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ELCPartially AllowedEnvironment & Land Case E050 of 2021· [2023] KEELC 21148 (KLR)

Odwar & 2 others (Suing for themselves and on behalf of the 92 Allottees from Thessalia and Jaber Informal Settlement Schemes) v Ministry of Land & Physical Planning & 2 others

Environment and Land Court of Kenya
26 October 2023
5,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that a Letter of Offer is not proof of land ownership, but the Lands Ministry must pay damages for leaving 46 settlement allottees in limbo for eight years.

What this practically means

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Executive summary

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Three plaintiffs sued for themselves and on behalf of 92 allottees of the Thessalia and Jaber Informal Settlement Schemes, claiming they had been allotted parcels totalling 73.6 Ha at Kibigori Plantation Settlement Scheme by Letters of Offer dated 9th January 2013 but could not take possession due to occupation by Nyangore squatters and others. They sought vacant possession, alternatively compensation at market value, declarations of breach of Articles 43 and related rights, and damages. The 1st and 2nd Defendants filed a joint defence but adduced no evidence; the 3rd Defendant filed only a memorandum of appearance. The suit proceeded undefended on 30th May 2023 after service. Three witnesses testified, including a valuer who assessed the land at Kshs.750,000 per acre (Kshs.138 million total). The court first identified the proper plaintiffs: only 46 of the claimed 92 allottees exhibited Letters of Offer or title deeds with payment receipts. Applying Philma Farm and the Supreme Court's Torino Enterprises decision, it held Letters of Offer confer no proprietary interest in land; only the two allottees with title deeds (parcels Kisumu/Kibigori Plantation/428 and 435) proved ownership. It found the land was unavailable on the ground for occupation. It held the 1st Defendant breached the plaintiffs' rights to fair administrative action (Article 47) and economic and social rights (Article 43) by issuing Letters of Offer, accepting payment, then remaining inactive for about 8 years. Judgment was entered for the 46 named plaintiffs against the 1st Defendant: compensation for the two titled parcels at Kshs.750,000 per acre, a declaration of breach of fundamental rights, damages of Kshs.500,000 each, refund of purchase monies, and costs of the suit.

Key legal issues

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01

Whether Letters of Offer confer ownership of the allotted land

Holding

No. Letters of Offer are conditional offers that do not confer proprietary rights; only allottees who perfected them by obtaining title deeds (2 of the 46) proved ownership

Reasoning

The court examined the Letters of Offer dated 9th January 2013 and found them conditional, requiring reporting to the Project Manager and payment of the outright purchase price. Relying on Philma Farm and the Supreme Court's Torino Enterprises decision, it held an allotment letter is incapable of conferring interest in land. Only title deeds, unimpeached by the Defendants, proved ownership under sections 24, 25 and 26 of the Land Registration Act.

p. 9
02

Whether the 1st Defendant breached the plaintiffs' rights to fair administrative action and economic and social rights

Holding

Yes. By issuing Letters of Offer, accepting payment, processing two title deeds, then remaining inactive for about 8 years, the 1st Defendant breached Articles 47 and 43

Reasoning

The court found the 1st Defendant accepted the allotment requests and payments but took no further step to complete the process or terminate it lawfully, leaving the internally displaced plaintiffs in limbo for about 8 years. This inactivity breached the right to expeditious, efficient and lawful administrative action under Article 47 and the right to accessible and adequate housing under Article 43. The 2nd and 3rd Defendants were not found to have participated in the allotment process.

p. 11
03

Who are the proper plaintiffs in this representative suit

Holding

Only 46 of the claimed 92 allottees fit the description in the plaint, being those who exhibited Letters of Offer or title deeds and payment receipts

Reasoning

The plaint described a representative suit by 3 plaintiffs for 92 others. The authority to sue was signed by only 87 people, and of those only 46 exhibited Letters of Offer or title deeds with payment receipts. The court therefore confined judgment to the 46 named allottees, listing them with their ID and plot numbers.

