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Court of AppealDismissedCivil Appeal No. 299 of 2014· [2017] KECA 642 (KLR)

Moses Onchiri (Suing on his own behalf and in the interest of 475 other persons being former inhabitants of KPA Maasai Village, Embakasi within Nairobi) v Kenya Ports Authority, City Council of Nairobi, Minister for Internal Security & Provincial Administration, Minister for Lands & Attorney General (Civil Appeal 299 of 2014) (Civ) [2017] KECA 642 (KLR)

Court of Appeal
24 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
4,416 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled only the 45 people who signed written authority could share the eviction compensation, and upheld the modest Kshs. 150,000 award per person.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of Majanja, J. in Petition No. 38 of 2012, a constitutional petition brought by Moses Onchiri on his own behalf and on behalf of 475 other former inhabitants of Maasai Village, Embakasi, whose homes and amenities were demolished and who were forcibly evicted on 29th October 2011 by State officials, police and City Council of Nairobi personnel. Before the High Court, counsel had by consent agreed that liability be adopted from the earlier decision in June Seventeenth Enterprises Ltd v Kenya Airports Authority (Nairobi Petition No. 356 of 2013), leaving only quantum for determination. The High Court entered judgment of Kshs. 150,000/= for each of the 45 persons who had given written authority for the petition, dismissed the case against the Kenya Airports Authority and the City Council, and declared that the State violated Article 21 by failing to enact a policy and legislation on forced evictions. The Court of Appeal set out principles governing first appeals, the binding effect of consent orders, representative actions under Order 1 Rule 13 (applicable by necessary implication to group petitions under the Mutunga Rules), the strict proof of special damages, and the compensatory and vindicatory nature of constitutional damages. It held the valuation report of M/S Dantu Valers incompetent and incapable of supporting the Kshs. 1.5 billion claim, found no error in limiting the award to persons who gave written authority, and held the Kshs. 150,000/= award adequate. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Effect of the consent order adopting liability findings in the earlier petition

Holding

The consent recorded before the trial court was binding on the parties; the appeal could not be used to relitigate liability that had been settled by consent.

Reasoning

All counsel consented that the liability determination in June Seventeenth Enterprises Ltd apply to this petition, leaving only quantum for trial. A consent order has contractual effect and can only be set aside on grounds justifying setting aside a contract. There was no suggestion of misrepresentation, duress, fraud or undue influence. Accordingly, the memorandum of appeal, which purported to challenge liability as settled, was misconceived.

p. 7
02

Who may benefit from a representative petition

Holding

Only the 45 persons who executed the written authority to institute the petition could benefit from the award; the balance of the 475 could not.

Reasoning

Under Order 1 Rule 13 of the Civil Procedure Rules, authority for one plaintiff to act for others must be in writing, signed and filed. That principle applies by necessary implication to petitions brought under the Mutunga Rules on behalf of a group. With 475 alleged victims, only 45 gave written authority; the court found no error in limiting the award to those who signed, and queried who would be paid on behalf of the rest.

p. 4
03

Adequacy of the award of Kshs. 150,000/= per claimant and treatment of the valuation report

Holding

The award was adequate, compensatory and vindicatory; the Dantu Valuers report was incompetent and could not support a claim of Kshs. 1.5 billion.

Reasoning

The valuation report lacked a Land Reference number, terms of reference, description of location, size, tenure, ownership, encumbrances or improvements, and did not deal with each destroyed structure; a rebuttal report by Mwaka Musau Consultants showed it did not conform to the requisite conditions. Special damages must be specifically pleaded and proved; the pleadings and evidence lacked a factual basis, so appellate interference with quantum was unwarranted.

p. 7

Legal principles established

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  • In a representative suit, the persons represented must consent to their names being used, and only those who have given written authority signed and filed in the case may benefit from or be affected by its outcome; this Order 1 Rule 13 principle applies by necessary implication to constitutional petitions instituted on behalf of a group.
  • A consent order has contractual effect and can only be set aside on grounds which would justify setting a contract aside.
  • An appellate court will not normally disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate, or the trial court proceeded on wrong principles or misapprehended the evidence.
  • A monetary award for constitutional violations is not confined to compensatory damages in the traditional sense; it must uphold or vindicate the contravened constitutional right and may include an additional award to reflect public outrage, the gravity of the breach and deterrence.
  • Special damages must be specifically pleaded and proved at the trial.
  • The willful and wanton destruction of property, even of a trespasser, without due process violates human rights protected under the Constitution and international instruments.

Court orders

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  1. 1.Appeal dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21, 25, 27, 28, 29, 31, 40, 43, 45, 47(1), 53, 54, 56, 57 (Bill of Rights)
  • Kenya Airports Authority ActSection 33; Section 34(a)
  • Civil Procedure RulesOrder 1 Rule 13
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 4

Cases cited (12)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peter v Sunday Post Ltd
    (1958) EA 524
  • Research International East Africa Ltd. vs. Arisi & Others
    [2007] 1 EA 348
  • Butt v Khan
    [1977] 1 KLR 1
  • Rahima Tayab & Anor v Anna Mary Kinanu
    (1987-88) 1 KAR 90
  • West (H) & Sons Ltd v Hepherd
    (1964) A.C 326
  • Miller vs. Minister of Pensions
    [1947] 2 ALL ER 372
  • Hahn v. Singh
    [1985] KLR 716
  • Hon. Gitobu Imanyara & 2 Others v The Attorney General
    Civil Appeal No. 98 of 2014
  • Siewchand Ramanoop v The AG of T&T
    PC Appeal No 13 of 2004
  • Hirani v. Kassam
    [1952] 19 EACA 131
  • June Seventeenth Enterprises Ltd (Suing on behalf of and in the interest of 223 Others) v Kenya Airports Authority and Others
    Nairobi Petition No. 356 of 2013
On appeal from
High Court of Kenya at Nairobi
Petition No. 38 of 2012
Jurisdiction invoked
First appellate jurisdiction under the Constitution over an appeal from the High Court sitting on a constitutional (Bill of Rights) petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Moses Onchiri (Suing on his own behalf and in the interest of 475 other persons being former inhabitants of KPA Maasai Village, Embakasi within Nairobi) v Kenya Ports Authority, City Council of Nairobi, Minister for Internal Security & Provincial Administration, Minister for Lands & Attorney General (Civil Appeal 299 of 2014)  (Civ) [2017] KECA 642 (KLR)", Case Analysis (2017). Civil Appeal No. 299 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/642/eng@2017-03-24

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