Kaimba Mangaara v Tharaka Nithi County Government [2018] KEELC 2486 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT CHUKA

CHUKA PETITION CASE NO. 09  OF 2017

IN THE MATTER OF CHAPTER FOUR – THE BIL OF RIGHTS

IN THE MATTER OF ARTICLE 19, 20, 21, 22 AND

23 OFTHE CONSTITUTION OF KENYA

IN THE MATTER OF ENFORCEMENT OF BILLS OF RIGHTS

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL

RIGHTS AND FREEDOMS UNDER ARTICLE 28, 40 AND

47 OF THE CONSTITUTION OF KENYA, 2010

BETWEEN

KAIMBA MANGAARA.............................................PETITIONER

VERSUS

THARAKA NITHI COUNTY GOVERNMENT....RESPONDENT

JUDGMENT

1.  This petition states as follows:

PETITION

TO:

LAND & ENVIRONMENT COURT AT

CHUKA

The petition of Kaimba Mangaara of Marimanti, Tharaka Nithi County in the Republic of Kenya is as follows:-

1. That the petitioner is an adult of sound mind residing at Marimanti in Tharaka Nithi County and his address of service is C/O M/S MUIA MWANZIA & CO. ADVOCATES, EDFRI GREEN HOUSE, 2ND FLOOR, GHANA STREET, P. O. BOX 1568-60200 MERU.

2. That the respondent is the Administration of the Tharaka Nithi County establishment under the County Government Act 2012 with powers to sue and be sued under its own name and its address of service is MERU (sic) COUNTY GOVERNMENT HEADQUARTERS, KATHWANA, THARAKA NITHI COUNTY.

3. That the petitioner is the sole proprietor of all that piece of land known as Plot No. 77 Marimanti Market in the Erstwhile defunct County Council of Tharaka.

4. That the petitioner was allocated the said plot in 1996 but has never been allowed to deal, work or develop it by the respondent and her predecessors.

5. That the petitioner states his fundamental rights have been breached by the respondent and specifically his right to human dignity under article 28, his right to own property under Article 40 and his right to  Fair Administrative Action under Article 47 of the Constitution of Kenya 2010.

6. That in the year 2003-2004 the petitioner put underground tanks on the plot with a view to open a petrol service station.

7. That in 2005 the Erstwhile defunct THARAKA County Council demolished the petitioners property and made it clear that the petitioner would not be allowed to develop the previous (sic).

8. That the petitioner sued the Tharaka County Council for demolishing his property in Meru Chief Magistrate Civil Suit No. 262 of 2005 where I obtained a decree in 2013.

9. That the decree paved way for the petitioner to embark on the developments and did a plan for approval by the physical planner and Ministry of Health which was done.

10. That the respondent declined to approve the plan frustrating the petitioner’s interests and attendant fundamental rights.

11. That the respondent did invite the petitioner for a meeting with a view to compensate the petitioner.

12. That on 3. 3.2016 in furtherance of the said meeting the petitioner tabled his proposal towards compensation thereof but in vain.

13. That the respondent is determined to frustrate and impede the petitioner from developing, owning and enjoying his property as per the law established.

14. That the respondent has with impunity infringed on the petitioner’s fundamental rights as follows;

i) Under Article 28 his right to human dignity

ii) Under Article 40 his right to own property

iii) Under Article 47 his right to fair administrative process

15. That the petitioner has suffered loss and damage under which he holds the respondent liable.

PARTICULARS OF LOSS & DAMAGE

i) Depriving the petitioner his right to own property

ii) Harassing the petitioner and degrading the petitioner (sic) social standing

iii) Ensuring that the petitioner never develops his property

iv) Ensuring the petitioner never enjoys his property

v) Occasioning the petitioner to loss.

16. That the court has jurisdiction to hear and determine this petition.

Your Petitioner therefore prays for;-

a)  A declaration that the petitioner’s right to property and right to a fair administrative action have been infringed by the respondent.

b)  Any award of damages for breach of the fundamental right to human dignity, right to own property and right to a fair administrative action.

c) An order for prompt compensation of the plot No. 77 Marimanti Market at the current market value and mesneprofits for 21 years since 1996.

d)  Costs of the suit and interests on (b) & (c) above at court rates.

