REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

 (CIVIL CASE NO.193 OF 2010)

ELC CASE NO.1303 OF 2014

MIKE MAINA KAMAU…...................................................... PLAINTIFF

=VERSUS=

THE ATTORNEY GENERAL ………………………………..…DEFENDANT

JUDGEMENT

By way of Plaint dated 22^nd June, 2011, the Plaintiff herein has come to Court seeking for the following orders:-

a) Special Damages of Shs.379,392,702/=.

b) Compensation Damages in the form of cost of finance of (a) above in the sum of Shs.192,215,5012.34 for the period of May 2007 to July, 2010 at the prevailing market rate of 16% per annum or such other rate as may be ordered.

c) In the alternative to (a) and (b) above, compensatory damages on the basis of full repayment value of the suit property herein as developed by the Plaintiff prior to the demolition thereof on 14^th July 2010, together with unencumbered open market value of the land upon which that same was constructed being LR.  No.15045/4 (IR No.116128) (Original No.15045/2-3) measuring one and a half acres or thereabouts and situated at Spring Valley Estate within Nairobi (suit land) as at the time of judgment herein in the aggregated sum of Shs.571,588,204.34 or such other values as may be determined upon quantification by a licensed Quantity Surveyor to be agreed upon by the parties within 14 days of judgment herein or appointed by the court upon failure of such agreement.

d) Loss of future earnings in the form of anticipated rental income from the suit property at the same rate of Shs.500,000/= from 1^st August 2010 until the date of judgment herein.

e) General Damages

f) Aggravated Damages

g) Exemplary Damages

h) Interest on (a) (b) and (c) above at the rate of 16% from 14^th  July 2010 until payment in full.

i) Interest on (d) (e) (f) and (g) above at the rate of 12% from the date of Judgment until payment in full.

j) A Declaration that the Plaintiff is entitled as against the Government of Kenya to the suit land and to possession thereof in which event the sums awarded as  regards prayers (a) and (c) above to be reduced by the cost or value of the suit land as pleaded herein or determined in the judgment herein whichever lower.

k) Costs of the suit

In his Plaint, the Plaintiff acknowledged that the requisite 30 days Notice under the Government Proceedings Act had been served upon the Defendant before filing this suit and was dated 24^th January 2011. He pleaded that, at all material times, he was the registered proprietor entitled to possession of the LR.No.15045/4 (IR No. 116128) (Original Number 15045/2-3), measuring one and a half acres or thereabouts and situated at Spring Valley Estate, within Nairobi. The Plaintiff further pleaded that at all material times he had and continues to have a valid Certificate of Title to the suit property issued to him by the Government. He further stated that he had been paying land rates and rents which were demanded of him by the Ministry of Lands and City Council of Nairobi. The Plaintiff also stated that he had expended a lot of money to construct a residential property in the form of an 8-bedroom palatial home (suit property), that costed Kshs.299,372,702/=.  He further stated that on the morning of 14^th July 2010, when the construction of the suit property was almost complete with most of the fittings and finishes and furnishings complete, the Minister for Roads, Hon Franklin Bett, without Notice or valid Notice wrongfully entered upon the suit property, demolished and completely destroyed the suit property.

 It was his further averment that this caused substantial and total loss, anguish and damage to the Plaintiff and the suit property. He further reiterated that the issuance of title to him was by the relevant Government Officials acting on behalf of the Government of the Republic of Kenya and that they had actual, alternatively implied, alternatively apparent authority to act in those transactions.

He pleaded further that in the alternative, where the officials might have not had the authority, the Government ratified the officials’ actions by subsequent amalgamation of the Plaintiff’s title to the suit property and unconditionally acknowledged the Plaintiff’s proprietary interest therein.

The Plaintiff outlined the particulars of the wrongful demolition as failure to give notice to the Plaintiff of any intention to demolish the suit property, failure to give notice of any intention to repossess or compulsorily take over the suit property, failure to offer and pay compensation for the purported compulsory acquisition, effecting the demolition in a manner that drew the attention of the whole nation to the Plaintiff’s property by even inviting or drawing the attention of the press who broadcasted the demolition, making remarks that were disparaging, scandalous and disrespectful to the Plaintiff at the site of the demolition, suggesting that the Plaintiff is corrupt and guilty of economic crimes and carrying out the demolition despite the existence of a Court Order restraining the same, issued in High Court Petition No 6 of 2010.

