Harjit Pandhal Singh v Agricultural Development Co-operation & another [2016] KEELC 779 (KLR)
The bottom line
#Kenya's High Court awarded a farmer KES 250 million because police failed to protect his leased farm from post-election violence.
What this practically means
#Executive summary
#Key legal issues
#Existence and breach of the lease agreement
A lease agreement between the plaintiff and the 1st defendant was proved on a balance of probabilities and was breached by the 1st defendant's failure to restore possession after the post-election violence.
The court found the lease of about 1500 acres of Kiptegat Farm from 1st January 2005 for five years was proved, including the reduced rent arrangement as compensation for the excision of 1000 acres. The breach lay not in the excision, which was compensated, but in the failure to restore the plaintiff to possession after the violence ended; a late attempt in August 2008 came too late.
State duty to protect property during the 2007/2008 post-election violence
The 2nd defendant was liable for the plaintiff's consequential losses because state organs failed in their duty to protect the plaintiff's property during the post-election violence.
Tracing the duty from section 70 of the repealed Constitution, Article 40 of the 2010 Constitution, the repealed Police Act and the National Police Service Act, the court held that protection of property is an affirmative claim against the state. Given the electoral violence pattern of 1992 and 1997, the state ought to have foreseen and pre-empted violence, and having settled squatters on the land it owed the plaintiff security; the 2nd defendant failed to demonstrate any mechanisms put in place.
Distinguishing of Charles Murigu Muriithi v Attorney General
The facts of Charles Murigu Muriithi were distinguished because in this case the plaintiff sought restoration of possession and was refused, whereas in that case it was unclear whether attackers took possession.
The court distinguished the authority on the facts: in the former the plaintiff's land was taken over by squatters for the remaining term of the lease, dispossessing the plaintiff; here possession status was unclear but the plaintiff approached the defendants to be put back in possession and they failed or neglected to do so.
Quantum of damages
The uncontroverted valuation report of Kshs.150,000,000 was adopted for actual loss, and Kshs.100,000,000 was awarded for lost profits, the claimed Kshs.387,000,000 being on the highest side.
The valuation by a registered valuer put the market value of improvements at Kshs.150,000,000 (sugarcane Kshs.120,000,000, buildings Kshs.20,000,000, tractor and loose assets Kshs.10,000,000) and was uncontroverted. On lost profits, the court considered the yearly loss evidence and the Anyang' Nyongo letter and awarded a reduced sum payable jointly and severally.
Legal principles established
#- The police have a duty to protect property of every person living within the borders of Kenya and every such person has a right to protection of property as an affirmative claim against the state.
- Where the state settles squatters on land leased to an individual, it owes a duty to provide security to the lessee given the heightened risk of crime.
- A lessor breaches the covenant of quiet enjoyment where it fails to restore the lessee to possession after violence has ended.
Court orders
#- 1.Award of Kshs.150,000,000/= to the plaintiff against the 2nd defendant as actual loss for breach of statutory duty
- 2.Award of Kshs.100,000,000/= for loss of income and profit for the remainder of the lease term, payable jointly and severally by the defendants for failing to put the plaintiff back in possession
- 3.Costs of the suit to the plaintiff
- 4.Interest at court rates to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land and environment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harjit Pandhal Singh v Agricultural Development Co-operation & another [2016] KEELC 779 (KLR)", Case Analysis (2016). E&L Civil Suit (Eldoret) arising from plaint dated 8th September 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/779/eng@2016-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.