Benson W. Kaos & 72 others v Attorney General & 85 others [2021] KEELC 3089 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Which of the two competing beneficiary lists was genuine
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
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.
Whether the plaintiffs were deprived of fair administrative action
Yes; the administrative officials failed to act fairly and the allocation to the 7th-86th defendants was a fraudulent scheme by administrative officials
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.
Damages for deprivation of occupation
General damages of Kshs. 50,000/= awarded to each plaintiff against all defendants jointly and severally; exemplary damages not awarded
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.
Service of the 7th-86th defendants and consequences of non-filing of defence
Service was effected by substituted service; the 7th-86th defendants' claims were uncontroverted
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.
Legal principles established
#- 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
#- 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.Each and every Plaintiff is awarded general damages of Kshs. 50,000/= to be borne by all the defendants jointly and severally
- 3.The costs of the suit shall be borne by all the defendants jointly and severally
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.