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ELCPartially AllowedNot stated in the judgment as provided

Gujral Sandeep Singh Ragbir v Minister for Public Works, Road and Transport County Government of Kajiado & another [2018] KEELC 4719 (KLR)

Environment and Land Court of Kenya
23 January 2018
8,269 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff sued for a permanent injunction, a declaration of ownership of title number Noonkopir Trading Centre/195, and damages after the County Government of Kajiado demolished structures on his land on 8th August 2014. The Defendants admitted the Plaintiff's title but contended that the demolished structures stood on the Old Kajiado/Namanga road reserve, that newspaper notices were published on 7th February 2014 and later, that public participation forums were held, and that the demolitions were lawful. The Plaintiff called a licensed surveyor who proved that the property was a fixed survey based on an approved Part Development Plan and that the authenticated maps from the Director of Surveys show no road passing through the parcel, and a valuer who assessed damage at Kshs. 258 million using an investment method based on un-contracted offers from Oil Libya and NAIVAS. The County Surveyor testified that the 1985 survey wrongly closed the road reserve, increasing the acreage. The court held that the Plaintiff was the absolute proprietor whose Certificate of Lease had never been amended; that a PDP cannot be superior to a Director of Surveys map; that the County failed to prove encroachment or to have the alleged error rectified; and that the generic newspaper adverts did not constitute ample notice, rendering the demolition unlawful. Special damages of Kshs. 258 million failed for want of proof, but general damages for trespass of Kshs. 1 million and exemplary damages of Kshs. 9 million were awarded, together with a declaration of ownership, a permanent injunction, and costs to the Plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff is the legal proprietor of the suit property known as title number Noonkopir Trading Centre/195 in Kajiado County
  2. 2.Whether the Plaintiff encroached on the road reserve running on the southern end of the suit land
  3. 3.Whether the Plaintiff was provided with ample notice before demolition was effected
  4. 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. 5.Whether the Plaintiff is entitled to Special damages
  6. 6.Whether the Plaintiff is entitled to General Damages
  7. 7.Who will pay costs of the suit

Key legal issues

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01

Ownership of title number Noonkopir Trading Centre/195

Holding

The Plaintiff is the absolute proprietor entitled to protection of the law under section 24(b) of the Land Registration Act

Reasoning

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.

p. 9
02

Whether the Plaintiff encroached on a road reserve

Holding

No encroachment proved

Reasoning

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.

p. 10
03

Whether ample notice of demolition was given

Holding

No ample notice was given; the demolition was unlawful

Reasoning

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.

p. 10
04

Whether special damages of Kshs. 258 million were proved

Holding

Special damages not proved

Reasoning

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.

p. 11
05

Whether general and exemplary damages were payable

Holding

General damages for trespass of Kshs. 1 million and exemplary damages of Kshs. 9 million awarded

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 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. 2.A declaration issued that as against the defendant, the plaintiff is the owner of the land parcel Noonkopir Trading Centre/195
  3. 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. 4.Costs of the suit awarded to the Plaintiff

The bench

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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

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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

p. 11

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

p. 11

Costs

The costs of the suit are awarded to the Plaintiff.

Quotable passages

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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.
p. 12final orders - damages awarded
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.
p. 12final orders - declaration of ownership
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.
p. 12final orders - permanent injunction
d) The costs of the suit are awarded to the Plaintiff.
p. 12final orders - costs
It is trite law that a PDP cannot be superior to a map from the Director of Surveys.
p. 9hierarchy of survey documents
I find that the Plaintiff was indeed not given ample notice of the impending demolition before the same was effected.
p. 10notice before demolition
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.
p. 9indefeasibility of leasehold title

Issues in the judgment

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minor

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

minor

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

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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, "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.