Bondeni Properties Company Ltd v Director, Ministry of Housing & 3 others
The bottom line
#A Nairobi landowner won Kshs 9.2 million compensation for plots used for public toilets, but lost the right to evict.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved ownership of the suit plots as sub-divisions of L.R 367/AXI/1913
Yes - on a balance of probabilities the Plaintiff established proprietorship of the suit properties as sub-divisions of L.R No 367/AXI/1913
The Indenture of Conveyance dated 5th April 1995 and the certificate of postal search both referenced L.R 367/AXI/1913, whose ownership by the Plaintiff was undisputed. The Deed Plans showed the suit property lay within a registered sub-division emanating from that parcel. There being no evidence to the contrary, proprietorship was established on a balance of probabilities.
Whether the Plaintiff was entitled to vacant possession
No - the court opted for compensation instead, since the structures are public toilets serving a public utility
The suit property has public toilets constructed by the Defendants, a utility that benefits the public. As the Plaintiff was amenable to an alternative remedy of compensation, the court declined vacant possession and awarded the value of the land instead.
Whether the Plaintiff was entitled to mesne profits
No - the claim failed for lack of specific pleading and proof
Mesne profits are defined in Section 2 of the Civil Procedure Act and are in the nature of special damages. The Plaintiff was obliged to place material before the court demonstrating how the amount claimed was arrived at; having merely claimed mesne profits without substantiation, the claim failed.
Which Defendants are liable for compensation
The 3rd and 4th Defendants, who identified the site, are jointly and severally liable; the 1st and 2nd Defendants, who only funded construction, are not liable
The 1st and 2nd Defendants adduced unrebuted correspondence showing the 3rd and 4th Defendants identified the site while the Ministry merely funded construction at the CDF's request. The court therefore held the 1st and 2nd Defendants not liable and directed the 3rd and 4th Defendants to compensate the Plaintiff.
Legal principles established
#- A party who asserts proprietorship of land bears the burden of proving it on a balance of probabilities (Sections 107, 109 and 112 of the Evidence Act)
- A Deed Plan affirms the existence of a surveyed parcel of land but does not prove ownership of it
- A claim for mesne profits is in the nature of special damages and must be specifically pleaded and proven
- Failure to rebut correspondence attributing site identification to the 3rd and 4th Defendants leaves them liable while the funder (1st and 2nd Defendants) escapes liability
Court orders
#- 1.The 3rd and 4th Defendants are jointly and severally directed to compensate the Plaintiff for the value of the suit properties to the tune of Kshs 9,200,000 (Kshs 8,000,000 for 4 plots plus 15% of Kshs 1,200,000)
- 2.Interest on the above amount at court rates from the date of filing the suit until payment in full
- 3.The 3rd and 4th Defendants shall bear jointly and severally the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution; Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bondeni Properties Company Ltd v Director, Ministry of Housing & 3 others", Case Analysis (2023). Environment and Land Case Civil Suit 774 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21465/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.