The mandate of the National Land Commission with respect to historical land injustices is not exclusive.

Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others

Civil Appeal No 51 & 58 of 2016

Court of Appeal at Eldoret

E M Githinji, J Mohammed & J Otieno-Odek, JJA

December 6, 2018

Reported by Beryl A Ikamari

Constitutional Law-institution of a constitutional petition-locus standi-non-joinder of petitioners-whether, in a situation where there were other co-owners or potential petitioners, the petitioner would lack the locus standi to institute a petition for the enforcement of property rights.

Constitutional Law-constitutional petition-drafting of a constitutional petition-precision in drafting a constitutional petition-whether a constitutional petition for the enforcement of property rights was drafted in a manner that disclosed the articles of the Constitution that had been violated and the manner in which they had been violated.

Constitutional Law-institution of a constitutional petition-time within which to file a constitutional petition-effect of an alleged 35 year delay in filing a constitutional petition-whether the cause of action would be said to have been defeated by the delay or the delay would be seen as a form of waiver or acquiescence.

Jurisdiction-jurisdiction of the Environment and Land Court-jurisdiction relating to historical land injustices-whether the National Land Commission had the exclusive jurisdiction to handle historical land injustices in the first instance.

Constitutional Law-interpretation of constitutional provisions-interpretation of article 67(2)(e) of the Constitution-mandate of the National Land Commission with respect to historical land injustices-whether the mandate of the National Commission with respect to historical land injustices was exclusive-Constitution of Kenya 2010, article 67(2)(e).

Constitutional Law-fundamental rights and freedoms-right to property-claim that land was illegally and irregularly compulsorily acquired-whether the right to property was violated-Constitution of Kenya 2010, article 40.

Constitutional Law-enforcement of fundamental rights and freedoms-remedies for violation of fundamental rights and freedoms-damages-considerations of the Court in setting aside an award of damages-whether the quantum of damages assessed by the Trial Court was assessed properly.

Land Law-damages-special damages-mesne profits-setting aside an award of mesne profits by the Trial Court-where a nominal amount was awarded as mesne profits without that amount having been specifically pleaded and proved-whether that award would be set aside.

Brief facts

On June 28, 1965, 5 individuals, purchased the suit property being IR No. 17542 – LR No. 10492 measuring 3,236 acres (less 26 acres road reserve) as purchasers in common with equal shares at a consideration of Ksh.360,000/=. The purchase was done using their savings and a loan from Land and Agricultural Bank. When they failed to pay the loan as agreed, a decision was made to sell a portion of the property measuring 51.49 hectares (126 acres) to Huruma Farmers Company Limited. The entire debt owed to Land and Agricultural Bank was paid using the proceeds of the sale.

On August 7, 1976, the joint owners successfully applied to the Turbo-Soy Land Control Board for consent to sub-divide the suit land into six (6) portions to be registered in the individual names of the joint owners and the 6^th portion measuring 51.49 ha was to be transferred to Huruma Farmers Company Limited. Later, on January 24, 1980, the 1^st to 4^th respondents forwarded the title grant to the suit premises to the 1^st appellant (Chief Land Registrar) for purposes of surrender and issuance of separate title deeds as per the approved subdivisions.

The 1^st to 4^th respondents complained that the Chief Land Registrar failed to divide the suit property and to issue title deeds to the five original joint owners who were each entitled to 614 acres of land.

In January 1996, the estate of one of the original proprietors was registered as owner of land parcel Eldoret Municipality (King’ong’o) Block 21/306 measuring only 21.239 Ha. The deceased had sold 15 acres of land to third parties and therefore there was 546 acres which remained unaccounted for by the appellants. Later the 1^st to 4^th respondents learnt that there had been illegal and unlawful acquisition and sub-division of the suit property as follows:-

1. In April 1979, 666.41 Ha of the suit land was excised without the consent of the joint owners and renamed Eldoret Municipality Block 15/1 and registered in the name of the original five joint owners although the lease title was never issued to them.
2. In September 1983, the said parcel of Eldoret Municipality Block 15/1 was apparently surrendered to the Government of Kenya.
3. In November 1992, the remaining portion of LR No. 10492 (about 641 ha) was amalgamated and renamed Eldoret Municipality (King’ong’o) Block 23/1-355.
4. Both Block 15/1 and Block 23/1-355 were later sub-divided and hundreds of title deeds were issued.