DATED AT MERU THIS 26TH DAY OF JULY, 2017

FOR: MUA MWANZIA & CO.

ADVOCATES: FOR THE PETITIONER.

2.  The petition is supported by the affidavit of the petitioner dated 26th  July, 2017 which states:

I, KAIMBA MANGARA of C/O P. O. Box 1568-60200 MERU do hereby make oath and state as follows:

1. That I am the Petitioner herein well versed with the facts of this matter and therefore competent to make and swear this affidavit.

2. That I have been the proprietor of plot No. 77 Marimanti Market in the Erstwhile Defunct Tharaka County Council which is the Respondent herein annexed and market “KM1” is a copy of minutes of 1996.

3. That unfortunately for me since allocation thereof I have never had any fruitful use of the said property.

4.  That the Erstwhile Defunct Tharaka County Council began to harass me wherein I filed a suit No. Meru CMCC 262 of 2005 which suit was ruled in my favour annexed and marked “KM2” is a copy of the decree.

5.  That soon after the decision was delivered, I embarked into proceeding with my developments. I was denied that right.

6.  That I drew building plans for approval by the relevant authorities but the Respondent declined hereto annexed and marked “KM3” is a copy.

7. That I began to fence my plot but to my dismay and surprise the Respondent descended on the same and demolished my fence.

8. That the Tharaka Nithi County Government began its war against me and put up a Notice on my fence that the same was illegal hereto annexed and marked “KM4”is a copy.

9. That I did extract the decree in MERU CMCC 262 of 2005 and served the Respondent annexed and marked “KM5” is a copy.

10. That I wrote to the Respondent on 4. 6.2016 and served the Town Administrator of the Respondent lamenting against the treatment I have been receiving, annexed and marked “KM6” is a copy.

11. That the Respondent had summoned me with a view to compensate me but when I presented my proposal it abandoned the issue annexed and marked “KM7” is a copy of the letter by Respondent and my attendant proposal.

12. That the Respondent is determined to frustrate me and ensure that it has trumped on my rights. I cannot build, take possession or do anything meaningful.

13. That to cement my position the Respondent has refused to approve my plans despite the ministry of health and physical planner doing so – it is driven by malice and ill will.

14. That my right to human dignity, right to own property and Fair Administrative Action have been infringed under the constitution and I ask for compensation.

15. That I also ask for compensation of the current market value of the plot and the attendant losses – being mesne profits at the rate of Kshs.500,000/= per year for 21 years.

16. That I have been deprived my fundamental rights and the Respondent should be held liable.

17. That what is deponed hereinabove is true to the best of my knowledge, information and belief.

Dated at Meru this 26th day of July, 2017

3. The petitioner filed an application dated 23rd February, 2018 which sought an order to compel the Government Valuer to visit plot No. 77 Marimanti and quantify the market value of the plot and assess mesne profits accruing from 1996 to date. This application is supported by the petitioner’s affidavit which states:

I, KAIMBA MANGARA of C/O P. O. Box 1568-60200 MERU do hereby make oath and state as follows;-

1. That I am the petitioner/applicant herein well versed with the facts of this matter and therefore competent to make and swear this affidavit.

2. That I have been the proprietor of plot No. 77 Marimanti Market in the Erstwhile defunct Tharaka Council (sic) Council which is the respondent herein annexed and marked “KM1” is a copy of minutes of 1996.

3. That unfortunately for me since allocation thereof I have never had any fruitful use of the said property.

4. That the Erstwhile defunct Tharaka Council (sic) Council began to harass me wherein I filed a suit No. MERU CMCC 262 which suit was ruled in my favour annexed and marked “KM2” is a copy of the decree.

5. That soon after the decision was delivered, I embarked into proceeding with my developments. I was denied that right.

6. That I drew building plans for approval by the relevant authorities but the respondent declined. I wanted to put a petrol station but I have been frustrated.

7. That I began to fence my plot but to my dismay and surprise the respondent descended on the same and demolished my fence. I put another to keep off trespassers.

8. That the respondent had summoned me with a view to compensate me but when I presented my proposal it abandoned the issue annexed and marked “KM3 a & b” respectively are copies of the letter by respondent and my attendant proposal.

