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ELCPartially AllowedNairobi Milimani Commercial Courts Civil Case No. 918 of 2002 (transferred to Environment and Land Court, Malindi)· [2019] KEELC 4924 (KLR)

Small Wonder Ltd v Attorney General [2019] KEELC 4924 (KLR)

Environment and Land Court
24 January 2019
JOJ. O. Olola
2,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered the government to pay Small Wonder Ltd KES 325 million for unlawfully taking its Watamu land through double allocation.

What this practically means

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Executive summary

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Small Wonder Ltd sued the Attorney General in 2002, claiming that although it was the registered proprietor of Plot No. 644 (8.677 hectares) in Watamu under Grant No. CR 20175 of 27th March 1990, the District Land Registrar, Malindi, unlawfully barred it from taking possession and developing the land because it had been allocated to third parties. The Defendant's Statement of Defence was struck out in 2008 by Mwilu J for being frivolous and vexatious, and judgment on formal proof by P. Kihara Kariuki J in 2009 awarding general damages of Kshs 301,875,000/- was set aside by the Court of Appeal in December 2015 on the ground that the Defendant was not served with a hearing notice; the matter was ordered re-heard on formal proof and transferred to the Environment and Land Court, Malindi. By consent, the Plaintiff's evidence was admitted and the Defendant filed a valuation report. The court found the Plaintiff was at all material times the registered proprietor, was restrained from taking possession, and that the Commissioner of Lands' letter of 6th January 2003 admitted double registration and an unfulfilled promise of alternative land. Applying the principle that expert evidence must be assessed against all other evidence, the court preferred the Government Valuers' report over the Plaintiff's valuation and projections, estimating the current value at Kshs 325,000,000/-. Judgment was entered for the Plaintiff with declarations that its rights were violated and the land was unlawfully and unconstitutionally taken away; general damages of Kshs 325,000,000/-, special damages of Kshs 1,457,063/-, costs, and cancellation of the Plaintiff's title upon payment of the decretal amount. Exemplary and aggravated damages were refused, no fraud having been proved.

Key legal issues

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01

Whether the Plaintiff's right to property was infringed

Holding

Yes - the Plaintiff was at all material times the registered proprietor under Grant No. CR 20175 and was unlawfully barred by the District Land Registrar, Malindi, from taking possession; the land had been allocated to third parties in possession

Reasoning

The court found that under Grant No. CR 20175 dated 27th March 1990 the President granted the suitland to the Plaintiff, which remained the registered proprietor. When the Plaintiff sought possession it was unlawfully barred because the land had been double-allocated. The Commissioner of Lands' letter of 6th January 2003 candidly acknowledged double registration under the RLA and RTA and an unfulfilled promise of alternative land, establishing deprivation without compensation.

p. 3
02

Quantum of compensation - which valuation report to prefer

Holding

The Government Valuers' report was preferred as more reasonable and acceptable; the court estimated current value at Kshs 325,000,000/-

Reasoning

The court applied the principle that expert evidence must be weighed against all other evidence. PW2's valuation of Kshs 262,500,000/- was made in November 2008 when the plot did not exist on the ground and was based on estimates from sub-divided plots; the Plaintiff's later projections to Kshs 627,900,000/- were unsupported arithmetic. The Government Valuers' report placing the 2008 value at Kshs 170,000,000/- and the 2016 value at Kshs 320,000,000/- was found more reasonable, leading to an estimate of Kshs 325,000,000/- given the time lapse.

p. 3

Legal principles established

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  • Expert evidence does not trump all other evidence and must be evaluated in the context of all other material evidence

Court orders

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  1. 1.Declaration that the Plaintiff's rights to the suit land have been violated
  2. 2.Declaration that the suit land had been unlawfully and unconstitutionally taken away from the Plaintiff by the Commissioner of Lands
  3. 3.General damages in the sum of Kshs 325,000,000/-
  4. 4.Special damages in the sum of Kshs 1,457,063/-
  5. 5.Costs of the suit to the Plaintiff
  6. 6.Upon payment of the decretal amount to the Plaintiff, the registration of the Title in favour of the Plaintiff be cancelled forthwith

Authorities

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Legislation

  • Registered Land Act
  • Registration of Titles Act

Cases cited (1)

  • Stephen Kinini Wang'ondu -vs- The Ark Limited
    Civil Appeal No. 2 of 2014 (2016) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit land situated in Watamu, Malindi, following transfer directed on 3rd October 2016

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, "Small Wonder Ltd v Attorney General [2019] KEELC 4924 (KLR)", Case Analysis (2019). Nairobi Milimani Commercial Courts Civil Case No. 918 of 2002 (transferred to Environment and Land Court, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4924/eng@2019-01-24

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