The 1^st to 4^th respondents filed a petition premised on breaches of the right to property and sought various reliefs including monetary compensation and declaratory relief. The High Court allowed the petition and granted the reliefs sought. Against the High Court decision, the appellants lodged an appeal on various grounds. The grounds included an assertion that the 1^st to 4^th respondents had no locus to institute the High Court petition, that there was delay in filing the petition, that the petition was not drafted with precision and that the deceased joint owners had slept on their rights and acquiesced to the alleged violations. It was also alleged that the 1^st to 4^th respondents had no rights over the suit premises and there was no evidence that their rights had been infringed and that the claim was an alleged historical injustice over which the National Land Commission (NLC) had exclusive jurisdiction.

Issues

1. Whether, in light of the existence of other co-owners of the suit property who were not co-petitioners, the 1^st to 4^th respondents had the locus standi necessary to institute the petition claiming a violation of their rights to property. 
2. Whether the drafting of the petition met requirements on precision in drafting constitutional petitions for the enforcement of fundamental rights and freedoms.
3. Whether the 1^st to 4^th respondents' delay in filing the petition meant that they had acquiesced to the violation of their proprietary rights and were estopped from filing the petition.
4. Whether the cause of action entailed a historical injustice which should have been handled in the first instance by the National Land Commission.
5. Whether the National Land Commission had exclusive jurisdiction in matters relating to historical land injustices.
6. Whether the 1^st to 4^th respondents proved that their right to property had been violated through illegal and irregular acquisition of their land.
7. When would an appellate court interfere with an award of damages by the Trial Court?
8. Whether a nominal sum of money could be awarded as mesne profits without that sum having been specifically pleaded for and proved.