The Defendant filed its Amended Defence and Counterclaim on 23^rd September 2015, and denied all the allegations in the Plaint and stated that the suit was an abuse of the court process as a similar case between the same parties was still pending hearing and determination and added that they would raise a Preliminary Objection at or before the hearing of this suit. The Defendant stated that the suit property was unlawfully acquired by the Plaintiff through fraud, misrepresentation and/or mistake, since the same was part of a road reserve commonly known as ‘RedHill Link Road to the Northern by pass.’ The Defendant laid out the particulars of fraud, misrepresentation and/or mistake as follows; fraudulently acquiring the suit land that he knew or ought to have known was a road reserve, misrepresenting to the government officials that the land was available for allocation, failing to notify the government officials of the mistake of receiving revenue over the suit parcel which was not available for alienation and rushing to construct and complete the house when he knew or ought to have known that it was on a road reserve whose construction was due.

The Defendant denied the wrongful demolition and denied that the Plaintiff had good title to the suit property. The Defendant denied the figures raised by the Plaintiff in the Plaint and did put the Plaintiff to strict proof thereof. The Defendant stated that the Plaintiff encroached on a road reserve and was therefore not entitled to any damages.

In their Counterclaim, the Defendant pleaded that the title was held by the Plaintiff irregularly, unlawfully and fraudulently and should therefore be cancelled. The Defendant alleged that the suit land is part of land acquired in the early 1970s, for the purpose of construction of the link road to cover a distance of 4.4 kilometers and was to traverse through Grevilla Groove, Kyuna Road, Loresho Ridge, Spring Valley Road, Kitusuru Road and Ngecha Road. The Defendant counterclaimed that the title known as LR.No.15045/4 (IR No 116128) (Original Number  15045/2-3) be cancelled, revoked or nullified as it was hived off LR 8444 which had been acquired for the specific purpose of creating a link road and that the parcel in question be restored to the Government for road construction. The Defendant further averred that public interest overrode the Plaintiff’s interest and that the suit should be dismissed with costs.

The Plaintiff filed a response to the Statement of Defence and Counterclaim dated 6th of September 2011 and Amended on 16^th May 2017. He reiterated the contents of the Plaint. He denied the claim that the suit was an abuse of the court process and put the Defendant to strict proof. He denied the claims of fraud, misrepresentation and/or mistake.

The hearing commenced on 15^th March, 2016, wherein the Plaintiff called a total of six witnesses and Defendant called two witnesses to support their respective positions.

Plaintiff’s Case

PW1, Mike Maina Kamau, adopted his witness statement sworn on 22^nd June 2011. He testified that the matter was in relation to LR. No.15045/4, wherein he is in possession of a Certificate of title which he obtained in 2008 and therefore the suit property is owned by him. He further testified that the Ministry of Roads demolished and destroyed his property by claiming that it was on a road reserve. It was his contention that the suit property was not on a road reserve and he also contended that he was in possession of the title document which was issued to him by the Government. He further stated that he had filed two bundles of documents which he produced as exhibits. He further testified that he bought the land in the year 1990, but did not develop it for some years. He also stated that he started construction after obtaining the necessary approvals. It was his further testimony that he started construction in the year 2008, after obtaining the relevant authority from the City Council of Nairobi. He referred the Court to pages 40-47 of bundle 1 of documents for proof. He testified that he was constructing a rental mansionette. He stated that he received no objection for the said construction. He also testified that he would receive inspections from the City Council of Nairobi, and that at the time of demolition, he had done 95% of the work. It was his further testimony that he did not receive any Notice from the Government for the said impending demolition. He also testified that the Court granted an Injunctive Order against the said demolition on 13^th July 2010, and the said Order was served to the Minister of Roads and his officials on the morning of 14^th July 2010.

It was the Plaintiff’s further evidence that on the morning of the 14^th of July 2010, while in his office at Kiambu, he received a telephone call and he was informed that some people from the Ministry of Roads were waiting for the Minister of Roads so that they could go ahead with the demolition. It was his further testimony that after the Minister of Roads arrived, he gave the order for the demolition and he supervised the event. Therefore the Plaintiff was seeking damages for the loss that he incurred due to the said demolition. He testified that he had earlier filed a Petition at the High Court over the impending demolition and he obtained Injunctive Orders.  Therefore the people he sued were aware of that Court Order and were properly served. He claimed that he instituted contempt proceedings which were dismissed but he proceeded with his claim for damages. He stated that he was seeking special damages of Kshs.379,372,700/= for the amount he spent on the construction. He further stated that he was also seeking compensatory damages of Kshs.192,215,502/=. He also testified that he had built that house for rental purposes and that estimated rent in that area is Kshs.500,000/= and he would therefore be claiming this amount since the date of demolition. He produced the bundle of documents apart from Qs report, Architect report and Surveyor’s report.

