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ELCPartially AllowedMalindi HCCC No. 52 of 1997 (O.S.)· [2015] KEELC 240 (KLR)

Rose Kavita Mwivithi & 2 others v Commissioner of Lands & 5 others [2015] KEELC 240 (KLR)

High Court of Kenya
25 September 2015
8,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs sued after the Commissioner of Lands, by circular letter No. 113936/55 of 1986 and Gazette Notice No. 2505 of 30th May 1986, cancelled their titles to parcels Kilifi/Chembe/Kibabamshe/396, 401 and 441 and transferred the land to the Government. They sought declarations that the cancellation was illegal, unconstitutional and void ab initio, re-registration, and damages. Interlocutory judgments were entered against the original Defendants, but the Court of Appeal in Malindi Civil Appeal No. 87 of 2010 allowed an appeal by Holborn Properties Limited by consent, setting aside the preliminary decree and interlocutory judgments and paving the way for the suit to be heard inter partes. The Plaintiffs then withdrew the suit against Holborn Properties and proceeded against the Commissioner of Lands and the Attorney General. The central issue was the consent of 7th April 2003 executed between the Plaintiffs' advocate and the State's litigation counsel, under which the State admitted the titles were cancelled unconstitutionally and agreed to compensation, exemplary damages and costs formulas. The Defendants argued the consent was never adopted as a court order and was invalid. The court held that a consent signed by counsel with authority binds the parties as a contract even if not adopted as an order, drew an adverse inference from the Defendants' refusal to call the signing counsel as a witness, and found the consent binding. Assessing damages on the unchallenged valuation evidence, the court awarded Kshs.178,500,000 as market value for parcels 396 and 401, Kshs.8,925,000 exemplary damages, and Kshs.28,113,750 costs (15% of quantified damages), all with interest at 14% per annum until payment in full. The claim for over Kshs.2.1 billion in non-user damages was declined for want of evidence. The Amended Plaint was allowed in those terms.

Key legal issues

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01

Whether the consent of 7th April 2003 binds the Defendants despite not being adopted as an order of the court

Holding

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.

Reasoning

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.

p. 12
02

Whether the consent amounted to admission of liability by the Defendants

Holding

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.

Reasoning

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.

03

Whether the Plaintiffs are entitled to damages and the quantum

Holding

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%).

Reasoning

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.

p. 15
04

Constitutional right to property and statutory indemnity for rectification

Holding

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.

Reasoning

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

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  • 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

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  1. 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. 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. 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. 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.

Authorities

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Legislation

  • Constitution of Kenya (repealed)Sections 75 and 118
  • Constitution of Kenya, 2010Article 40(1) and (3)
  • Registered Land Act (repealed)Sections 14, 143 and 144
  • Land Registration ActSection 81
  • Land Adjudication ActSection 26
  • Trust Land Ordinance Cap 288 (1962 Ed)First Schedule, Boundary Plan No. 179
  • Kenya (Annexation) Order in Council 1920
  • Kenya Native Areas Order in Council 1939
  • Kenya Order in Council 1963 L.N. 245 of 1963Second Schedule Sections 193, 198 and 199
  • Kenya (Independence) Order in Council 1963 L.N. 718 of 1963Second Schedule Section 208
  • Agreement between the Sultan of Zanzibar and Great Britain dated 14th December 1895

Cases cited (5)

  • Kenya Commercial Bank Limited Vs Benjoh Amalgamated Limited
    (1998) eKLR
  • Helena Kithinji Vs The Attorney General, Nairobi Civil Miscellaneous Application No. 730 of 1989
  • Regina Ngaku & Others Vs Commissioner of Lands & 4 Others, Nairobi HCCC No. 3106 of 1997
  • Nairobi Judicial Review Miscellaneous Application No. 185 of 1987
  • Nairobi HCCC No. 2387 of 1987
Jurisdiction invoked
Original civil jurisdiction of the High Court under the Constitution over claims against State officers for unconstitutional cancellation of title

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, "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.