National Land Commission v Estate of Sisiwa Arap Malakwen & another [2017] KEELC 1140 (KLR)
The bottom line
#Kenya's national government must pay a Sisiwa family Kshs.2.95 billion for Eldoret land taken in 1978 without any compensation.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to compensation for the 1978 compulsory acquisition
The 1st Interested Party's right to property under Article 40 was violated as the land was compulsorily acquired and possession taken in 1978 without any compensation
The court traced the title from the 1909 grant through the Settlement Fund Trustees sale to Malakwen Arap Sisiwa in 1964, found the Gazette Notices 1458 and 1459 of 19th May 1978 effected a compulsory acquisition, a caveat was registered on 7th September 1978 and possession taken, and that no compensation was ever paid. The parallel registration in favour of Rural Housing Estates Ltd was found irregular and fraudulent, so the original registered owner's estate retained the verifiable interest.
Quantum of compensation between two conflicting valuation reports
The court departed from both reports, awarding Kshs.2,850,000,000 for the land value and Kshs.100,000,000 for loss of user, finding the claimant's report too high and the Government's too low
The court compared the Afriland Valuers report (present value Kshs.5,232,790,769.49 plus loss of user of Kshs.706,874,291.40) with the Chief Government Valuer's figure of Kshs.83,569,925. It found the Afriland figure unexplained and too high against the recorded 1978 value of Kshs.575,000, but nearer the truth than the Government figure given the prime location. It therefore fixed a mid figure judicially, applying the principle that awards must meet the justice of the case.
Whether mesne profits/loss of user claim crystallized into special damages requiring strict proof
The loss-of-user claim was treated as special damages requiring specific pleading and strict proof, and the court awarded a discretionary Kshs.100,000,000 for 36 years
Relying on established special damages jurisprudence (Radcliffe v Evans; Zacharia Waweru Thumbi v Samuel Njoroge and others), the court held that the claimant's figures had to be specifically proved. While it accepted the deprivation of user was established, it did not adopt the valuer's arithmetic and fixed a reasonable sum of its own for the 36-year deprivation.
Which arm of government bears the compensation liability and the costs
The national government is liable to pay the compensation because the acquisition occurred before the establishment of county governments; the National Land Commission bears the costs of the reference
Relying on Section 6 of the Sixth Schedule to the Constitution, the court held that obligations subsisting immediately before the effective date continue as obligations of the national government. The compensation money had been allocated by the then national government in 1978, and devolved governments did not exist then, so liability falls on the national government from the Consolidated Fund, payable promptly under Article 40(3)(b).
Legal principles established
#- Special damages must be both specifically pleaded and strictly proved before they can be awarded
- Rights and obligations of the government subsisting before the effective date of the 2010 Constitution continue as obligations of the national government under Section 6 of the Sixth Schedule
- Compensation for compulsory acquisition is payable by the national government where the acquisition predates devolution
Court orders
#- 1.The 1st Interested Party to be paid Kshs.2,850,000,000 as just compensation for the compulsory acquisition of the 100-acre parcel
- 2.Compensation of Kshs.100,000,000 for loss of user of the property for 36 years
- 3.Total award of Kshs.2,950,000,000 payable by the national government promptly
- 4.The Interested Parties to be paid Kshs.7,000,000 as costs of the valuation report
- 5.The persons with identifiable and verifiable legal interest are Sofia Cherotich Sisiwa, Hassan Kipkorir Sisiwa and Salim Kiptoo Sisiwa as personal representatives of the late Malakwen Sisiwa
- 6.Compensation to be paid by the national government since the county government was not in existence at the time of acquisition
- 7.Costs of the reference to be borne by the National Land Commission
- Jurisdiction invoked
- Articles 25(v), 40(3)(b), 60, 62, 67(2)(e), 249 of the Constitution of Kenya, 2010 and Sections 127 and 128 of the Land Act No. 6 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Land Commission v Estate of Sisiwa Arap Malakwen & another [2017] KEELC 1140 (KLR)", Case Analysis (2017). ELC Reference (Uasin Gishu) under Section 128 of the Land Act, 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1140/eng@2017-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.