Ministry of Lands and Physical Planning & 2 othersv Shaban Opiyo Kassim & 2 others [2022] KEELC 1082 (KLR)
The bottom line
#A Kisumu court confirmed a family owns disputed lakeside land, but threw out a KES 15 million damages award for lack of evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property is public land
The suit property is private land, being the ancestral land of the 1st Respondent's father; it is not un-alienated government land nor land used or occupied by a state organ, and does not meet the Article 62(1) definition of public land.
The court set out the Article 62(1) definition of public land and found the property did not fit it. The 2nd Appellant's own letter of 4th November 2019 confirmed the property as ancestral land belonging to the 1st Respondent's father, and stakeholders executed a consent to that effect. The National Land Commission cancelled the allotment letter issued to the National Police Service, confirming the land was not available for alienation as public land.
Whether the suit property was validly adjudicated and awarded to the 1st Respondent's father
Yes. Kogony Adjudication Section was created under the Land Adjudication Act; adjudication of the property was done in 1982, and Land Adjudication Committee Objection Case No. 9 of 1983 (consolidated with objections 033 and 241 of 1983) ruled the property belonged to the 1st Respondent's father, with no appeal filed.
The court relied on documentary evidence including the 2nd Respondent's Statement of Defence denying municipal ownership, and a letter dated 16th January 2019 from the County Government of Kisumu confirming the property belonged to the 1st Respondent's father and should be registered and a title issued. It also relied on the National Land Commission's letter of 21st December 2018 confirming the property is private land and directing the District Land Registrar to issue title to the owner. The appellants' contention that the parcel fell outside the adjudication section was rejected on this evidence.
Whether the award of general damages of Kshs. 15,000,000 should stand
No. The award was set aside because it was not based on any demonstrated principle or evidence: the claimed harassment was not demonstrated and there was no evidence of expenditure of huge sums of money.
Applying the settled principles from Mbogoh & Another v Shah, Southern Engineering Co Ltd v Musingi Mutia and related authorities, an appellate court interferes with a discretionary award only where the trial court acted on wrong principles, misapprehended the facts, or reached a wholly erroneous estimate. The court found the figure of Kshs. 15,000,000 'appears to have been picked from the blues' with no demonstration of how it was arrived at, and no proof of the harassment or expenditure said to ground the award. Ground 19 of appeal accordingly succeeded.
Legal principles established
#- On a first appeal, the court is obliged to re-assess and re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusion, bearing in mind that it neither saw nor heard the witnesses.
- An award of general damages is discretionary and will only be disturbed on appeal if the trial court misdirected itself, took into account irrelevant factors, omitted relevant ones, or the award is so low or so excessive as to be a wholly erroneous estimate.
- Land that is not un-alienated government land and is not used or occupied by any state organ does not meet the constitutional threshold of public land under Article 62(1).
- Part Development Plans (PDPs) can only be prepared in respect of un-alienated Government land; a PDP cannot be used to allocate private land.
Court orders
#- 1.The decision of the trial court is upheld save on the award of general damages of Kshs. 15,000,000, which is set aside
- 2.All grounds of appeal are dismissed save ground number 19 (challenging the quantum of damages)
- 3.The Appellant to pay half costs to the 1st Respondent
- On appeal from
- Chief Magistrate's Court, Kisumu
- Kisumu Chief Magistrate MISC ELCCC NO.196 of 2018 (trial suit; appeal against judgment in the amended plaint)
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ministry of Lands and Physical Planning & 2 othersv Shaban Opiyo Kassim & 2 others [2022] KEELC 1082 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1082/eng@2022-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.