Zinj Limited v Attorney General & 3 others [2019] KECA 894 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the government unlawfully took Zinj Limited's land and must pay full compensation, but rejected its massive lost-income claim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the appellant’s right under Article 40(3) of the Constitution violated?
- 2.Was the appellant entitled to compensation and damages; and if so, to what extent?
- 3.Was the appellant entitled to loss of income on account of the respondents’ conduct?
- 4.What is the fate of the suit property?
Key legal issues
#Whether the respondents violated the appellant’s right to property under Article 40(3)
Yes. The issuance of duplicate titles over portions of the suit property and the attempted forfeiture by newspaper notice amounted to unlawful compulsory acquisition without compensation. The public notice was unauthorised by law, served after the petition had been filed and after service of conservatory orders, and was tainted with malice.
The survey report established overlap between plots issued under the Ngomeni Settlement Scheme and the suit property. The public notice cited no law enabling forfeiture of registered titles; no person may waive or forfeit a constitutional right. The notice was issued after the petition and service of conservatory orders on the Commissioner of Lands, evidencing knowledge and malice. The respondents' actions were therefore an unlawful compulsory acquisition of portions of the suit property.
The extent of compensation payable
The appellant was entitled to compensation for the entire suit property (425.7 hectares), not merely the 51.129 hectares found encroached, because the survey evidence showed the remaining portion was swampy and unusable. Compensation was fixed per the Wesco valuation plus 15%.
The District Survey Office could not determine the extent of encroachment and sand harvesting, and the survey report indicated the remaining portion was swampy, corroborating the appellant's assertion that the remainder was unusable. Compensation for compulsory acquisition must be computed per the Land Acquisition Act principles with 15% of market value added, and damages for the constitutional violation were refixed at Kshs.100,000 per acre.
Loss of income
Dismissed. The claim of Kshs.2,648,978,000/= was not pleaded and proved as special damages.
Special damages must be specifically pleaded and proved. The reports relied on were largely generalised and rested on the assumption that a prawn farm was to be established. The Court agreed with the learned Judge's refusal of this head of claim.
The fate of the suit property
Upon payment of the compensation awarded, the appellant will be deemed to have relinquished its title to the suit property.
Having found the appellant entitled to compensation for the entire suit property, the Court determined that the payment of that compensation extinguishes the appellant's title, resolving the status of the property left in limbo by the trial judgment.
Legal principles established
#- No person can be deemed to have waived a fundamental right such as the right to property; there can be no estoppel, acquiescence or waiver against the Constitution.
- Constitutional rights to property cannot be deemed forfeited by a public notice unless authorised by law; the Commissioner of Lands had no jurisdiction to deem a registered title forfeited in default of a newspaper notice.
- Where an unchallenged expert valuation stands with no conflicting evidence or counter-valuation, a court may properly rely on it to assess compensation, adding 15% of market value as prescribed by the Regulations to the repealed Land Acquisition Act.
Court orders
#- 1.Compensation for compulsory acquisition of the property shall be as per the report prepared by Wesco Property Consultants: open Market Value of Kshs.2,996,232,000/= plus an additional 15% of that value as per the Regulations in the Schedule to the repealed Land Acquisition Act, amounting to Kshs.449,434,800
- 2.Damages for violation of the appellant’s right to property shall be computed at the rate of Kshs.100,000 per acre, translating to Kshs.42,570,000
- 3.The respondents shall meet half of the costs of this appeal as well as the suit in the ELC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Malindi
- E.L.C Petition No. 2 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 29(1) of the Court of Appeal Rules
Relief refused
#Claim for loss of income of Kshs.2,648,978,000/= (loss of user)
Special damages must be pleaded and proved; the claim was not proven, resting on generalized reports and the assumption that a Prawn Farm was to be established
Costs
Due to the partial success of the appeal, the respondents shall meet half of the costs of this appeal as well as the suit in the ELC.
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.
Due to the partial success of the appeal, the respondents shall meet half of the costs of this appeal as well as the suit in the ELC.
a) Compensation for compulsory acquisition of the property shall be as per the report prepared by Wesco Property Consultants which puts the open Market Value of the property at Kshs.2,996,232,000/= plus an additional 15% of that value as per the Regulations in the Schedule to the repealed Land Acquisition Act comes to Kshs 449,434,800.
b) Damages for violation of the appellant’s right to property shall be computed at the rate of Kshs.100,000 per acre which translates to Kshs.42,570,000.
As such, we are of the considered view that the appellant was entitled to compensation for the entire suit property.
In my view, the Constitutional rights to property cannot be “deemed to have been forfeited” whether by the said newspaper advertisement or at all.
The upshot of the foregoing is that the appeal herein succeeds in part for the reasons outlined herein above.
Issues in the judgment
#The Court states damages at the rate of Kshs.100,000 per acre but the figure awarded (Kshs.42,570,000) corresponds to Kshs.100,000 per hectare for 425.7 hectares, not per acre (425.7 hectares ≈ 1,052 acres).
The Court records counsel for the appellant describing the trial judge as having applied the Land Adjudication Act (repealed), while the cross-appeal ground and the judgment's compensation computation refer to the Land Acquisition Act (repealed).
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Zinj Limited v Attorney General & 3 others [2019] KECA 894 (KLR)", Case Analysis (2019). Civil Appeal No. 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/894/eng@2019-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.