PW1 was recalled on the 26^th July 2016, for cross examination. He stated that he had been issued with a letter of allotment when he acquired the land, but did not have that letter of allotment at that time. He stated that he knew the land was available through the Ministry of Lands. He responded that it was Government Land, and when he went to the Ministry in 1993, he found it was free for allocation. He responded that he could not remember the specific officer but that he had a letter of application which was not in the bundle of documents.He explained that in his statement, the two amalgamated parcels of land gave rise to the suit property in October 2008. He also testified that he was issued with the title LR.No.15045/4 on the 28^th of October 2008. He further testified that he had paid the land rates on that title. He also stated that the land was valued at Kshs.80,000,000/= at the time of filing the Plaint. He also stated that the Minister for Roads was not found in contempt in the contempt proceedings. He further stated that there was a Government Notice for people on road reserves but he had no knowledge of the Notice. He also stated that he did not challenge the Gazette Notice.  He alleged that his title had not been nullified todate.

PW2, Francis Wanjohi Munyororo, stated that he is an advocate of the High Court of Kenya, and a partner in the Law Firm of John Mburu & Co. Advocates. That he recorded a statement dated 22^nd June 2011, and produced it and the same was adopted by the Court as part of his evidence. He also stated that he was instructed by the Plaintiff to file the Petition No.6 of 2010. He further testified that he obtained interim orders on the 13^th July 2010, and served them on the Respondent. After the demolition was done, he stated that he proceeded to file for contempt. He also testified that the Minister for Roads was not found in contempt and that he would need to refer to his file on what the other outcome was.

PW3, John Maina Mburu an advocate of the High Court of Kenya practicing under the name John Mburu & Co. Advocates, testified that he knew the facts of the case and knew the Plaintiff to be the owner of the suit property. He also testified that the palatial home constructed by the Plaintiff was demolished by the Minister for Roads, Hon. Franklin Bett, and other Government officials on 14^th July 2010. He further stated that he made a statement dated 22^nd July 2010, and he adopted the said statement as his evidence. He testified that the property was valued at Kshs.80,000,000/=, and that he arrived at that figure from his own assessment and had not used a Quantity Surveyor. With regards to Petition No.6 of 2010, he testified that the issue was contempt but that the order did not absolve anyone. He also stated that he was not aware of any orders that allowed that demolition to happen. He further testified that there was an order stopping the demolition and those orders had not been set aside or challenged.

On cross-examination he contended that he had visited the site of the construction many times before and during the construction of the demolished house.  He stated that he visited to see the quality of work that had been done and not for legal interest. He further stated that he started suspecting something was wrong when he saw the constructed house in the Star Newspaper claiming it was on a road reserve. It was his further testimony that he then wrote to the Commissioner of Lands inquiring about the article. He said that the letter was copied the Minister for Roads and Chief Engineer Roads. He further stated that the letter was not part of the bundle of documents. He also testified that his Law Firm filed the Petition and received interim orders which he served to the Permanent Secretary. He also stated that the contempt of court proceedings he filed were dismissed on the grounds that there were issues with service.

On the suit property, he reiterated that the Plaintiff had the title documents and that he is the one that carried out the search which was not included in the bundle of documents. On re-examination, he stated that he had not been shown any other title to the property. He also stated that he was not aware of any Notice served on the Plaintiff on the demolition. It was his testimony that the recourse left is for damages and proper compensation and loss of future earnings. He said that the bypass that was alleged did not pass over the suit property.

PW4, John Muriithi Gaiko, a Quantity Surveyor at Gaikonsult Quantity Surveyor, testified that he graduated from University of Nairobi in 1981 with a Degree in Building Economics and joined the Ministry of Roads as a Quantity Surveyor.  He also testified that his job as part of a team of consultants, was to advice clients on the cost and estimation of damage that have been done. He further testified that they also gave advice on the possible ways of executing the works and duration of the contract. He further testified that he knew the Plaintiff since he was his client. He also stated that he knew the suit property. It was his testimony that the Plaintiff was building a palatial home which was unique in terms of size, features and facilities that were installed. He testified that he had submitted his report which comprised the schedule of the claim. He stated that he included post construction costs and construction costs. He also stated that he was trying to come up with the costs of rebuilding such a structure. He stated that the report was done in November 2010, a few months after the demolition. He also stated that he visited the site and the whole building had been destroyed to the ground. He also testified that he was able to appreciate the scale of the finishing and various structures used in the construction. He further testified that he physically examined the site and used various drawings and designs from the architect and various engineers in relation to the architecture.