9. That the respondent is determined to frustrate me and ensure that it has trumped on my rights. I cannot build, take possession or do anything meaningful wherefore this application.

10. That the determination of the value of the property is therefore necessary.

11. That what is deponed here above is true to the best of my knowledge, information and belief.

Dated at Meru this 23rd day of February, 2018

4.  Vide this court’s ruling delivered on 26th February, 2018, the prayer for the government valuer to visit the suit land to assess the current value of the land and mesne profits was denied because it would have the effect of delving into the substratum of the suit before it had been heard.

5.  The respondent has responded to the petition through a Replying Affidavit sworn on 30th April, 2018 which states:

I, FREDRICK N. KAMUNDE care of P. O. Box 10-60406 – KATHWANA do hereby make oath and state as follows:

1.  That I am the County Secretary, secretary to the County Executive Committee and Head of County Public Service, Tharaka Nithi County, the Respondent herein hence competent to swear this Replying Affidavit.

2.  That the Constitutional Petition dated 26. 7.2017 has been read over to me by my advocates on record and I wish to reply as hereunder:

3.  That I have been informed by my advocates on record, whose information I verily believe to be true, the orders sought in this Constitutional Petition can only be granted or determined by way of a judicial review application clearly setting out the action, inaction, commission or omission of the respondent as a public body.

4.  That the respondent has NOT in any way encumbered or hindered the petitioner’s occupation of Plot No. 77 Marimanti Market. There is no evidence in form of photographs or videos to show the destruction of the fence (if any) around Plot No. 77 Marimanti Market by the Respondent.

5.  That the notice of demolition of illegal structures was a public notice geared towards warning members of public that structures erected on Public Land, road reserves and reserved market utility areas would be demolished ostensibly to enable the County Government to serve the public efficiently.

6.  That I am informed by advocates on record, whose information I verily believe to be true, that the petitioner has not executed the decree in Meru CMCC No. 252 of 2005 against the County Council of Tharaka and that this inaction and indolence by the petitioner cannot be visited upon the respondent.

7.  That the respondent has not acted illegally, irrationally or improperly towards the petitioner and that the respondent is not standing in the way of the petitioner’s enjoyment of proprietary rights over plot No. 77 Marimanti Market.

8.  That I am informed by my advocates, that the petitioner having failed to prove that his constitutional rights have been infringed and violated, no award of damages or compensation should suffice and we humbly pray for dismissal of the petition with costs to the respondent.

9.  That what I have deponed to above is true to the best of my knowledge, information and belief.

6.  The petition has been canvassed by way of written submissions.

7.  The written submissions filed by the petitioner are reproduced in full herebelow:

PETITIONER’S SUBMISSIONS

ON PLEADINGS

My Lord, before you is a petition dated 26. 7.2017 by Kaimba Mangaara, the petitioner seeking the following prayers;

a)  A declaration that the petitioner’s, right to property and right to a fair Administrative Action have been infringed by the Respondent.

b)  An award of damages for breach of the fundamental right to human dignity, right to own property and right to a fair administrative action.

c)  An order for prompt compensation of the plot No. 77 Marimanti Market at the current market value and mesne profits for 21 years since 1996.

d)  Costs of the suit and interest on (b) & (c) above at court rates.

It is supported by an affidavit by the petitioner of even date. The petition is unopposed despite the service thereof to the respondent.

ON THE FACTS & THE LAW

Your Lordship, the petitioner was allocated plot No. 77 Marimanti Market in 1996. He has availed the minutes as annexure “KMI”, soon the respondent began to frustrate his efforts to occupy and develop the same.

The petitioner did not take this lying down and sued the respondent (the defunct Tharaka County Council) in Meru CMCC 262/2005 a copy of the decree is annexed as annexure “KM2”.

The petitioner thought his problems were over upon issuance of a court decree. He was wrong.

The respondent was determined to ensure that the petitioner never enjoys the plot nor the fruits of his lawfully obtained judgment. The petitioner’s building plans were not approved, soon he was served with a notice to stop fencing his plot (see annexure “KM4”).

