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ELCPartially AllowedNot stated in judgment· [2020] KEELC 1699 (KLR)

Coast Neurology Center Limited v Mohamed Kasim Bakari & 3 others [2020] KEELC 1699 (KLR)

Environment and Land Court
14 July 2020
CYC.K. Yano
2,653 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff company sued after purchasing parcel KWALE/BUMBANI 'A'/932 (32.38 hectares) from the 1st defendant for Kshs.6,400,000, with transfer registered and a title deed issued on 5th October 2015. The plaintiff cleared part of the land and contracted with Kwale International Sugar Company as an out-grower, but that deal collapsed when the sugar company could not verify the title: the land registry records had been altered, the parcel subdivided into 11 portions and ownership changed without the plaintiff's consent. The plaintiff sought compensation at market value (Kshs.12,000,000), clearing costs of Kshs.86,840, general damages for breach of trust/fiduciary duty, and aggravated and exemplary damages. Interlocutory judgment was entered against the 1st defendant; none of the defendants attended the hearing. The court found the plaintiff lawfully acquired title after due diligence and, holding an uncancelled title deed, was deemed absolute and indefeasible proprietor under Section 26(1) of the Land Registration Act. The defendants offered no evidence justifying the cancellation, which was held illegal, null and void, and a breach of the plaintiff's Article 40 right to property. The court awarded Kshs.12,000,000 compensation, Kshs.86,840 clearing costs, Kshs.3,000,000 general damages and Kshs.2,000,000 aggravated and exemplary damages, with costs plus interest against the defendants jointly and severally.

Key legal issues

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01

Whether the plaintiff's title was indefeasible

Holding

The plaintiff acquired the suit property lawfully after due diligence and held absolute and indefeasible title under Section 26(1) of the Land Registration Act; the defendants produced no evidence of fraud or illegality attaching to the plaintiff's acquisition

Reasoning

The plaintiff produced a sale agreement, evidence of full payment, official searches, completion documents and a title deed issued on 5th October 2015. The defendants did not appear or adduce evidence. The evidentiary burden of showing lawful cancellation therefore fell on the defendants and was not discharged. The cancellation of the plaintiff's name from the register was unexplained and illegal, null and void.

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02

Whether the plaintiff's right to property under Article 40 was breached and what compensation is due

Holding

The defendants' actions breached the plaintiff's right to property, entitling it to compensation at current market value of Kshs.12,000,000, clearing costs of Kshs.86,840, general damages of Kshs.3,000,000 and aggravated/exemplary damages of Kshs.2,000,000

Reasoning

The valuation report of Kshs.12,000,000 was unchallenged, as were the clearing expenses. The court tempered the plaintiff's proposed general damages of Kshs.50 million and aggravated/exemplary damages of Kshs.10 million, which it found excessive, drawing an analogy with Mike Maina Kamau v Attorney General where the property was of far higher value.

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Legal principles established

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  • A registered proprietor holding an uncancelled title is deemed the absolute and indefeasible owner under Section 26(1) of the Land Registration Act, and where the register is altered without explanation the State organs bear the evidentiary burden of justifying the cancellation

Court orders

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  1. 1.Compensation for the land at Kshs.12,000,000/=
  2. 2.Costs of clearing the land at Kshs.86,840/=
  3. 3.General damages of Kshs.3,000,000/=
  4. 4.Aggravated and exemplary damages of Kshs.2,000,000/=
  5. 5.Costs of the suit plus interest from the date of judgment until payment in full at court rates, against the defendants jointly and severally

Authorities

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Legislation

  • Environment and Land Court ActSection 13(7)
  • Land Registration ActSection 26(1)
  • Constitution of KenyaArticle 40

Cases cited (2)

  • Mike Maina Kamau –v- The Attorney General
    (2017) eKLR
  • National Land Commissions –v- The estate of Sisiwa Arap Malakwen & the AG
    (2017) eKLR
Jurisdiction invoked
Environment and Land Court Act, Section 13(7)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Coast Neurology Center Limited v Mohamed Kasim Bakari & 3 others [2020] KEELC 1699 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1699/eng@2020-07-14

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