Held

1. The appellants did not deny that the original five owners of the suit land had an interest in the property but they contended that other people also had a beneficial interest in the property. The fact that there were other people with an interest in the property, did not deny the 1^st to 4^th respondents locus standi. The fact that other co-owners or beneficiaries were not co-petitioners did not disentitle them from filing the suit. In principle, a suit should not be struck out or defeated for joinder or non-joinder of a party, except where the non-joinder was a bar to the manageability of a suit or where a decree that could be passed might become infructuous or in-executable.
2. The 1^st to 4^th respondents claimed proprietary interest in the suit property and their claim conferred upon them locus standi to institute proceedings alleging violation of their proprietary rights in the property. It did not matter how small their interest was or how small the portion of land that they claimed was.
3. The amended petition clearly identified the suit land and in paragraph 24 it set out the particulars of breach of the petitioner's constitutional rights. The appellant's replying affidavits showed that they understood the grievance of the 1^st to 4^th respondents in relation to the suit property. Such a response to the amended petition showed that the 1^st to 4^th respondents set out their claim against the appellants with a reasonable degree of precision.
4. Laches meant the failure or neglect, for an unreasonable length of time, to do that which by exercising due diligence could or should have been done earlier; it was negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it had either abandoned it or declined to assert it. Laches entailed an equitable defence based upon grounds of public policy which required the discouragement of stale claims for the peace of society.
5. The petition was essentially a petition to enforce the constitutional right to property. There was no time limit for filing a constitutional petition. The law on limitation of actions could not be used to shield the state or any person from claims of enforcement of fundamental rights and freedoms.
6. There could be no estoppel against the Constitution which was the paramount law of the land. A person could not acquiesce or waive fundamental rights and freedoms protected in the Constitution. Fundamental rights and freedoms were guaranteed as a matter of public policy and therefore, the doctrine of inordinate delay, estoppel, acquiescence or waiver could not unequivocally be applied as a bar to the enforcement of fundamental rights.
7. Laches was a principle of general application that could apply in constitutional petitions pertaining to alleged breaches of fundamental rights. However, delay in enforcing a claim for fundamental rights could be permitted or denied depending on the circumstances of each case.
8. Pursuant to article 67(2)(e) of the Constitution, one of the mandates of the National Land Commission (NLC) was to initiate investigation, on its own initiative or on a complaint into present or historical land injustices and recommend appropriate redress. An amendment to section 15(3) (e) of the National Land Commission Act introduced a limitation period of 5 years for claims relating to historical land injustices. A claim on historical land injustices would not be entertained after a period of five years from the date of commencement of the Land Laws (Amendment) Act.
9. Section 15 (3) (d) of the National Land Commission Act provided that a historical injustice claim was not admissible where an action or omission by a claimant amounted to surrender or renouncement of the right to the land in question.  There was an entry in the register which was a surrender of the grant and title to the suit property. The claim was therefore outside the mandate of the National Land Commission.
10. The Court had jurisdiction to hear and determine any claim relating to historical injustice regardless of whether the NLC was seized of the matter. The NLC had the mandate to investigate present or historical land injustices and if the NLC were to have an initial and exclusive mandate, it would mean that all cases on land injustices could only be handled by the NLC and not courts. That would prima facie render the Environment and Land Courts redundant. Furthermore, section 15 (3) (b) of the National Land Commission Act permitted the Environment and Land Court to deal with historical injustice claims capable of being addressed through the ordinary court system.
11. Neither the Constitution nor the National Land Commission Act ousted the jurisdiction of the High Court to hear and determine a claim founded on an historical injustice. The petition did not refer to the cause of action as a historical injustice. A party could not compel the other to frame a cause of action in a certain way.
12. A letter dated November 25, 1981 indicated that there were purchasers of the sub-divisions of the suit property and there was a proposal to issue titles directly to those purchasers. Apart from the five original owners there were other persons with interests in the suit premises.
13. Evidence on record revealed that on September 21, 1983, a Surrender of Lease to the government of Kenya of Eldoret Municipality Block 15/1 measuring 666.41 Ha was registered. That surrender ipso jure extinguished all rights and interests of the then registered proprietors over the suit property. There was a presumption that acts done by a public official were lawfully done and all procedures were duly followed. It was for the 1^st to 4^th respondents to prove that the surrender was unlawful. The 1^st to 4^th respondents had the option of making an application to compel the Commissioner of Lands to produce the original instrument of surrender, the memorial and endorsement thereon but they failed to do so.
14. The High Court made the finding that the act of the Commissioner for Lands in surrendering back to the government a portion of the suit premises, was an act of compulsory acquisition of the suit premises.  For the following reasons that was an erroneous finding:-

1. a surrender of grant or instrument of title was not compulsory acquisition-surrender of title to land was governed by a different legal regime compared to the Land Acquisition Act which governed compulsory acquisition;
2. registration of surrender was evidence of surrender and under sections 97(1) and 100 of the Evidence Act, no oral evidence was admissible to contradict or vary the contents of the documentary evidence indicating surrender; and,
3. it was the registered proprietors and not the Commissioner of Lands that surrendered the land- there was evidence that the registered proprietors returned the original title and grant relating to the suit property.