My lord, to this day the petitioner cannot utilize his plot nor derive benefit there from. His fundamental rights have been infringed at the behest of the respondent. His right to own property under Article 40 of the Constitution of Kenya, 2010 has been infringed by the respondent.

His right to a fair administrative process as was held in the case of Lucy Wambui Gichira – versus – County Government of Kirinyaga [2016] eKLR has been infringed ( copy enclosed). He has not been treated fairly by the respondent.

Further my lord, his dignity has been injured. He has been tossed and turned for the better part of his youthful years now running to 21 years. He has not been treated fairly by the respondent.

His recourse is the constitution. This court is enjoined under the same to breathe life to it and enforce it. Otherwise the respondent shall continue to trod on his rights unabated.

He seeks the declarations and compensation of the plot under the current market value and mense profits for 21 years since 1996.

My lord, the petitioner has established that he owns the property in question and under the domestic law his right to enjoy the property is guaranteed.

ON QUANTUM

Your lordship, courts have set precedents over damages against infringement of constitutional rights. On our part, we submit that the petitioner is entitled to Kshs.5,000,000/= for the infringement of his right to own property. Kshs.3,000,000/= for the infringement of right to human dignity and Khs.3,000,000/= for infringement to the right to fair administrative action. We rely on the cases of ARNACHERRY LIMITED – VERSUS – ATTORNEY GENERAL [2014] eKLR at page 27 (copy enclosed) where the High Court sitting at Nairobi awarded Ksh. 3,000,000/= as damages for infringement of Constitution rights under Article 40 of the Constitution. The court went further to award damages in lieu of compensation after a valuation report was filed.

On the damages towards compensation of the property and mense profits therefore, we pray that the District Valuer do visit the property with a view to access (sic) its current market value and mense profits for the last 21 years.

We as well ask for cost and interests at court rates.

DATED AT MERU THIS 10TH DAY OF APRIL, 2018

FOR: MUIA MWANZIA & CO.

ADVOCATES: FOR THE PETITIONER

8.  The written submissions filed by the respondent are reproduced in full herebelow:

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Your lordship,

The petitioner filed the Constitutional Petition dated 26. 7.2017 seeking the following prayer;

a.  A declaration that the petitioner’s right to property and right to a fair administrative action have been infringed by the respondent.

b.  An award for damages for breach of the fundamental right to human dignity, right to own property and right to a fair administrative action.

c.  An order for prompt compensation of Plot No. 77 Marimanti Market at the current market value and mense profits for 21 years since 1996.

d.  Costs and interest on (a) and (b) above.

The petition is supported by the sworn affidavit of the petitioner dated 26/7/2017.

Your Lordship,

The respondent wishes to respond as hereunder.

We submit that the orders sought in this petition can be granted or determined by way of a judicial review application clearly setting out the action, inaction, commission or omission of the respondent as a public body. This notwithstanding, we submit that there are no grounds to be determined by this court no matter the form they have been sought.

The Fair Administrative Action Act, 215 was created by the Parliament in compliance with Article 47 of the Constitution, 2010.

Administrative actions have been defined under section 2 of the Fair Administrative Action Act, 2015 to include;

The powers, functions and duties exercised by authorities of quasi judicial tribunals or

Any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.

We are guided by provisions of section 7 (1) of the Fair Administrative Action Act, 2015 which provides that

“Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to

a.  A court in accordance with section 8; or

b.  A tribunal in exercise of its jurisdiction conferred in that regard under any written law

Section 8 provides a follows:

“An application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application.”

Your lordship, to buttress our view that the petitioner should move the court by way of a judicial review application, we rely on section 9 which provides that

…subject to subsection (2),a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22 (3) of the Constitution.

In prayer No. 1, the petitioner is seeking a declaration that his right to property and a right to fair administrative action have been infringed upon by the respondent.

The right  to fair administrative action as expounded in Nairobi Miscellaneous case number 2 of 2008 republic versus – the permanent secretary, ministry of housing & the attorney general calls for an applicant to prove illegality, irrationality and impropriety of a public body. The court held as follows;

“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety…illegality is when the decision – making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service commission… irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the acts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards…procedural impropriety is when there is a failure to act fairly on the part of the decision – making authority in the process of taking a decision. The unfairness may being non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”

COPY OF THE AUTHORITY ATTACHED

He who alleges must prove. We submit that no evidence has been presented to the effect that the petitioner’s rights to Plot No. 77 Marimanti Market have been infringed by the respondent.

