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ELCPartially AllowedELC Reference (Uasin Gishu) under Section 128 of the Land Act, 2012· [2017] KEELC 1140 (KLR)

National Land Commission v Estate of Sisiwa Arap Malakwen & another [2017] KEELC 1140 (KLR)

Environment and Land Court
23 October 2017
7,991 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 national government must pay a Sisiwa family Kshs.2.95 billion for Eldoret land taken in 1978 without any compensation.

What this practically means

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Executive summary

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This was a first-instance reference by the National Land Commission under Sections 127 and 128 of the Land Act, 2012 seeking the court's determination to complete the 1978 compulsory acquisition of 100 acres being L.R. 772/4/2 Huruma Estate, Eldoret, acquired via Gazette Notices 1458 and 1459 of 19th May 1978 for public installations including Huruma Sub-District Hospital, the Kenya-Uganda road and an oil pipeline, but never compensated. The 1st Interested Party, the estate of Malakwen Arap Sisiwa (registered owner since 1964, deceased 1998), claimed Kshs.6,057,330,888.89 comprising present market value, loss of user, valuation costs and loss of use. The Attorney General's valuer put compensation at Kshs.83,569,925. The court held that the estate's right to property under Article 40 was violated by uncompensated acquisition, that the parallel registration of the land as ELD/MUN/BLOCK 15/236 in favour of Rural Housing Estates Ltd was fraudulent and of no effect, and that the persons with verifiable interest are Sofia Cherotich Sisiwa, Hassan Kipkorir Sisiwa and Salim Kiptoo Sisiwa as personal representatives. Rejecting both valuation reports as respectively too high and too low, the court awarded Kshs.2,850,000,000 for the land value and Kshs.100,000,000 for 36 years' loss of user, totalling Kshs.2,950,000,000, plus Kshs.7,000,000 valuation costs, payable promptly by the national government from the Consolidated Fund since the acquisition predated devolution. Costs of the reference were borne by the National Land Commission. The claim was thus partially allowed - compensation awarded, but substantially below the figure claimed.

Key legal issues

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01

Entitlement to compensation for the 1978 compulsory acquisition

Holding

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

Reasoning

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.

p. 11
02

Quantum of compensation between two conflicting valuation reports

Holding

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

Reasoning

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.

p. 12
03

Whether mesne profits/loss of user claim crystallized into special damages requiring strict proof

Holding

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

Reasoning

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.

p. 9
04

Which arm of government bears the compensation liability and the costs

Holding

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

Reasoning

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).

p. 12

Legal principles established

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  • 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

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  1. 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. 2.Compensation of Kshs.100,000,000 for loss of user of the property for 36 years
  3. 3.Total award of Kshs.2,950,000,000 payable by the national government promptly
  4. 4.The Interested Parties to be paid Kshs.7,000,000 as costs of the valuation report
  5. 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. 6.Compensation to be paid by the national government since the county government was not in existence at the time of acquisition
  7. 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

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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, "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.