Gujral Sandeep Singh Ragbir v Minister for Public Works, Road and Transport County Government of Kajiado & another [2018] KEELC 4719 (KLR)
The bottom line
#A Kenyan court ordered Kajiado County to pay a landowner Kshs. 10 million for unlawfully demolishing his buildings without proper personal notice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is the legal proprietor of the suit property known as title number Noonkopir Trading Centre/195 in Kajiado County
- 2.Whether the Plaintiff encroached on the road reserve running on the southern end of the suit land
- 3.Whether the Plaintiff was provided with ample notice before demolition was effected
- 4.Whether the Defendants and or their agents/servants should be permanently restrained from the Plaintiff's enjoyment and quiet possession of the suit land
- 5.Whether the Plaintiff is entitled to Special damages
- 6.Whether the Plaintiff is entitled to General Damages
- 7.Who will pay costs of the suit
Key legal issues
#Ownership of title number Noonkopir Trading Centre/195
The Plaintiff is the absolute proprietor entitled to protection of the law under section 24(b) of the Land Registration Act
The Plaintiff holds a Certificate of Lease issued in 1985 which was never amended or challenged. The land is a fixed survey and the authenticated map from the Director of Surveys shows no road through the parcel. Any alleged survey error could only be rectified by the Director of Surveys under the Survey Act, and no such rectification occurred in 30 years. The burden lay on the Defendants to prove illegal acquisition or encroachment, which they failed to discharge.
Whether the Plaintiff encroached on a road reserve
No encroachment proved
The increase in acreage from 0.8 to 1.246 hectares was effected by the Local Authority through the second letter of allotment, on which basis the Certificate of Lease issued. The road claimed by the County appears on its PDP but not on the map held by the Director of Surveys, the custodian of all maps. The County never liaised with the Director of Surveys to correct the alleged anomaly, and punishing an innocent allottee is not the proper remedy.
Whether ample notice of demolition was given
No ample notice was given; the demolition was unlawful
The two newspaper notices produced were not directed to any particular person or parcel of land. The Defendants did not show compliance with section 95 of the County Government Act on public communication, nor did they prove personal service or posting of notice on the premises. The procedure under section 152 of the Land Act for removing unlawful occupation of public land was not followed against the Plaintiff.
Whether special damages of Kshs. 258 million were proved
Special damages not proved
The Valuer used the investment method based on negotiations with Oil Libya and NAIVAS, but admitted these were ongoing negotiations with no signed agreements. The Oil Libya letter predated the demolition by over a year and no commitment followed; the NAIVAS letter did not state any rental figure. The leasehold also required County Government consent for dealings, which was never obtained or shown.
Whether general and exemplary damages were payable
General damages for trespass of Kshs. 1 million and exemplary damages of Kshs. 9 million awarded
The failure to serve personal notice rendered the demolition unlawful. Photographs established destruction of the wall and structures, exposing the property to use as a dumpsite. Following Titus Gatitu Njau v Municipal Council of Eldoret and Rookes v Barnard as applied in Obongo v Kisumu Council, exemplary damages lie for oppressive or arbitrary action by government agents, to punish wrongdoing and prevent a wrongdoer benefiting from his conduct.
Legal principles established
#- A registered proprietor of a lease is vested with the leasehold interest and its rights and privileges, which no person should interfere with
- A Part Development Plan cannot be superior to a map from the Director of Surveys; alleged survey errors must be rectified by the Director of Surveys, not by self-help demolition
- General newspaper adverts not directed to a particular person or parcel do not amount to ample notice of intended demolition; personal notice or notice affixed on the premises is required
- Exemplary damages may be awarded for oppressive, arbitrary or unconstitutional action by servants of the government
Court orders
#- 1.Judgment entered for the plaintiff against the defendants in the sum of Kshs. 10,000,000 comprising Kshs. 1,000,000 as general damages for trespass and Kshs. 9,000,000 as exemplary damages
- 2.A declaration issued that as against the defendant, the plaintiff is the owner of the land parcel Noonkopir Trading Centre/195
- 3.A permanent injunction restraining the Defendants, their agents and or servants from harassing, threatening, intimidating, trespassing upon, demolishing or in any manner interfering with the Plaintiff's stores, perimeter wall, restaurant and other structures on title number Noonkopir Trading Centre/195
- 4.Costs of the suit awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land (land-law claim; specific enabling provision not cited in the judgment)
Relief refused
#Special damages of Kshs. 258 million
Loss of income not proved; the Oil Libya and NAIVAS letters were expressions of interest, not signed contracts, and no County Government consent to dealings with the leasehold was produced
General damages beyond the assessed Kshs. 1 million for trespass
Damages for trespass assessed at Kshs. 1 million; the balance of the claim for general damages was subsumed in the unproven special damages claim
Costs
The costs of the suit are awarded to the Plaintiff.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a) That judgement is hereby entered for the plaintiff against the defendants in the sum of Kshs. 10,000,000/= comprising of Kshs. 1,000,000/= as general damages for trespass and Kshs. 9,000,000/= as exemplary damages.
b) That a declaration is hereby issued, that as against the defendant, the plaintiff is the owner of the land parcel Noonkopir Trading Centre / 195.
c) A permanent injunction be and is hereby issued restraining the Defendants either by themselves, their agents and or servants from harassing, threatening, intimidating, trespassing upon, demolition and or in any manner whatsoever interfering with the Plaintiff's stores, perimeter wall, restaurant and other structures erected on the property known as title number Noonkopir Trading Centre/195.
d) The costs of the suit are awarded to the Plaintiff.
It is trite law that a PDP cannot be superior to a map from the Director of Surveys.
I find that the Plaintiff was indeed not given ample notice of the impending demolition before the same was effected.
I find that the Plaintiff is indeed the absolute proprietor of parcel number Noonkopir Trading Centre/ 195 and he is entitled to the protection of the law.
Issues in the judgment
#The judgment identifies the Plaintiff's sole witness as PW1 Sandeep Singh Gujral, but the defence evidence refers to 'DW2 stated that the increase was mysterious' although only one defence witness (DW1 Joshua Lemaikai) is called and identified in the judgment
The defense witness attribution of the mysterious increase is contradicted within the same judgment, where the court notes the acreage increase was effected by the Local Authority itself and there is no evidence of encroachment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gujral Sandeep Singh Ragbir v Minister for Public Works, Road and Transport County Government of Kajiado & another [2018] KEELC 4719 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4719/eng@2018-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.