p. 7
04

Whether the plaintiffs were denied occupation of the suit lands

Holding

Yes. There was evidence the land offered was unavailable on the ground, occupied by Nyangore squatters of over 40 years and other powerful individuals

Reasoning

The plaintiffs testified they had never seen the parcels on the ground and could not establish boundaries due to hostility from current occupiers. A letter of 18th May 2016 from the National Land Commission chair asked the County Commissioner for security to enforce possession, but the County Commissioner declined, saying the ownership dispute had to be settled first. The court accepted this as evidence the land was unavailable for occupation.

p. 10

Legal principles established

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  • An allotment letter or Letter of Offer does not confer proprietary interest in land; it is only an offer awaiting fulfilment of conditions stipulated therein
  • A certificate of title is evidence of ownership under the Land Registration Act and, absent impeachment, the registered proprietor is entitled to protection
  • A state organ that issues Letters of Offer, accepts payment, and then neither completes the settlement process nor terminates it lawfully breaches the right to fair administrative action under Article 47
  • Damages for constitutional violations are public law remedies whose primary purpose is to vindicate rights, deter future infringement, and effect reparation

Court orders

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  1. 1.Judgment entered for the 46 plaintiffs named in the judgment against the 1st Defendant
  2. 2.Compensation for the lands comprised in title numbers Kisumu/Kibigori Plantation/428 (Peter Oseno Ojwang) and Kisumu/Kibigori Plantation/435 (Janes Odhiambo Nyingore) at Kshs.750,000 per acre as per the valuation report
  3. 3.A declaration that the fundamental rights of the 46 plaintiffs listed in the judgment have been breached by the 1st Defendant
  4. 4.Damages for breach of fundamental rights of the 46 plaintiffs at Kshs.500,000 each
  5. 5.Refund of the outright purchase monies paid by each of the 46 plaintiffs as per the payment receipts they hold
  6. 6.Costs of the suit to the plaintiffs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 43(1)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 232(1)(c)
  • Constitution of Kenya, 2010Article 29(c)
  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 60(1)(a) and (b)
  • Registration of Land Act, Cap. 300Sections 25 and 26
  • Land Registration ActSections 24, 25 and 26
  • National Land Commission ActSection 6(2)(c)
  • Civil Procedure ActSection 27
  • Civil Procedure Rules, 2010Order 21 Rules 4 and 5

Cases cited (6)

  • Canada (Attorney General) vs Mavi
    [2-17]2 S.C.R 504

    Legitimate expectation: clear, unambiguous and unqualified representations by government officials within authority may bind the government

  • Chief Land Registrar and 4 Others vs Nathan Tirop Koech & 4 Others

    Nothing in the 2010 Constitution or NLC Act ousts the High Court's jurisdiction over claims founded on historical injustices

  • Mitu Bell Welfare Society vs Kenya Airports Authority and 2 Others

    Relied on by plaintiffs' counsel on economic and social rights

  • Philma Farm Produce & Supplies & 4 Others vs The Attorney General & 6 Others
    [2012] eKLR

    Letters of allocation do not confer proprietary rights but only a right to receive property upon complying with conditions

  • Torino Enterprises Limited vs Attorney General

    An allotment letter cannot confer interest in land; allottee must perfect it by fulfilling conditions

  • Gitobu Imanyara & 2 others vs Attorney General
    [2016] eKLR

    Purpose of constitutional damages: to vindicate rights, deter infringement, and effect reparation

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act, including jurisdiction over historical injustice claims as pleaded; court cited Chief Land Registrar v Nathan Tirop Koech on jurisdiction over historical injustices

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, "Odwar & 2 others (Suing for themselves and on behalf of the 92 Allottees from Thessalia and Jaber Informal Settlement Schemes) v Ministry of Land & Physical Planning & 2 others", Case Analysis (2023). Environment & Land Case E050 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21148/eng@2023-10-26

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