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ELCPartially AllowedNot stated in judgment (plaint dated 16/3/2017)· [2021] KEELC 3089 (KLR)

Benson W. Kaos & 72 others v Attorney General & 85 others [2021] KEELC 3089 (KLR)

Environment and Land Court
27 May 2021
3,922 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 cancelled fraudulently obtained settlement-scheme titles and awarded 73 landless plaintiffs damages after officials bypassed the approved beneficiary list.

What this practically means

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Executive summary

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The 73 plaintiffs, landless members of the Chepyuk Phase III Settlement Scheme, sued over the allocation of LR No. 13503/2 (Patwaka Farm), government land purchased to settle vetted landless persons. They claimed that a vetting committee produced a list of deserving beneficiaries which included them, but a different, fraudulent list introducing the 7th-86th defendants - said to be strangers from Kericho who were never vetted - was used to allocate plots and issue titles. The 1st-6th defendants (state officials, including the Land Registrar and surveyor J.K. Rotich) filed a defence asserting due process and improper joinder of the 6th defendant under Section 12 of the Government Proceedings Act; their case was closed by consent on production of documents. The 7th-86th defendants, served by substituted service after hostility on the ground, filed no defence. The court framed four issues: which list was genuine, who were the rightful beneficiaries, and whether damages and what orders should issue. It found the plaintiffs' certified list, signed by the vetting committee chairman, was the genuine one; that the plaintiffs were denied fair administrative action under Article 47 in breach of natural justice; and that a fraudulent scheme by administrative officials locked the plaintiffs out while the 7th-86th defendants occupied the land. Judgment was entered for the plaintiffs: declaration of fraud, rectification/cancellation of titles, eviction and permanent injunction were granted, each plaintiff was awarded general damages of Kshs. 50,000/= borne by all defendants jointly and severally, and costs were also awarded against all defendants jointly and severally. Exemplary damages were not separately awarded beyond this general award.

Key legal issues

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01

Which of the two competing beneficiary lists was genuine

Holding

The plaintiffs' list (P. Exhibit 2), signed by the Deputy County Commissioner and certified by the Land Registrar, was the genuine list; the list used to allocate and issue titles was not

Reasoning

PW2, who chaired the vetting committee, signed every page of the 262-name list to prevent alteration. The certified list in the registry tallied with that list and with defence exhibits D. Exhibit 1 and D. Exhibit 3, and the 7th-86th defendants' names were missing from the approved list. The 7th-86th defendants, though served, filed no defence and adduced no evidence to rebut the plaintiffs' case, so the court accepted the plaintiffs' evidence.

p. 3
02

Whether the plaintiffs were deprived of fair administrative action

Holding

Yes; the administrative officials failed to act fairly and the allocation to the 7th-86th defendants was a fraudulent scheme by administrative officials

Reasoning

The 5th defendant (Land Registrar) adduced no evidence explaining which list and criteria were used for the allocations, and the Land Registrar, custodian of the government documents, did not testify. Applying Article 47 and Onyango Oloo, a decision in breach of natural justice cannot be cured. The court concluded a fraudulent scheme by administrative officials locked out the plaintiffs.

p. 4
03

Damages for deprivation of occupation

Holding

General damages of Kshs. 50,000/= awarded to each plaintiff against all defendants jointly and severally; exemplary damages not awarded

Reasoning

The plaintiffs were deprived of occupation since 2016 and incurred rental expenditure. Relying on Victoria Laundry and Gitobu Imanyara, remedies must be appropriate and just and vindicate the violated rights. The court awarded modest general damages to each plaintiff, borne jointly and severally by all defendants, but declined exemplary damages.

p. 5
04

Service of the 7th-86th defendants and consequences of non-filing of defence

Holding

Service was effected by substituted service; the 7th-86th defendants' claims were uncontroverted

Reasoning

Personal service attempts met hostility on the ground, justifying substituted service by advertisement in local dailies on 12/3/2018, proved by affidavit of service. The defendants were therefore deemed served and having failed to file defences, the plaintiffs' claims against them were uncontroverted under Order 7 Rule 1 of the Civil Procedure Rules.

p. 3

Legal principles established

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  • A party who alleges must prove; where served defendants fail to file a defence, uncontroverted evidence may be accepted
  • Titles procured through fraud and illegality are candidates for cancellation
  • Denial of fair administrative action in land allocation violates the principles of natural justice under Article 47

Court orders

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  1. 1.Prayers (a), (b), (c) and (e) in the plaint dated 16/3/2017 are granted (declaration of fraud, rectification/cancellation of titles, eviction, permanent injunction)
  2. 2.Each and every Plaintiff is awarded general damages of Kshs. 50,000/= to be borne by all the defendants jointly and severally
  3. 3.The costs of the suit shall be borne by all the defendants jointly and severally

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 23(3)
  • Government Proceedings ActSection 12
  • Civil Procedure RulesOrder 7 Rule 1

Cases cited (4)

  • Onyango Oloo -vs- Attorney General
    (1989) EA 456
  • Dry Associates Ltd vs Capital Markets Authority & Another
    Petition No. 328 of 2011
  • Victoria Laundry (Windsor) Ltd Vs. Neman Industries Ltd; Coulson & Co. Ltd (Third Parties)
    [1949] 2KB 528
  • Gitobu Imanyara & 2 Others -vs- Attorney General
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (title/rectification of register); Article 23(3) of the Constitution invoked for relief

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, "Benson W. Kaos & 72 others v Attorney General & 85 others [2021] KEELC 3089 (KLR)", Case Analysis (2021). Not stated in judgment (plaint dated 16/3/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3089/eng@2021-05-27

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