Attorney General & another v Rahimkhan & 4 others (Civil Appeal 30 of 2018) [2019] KECA 386 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the Land Registrar acted unlawfully in cancelling a coastal property title, but slashed the record Kshs.9.855 billion compensation and ordered a fresh valuation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st and 2nd respondents had locus standi to institute the petition on behalf of the 3rd to 5th respondents without written authority
- 2.Whether the respondents were the registered proprietors of the suit property
- 3.Whether the Chief Land Registrar had power to cancel the Land Control Board consent and the registration of the respondents' title under section 17 of the RLA
- 4.Whether the respondents' right to property and other alleged constitutional rights were violated
- 5.Whether the deprivation of the suit property amounted to unlawful compulsory acquisition
- 6.Whether the compensation of Kshs.9.855 billion and damages of Kshs.60 million were properly assessed
Key legal issues
#Locus standi of the 1st and 2nd respondents to sue on behalf of co-proprietors
The 1st and 2nd respondents, as administrators of the deceased, could institute the petition on behalf of the 3rd to 5th respondents without signed authorization; Article 258 broadens standing.
The Court invoked Article 258 and the settled shift away from strict common law standing in Bill of Rights enforcement, as articulated in Mumo Matemu and Randu Nzai Ruwa. The rights alleged related to proprietorship of the suit property and could not be adjudicated to the exclusion of the 3rd to 5th respondents. The Court concurred with the learned Judge that no written authority was required.
Validity of the cancellation of the LCB consent and of the respondents' title
The Chief Land Registrar had no power to cancel either the Land Control Board consent or the registered title; the cancellation was unlawful and the respondents' title stood.
The Land Control Act contains no provision permitting the Registrar to cancel a consent, and section 8(2) makes the Board's decision final subject only to statutory appeal. Section 17 RLA permits cancellation only of obsolete entries. Sections 142 and 143 RLA reserve rectification to the court in cases of fraud or mistake. The appellants also could not approbate and reprobate by admitting the registration while denying it.
Whether the conduct of the appellants violated the respondents' rights and amounted to unlawful compulsory acquisition
The appellants' conduct violated the right to property and amounted to an unlawful compulsory acquisition, but no other alleged rights were infringed.
The property had been subdivided and developed by third parties and could not be restored; the acquisition occurred outside the confines of section 75 of the former Constitution, which required prompt payment of full compensation under the Land Acquisition Act. The Court departed from the trial court's findings on fair hearing and fair administrative action since the Registrar had no mandate to cancel at all.
Assessment of compensation and damages
The trial court's awards of Kshs.9.855 billion and Kshs.60 million were set aside; the matter was remitted for reassessment of compensation for the compulsory acquisition.
The valuation by a registration officer who admitted the title did not disclose the size of the property, ignored encumbrances and relied only on documents supplied by the respondents was unreliable. Damages for torture lacked evidential foundation; the deprivation was to be vindicated through compensation for compulsory acquisition applying the principles in the Schedule to the Land Acquisition Act.
Legal principles established
#- The Chief Land Registrar has no power under the Land Control Act to cancel a Land Control Board consent; the only avenue is the statutory appeal process.
- Section 17 of the RLA permits cancellation only of obsolete entries that have ceased to have effect, not valid registered titles.
- Under the RLA only a court of law, not the Registrar, could rectify the register by directing cancellation of a registration obtained through fraud or mistake.
- The strict common law rules of locus standi have no place in enforcement of the Bill of Rights; Article 258 governs standing.
- Once proprietary interest is lawfully acquired, it is protected under Article 40 against arbitrary deprivation.
Court orders
#- 1.Set aside the declaration that the deceased and the 3rd to 5th respondents' rights to protection from discrimination, protection of the law, protection from inhuman treatment, human dignity, fair administrative action and fair trial were violated
- 2.Set aside damages for loss of use of property, physical, mental and physiological torture assessed at Kshs.60 million
- 3.Set aside compensation for the suit land assessed at Kshs.9.855 billion
- 4.Remit the matter to any other High Court Judge apart from Ogola, J. for reassessment of compensation due for the compulsory acquisition of the suit property, taking into account encumbrances on the title and the principles in the Schedule to the Land Acquisition Act
- 5.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Petition No. 47 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (Rule 29(1)(a)) over an appeal from the High Court's constitutional petition jurisdiction
Relief refused
#Declaration that rights to human dignity and protection from inhuman treatment were violated
No evidence to substantiate the alleged torture and harassment
Damages of Kshs.60 million for loss of use, physical, mental and psychological torture
No evidence that the deprivation resulted in such torture; deprivation to be vindicated by compensation for compulsory acquisition
Compensation of Kshs.9.855 billion as assessed
The valuation report relied on was unsound; the valuer did not account for encumbrances and adjusted value without basis
Costs
We also award costs of this appeal to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that we find that the appeal herein succeeds in part to the extent that we set aside the declaration that the deceased, and the 3rd to 5th respondents' rights to protection from discrimination, protection of the law, protection from inhuman treatment, human dignity, fair administrative action and fair trial were violated
We substitute the same with an order that the matter be placed before any other High Court Judge apart from Ogola, J. for reassessment of the compensation due to the respondents for the compulsory acquisition of the suit property.
We direct that such assessment should take into account the encumbrances registered against the title and the principles set out in the Schedule to the Land Acquisition Act. We also award costs of this appeal to the respondents.
The long and short of our jurisdiction as the first appellate court is to reconsider the evidence on record, evaluate it ourselves and draw our own independent conclusions.
the strictures which would normally apply in civil litigation with respect to who is a proper party to institute a suit have no place in a case of enforcement of the Bill of Rights
The answer is a resounding no.
Issues in the judgment
#The acreage of the suit property is stated inconsistently in the judgment: the trial court's award is computed on 328.5 acres ('328.5 Acres valued as Kshs.30 million per Acre totaling to 9.855 Billion') while counsel's submissions refer to 382.5 acres, and the Court notes encumbrances affected the acreage without resolving the figure.
The 1st and 2nd respondents' names and the deceased's name are rendered inconsistently (Afzalkhan Rahimkhan / Rahimkhan Afzalkhan Rahimkhan), and the name 'Sayeed Mushtaq Hussain' in the trial court's orders differs from 'Sayed Mushtaq Hussain' in the narration.
The Court records that Peter M. Kariuki vs Attorney General was cited by the Court ('See this Court's decision in Peter M. Kariuki vs Attorney General') but it appears only as a supporting reference for the proposition that assessment of damages is discretionary.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Rahimkhan & 4 others (Civil Appeal 30 of 2018) [2019] KECA 386 (KLR)", Case Analysis (2019). Court of Appeal at Mombasa (Civil Appeal arising from High Court Petition No. 47 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/386/eng@2019-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.