It was his testimony that his role was to prepare a schedule of costs which in this case, was the costs of redoing the development after demolition. He also stated that he included the main house, servants’ quarters, swimming pool, gymnasium and the professional fees. He further stated that he went section by section according to the building plan. He testified that he used the market value plus receipts for the items which were out of the ordinary. He testified that the total costs of the staff quarters was Kshs.8,040,930/=.  The Swimming Pool was estimated at Kshs.14,077,820/=, the external works come to Kshs.29,787,865/= and professional fees come to Kshs.49,311,977/=. The abortive works and variations was Kshs.24,697,356/=. He also testified that he also considered the preliminary requirements of contracts required to execute the work like insurance, water, electricity and security.

On cross-examination, he reiterated the progress of the construction of the house and stated that it was practically a complete house. He also stated that he was aware of the dispute and that it did not affect the value of the post demolition assessment prepared.

PW5, Eugene Ochio Maruti, a Practicing Architect under the name Maruti Consultant, testified that he graduated in 1984 and finished his Board Examinations in 1987, and has been in practice since. He also stated that he knew the Plaintiff in a professional capacity, and further that he was the architect in the suit property. He stated that he verified that the Plaintiff was the owner of the land. Further that he verified what kind of construction was allowed on the land from the title document. He also testified that after the due diligence, he took up the brief. That he submitted the final drawings to the City Council of Nairobi for approval together with copies of the title, copies of receipts for payment of land rates and rent, submission fees and Surveyor plan. He also stated that the local authorities approved the application. He referred the court to each of these documents including floor plans and site plan, as indicated in the bundle of documents and confirmed that his Firm prepared those drawings. He stated that he supervised the construction of the house and it was in accordance with the plans he had drawn. He also testified that before demolition, the house was almost finished.

 On cross-examination, he stated that he did not prepare the survey plan and admitted that the plan showed the shaded part as being disputed. He stated that the plot in contention is supposed to be a road reserve but that this was not brought to his attention. He also responded that he was unsure of whether he obtained the deed plan himself or from the Plaintiff and that there were some alterations made in construction from his drawings. On re-examination he stated that he had seen the title and nothing on the title showed that the land was on a road reserve.

PW6, Kenneth Njau Kungu, a Contractor, testified that he was a Grade II Carpenter, and that he had done construction for the last 25 years. He further testified that he was in charge of the construction of the house in Spring Valley. He adopted his witness statement dated 22^nd June 2011. It was his testimony that the house was 99% completed on the date of demolition. It was his further testimony that the workers were in place proceeding with the work as usual when the Minister for Roads , Hon. Franklin Bett went to the site and supervised the demolition. He testified that they used two excavators. He also testified that he tried to salvage a few items such as furniture, but only a few items were salvaged. He further testified that by 2.00pm the whole building had been completely destroyed.

PW6, Gordon Okumu Wayumba, an Associate Surveyor in land surveying from the Technical University of Kenya, testified that he was aware of the suit property and that he had surveyed it. He testified that he prepared the Survey Plan and that it was marked folio number 472/10. He also testified that he had obtained the previous survey plan as is common practice. It was his testimony that having obtained the records, he proceeded to the grounds to establish the position of the plot under reference. He further testified that he used modern technology such as GPS system and Google earth to carry out his work.  He testified that the satellite system and the beacons confirmed that the plot was not on a road reserve. He also pointed out that the road reserve that was allegedly affected has no survey carried out and approved by the Director of Surveyor. The witness was then stepped down to give further evidence at the site.

PW7, Joseph Mutuku Musyoki, a Professional Valuer, practicing under Joe Musyoki Consultants, stated that he was asked to carry out valuation of the suit property which he did and presented a valuation report. He valued the land at Kshs.160,000,000/=. He presented the evidence he had used such as the title document, google maps and photographs, and thereafter produced the report as exhibit No.5. On cross-examination, he stated that he visited the site on 18^th December 2014, and gave the property the stated value of Kshs.160,000,000/=. He also testified that he compared the property to three adjacent plots. He further stated that one such plot was being sold by an agent and he was not privy to the agent’s fee therein. He also testified that the suit property is about 200km from the road. It was his testimony that he was not told the purpose of the valuation. He testified that he used the market value.