There is no proof that the respondent has encumbered or hindered the petitioner’s occupation of Plot No. 77 Marimanti Market. There is no evidence in forms of photographs or videos to show the destruction of the fence (if any) around Plot NO. 77 Marimanti Market by the respondent.

Notice of demolition of illegal structures was a public notice geared towards warning members of public that structures erected on PUBLIC land, road reserves and reserved market utility areas would be demolished ostensibly to enable the County Government to serve the public efficiently.

Plot No. 77 Marimanti Market was not singled out in the Notice.

Your Lordship,

The petitioner has not executed the Decree in Meru CMCC No. 252 of 2005 against the defunct County Council of Tharaka. This inaction and indolence by the petitioner cannot be visited upon the respondent.

We humbly submit that the respondent has not acted illegally, irrationally or improperly towards the petitioner.

There is no proof that the respondent is standing in the way of the petitioner’s enjoyment of proprietary rights over plot No. 77 Marimanti Market.

On award of damages, the petitioner is seeking damages for breach of the fundamental rights to human dignity and right to a fair administrative action. The petitioner has also sought compensation for mesne profits since 1996.

We submit that the petitioner having failed to prove that his constitutional rights have been infringed and violated, no award of damages or compensation should be awarded to him.

We humbly pray for dismissal of the petition with costs to the respondent.

DATED AT EMBU THIS 30TH DAY OF APRIL, 2018

NJERU ITHIGA & CO.

ADVOCATES FOR THE RESPONDENT

9.  I frame the issues for determination to be:

a)  Has the respondent infringed upon the petitioner’s right to property and right to fair administrative action?

b)  Is the petitioner entitled to an award of damages for breach of the rights to human dignity, ownership of property and to fair administrative action?

c)  Should an order for prompt compensation for plot 77 Marimanti Market at the current market value and mesne profits for 21 years since 1996 be issued against the respondent?

10. I have considered the pleadings and the submissions proffered by the parties in support of their veritably incongruent propositions.

11. The case of Lucy Wambui (petitioner) Versus County Government of Kirinyaga (Respondent) [2016] eKLR, proffered by the petitioner in support of his case is not very relevant to the circumstances of this case. It deals with a dispute concerning ownership of a plot and what its size was. In this petition, ownership of the suit property, Plot No. 77, Marimanti Market is not disputed. Indeed in an affidavit sworn on 30th April, 2018, by Fredrick N. Kamunde, the respondent’s County Secretary, at Paragraph 7, ownership of the plot in question is admitted by the respondent. The said paragraph 7 reads as follows: “THAT the respondent has not acted illegally, irrationally or improperly towards the Petitioner and that the Respondent is not standing in the way of the Petitioner’s enjoyment of proprietary rights over Plot No. 77 Marimanti Market.”

12. The case of Arnacherry Limited (petitioner) AND The Attorney General (Respondent) [2014] eKLR is a good authority for the principle that where the constitutional rights of an individual are infringed upon with regard to the right to own property, orders for prompt, full, fair and just compensation are tenable. It is also a good authority that orders for special damages, where appropriate, and for general damages are tenable.

13. The respondent has proffered the case of Republic (applicant) Versus The Permanent Secretary, Ministry of Housing and the Attorney General (Respondents) [2014] eKLR for its assertion that the orders sought by the Petitioner are not tenable. I opine that this case is a good authority in its facts and circumstances. However, this case was in the nature of Judicial Review proceedings whereas this case has constitutional underpinnings. One must not conflate the two scenarios: Judicial Reviews and Constitutional Petitions. They must be bifurcated.