15. Section 97(1) of the Evidence Act inter alia stipulated that when the terms of a grant or any other disposition of property had been reduced to the form of a document, and in all cases in which any matter was required by law to be reduced to the form of a document, no evidence would be given in proof of such grant or other disposition except the document itself or secondary evidence of its contents in cases in which secondary evidence was admissible. Therefore, there was need for documentary evidence relating to the surrender.
16. By Gazette Notice No. 5948 dated December 7, 1987 and published on December 24, 1987, the government compulsorily acquired part of Block 15/237, Block 15/238 and Block 15/12. By Gazette Notice No. 1372 dated May 3, 1976 and Gazette Notice No. 1373 dated May 3, 1976, the government compulsorily acquired part of LR No. 10492. Compulsory acquisition of parcels of the suit premises was done by the government.
17. The letters on record indicated that the original five owners had knowledge of the subdivisions and actively participated in sub-division and re-subdivision of the suit property and the subsequent sale of portions of the sub-divided plots to third parties.
18. Two letters dated February 23, 1980 and November 25, 1981 from the Commissioner of Lands to the advocate for the original five registered proprietors, indicated that there were sub-divisions on the suit premises and that there were third party purchasers of the sub-divided plots. Through the letters written to their advocate, the original five proprietors were made aware of that.
19. The High Court erred in evaluating the evidence as it did not consider the content and proprietary impact of the letters and correspondence. If it had considered those letters, the High Court would not have made the finding that sub-divisions in the suit property amounted to compulsory acquisition as opposed to efforts to sub-divide the property and issue titles to third party purchasers, as instructed by the five original proprietors through their advocate or persons with whom they entered into agreements to purchase the sub-divided portions of the land.
20. On record there were letters from the Commissioner of Lands to the advocate for the five original proprietors. However, the replies of that advocate to the letters were missing from the record. The 1^st to 4^th respondents did not tender that evidence. The High Court did not have all the relevant documentations when it concluded that, on a balance of probabilities, the process of surrender of the suit land to the Government of Kenya and conversion of the land regime from RTA to RLA was characterized by procedural impropriety and illegality.
21. The High Court failed to consider the fact that under section 70(1) of the Registration of Titles Act, the Commissioner of Lands had power to combine and amalgamate plots. Additionally, under sections 65(1)(a) and 5 of the Registration of Titles Act, the Commissioner of Lands had power to call for a document. The High Court did not consider those powers and did not consider whether the Commissioner unlawfully exercised power when asking the original proprietor's advocate to surrender the grant for purposes of issuance of individual titles of the sub-divided suit property.
22. On a balance of probabilities, the petitioners did not prove and establish that the suit property was illegally, un-procedurally and unlawfully seized by the appellants. Also, the 1^st to 4^th respondents did not prove on balance of probabilities that the suit property was illegally sub-divided and re-subdivided. There was ample evidence on record showing active participation by the original registered proprietors in sub-division and re-subdivision of the suit property and negotiating the purchase transactions for the ensuing sub-plots with third parties.
23. There were principles related to the setting aside of an award of damages. In interfering with an award of damages, the Court would consider whether in awarding the damages the Trial Court took into account an irrelevant factor, or left out of account a relevant one, or that, short of that, the amount was so inordinately low or so inordinately high that it was a wholly erroneous estimate of the damage.
24. Valuation was a question of fact and the value of property should be determined fairly and reasonably. The correct principle of valuation applicable to a given case was a question of law. A valuer's report should indicate the estimated value of the property and the estimation should be done carefully. Unless the Court was satisfied about the adequacy of the price, adoption and confirmation of value as per the valuation report would not be a proper exercise of judicial discretion.
25. It was not clear how the High Court arrived at the determination that the sums in the valuation report were reasonable. The fact that a valuation report was not controverted, did not make the report reasonable. The Court had to undertake an analysis and determine the accuracy, quality and appropriateness of the report, and ascertain the relevance of data used, enquiries made and suitability of methods and techniques employed, and finally, the Court was to determine whether the analysis, opinions and conclusions in the valuation report were reasonable.
26. The valuation report stated that the property was valued free from encumbrances and for purposes of the petition. It was not clear whether the value would have been different if it was not done for purposes of the petition and it was unclear why the valuer assessed the property as one that was free from encumbrances yet the record showed that third parties were in possession of portions of the property.
27. The valuation report was silent on the compensation paid by the government upon compulsory acquisition of portions of the property, it did not comprehensively state that the value given was a fair market value at the material time, it did not succinctly specify the dependent factual circumstances such as zoning and the unique characteristics of the property and it did not indicate whether the assigned value was based on comparable market, income and cost valuation approach.
28. The High Court did not analyse the valuation report tendered in evidence or explain why it deemed the valuation report to be reasonable. Discretion should be exercised on the basis of sound judicial principles and not capriciously or whimsically. Without reasons as to why the High Court found the valuation report reasonable, its determination of the compensation awardable took into account irrelevant considerations and or failed to take into account relevant considerations.
29. Mesne profits were special damages which had to be pleaded and proved. Adjudication on mesne profits was a pure question of fact. The 1^st to 4^th respondents did not plead the sum of Ksh. 500,000,000/= awarded by the High Court as mesne profits. They also did not satisfy the High Court that they ought to be awarded the sum of Ksh. 2,690,603,339/= pleaded in the amended petition as mesne profit.
30. Having made a finding that the 1^st to 4^th respondents were not entitled to Kshs. 2,690,603,339/= as mesne profits, it was not open to the High Court to substitute its own figure of Kshs. 500,000,000/= and make an award of the same as mesne profits. The High Court did not explain how it arrived at the sum of Kshs. 500,000,000/=.