PW6 - Gordon Okumu Wayumba, was recalled and testified that the site visit took place on the 9^th February 2017, and he was presented with a copy of the Deed Plan from the Survey of Kenya. The deed plan was No.07977 of 3^rd October 1975. It showed that the survey was done for the road section and a sketch plan was done. The deed plan stated there was acquisition of 7.40 Ha, LR.No.8444/1. He also testified that he has not been shown any other deed plan post acquisition but was shown a sketch of the road. He stated that a sketch of the road is not a respected document as it only shows who drew it. He further stated that the Defendant had not shown any documents that have folio and authorized by the Director of Survey. He submitted his survey plan as evidence and added an addendum to his report as DI had not been presented to him earlier. 

Defendant’s Case

DW1,  Abdikadir Ibrahim Jacartan, a Manager Survey at Kenya Urban Roads Authority, adopted his witness statement dated 2^nd February 2017, as his evidence. He also testified that in 1970, the Government decided to construct a link road between Waiyaki Way and Red Hill Road, which was about 4.4 Km. He also stated that the road was to traverse Kitusuru, Peponi, Spring Valley roads and then join Limuru road. He also stated that these areas were private property and therefore the Government started the process of compulsory acquisition of 18.84 acres of Land for road purposes which was completed in 1976. He also stated that the Government was trying to secure funds for the road which took time but in 2003, the Government had secured the funds for the construction, when it was realized the road reserve had been acquired by individuals for private purposes. He claimed that the Government issued a Gazette Notice No 3632 on 6^th June 2003, informing the general public of the encroachment and asking them to clear any structures on the road reserve. He claimed that the Plaintiff was constructing on the suit plot at the time and was asked to cease. He testified that since then to 2010 the road was opened up and that on 14^th July 2010, the Plaintiff’s house was demolished. He further testified that his predecessor, Mr. Muthusi Kimanzi, prepared the bundle of documents which DW1 sought to produce as evidence. He urged the Court to declare that the property was acquired for road purpose and that the Plaintiff’s title was irregularly acquired. He also testified that the road construction was at an advanced stage.

On cross-examination, he stated that he did not know who issued the title to the Plaintiff. He also responded that in law once a title is issued, it is valid and can only be cancelled by a Court. He further stated that they filed the Counter-claim because the Plaintiff’s title could not be ascertained. He also claimed that he had no Court Order before the demolition. It was his testimony that the Deed Plan No.47210 was a genuine Government record. 

DW2, Edwin Munoko Wafula, Deputy Chief Land Registrar-Registrar of Titles at the Ministry of Lands, testified that he had worked there for 8 years. He adopted his witness statement dated 14^th February 2017, entirely as his evidence. He also stated that his former colleague Mr. Birundu had made a statement but he died before he could testify, although DW2 had counter checked the statement and confirmed that the details were correct and he adopted the statement as his evidence. He also stated that the suit land had been registered under the Plaintiff’s name but that there was also a claim that the land had been acquired for road construction. He further stated that he was not a land registrar and he could not talk about that registration authoritatively. He reiterated that as far as the records stand at the lands office, the property is registered under the Plaintiff’s name after an amalgamation. He testified that a deed of indemnity was applied for and that the file was later reconstructed. On cross-examination, the witness said that the title was IR No.116128/1 LR No.15045/4 and also confirmed that there were series of amalgamation and transfers done by the Ministry of Lands.

Plaintiff’s Submissions

The Plaintiff filed his written submissions on 2^nd August 2017, and submitted that although the issues for determination by the Court had already been framed and agreed, the main point upon which the case turned was whether the Defendant was entitled to move into the suit land without Notice or Court Order and demolish the suit property. The Plaintiff relied on the case of Christopher Ndarathi Murungaru…VS... Kenya Anti-Corruption & Hon Attorney General [2006], where it was held that:- “the Constitution of the Republic is a reflection of the supreme public interest and its provisions must be upheld by the  courts, sometimes even to the annoyance of the public”.

