Marian Mueni Musembi & another v Commissioner of Lands & 6 others [2015] KEELC 245 (KLR)
The bottom line
#Kenya's High Court ordered the government to pay Kshs.150.9 million for unlawfully cancelling two land titles in 1986, holding an out-of-court settlement binding.
What this practically means
#Executive summary
#Key legal issues
#Binding effect of the consent of 18th February 2005
The consent binds the Defendants notwithstanding that it was never adopted as an order of court; it was never set aside, varied or appealed against, and the Defendants declined to call the litigation counsel who signed it.
The Defendants never denied execution of the consent nor sought to set it aside. They had the opportunity to challenge the authority of Mr. Rabala when he presented himself to testify but declined to put him in the witness box. The only inference is that he signed with authority. Reliance placed on KCB v Benjoh Amalgamated on solicitors' authority to compromise.
Whether the consent amounted to admission of liability
Yes; the State agreed in the consent that the 1986 cancellation of the Plaintiffs' titles was unconstitutional, null and void ab initio, and agreed to compensate.
At paragraphs 3 and 4 of the consent the State conceded that the Commissioner of Lands' circular letter No.113936/55 of 1986 and Gazette Notice No.2505 of 30th May 1986 were unconstitutional and null and void, and undertook to compensate at professional market values plus exemplary damages of 5% and costs of 15%.
Quantum of damages
Only the current open market value of the two properties (Kshs.125,000,000) was proved; loss-of-user damages of over Kshs.2.2 billion were refused for want of evidence; exemplary damages of 5% awarded.
The valuer's reports (Kshs.86,000,000 for 428 and Kshs.39,000,000 for 427) were uncontroverted, the Defendants having adduced no evidence. The claim for loss of business failed because no evidence showed intended use of the properties. Exemplary damages and costs followed the consent formula.
Entitlement to indemnity independently of the consent
Even without the consent, the Plaintiffs were entitled to indemnity under Article 40, Section 144 of the Registered Land Act (repealed) and Section 81 of the Land Registration Act.
The Defendants adduced no evidence that the 1st Plaintiff acquired the properties unlawfully or fraudulently, so the statutory indemnity for rectification applies. Since the land has been allocated to others, compensation rather than restoration is the appropriate remedy.
Legal principles established
#- A consent between advocates signed on instructions from their principals is binding on the parties even where it was not adopted as an order of the court.
- A person whose title is revoked by the State without due process is entitled to restoration of the land or monetary compensation under Article 40 of the Constitution.
- A solicitor has general authority to compromise on behalf of his client absent notice of limitation, per Kenya Commercial Bank Limited v Benjoh Amalgamated Limited.
Court orders
#- 1.The Defendants, or their successors in office, to pay to the Plaintiff compensation in respect of parcels of land number Chembe/Kibabamshe/428 and Kilifi/Jimba 427 Kshs.125,000,000 being the market value of the said parcels of land.
- 2.The Defendants, or their successors in office, to pay to the 1st Plaintiff exemplary damages of Kshs.6,250,000, being 5% of the quantified damages.
- 3.The Defendants, or their successors in office, to pay to the 1st Plaintiff costs of the suit amounting to Kshs.19,687,500, being 15% of the quantified damages.
- 4.The Defendants to pay to the 1st Plaintiff 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 (suit on land title cancellation and compensation); Article 40 of the Constitution invoked
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, "Marian Mueni Musembi & another v Commissioner of Lands & 6 others [2015] KEELC 245 (KLR)", Case Analysis (2015). Not stated in judgment (High Court Civil Suit, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/245/eng@2015-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.