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ELCDismissedNakuru ELC No. 10 of 2019 (formerly SPMCC No. 1341 of 1994)· [2021] KEELC 1587 (KLR)

Chepkonga Arap Ruto Robert Mwisani on Behalf of Themselves & 18 others v Municipal Council of Nakuru [2021] KEELC 1587 (KLR)

Environment and Land Court
7 October 2021
2,886 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a 27-year-old land claim because the government had acquired the land in 1973 and the claimants never pleaded their damages claim.

What this practically means

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Executive summary

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This first-instance suit, filed in 1994 as SPMCC No. 1341 of 1994 and transferred to the Environment and Land Court at Nakuru in 2019, was brought by two self-described members of Kalenjin Enterprises Ltd claiming plots 925, 813 and 908, and seeking a permanent injunction against the Municipal Council of Nakuru for interfering with their plots and an access road. The Council defended on the basis that it acquired 56 acres of the suit land through the Commissioner of Lands for sewerage works. Nakuru Water & Sanitation Services Ltd was joined as an interested party in February 2020. At the trial, the plaintiffs' witnesses testified they had cultivated 20 acres and suffered demolition of structures and destruction of crops, quantifying loss at Kshs.224,540,000/=, though no valuer was engaged and damages were never pleaded. The defendant relied on Gazette Notices of 11th June 1973 under the Land Acquisition Act evidencing acquisition of the 56 acres for Nakuru sewage schemes, delineated on the Registry Index Map. The court framed four issues and held that the land had vested in the Government following the 1973 acquisition, so neither the company nor the plaintiffs had any proprietary interest by 1994; an injunction could therefore not lie against the Government on its own land. Further, damages were not pleaded and parties are bound by their pleadings, applying Hahn v Singh and Caltex Oil (Kenya) Ltd v Rono Ltd. The suit was dismissed with costs to the defendant on 7th October 2021.

Key legal issues

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01

Whether the plaintiffs had a proprietary interest in the 56 acres acquired for sewerage works

Holding

The plaintiffs had no proprietary interest; the land vested in the Government following the 1973 acquisition

Reasoning

Gazette Notices of 11th June 1973 signified the Government's intention to acquire the 56 acres from Kalenjin Enterprises Ltd for Nakuru sewage schemes, with notice of inquiry and intention to take possession under section 19(2) of the Land Acquisition Act (repealed). Once notified, the only recourse was a compensation claim. The company was not a party, but upon vesting in 1973 both the company and the plaintiffs had no interest in the land by 1994.

p. 3
02

Whether the plaintiffs were entitled to a permanent injunction

Holding

No; an injunction presupposes a protectable proprietary interest which the plaintiffs lacked

Reasoning

Having found no proprietary interest, the plaintiffs could not restrain the Government from utilising its own land for the intended sewerage purposes. Non-commencement of the sewerage works conferred no rights on the plaintiffs. The prayer was misconceived.

p. 3
03

Whether damages could be awarded though never pleaded

Holding

No; both special and general damages must be pleaded, and unpleaded claims cannot be entertained

Reasoning

The plaintiffs at trial sought to prove destruction of structures, crops, trees and a nursery quantified at Kshs.224,540,000/=, but the plaint contained no claim for damages and was never amended in over 25 years. Relying on Hahn v Singh and Caltex Oil (Kenya) Ltd v Rono Ltd, the court held parties are bound by their pleadings, special damages must be specifically pleaded and strictly proved, and damages cannot be plucked from the air.

p. 3

Legal principles established

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  • Parties are bound by their pleadings and cannot adduce evidence to prove a case not pleaded; unpleaded damages cannot be awarded
  • Special damages must be specifically pleaded and strictly proved
  • Land compulsorily acquired by the Government vests in the Government, extinguishing the former owner's interest

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs to the defendants

Authorities

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Legislation

  • Registered Land ActCap 300 Laws of Kenya (now repealed)
  • Land Acquisition Actsection 19(2) (now repealed)

Cases cited (2)

  • Hahn -vs- Singh
    (1985) KLR 716
  • Caltex Oil (Kenya) Ltd -vs- Rono Limited
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court following transfer of SPMCC No. 1341 of 1994 from the Senior Principal Magistrate's Court at Nakuru pursuant to an order of transfer made by Hon. Lady Justice Ngetich on 31st January 2019

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, "Chepkonga Arap Ruto Robert Mwisani on Behalf of Themselves & 18 others v Municipal Council of Nakuru [2021] KEELC 1587 (KLR)", Case Analysis (2021). Nakuru ELC No. 10 of 2019 (formerly SPMCC No. 1341 of 1994). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1587/eng@2021-10-07

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