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ELCDismissedNyeri ELC Petition No. 3 of 2014 (formerly Nyeri High Court Petition No. 1 of 2012; Nairobi High Court Petition No. 310 of 2011)· [2018] KEELC 4273 (KLR)

Silvester Wang’ombe Nderi & 4 others v Attorney General & 4 others [2018] KEELC 4273 (KLR)

Environment and Land Court
1 March 2018
7,576 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~30 min to read original · ~4 min brief

The bottom line

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A family claiming Kshs.214 million for land taken for Nyeri's hospital lost because they could not prove they owned the extra 9 acres.

What this practically means

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Executive summary

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The petitioners, trustees of the family of the late Senior Chief Nderi Wang'ombe, petitioned under Article 40 of the Constitution claiming that in 1959 the Government irregularly took 9 acres beyond the 8.3 acres the Chief had donated in 1955 for expansion of Nyeri Provincial General Hospital. They sought declarations of unconstitutional deprivation, compensation of Kshs. 214,830,570/-, punitive damages of Kshs. 15 million, interest and costs. They relied heavily on a 2013 Attorney General's letter advising the Ministry that the claim for the extra 9 acres was valid, and on a counsel's statement that the matter had been negotiated at Kshs. 54 million. The court framed four issues: admission, ownership, entitlement to the orders sought, and the orders to make. It held the AG's letter was mere opinion whose admission in evidence did not prove its contents, and that the unformalised settlement intention was not an admission. On the evidence, particularly the green card, the suit property was registered in 1959 under the Native Lands Trust Ordinance in favour of the Native Lands Trust Board with no trust or overriding interest in the petitioners' favour, and no objection was ever raised to the setting apart or registration. The negotiations had proceeded on a mistaken assumption of ownership. There was no forcible taking amounting to compulsory acquisition. Dismissing the petition, the court nonetheless gave a hypothetical quantum (about Kshs. 167 million plus costs and interest) had ownership been proved, and directed each party to bear their own costs in light of the respondents' conduct. Delivered by L N Waithaka, J, at Nyeri on 1st March 2018.

Key legal issues

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01

Whether the respondents' letter of advice and offer to settle amounted to an admission of liability

Holding

No admission was made; the AG's letter was mere opinion and the settlement intention was never formalised

Reasoning

The court applied the Choitram v Nazari parameters on admissions and the rule that admission of a document in evidence does not amount to proof of its contents. The AG's letter was advice to the Permanent Secretary, not a pleading admission. Although counsel indicated a negotiated settlement of Kshs. 54 million, no formal order on liability was ever entered, so only an intention to admit, not an admission, existed.

p. 6
02

Whether the petitioners proved ownership of the 9 acres and compulsory acquisition thereof

Holding

No; the land was registered in 1959 under the Native Lands Trust Ordinance without any trust or overriding interest in the petitioners' favour, and no objection was lodged under the Ordinance

Reasoning

The green card showed registration in 1959 in favour of the Native Lands Trust Board, later the Chief Secretary (Incorporation), with no indication of any trust for the petitioners. The Ordinance provided procedures for ascertainment of rights and objections to the Record of Existing Rights, which the family never invoked. The hospital already existed, so the 8.3 acres were donated for extension, and the larger reserved acreage was consistent with consolidation. Over 40 years elapsed before the claim was raised.

p. 6
03

Whether the taking was a compulsory acquisition attracting compensation

Holding

No; there was no forcible taking, and any error in registration would found only a trustee-beneficiary relationship

Reasoning

Compulsory acquisition presupposes forcible acquisition of privately owned land for public use. The evidence did not show the suit property existed or was the donated parcel at the time of the donation. Any mistake in registration, discovered around 2000, would have created a trust-like obligation, and the requisite legal processes for acquisition were never undertaken. The court nonetheless indicated hypothetical quantum had ownership been proved.

p. 10

Legal principles established

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  • A letter of advice by the Attorney General is merely an opinion and its admission in evidence does not amount to proof of its contents, nor to an admission of the claim
  • An intention to concede liability that is never formalised by an order does not amount to an admission of a claim
  • A trust over registered land must be demonstrated through proper and credible evidence and cannot be presumed merely because negotiations were premised on an assumption of ownership

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Compulsory Acquisition ActCap 295 Laws of Kenya (15% statutory addition)
  • Civil Procedure RulesOrder XII rule 6 (as it was then, now Order 13 rule 2)
  • Native Lands Trust OrdinanceCap 100, Rules 9, 10, 11 and 12
  • Chief Secretary (Incorporation) Ordinance

Cases cited (10)

  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] e KLR
  • Choitram versus Nazari
    (1984) KLR 32
  • Kenneth Nyaga Mwige v. Austin Kiguta & 2 others
    (2015) e KLR
  • Kariuki Kimani (suing through James Thuo Kariuki) Power of Attorney No. 45330/1 vs. The Commissioner of Lands & the Attorney General
    Petition No. 533 of 2008
  • Kanini Farm Limited vs. Commissioner of Lands
    klr (e & l)
  • Anarcherry Limited vs. Attorney General
    Nairobi HC Petition No. 248 of 2013
  • Jephtar & Sons Construction & Engineering Works Ltd vs. Ag
    HCT-OO-CU-CS-0699
  • Musisili vs. Editor, Mirror Newspaper and Others
    Case No. CIV/T/275/2001
  • Ntandazeli Fose vs. Minister of Safety & Security
    CCT/4/96/(1997) ZACC6
  • Anselimo Ngeni Warui & 2 Others v Kirinyaga County Council
    [2010] e KLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya, 2010 (protection of property rights); petition jurisdiction of the High Court/Environment and Land Court

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, "Silvester Wang’ombe Nderi & 4 others v Attorney General & 4 others [2018] KEELC 4273 (KLR)", Case Analysis (2018). Nyeri ELC Petition No. 3 of 2014 (formerly Nyeri High Court Petition No. 1 of 2012; Nairobi High Court Petition No. 310 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4273/eng@2018-03-01

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