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ELCPartially AllowedUndated Amended Petition of 2018 (Nyeri)· [2020] KEELC 3917 (KLR)

Hellen Wandiga Ngeru v National Land Commission [2020] KEELC 3917 (KLR)

Environment and Land Court
23 January 2020
MOM.C. Oundo
3,266 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who beat the National Land Commission's title revocation won her legal costs but no damages because she never proved her losses with figures.

What this practically means

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Executive summary

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The Petitioner, the registered owner of land parcel Nyeri Municipality Block/917, petitioned the National Land Commission seeking declarations that the revocation of her title gazetted on 17th July 2017 was null and void for breach of fair hearing and fair administrative action guarantees, an order of certiorari to quash that decision, mandamus to remove a restriction on the property, and general damages under Article 23(3) for violation of Articles 40, 47 and 50. Before the Petition was heard, the Respondent conducted a review hearing on 22nd March 2018 and determined that the Petitioner's certificate of lease be upheld, a decision gazetted on 15th February 2019, thereby compromising the declaratory, certiorari and mandamus prayers. The remaining issues were damages and costs. The court held that although the purpose of damages is to restore a party whose rights have been violated, the Petitioner failed to quantify or prove her claimed losses - five years' rental income, halted development, and unpaid land rent and rates - and special damages must be both pleaded and strictly proved; the prayer for damages accordingly failed. On costs, applying Section 27 of the Civil Procedure Act and the principle that costs follow the event, the court found the Petitioner had succeeded in compelling the Respondent to reverse itself and awarded her the costs of the case with interest at court's rate from the date of filing suit until payment in full.

Key legal issues

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01

Entitlement to general damages for alleged violation of Articles 40, 47 and 50

Holding

The prayer for damages failed because the loss was never quantified or proved

Reasoning

The court accepted that damages aim to restore the victim of a rights violation, but held that evidence of specific sums is indispensable. The Petitioner merely asserted loss of five years' rental income and halted development without particularising or proving the amounts, so no damages could be awarded.

p. 3
02

Who bears the costs where the Petition was settled by the Respondent's review of its own decision

Holding

Costs followed the event; the Respondent was to pay the Petitioner's costs

Reasoning

Applying Section 27 of the Civil Procedure Act and the principle that costs follow the event, the court found that the Petitioner had succeeded in compelling the Respondent to review and uphold her title. The Respondent's good-faith review did not excuse it from paying costs, since the Petition had been necessitated by the Respondent's initial revocation of title.

p. 4
03

Procedural fairness of the Respondent's initial gazetted revocation of title

Holding

This issue was overtaken by events and effectively settled by the Respondent's gazetted determination of 15th February 2019 upholding the Petitioner's title

Reasoning

Before the Petition could be heard, the Respondent conducted a hearing on 22nd March 2018 and determined that the Petitioner's certificate of lease be upheld, gazetted on 15th February 2019. This compromised prayers (i)–(iii) of the Petition, leaving only damages and costs for determination.

p. 3

Legal principles established

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  • Special damages must be both specifically pleaded and strictly proved before they can be awarded
  • The governing purpose of damages is to place the injured party in the position they would have been in had their rights been observed
  • Costs follow the event under Section 27 of the Civil Procedure Act, and the general rule is that costs go to the successful party absent good reason to depart from it

Court orders

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  1. 1.The Respondent shall pay to the Petitioner the costs of this case
  2. 2.Interest on costs at court's rate from the date of filing suit until payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3), 40, 47(1), 50(1), 62, 67(2)(a), 68(c)(v)
  • Fair Administrative Actions ActSection 4
  • National Land Commission ActSections 14(1), 14(3)
  • Civil Procedure ActSection 27
  • Review of Grants and Dispositions of Public Land Regulationnull

Cases cited (10)

  • R vs. Ontario Racing Commissioners (1969) 8 D.L.R (3d) 624 at 628 (Ont HC)
    (1969) 8 D.L.R (3d) 624
  • Republic vs. Secretary of State for the House Department [2003] UKHL 36
    [2003] UKHL 36
  • Siewchand Ramanoop vs. the AG of T & T Pc Appeal No. 13 of 2004
    Pc Appeal No. 13 of 2004
  • Cecilia Karuru Ngayu vs Barclays Bank of Kenya & Another, Nyeri HCCC No. 17 of 2014
    Nyeri HCCC No. 17 of 2014
  • Republic vs. Rosemary Wairimu Munene, Ex-parte Applicant vs Ihururu Dairy Farmers Co-operative Society Limited, Judicial Review application No. 6 of 2014
    Judicial Review application No. 6 of 2014
  • Rufus Njuguna Murithi & 2 Others [2012] eKLR
    [2012] eKLR
  • Kenya Revenue Authority vs Menginya Salim Murgani [2010] eKLR
    [2010] eKLR
  • Diana Keithi Kilonzo & Another vs. Independent Electoral and Boundaries Commission and 10 Others [2013] eKLR
    [2013] eKLR
  • Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716
    [1985] KLR 716
  • Party of Independent Candidate of Kenya and Another -vs- Mutula Kilonzo & Others, Election Petition No. 6 of 2013
    Election Petition No. 6 of 2013
Jurisdiction invoked
Article 23(3) of the Constitution of Kenya 2010 (enforcement of Bill of Rights before 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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Later judgments citing this (2)

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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, "Hellen Wandiga Ngeru v National Land Commission [2020] KEELC 3917 (KLR)", Case Analysis (2020). Undated Amended Petition of 2018 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3917/eng@2020-01-23

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