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ELCPartially AllowedNot stated in the judgment (arising from application dated 29th March 2018 in a pending suit)· [2018] KEELC 1985 (KLR)

Thomas Kimagut Sambu v National Land Commission & 2 others [2018] KEELC 1985 (KLR)

Environment and Land Court
29 August 2018
1,725 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho landowner won Kshs 18.4 million compensation for compulsory land acquisition, but lost a bigger claim because its valuation report wasn't done by a registered valuer.

What this practically means

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Executive summary

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This Ruling by the Environment and Land Court at Kericho (J.M Onyango, J) determines the compensation payable to the Plaintiff following the third compulsory acquisition of portions of land parcels KERICHO/KIPCHIMCHIM/656 and KERICHO/KIPCHIMCHIM/3027, carried out while the main suit was pending. The Plaintiff sought payment of Kshs. 48,620,000 based on a valuation by Prime Land Valuers Limited, urging the Court to disregard the 1st Defendant's valuation as stale. After cross-examination of both sides' valuers pursuant to the Ruling of 16th April 2018, the Court held that the Plaintiff's valuation report was incurably defective and inadmissible: it was prepared by one Lawrence Sang, who is not a registered valuer, in breach of section 21(1)(c) of the Valuers Act, Cap 523, which requires that a body corporate's valuations be prepared by director registered valuers. The Court applied Kanini Farm Ltd v Commissioner of Lands on market value and held that under section 113(2) of the Land Act the burden lay on the Plaintiff to rebut the 1st Defendant's proposed award, which it failed to do. Relying on the 1st Defendant's valuation, grounded on comparables of similar agricultural land in Kipchimchim, the Court awarded Kshs. 14,927,000 for 0.2670 hectares of parcel 656 with developments, and Kshs. 3,473,000 for 0.0770 hectares of parcel 3027, payable within 90 days. Exemplary damages of Kshs. 200,000 were awarded against the Respondents, and the costs of the application were borne by the Respondents.

Key legal issues

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01

Whether the 1st Defendant's valuation report should be disregarded

Holding

No - both valuers were cross-examined as directed and the objection was overruled

Reasoning

The Court had ordered both valuers to be cross-examined on their reports to arrive at a just valuation. The Plaintiff's counsel raised the objection during cross-examination on 22.6.2018 and the Court overruled it after hearing submissions. The Plaintiff could not at that juncture seek to have the report expunged.

p. 2
02

Admissibility of the Plaintiff's valuation report by Prime Land Valuers Limited

Holding

The report is incurably defective and inadmissible under section 21 of the Valuers Act because it was prepared by Lawrence Sang, who is not a registered valuer

Reasoning

Section 21(1)(c) of the Valuers Act requires that for a valuation report by a body corporate to be admissible, the valuation must be carried out by directors who are registered valuers. Mr. Rono admitted his role was merely to append his signature on a report prepared by an unregistered person. Section 21(2) creates an offence, showing Parliament's intention to exclude unqualified persons.

p. 2
03

Just compensation for the third acquisition

Holding

Compensation awarded per the 1st Defendant's valuation: Kshs. 14,927,000 for KERICHO/KIPCHIMCHIM/656 and Kshs. 3,473,000 for KERICHO/KIPCHIMCHIM/3027, payable within 90 days

Reasoning

The Plaintiff bore the burden under section 113(2) of the Land Act to rebut the 1st Defendant's proposed award, which it failed to do once its own report was held inadmissible. The 1st Defendant's valuer used comparables of similar agricultural land in Kipchimchim, took topography and riparian reserve into account, and adjusted figures for elapsed time, consistent with the Kanini Farm principles.

p. 2
04

Whether the Plaintiff is entitled to exemplary damages

Holding

Yes - exemplary damages of Kshs. 200,000 awarded against the Respondents

Reasoning

The earlier Ruling of 16th April 2018 had found the 1st Defendant acted inconsistently with the Constitution and the Land Act by entering the Plaintiff's land without offering compensation, and the acquisition occurred while the case was pending. On that basis the Court granted modest exemplary damages.

p. 3

Legal principles established

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  • No body corporate shall carry on business as valuers unless the directors whose duties include preparation of valuations are registered valuers; a valuation report prepared by an unregistered person for a body corporate is incurably defective and inadmissible
  • Under section 113(2) of the Land Act, the onus is on the plaintiff to rebut the National Land Commission's proposed award, which is otherwise final
  • Market value as the basis for assessing compensation on compulsory acquisition is the price a willing seller might obtain from a willing purchaser, determined by comparable sales of land of similar character

Court orders

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  1. 1.The plaintiff is awarded Kshs. 14,927,000/= being just compensation for a portion KERICHO/KIPCHIMCHIM/656 measuring 0.2670 Hectares together with the developments thereon
  2. 2.The plaintiff is awarded Kshs. 3,473,000/= as compensation in respect of 0.0770 Hectares comprised in land parcel number KERICHO/KIPCHIMCHIM/3027, payable within 90 days
  3. 3.Exemplary damages in the sum of Kshs. 200,000/= to be paid by the Respondents
  4. 4.The costs of the Application to be borne by the Respondents

Authorities

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Legislation

  • Land ActSections 107-133
  • Land ActSection 113(2)
  • Valuers Act, Cap 523Section 21(1)(a), (b), (c) and 21(2)
  • Constitution of KenyaNot specified (referred to as 'the Constitution')

Cases cited (1)

  • Kanini Farm Ltd v Commissioner of Lands
    [1984] eKLR/[1986] KLR pg 310
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land and compulsory acquisition compensation (Land Act, sections 107-133 and 113(2))

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, "Thomas Kimagut Sambu v National Land Commission & 2 others [2018] KEELC 1985 (KLR)", Case Analysis (2018). Not stated in the judgment (arising from application dated 29th March 2018 in a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1985/eng@2018-08-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.