Chepkonga Arap Ruto Robert Mwisani on Behalf of Themselves & 18 others v Municipal Council of Nakuru [2021] KEELC 1587 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiffs had a proprietary interest in the 56 acres acquired for sewerage works
The plaintiffs had no proprietary interest; the land vested in the Government following the 1973 acquisition
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schemes, with notice of inquiry and intention to take possession under section 19(2) of the Land Acquisition Act (repealed).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.
Whether the plaintiffs were entitled to a permanent injunction
No; an injunction presupposes a protectable proprietary interest which the plaintiffs lacked
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.
Whether damages could be awarded though never pleaded
No; both special and general damages must be pleaded, and unpleaded claims cannot be entertained
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.
Legal principles established
#- 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
#- 1.The plaintiffs' suit is dismissed with costs to the defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.