Civil Litigation in Defense of Public Interest: Government wins as Kshs 8 Billion judgement set aside13th February 2019, by Department of Public Communications    

On 6/12/2018, the Court of Appeal sitting at Eldoret set aside the judgment of the Environment and Land Court, Eldoret, that had awarded Kshs. 3,736,070.381.23 to the estate of one Thomas Kipkosgei as compensation for the loss of 546 acres of land and the estate of one William Kimngeny Kshs. 4,132,942,326.49 for the loss of 604 acres of land. The Judges also set aside the award to the estates of the sum of Kshs. 500,000,000 as mense profits.        

The three judge-bench comprising of Judge E.M. Githinji, J. Mohammed and J. Otieno Odek, set aside in entirety, the judgement of the Environment and Land Court dated 15th April 2018 which initially was Civil Appeal no. 51 of 2016 consolidated with Civil Appeal no. 58 of 2016.

The Petition        

Nathan Tirop Koech and Zacharia Kimutai Kosgei as the administrators of the estate of Thomas Kipkosgei Yator (deceased) together with Ezekiel Kiptoo and Ernest Kibet as the administrators of the estate of William Kimngeny Arap Leting (deceased) sued the government for unlawful subdivision of land. The administrators through their Advocate Mr. J. Kipnyekwei instituted a petition in the Environment and Land Court Eldoret being Elodoret Environment and Land No 1 of 13 claiming that government officers had unlawfully sub-divided and allotted to third parties the deceased persons parcels of land subsumed in land parcel I.R. 17542 (L.R. 10492).        

Sued on behalf of the government included the Chief Land Registrar, Registrar of Titles, Ministry of Lands, Director of Survey and the National Land Commission who were represented by Senior Principal State Counsel Mr. K.O Onyiso and Mr. Wabwire. The National Land Commission (NLC) was represented in the matter by Messers B.P Ochieng and Biko.         

The respondents contended that they were registered proprietors of Land Reference No. L.R. 17542(L.R. 10492). Further that the Government of Kenya, through the appellants fraudulently, unlawfully and without the procedure laid down for compulsory acquisition of land, acquired and sub-divided portions of the suit property and allotted it to various individuals and public entities without the knowledge and consent of the registered proprietors. It was further contended that due to illegal acquisition and fraudulent sub-division of the suit property, the appellants were liable to compensate the respondents the value of the illegally and unconstitutionally acquired portions of the suit property.       

In a petition dated 12th February 2013 and amended on 29th September 2014, the respondents filed Petition No. 1 of 2013 at the Environment and Land Court as administrators of the Estate of Thomas Kipkosgei Yator and William Kimngeny arap Leting.        

On 28th June 1965, five individuals: Mr. Thomas Kipkosgei arap Yator, Mr. William Kimngeny arap Leting, Mr. Nathaniel Chelugui, Mr. Noahn Kimngeny and Mr. Cherwon arap Maritim, purchased the suit property (L.R. No. 17542- L.R. No. 10492) measuring 3,236 acres (Less 26 acres road reserve) from Mr. Jacobus Hendrick Engelbreacht for Kshs. 360,000/=. The purchase sum comprised the purchasers’ own savings and a loan from the then Land and Agricultural Bank. The quint (5) fell in arrears in repaying the loans and they made a decision to sell a portion of the suit property measuring 51.49 Ha (126 acres) to Huruma Farmers Company Limited. The proceedings of the sale were applied in offsetting the entire debt and owing to the Land and Agricultural Bank.

 On 7th August 1976, they applied and obtained the consent of Turbo-Soy Land Control Board for the purpose of sub-dividing the same. The land was supposed to be sub-divided among the said persons. They surrendered the grant to the Chief Land Registrar for this purpose. However, the Chief Land Registrar and other government officials failed to sub-divide the land in their favour but instead sub-divided the same in favour of third parties. This, they alleged, was a violation of their right to property for which they claimed damages.       

 The government opposed the petition. It was the government’s position that the said administrators were not entitled to compensation due to several reasons. Firstly, the alleged owners had sold part of the suit land to third parties. They had further sold part of the land to squatters calling themselves Huruma Farm. At the same time, the alleged owners had surrendered part of the suit land to the government for public utilities such as roads, sewerage and Police Rifle Range while other parts of the suit land were compulsorily acquired by the government and the same had received full compensation from the government.         

In suit papers, the 5th respondent, the National Land Commission argued that the dispute should have first been dealt with by the Commission before being brought to the regular courts as the claim was founded on the historical injustice. It argued that pursuant to Article 67(2) (e) of the Constitution, NLC was the suitable forum to investigate the claims in the petition.         

NLC further submitted that the 2010 Constitution had provided a specific mechanism for addressing historical land injustices and the trial court erred in not giving an opportunity to the NLC as the body mandated to investigate and handle historical injustices similar to the claims raised in the Petition. The appellants countered that nowhere in the Petition was the phrase “historical injustice” alluded to but instead the petitioner’s claim was founded on violation of Section 75 of the retired Constitution and not grounded on historical claims. 