14. A conspectus of the Petitioner’s case is that he was legally allocated a plot. The predecessor to the current respondent denied him enjoyment of his plot. He filed a case at Meru, to wit, CMCC No. 252 of  2005   against the County Council of Tharaka. The case was heard and determined in his favour on 1st February, 2013. Even after the judgment was delivered in his favour and the apposite decree extracted and issued, the County Government of Tharaka Nithi has not allowed him to develop his plot. Indeed, vide a letter dated 3rd March, 2016, written to him by one Daniel Kithuka, Town Administrator, the respondent had invited the petitioner to appear before a subcommittee of the Physical Planning Committee, to discuss compensation concerning Plot NO.77, Marimanti. However, nothing came out of the proposed discussions. Hence this constitutional petition.

15. In its submissions, the Respondent says that the orders sought by the petitioner are untenable as according to the respondent, the petitioner should have sought relief by way of a Judicial Review Application. It quotes sections 7 and 9 of the Fair Administrative Action Act to show how such an application should be filed. I do not agree with the assertion made by the Respondent. The appellant has not buttressed his case upon the Fair Administrative Act, 2015. He has filed a Constitutional Petition. I opine that he is entitled to do so and that his rights cannot be subtracted or diminished by other processes provided for by statutory law. The Constitution is supreme and statutory laws cannot be allowed to debunk that supremacy.

16.  I find that the respondent has infringed upon the petitioner’s constitutional rights by:

i)  Depriving the petitioner his right to own property and to develop it;

ii)  Harassing the petitioner and degrading his social standing and thereby breached his right to human dignity;

iii) Tossing the petitioner around and thus denying him his right to fair administration;

iv) Occasioning loss to the petitioner.

17. I find the claim by the respondent that the petitioner had not executed the decree in Meru CMCC No. 252 of 2005 untruthful and a contrivance by the respondent to avoid the truth. There is evidence that the petitioner extracted the apposite decree. It is the respondent who refused to obey a court judgment.

18. The Respondent has not denied that Plot No. 77, Marimanti Market is the property of the petitioner. It has also not denied that a court of law heard the dispute between it and the petitioner, and that the petitioner obtained a judgment. It has not denied that it did not implement the said judgment. I opine that this is one case that deserves to be brought to court by way of a constitutional Petition. Refusal to obey a judgment of a court of law deserves intervention by this court through orders issued in a Constitutional Petition. The rule of law requires that unappealed court judgments must be obeyed by all citizens, natural and legal. Countenancing a scenario where citizens disobey court orders evinces a veritably phasmagoric scenario. Courts of law should appropriately deprecate disobedience of orders issued by them.

19. The petitioner submits that he is entitled to awards of Kshs.5,000,000/= for infringement of his right to own property, Kshs.3,000,000/= for infringement of his right to fair administrative action and Kshs.3,000,000/= for infringement of his right to human dignity. This submission will be taken into account and reference to the case of Arnacherry Limited Versus Attorney General (supra) in support of this submission is noted.

20. I issue judgment in favour of the Petitioner and against the Respondent in the following terms:

1. It is hereby declared that the Petitioner’s Rights to property, to fair administrative action and to human dignity have been infringed upon by the Respondent.

2. I find that the Petitioner is entitled to prompt compensation for Plot No. 77 Marimanti Market at the current market value and mesne profits for 22 years since 1996.

3. For infringement of his right to own property, the Petitioner is awarded Kshs. 2,500,000/=, for the infringement of his right to fair administrative action, he is awarded Kshs.1,500,000/= and for infringement of his right to human dignity, he is awarded Kshs.1,500,000/= making a total of Kshs.5,500,000/= .

4.  The Government or County Valuer, Tharaka Nithi County, whichever name is applicable, is ordered to visit within 3 months of this judgment, Plot No. 77 Marimanti Market with a view to quantifying the market value apposite to the plot and to assess mesne profits that have accrued from the same plot from 1996 to date.

5.  Interest on all monetary awards, including the current value of plot No.77 Marimanti Market and assessed mesne profits from 1996 to the date of this judgment, is awarded to the petitioner from the date of this judgment until payment in full.

6.  Costs shall follow the event and are awarded to the Petitioner.

21. Orders accordingly.

Delivered in open court at Chuka this 16th day of July, 2018

in the presence of:

CA: Ndegwa

Manasses Kariuki h/b Njeru Ithiga for Respondent

Appellant and his advocate - Absent

P.M. NJOROGE

JUDGE