Appeal allowed.

Orders:-

1. The Judgment of the Environment and Land Court dated April 15, 2016 and the declaratory orders and decree arising therefrom were set aside.
2. The Petitions filed before the High Court were dismissed.
3. The 1^st to 4^th Respondents were to bear the cost of the petition before the High Court and costs in the appeal.

Cases

East Africa

1.Republic v Attorney General & 3 others ex-parte Kamlesh Mansukhlal Damji Pattni Judicial Reveiw Miscellaneous Civil Application No 305 of 2012 [2013] eKLR-(Followed))

2.Anarita Karimi Njeru v Attorney General (1979) KLR 154-(Explained)

3. Ledidi ole Tauta & others v Attorney General & 2 others Constitutional Petition Number 47 of 2010; [2015] eKLR –(Explained)

4. Mirigi, Lucy & 550 others v Minister for Lands & 4 others Civil Appeal No 227 of 2011; [2014] eKLR, -(Cited)

5. Kariuki, Peter M v Attorney General Civil Appeal No 79 of 2012; [2014] eKLR-(Followed)

6. Njau, David Gitau & 9 others v Attorney General Petition No 340 of 2012 [2013] eKLR –(Cited)

7. Kipsiwo Community Self Help Group v Attorney General & 6 others ELC Petition No 9 of 2013 (-(Cited)

8.Kenya Hotel Proprietors Limited v Willesden Investments Limited Civil Appeal  [2009] KLR126 –(Cited)

9.Peters v Sunday Post Ltd [1958] EA 424-(Explained)

10. Amolo,Dominic Arony v Attorney General Miscellaneous Application 494 of 2003; [2003] eKLR –(Mentioned)

11.Waihere v Attorney General  [2010] KLR 585 –(Mentioned)

12.Kariuki Kiboi v Attorney General Civil Appeal No 90 of 2015; [2017] eKLR -(Followed)

13. Mak’Onyango, Otieno v Attorney General & another Civil Case No 845 of 2003; [2009] eKLR-(Mentioned)

14.Ogechi, Johnstone v National Police Service Petition No 6 of 2016; [2017] eKLR-(Followed)

15.Karume, Ngari & others v Attorney General, Nairobi Constitutional Application No 128 of 2006 [2009] eKLR-(Followed)

16.Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] 2 KLR 91-(Followed)

17.Mwinyi Hamisi Ali v Attorney General, Civil Appeal No 125 of 1997; [1997] eKLR-(Followed)

18.Kenya Commercial Bank v Specialized Engineering Company Ltd Civil Case No 1728 of 1979 [1980] eKLR-(Followed)

19.Kemfro Africa Limited t/a Meru Express Services (1976) &another v Lubia & another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR- (Followed)

20.Butt v Khan [1981] KLR 349-(Followed)

21. Annet Zimbiha v Attorney General, Civil Suit No 0109 of 2011) [2013] UGHC 11(8January 2013)-(Followed)

22.Palmy Company Limited v Consolidated Bank of Kenya Civil Suit No 527 of 2013; [2014] e KLR-(Explained)

23.Zum Zum Investment Limited v Habib Bank Limited Commercial Case 60 of 2013; [2014] eKLR-(Explained)

24.Gicheru v Morton and another (2005) 2 KLR 333-(Followe)

