Isaac Gathungu Wanjohi & Another Vs the Attorney General and 6 Others País/Territorio Kenya Tipo de la corte Nacional - corte superior Fecha Mar 30, 2012 Fuente UNEP, InforMEA Nombre del tribunal High Court of Kenya at Nairobi Sede de la corte Nairobi, Kenya Juez Majanja, D.S. Idioma Inglés Materia Cuestiones jurídicas, Tierra y suelos Palabra clave Derecho constitutional Tenencia de tierras Propiedad de extranjeros Resumen This holding arose from yet another case that concerns land that is situated at the junction of Airport Road and the Mombasa-Nairobi Road and is part of land that was intended for construction of the Eastern Bypass. The petitioners in this case contended that the trespass upon their land was an infringement of their right to property protected under Article 40 of the Constitution. Dr Kuria, counsel for the petitioners emphasized on the doctrine of indefeasibility of title and the protections afforded to property by the Constitution of Kenya and maintained that the grant issued to the petitioners constituted a contractual obligation by the State which could not be revoked at a whim without due process. It was the petitioners assertion that it was the states duty to uphold the law and it was unacceptable for it to use the nature of the project to circumvent the provisions of law. The petitioners argued that in so far as the state had acted arbitrarily and failed to observe the law, it was liable for damages and asked the court to grant amounts totaling to kshs 7.5 million, being an award for general and exemplary damages against the respondents. The petitioners further sought for a court declaration that the respondents had contravened their right to property under Article 40(1) and (3) of the Constitution and asked the court to grant a permanent injunction restraining the respondents from allowing the Eastern by-pass to pass across their land or any further interference with the suit property. Justice Majanja in this case observed that the states claim that the suit property was acquired illegally was an issue that needed to be settled through the due process of the law as contemplated under Article 40(6) of the Constitution. On finding that the petitioners right to the due process under Article 47 of the Constitution had been violated, the court awarded a sum of 1 million Kenya shillings to the petitioners not as compensation but as damages ‘to vindicate the petitioners right to due process which had been infringed. The court opined that ‘unlawful acquisitionreferred to in Article 40(6) of the Constitution had to be through a legally established process and not by whim or revocation of the Gazette Notice as the Commissioner of Lands had purported to do. Hence, such action was illegal, null and void in so far as it purported to revoke that title, the court said. The court further found that the respondents assertion that the revocations were pursuant to recommendations by a task force could not hold water because even such consultative processes could in no way be a substitute for due process nor justify the taking away of the petitioners title by way of a Gazette Notice. The court was however reluctant to grant the relief of injunction observing that the remedy was an equitable and discretionary remedy and that the court had to weigh the respective interests of the respective parties. In finding that the petitioners interests must yield to the public interest, the court noted that there was an option for the petitioners in this case to pursue the state for full compensation and damages in the event the court found that the property had been unlawfully acquired, and the state would be able to satisfy such claim for damages. The court further directed that if the State wished to commence legal proceedings to establish the legality or otherwise of the parcel of land in question, it could do so within 12 months from the date of the judgement. Texto completo COU-158571.pdf