High Court Judgment        

The Petition was heard by Justice Antony O. Ombwayo, who upon hearing the parties to the petition by way of affidavit, site visit and submissions, delivered judgement dated 15th April 2016. The judge held that the government had violated the petitioners’ rights to property and awarded the estate of the deceased persons compensation. The judge made several declarations. A declaratory order holding that that proprietary interest in 546 and 604 acres of land comprised in Land Parcel I/R No. 17542, L.R No. 10492 otherwise known as Eldoret Municipality Block 15/1 land Eldoret Municipality Block 3 (King’ong’o) be absolutely vested in the petitioners respectively s co-owners. A declaratory order holding that the respondents’ seizure of the deceased estates property other than by way of compulsory acquisition, without consent or compensation was unconstitutional. An order of mandamus to compel the respondents to jointly and or severally pay; the Estate of Thomas Kipkosgei arap Yator Kshs 3,736,070.381/23 billion fair compensation for loss of 546 acres of the land, the estate of William Kimngeny arap Leting Kshs 4,132,942,326.49 billion being fair compensation for the loss of 604 acres of the suit land and compel the appellants to jointly and or severally pay the 1st to 4th respondents’ mesne profits in the sum of Kshs 2,690,603,339/= billion for the loss of the suit land for over 30 years. However, the court was inclined to award a nominal figure of Ksh.500,000,000 as mesne profits.    

Court Of Appeal Judgement

        The government was aggrieved by the judgment of the High Court and hence appealed to the Court of Appeal. The Court of Appeal appraised the judgment of the High Court and held that the Judge erred in several areas. Accordingly, the judge did not interrogate various letters that were produced in evidence showing that the suit land had been  sub-divided and re-subdivided, sold, surrendered to the government and compulsorily acquired with the knowledge and consent of the original owners. Thus, the titles issued by the Commissioner of Lands were perfectly legal.       

 The Court further held that the Judge did not properly evaluate the evidence on record. They noted that had the judge relied on the evidence, he would have discovered that the administrators deliberately failed to produce all evidence that would have helped him determine liability. This deliberate omission the three judges ruled, bordered on suppression of evidence. This meant that the administrators had failed to prove their case on a balance of probabilities as required by law.       

 On the damages awarded, the Judges faulted the Valuation Report by Afriland Valuers Ltd. They argued that the Judge should not have relied on it but instead should have exercised an independent mind to determine whether the report was reasonable. They faulted the judge noting that he should have undertaken an analysis of the report to determine its accuracy, quality, appropriateness, the relevance of the data used, enquiries made and suitability of methods and techniques employed.                         

These omissions on the part of the Judge rendered the report worthless. The judges stated in their judgement,
“The first valuation report valued the suit land at Kshs. 21,000,000,000 (Twenty-one billion) and the second report tabulated loss of user in the sum of Kshs 2,690,603,339.30. Counsel submitted that the judge erred in failing to interrogate the expertise and the qualification of the valuer. The two valuation reports lacked material particulars; the valuer did not show how the said sums were arrived at and no reasons were given to support the figures and sums mentioned; there was no value for comparable land; and the loss of user report does not show how the average income was arrived at.”               

 The Judges also held that the award of mesne profit in the sum of Kshs. 500,000,000 was erroneous. It had neither been pleaded nor proved thereby setting it aside. They stated,         “On the issue of mesne profits, the trial judge awarded the sum of Kshs 500,000,000/= as compensation for loss of user while the respondents had sought Kshs 2,690,603,339/= billion. A claim for mesne profits is a claim akin to special damages. It must be pleaded and proved. The respondents did not plead the sum of Kshs 500,000,000/= awarded by the trial judge as mesne profits. They also did not satisfy the trial court that they ought to be awarded the sum of Kshs 2,6900,6-3,339/=pleaded in the amended Petition as mesne profit.”        

The judges contended that the valuation report by the respondents did not realistically apply the formula as enunciated by the Privy Council. They observed that the respondents were not entitled to Kshs 2,690,603,339/= as mesne profits nor were they entitled to Kshs 500,000,000.00. In their ruling, the judges were of the view that the Onus was on the respondents to prove that they were entitled to mesne profits and further prove the specific amount they were entitled.        

The judges further observed that the Constitution did not define what historical injustice constituted. They noted, “Section 15(2) of the National Land Commission Act as amended by Section 38 of the Land laws (Amendment) Act No. 28 of 2016 defined historical injustice. Section 15(3) (e) of the NLC Act as amended introduced a limitation period of five years for claims related to historical injustice. A claim on historical injustice should not be entertained after a period of five years from the date of commencement of the Land Laws (Amendment) Act.”       

 It was the considered view of the judges that a court had jurisdiction to hear and determine any claim relating to historical injustice whether or not the NLC had be seized of the matter. Article 67(2) e) of the Constitution provided that the NLC could investigate “present or historical” land injustices. The judges felt that if the NLC had an initial and exclusive mandate, it would mean that all present cases on land injustices would only be handled by the NLC and not courts of law. This would prima facie render the Environment and Land Courts redundant. Section 15(3) (b) of the NLC Act permits the Environment and Land Court to deal with historical injustice claims capable of being addressed through the ordinary court system.