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Court of AppealAllowedCivil Appeal No. 253 of 2011

Tana and Athi Rivers Development Authority v Joseph Mbindyo & 3 others [2013] KECA 242 (KLR)

Court of Appeal
3 October 2013
2,744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal threw out a Kshs. 96.8 million compensation claim because it was filed decades too late and the damages were never properly proven.

What this practically means

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Executive summary

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The respondents, suing representatively for 484 persons evicted in 1976 from trust land compulsorily acquired for construction of the Masinga dam, obtained judgment in the High Court (Khaminwa, J.) for Kshs. 96,800,000/- plus interest at 14% as compensation for unquantified or undervalued developments. The Tana and Athi Rivers Development Authority appealed, contending the suit was time barred, that the ex parte leave to file out of time was invalid, and that the special damages of Kshs. 100,000,000/- were neither specifically pleaded nor strictly proved. The Court of Appeal, in a first appeal, re-evaluated the evidence and allowed the appeal. It held that the cause of action arose in 1976 upon eviction, not upon the collapse of compensation negotiations in 2000, and that ongoing negotiations do not constitute material facts of a decisive character outside a plaintiff's knowledge under section 27(2) of the Limitation of Actions Act. Following Divecon and Oruta, it held the trial Judge was obliged to consider at trial the validity of the ex parte extension order. On quantum, the Court found no documentary evidence supporting the uniform Kshs. 200,000/- per inhabitant figure; the assessment reports were never produced, and the trial Judge misdirected herself by shifting the burden of proof to the defendant. Allowing the appeal with costs to the appellant, the Court set aside the High Court judgment. The judgment binds lower courts on the strict proof of special damages, the burden of proof remaining on plaintiffs, and the duty of trial courts to scrutinize ex parte limitation extensions at trial.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.When did the respondents' cause of action accrue for purposes of the Limitation of Actions Act?
  2. 2.Whether the trial Judge was obliged to consider, at trial, the validity of the ex parte leave to file suit out of time
  3. 3.Whether the respondents strictly proved their claim of special damages of Kshs. 100,000,000/-
  4. 4.Whether the trial Judge erred in shifting the burden of proof to the appellant

Key legal issues

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01

Accrual of cause of action for limitation purposes

Holding

The cause of action arose in 1976 upon eviction, not upon the failure of negotiations in 2000.

Reasoning

The Court held that eviction to pave way for the dam triggered the claim for compensation for developments on the land. Subsequent negotiations with successive governments did not postpone accrual; the respondents' argument that negotiations continued until 2000 was rejected as the basis for computing the limitation period.

p. 3
02

Validity of ex parte leave to file suit out of time

Holding

The trial court had an obligation at trial to determine whether the ex parte extension order was valid, and the leave was not in accordance with section 27(2) of the Limitation of Actions Act.

Reasoning

Following Divecon and Oruta, the Court held the issue of limitation is to be decided at trial, not as a preliminary point, even where leave was granted ex parte. Section 27(2) requires material facts of a decisive character to have been outside the plaintiff's knowledge; ongoing negotiations did not satisfy that test.

p. 4
03

Proof of special damages

Holding

The respondents failed to specifically plead and strictly prove the special damages of Kshs. 100,000,000/-; the assessment reports were not produced and no documentary evidence supported the uniform Kshs. 200,000/- per inhabitant claim.

Reasoning

Damages capable of precise calculation must be claimed as special damages and strictly proved. The respondents produced no documents; only viva voce evidence was tendered for four claimants with no evidence for the other inhabitants. The trial Judge further erred in faulting the appellant for not producing the assessment reports, thereby shifting the burden of proof onto the defendant.

p. 5
04

Burden of proof

Holding

The trial Judge misdirected herself by shifting the burden of proving the respondents' claim to the appellant.

Reasoning

Relying on Central Bank of Kenya v Martin King'ori, the Court affirmed that the defendant bears no onus of proving the plaintiff's claim. By faulting the appellant for not producing the assessment reports that would have shown each inhabitant's entitlement, the learned Judge wrongly transferred the evidential burden to the party against whom the claim was made.

p. 5

Legal principles established

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  • A trial Judge must consider at trial whether an ex parte order granting extension of time to file suit was valid, notwithstanding that it was granted by another judge.
  • Ongoing negotiations do not constitute material facts outside the plaintiff's knowledge under section 27(2) of the Limitation of Actions Act justifying extension of time.
  • Special damages must be specifically pleaded and strictly proved; the burden of proving them lies on the plaintiff and cannot be shifted to the defendant.

Court orders

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  1. 1.Appeal allowed with costs to the appellant
  2. 2.Judgment of the High Court set aside

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Martha Karambu Koome
Martha KoomeJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Embu
H.C.C.C No. 108 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we find that the appeal herein has merit and it is hereby allowed with costs to the appellant. The judgment of the High Court is hereby set aside.
p. 5Final orders - disposal of the appeal
We are of the considered view that the cause of action arose in 1976 when the inhabitants of the suit land were evicted to pave way for the construction of the dam.
p. 3Accrual of cause of action for limitation purposes
As regards the special damages awarded, this Court has said time and again that when damages can be calculated to a cent, then they cease to be general damages and must be claimed as special damages
p. 5Strict proof of special damages (quoting Siree Limited v Lake Turkana El Molo Lodges)
We find that the learned Judge should have considered at the trial whether the exparte order granting extension of time was valid or not.
p. 4Trial court's duty to scrutinize ex parte extension of time
In doing so the learned Judge shifted the burden of proof from the respondents who were the plaintiffs in the trial court to the appellant who was the defendant.
p. 5Burden of proof rests on the plaintiff

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tana and Athi Rivers Development Authority v Joseph Mbindyo & 3 others [2013] KECA 242 (KLR)", Case Analysis (2013). Civil Appeal No. 253 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/242/eng@2013-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.