Part 8 of the Land Act detailing compulsory acquisition procedures, including the necessity of issuing a notice to the landowner.
- Case Law: The court referenced several cases on compulsory acquisition:
- *Isaiah Otiato & 6 Others v. County Government of Vihiga (2018) eKLR* emphasized the requirement of following due process in land acquisition.
- *Mike Maina Kamau v. Attorney General (2017) eKLR* and *Gami Properties Ltd v. NLC (2017) eKLR* underscored the importance of adhering to legal requirements during compulsory acquisition.
- Application: The court evaluated whether the Plaintiff established a prima facie case with a probability of success. It found the Plaintiff's claims credible, noting the absence of evidence from the 1st Defendant regarding proper notice of acquisition. However, the court also assessed the potential for irreparable injury and determined that while the Plaintiff may suffer loss, the damages were quantifiable. Ultimately, the balance of convenience favored the public interest in road construction.

6. Conclusion:
The court ruled against the Plaintiff's application for a temporary injunction, concluding that the Plaintiff had not satisfied all conditions for such relief as established in *Giella v. Cassman Brown & Co Ltd (1973) E.A 358*. The decision emphasized the importance of public access to services and infrastructure development.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The court dismissed the Plaintiff's application for a temporary injunction, allowing the road construction to proceed. This case highlights the complexities surrounding compulsory land acquisition and the necessity for governmental bodies to adhere to due process, while also weighing public interest against individual property rights. The ruling may have implications for future cases involving land acquisition and the rights of property owners in Kenya.

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