25. Mbuthia, Peter Mwangi & another v Samow Edin Osman Civil Appeal No 26 of 2004; [2014] eKLR-(Explained)

26.Mbugua, Karanja & another v Marybin Holding Co Ltd Enivornment & Land Case No 106 of 2012; [2014] eKLR-(Explained)

27.Kenya National Examination Council v Republic ex parte Njoroge [1997] KLR 480-(Cited)

India

1.State of Bihar and others v Project Uchcha Vidya, Sikshak Sangh and others, MANU/SC/0054/2006: (2006) 2 SCC 545 –(Followed)

2.Olga Tellis v Bombay Municipal Corporation (1985.07.10) (Right to Life and Livelihood for Homeless),1986 AIR 180, 1985 SCR Supl (2) 51-(Followed)

3.Union of India v Bombay Tyre International Ltd (1984) 1 SCC 467 –(Explained)

 4.Gurbachan Singh v ShivalakRubber Industries, AIR 1996 SC 3057) –(Explained)

 5.Kay jay Industries (P) Ltd v Asnew Drums (P) Ltd AIR 1974 SC 1331-(Mentioned)

 6.Union Bank of India v Official Liquidator High Court of Calcutta, AIR 2000 SC 3642 –(Mentioned)

 7.B Arvind Kumar v Government of India, 2007 (56) AIC 9 (SC. (Sum.): (2007) 5 SCC 745 –(Mentioned)

 8.Transcore v Union of India AIR 2007 SC 712 –(Mentioned)

9.Dr J K Bhakthavasala Rao v   Industrial Engineers, Nellore AIR 2005 AP-(Explained)

10.Mohammad Amin and others v Vakil Ahmed and others 1952(1) SCR1133-(mentioned)

Phillipines

1.Phillipines v Court of Appeals, GR No 116111, January 21, 1999, 301 SCRA 366, 378-379)-(Mentioned)

Trinidad & Tobago

1 Durity v Attorney General (2002) KPC 20-(Explained)

Caribbean

1. The Eastern Caribbean Supreme Court in the High Court of Justice (Civil) Claim No NEVHCV 2012/15 – Judgment on Assessment of Damages

United Kingdom

1.R v Dudsheath ex parte Meredith (1950) 2 All ER, 741 –(Explained)

2.Metal Box Co Ltd v Currys Ltd, (1988) 1 All ER 341-(Mentioned)

3.Moulton v Bowker 115 Mass 36 (1874)-(Followed)

4.Waters & others v Welsh Development Agency [2004] UKHL 19; [2004] 1 WLR 1304-(Mentioned)

5.Horsford v Bird [2006] UKPC, Privy Council Appeal No 43 of 2004

6.Durity v Attorney General (2002) KPC 20-(Cited)

Statutes

East Africa

1.Constitution of Kenya (Repealed) sections 75(1)(2) –(Interpreted)

2.Constitution of Kenya, 2010 articles 20,24, 40 (2)(3)(4)(6); 67(2)(e); 259(8)-(Interpreted)

3.Land Acquisition Act, (cap 295) (Replead)- In general

4.Limitation of Actions Act (cap 22) – In general

5.National Land Commission Act, 2012 (Act No 5 of2012) section 15 (2)(3)(b) (e)(d)(4)(g)  –(Interpreted)

6.Evidence Act, (cap 80) sections 97(1); 100-(Interpreted)

7.Registered Land Act (cap 300) Replead section 18(1) –(Interpreted)

8.Registration of Titles Act (RTA) (cap 281) Replead sections 5, 41(1); 44(1); 65(1)(a); 70(1) –(Interpreted)

 9. Civil Procedure Act (cap 21) order 21, rule 13 –(Interpreted)

Texts & Journals

1. Jacob, H., (Ed) (1978) Supreme Court Practice1979 London: Sweet & Maxwell Vol 2 para 2013 p 620

Advocates

1.Senior Principal State Counsel Mr Kepha Onyiso and State Counsel Mr Wabwire for the Appellants.

2. Mr J Kipnyekwei for the 1^st to 4^th Respondents

3.Messrs Ochieng BP and Mr Biko for the 5^th Respondent.