Gregory Kiema Kyumaa v Cabinet Secretary, Ministry of Water and Irrigation & 2 others [2020] eKLR Case Summary

Court
Environment and Land Court at Makueni
Category
Civil
Judge(s)
Mbogo C.G.
Judgment Date
October 07, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary of Gregory Kiema Kyumaa v Cabinet Secretary, Ministry of Water and Irrigation & 2 others. Gain insights into the legal arguments and implications of this judgment.


Case Brief: Gregory Kiema Kyumaa v Cabinet Secretary, Ministry of Water and Irrigation & 2 others [2020] eKLR

1. Case Information:
- Name of the Case: Gregory Kiema Kyumaa v. Cabinet Secretary, Ministry of Water and Irrigation & Others
- Case Number: Constitutional Petition No. 3 of 2018
- Court: Environment and Land Court at Makueni
- Date Delivered: October 7, 2020
- Category of Law: Civil
- Judge(s): Mbogo C.G.
- Country: Kenya

2. Questions Presented:
The central legal issues before the court are:
- Whether the Respondents arbitrarily deprived the Petitioner of his right to property without prompt and just compensation.
- Whether the Respondents breached the procedure set out for compulsory acquisition of land.
- Whether the Petitioner is entitled to an award of damages for the violation of his rights.

3. Facts of the Case:
The Petitioner, Gregory Kiema Kyumaa, is the registered proprietor of land parcel number Makueni/Kako/156. In 2017, the Respondents, through their agent Pioneer Engineering and Construction Company Limited, entered the Petitioner’s land without permission and began excavating it to create a water dam. This action resulted in significant alteration and destruction of the land, including the creation of a public road that severed the land from the Petitioner’s remaining property. The Petitioner claims he was not informed or compensated for this action, which he believes constitutes a violation of his constitutional rights under Articles 40 and 47 of the Constitution of Kenya.

4. Procedural History:
The Petitioner filed his petition on March 26, 2018, seeking several declarations and orders against the Respondents. The Respondents were served with the petition in October 2019 but did not enter an appearance or file a response, leading the court to treat the case as undefended. The matter was then presented through written submissions.

5. Analysis:
- Rules: The court considered Articles 10, 40, and 47 of the Constitution of Kenya, which protect the rights to property and due process. Sections 107-133 of the Land Act No. 6 of 2012 were also relevant, as they outline the procedures for compulsory acquisition of land.

- Case Law: The court referenced the case of *Everlyn College of Design vs. Director of Children’s Department & AG [2013] eKLR*, emphasizing that unlawful acquisition must follow a legally established process, not forceful occupation. Additionally, the ruling in *Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others [2014] eKLR* was cited concerning the nature of conservatory orders and their public law implications.

- Application: The court found that the Petitioner failed to provide evidence that a portion of his land was indeed compulsorily acquired. His claims were based on speculation, and he did not engage a surveyor to ascertain the extent of the land affected. Consequently, the court concluded that the Petitioner had not established that he was deprived of his property rights without compensation, nor had he shown that the Respondents breached acquisition procedures. The request for a conservatory order was also denied as it was deemed unnecessary since the project was already completed.

6. Conclusion:
The court dismissed the Petition, ruling that the Petitioner had not proven his claims regarding deprivation of property rights or procedural violations. The decision underscores the importance of providing concrete evidence in land acquisition disputes and the necessity of adhering to established legal processes.

7. Dissent:
There were no dissenting opinions in this case, as it was a single-judge ruling.

8. Summary:
The court's ruling in *Gregory Kiema Kyumaa v. Cabinet Secretary, Ministry of Water and Irrigation & Others* highlights the complexities involved in land acquisition cases in Kenya, particularly the necessity for landowners to substantiate their claims with evidence. The dismissal of the Petition emphasizes the court's reliance on procedural adherence and the burden of proof on the claimant, setting a precedent for similar future cases.

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