Rose Kavita Mwivithi & 2 others v Commissioner of Lands & 5 others [2015] KEELC 240 (KLR)
The bottom line
#Kenya's High Court ordered the State to pay Kshs.178.5 million compensation after unlawfully cancelling land titles in 1986, holding that even a signed consent never adopted as a court order binds the Government.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent of 7th April 2003 binds the Defendants despite not being adopted as an order of the court
The consent binds the Defendants and the Government of Kenya; non-adoption as a court order does not invalidate it, and the Defendants never sought to set it aside or vary it.
The court held a consent filed in court is contractual in nature. Since the Defendants did not deny execution and declined to call the litigation counsel who signed it to disprove his authority, the only inference was that he acted with authority. Non-adoption does not defeat a consent, which is enforceable as a contract between the parties.
Whether the consent amounted to admission of liability by the Defendants
Yes. Under the consent the State admitted the 1986 cancellation of the Plaintiffs' titles by the Commissioner of Lands was unconstitutional, illegal, null and void ab initio and agreed to compensate.
Paragraph 3 of the consent recorded the State's agreement with High Court decisions that the 1986 cancellation was unconstitutional and void; paragraph 4 conceded liability for damages; paragraphs 5-7 set the compensation formula, exemplary damages and costs. The Defendants called no evidence to rebut the claim.
Whether the Plaintiffs are entitled to damages and the quantum
The Plaintiffs were awarded Kshs.178,500,000 being the current open market value of parcels 396 and 401 as proved by unchallenged valuation evidence, plus exemplary damages of Kshs.8,925,000 (5%).
The Defendants adduced no evidence and no rebuttal valuation. PW2, a registered valuer, valued parcels 396 and 401 at Kshs.76,000,000 and Kshs.102,500,000 respectively. The only damages proved under the consent were the current market values; the claim for non-user damages failed for want of evidence.
Constitutional right to property and statutory indemnity for rectification
Even absent the consent, the Plaintiffs were entitled to indemnity under Article 40 of the Constitution and the Registered Land Act/Land Registration Act indemnity provisions for the value of the suit properties.
Article 40(1) and (3) protects property rights and prohibits State deprivation without prompt payment. Sections 144 of the repealed Registered Land Act and 81 of the Land Registration Act grant indemnity to persons suffering loss from rectification of the register absent fraud or negligence. The Defendants proved no fraud or negligence in the Plaintiffs' acquisition.
Legal principles established
#- A consent filed in court and signed by counsel with authority binds the parties even if it was never adopted as an order of the court, until set aside or varied.
- A solicitor has general authority to compromise on behalf of his client if acting bona fide and not contrary to express negative directions, and no limitation of that implied authority avails the client against the other side unless brought to their notice.
- Where an individual is issued with a title by the government and the government revokes that title without following due process, the individual is entitled either to get his land back or to be compensated monetarily.
- A person suffering damages by reason of rectification of the register or an error in the register is entitled to indemnity unless fraud or negligence is shown.
Court orders
#- 1.The Defendants, or their successors in office, to pay to the Plaintiffs compensation in respect of parcels of land number Chembe Kibabamshe/396 and 401 Kshs.178,500,000 being the market value of the said parcels of land.
- 2.The Defendants, or their successors in office, to pay to the Plaintiffs exemplary damages of Kshs.8,925,000, being 5% of Kshs.178,500,000/-.
- 3.The Defendants, or their successors in office, to pay to the Plaintiffs costs of the suit amounting to Kshs.28,113,750, being 15% of the quantified damages.
- 4.The Defendants to pay to the Plaintiffs interest on (a), (b) and (c) above at the rate of 14% per annum from the date of this Judgment until payment in full.
- Jurisdiction invoked
- Original civil jurisdiction of the High Court under the Constitution over claims against State officers for unconstitutional cancellation of title
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Kavita Mwivithi & 2 others v Commissioner of Lands & 5 others [2015] KEELC 240 (KLR)", Case Analysis (2015). Malindi HCCC No. 52 of 1997 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/240/eng@2015-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.