The Plaintiff further submitted that the court should find that the Defendant did not observe or follow due process in carrying out the demolition. The Plaintiff further relied on Article 27(1) and (2) of the Constitution which provides that:- “every person is equal before the law and has the right to equal protection and benefit of the law”. The Plaintiff also summarized the evidence given at the hearing reiterating his claim. With regard to the measure of damages the Plaintiff relied on the locus classicus on award of damages Livingstone….Vs….Rawyards Coal Co, (1880) 5 App Cases 25, where the court defined the measure of damages as “that sum of money which will put the injured party in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.”

It was further submitted that the Plaintiff had quantified and proven his claim for damages through expert evidence produced. Further, it was submitted that the fact that the Defendant proceeded with the demolition despite a Court Order, the said demolition entitles the Plaintiff to exemplary and/or aggravated damages as claimed. The Plaintiff also submitted that the Defendant failed to prove any fraud, misrepresentation or mistake as alleged in the Amended Defence and Counter-claim. For this the Plaintiff relied on the case Ratilal Gordhanbai Patel v. Lalji Makanji[1957], where it was held that:- “allegations of fraud must be strictly proven”.

The Plaintiff also submitted that the Gazette Notice No.3632 of 6^thJune 2003, did not apply to the Plaintiff,  because the Notice very generally required removal of structures in road reserves and did not address the Plaintiff and that such omission is fatal according to  Section 49(4) and (5) of the Kenya Roads Act 2007. It was also submitted that the Plaintiff’s title to the suit property was indefeasible, and relied on Section 25 and 26 of the Land Registration Act.

He also relied on inter alia on the case of Dr. Joseph Arap Ngok…Vs… Justice Moijo Ole Keiwa & 5 Others [1997]eKLR where the Court held that “it is trite law that landed property can only come into existence after issuance of letter of allotment, meeting the conditions stated and actual issuance thereafter of title document pursuant to provisions in the Act under which the property is held”.

The Plaintiff also relied on Article 40 of the Constitution on the right to property and submitted that the only instances that the State is permitted to deprive an individual of his  property is during compulsory acquisition as provided for under Article 40(3)(a) of the said Constitution. It was further submitted that the Minister of Roads unlawfully denied the Plaintiff of these rights. Further  that the Plaintiff had the legitimate expectation that the State would allow him a quiet possession of the suit property. He also had the legitimate expectation that in the case of demolition, due process would be followed which, he submitted, was not the case herein. For this he relied on the case of Attorney General v Ryath (1980), where it was held that a decision affecting the legal rights of an individual which is arrived at by a procedure which offends the principles of natural justice is outside the jurisdiction of the decision making body. It was the Plaintiff’s submissions that he had proved his case on a balance of probabilities and asked the court to enter judgment in his favour.

Defendants Submissions

The Defendant filed its written submissions on 21^th August, 2017, and outlined the following issues for determination;

i. Did the Plaintiff have good title over the suit property

ii. Does the Plaintiff’s interest, if any, over the suit property override the overall public interest

iii. Did the Plaintiff prove special damages for construction of the house.

iv. Has the Plaintiff proved the value of the house.

v. Is the Plaintiff entitled to any general damages.

The Defendant submitted that it has been shown that Land ParcelNo.8444 was duly compulsorily acquired in accordance with Section 75 of

the former Constitution of Kenya. They also submitted that the Plaintiff’s claim that he has title, is not foolproof of ownership. They relied on the case of Adan Abdirahani Hassan & 2 Others..Vs…The Registrar of Titles, Ministry of Lands & 2 others [2013] eKLR, where it was stated that the Commissioner of Lands cannot purport to alienate land that has already been set aside for public purpose and that any title issued in such a circumstance would be null and void.

They further submitted that the provision under Section 25(1) of the Land Registration Act is subject to any encumbrances in the register and other liabilities declared under Section 28 of the Land Registration Act that may not be required to be registered in the register. The Defendant submits that Section 28 provides for overriding interests such as compulsory acquisition. For this they relied on the case of Cycad Properties Limited..Vs..Attorney General, H.C Petition No.70 of 2010, where it was stated that;- “the right to property is only granted to the extent that such property does not encroach upon land that was acquired and set aside for public purpose”. The Defendant contended that the overall public interest outweighs any other interest, if any, of the suit property. The Defendant contended that the Plaintiff is not entitled to any compensation on three grounds;-

i. The Plaintiff was aware or ought to have been aware that the suit property had been set aside for public purpose.

ii. Government gave notice under Gazette notice 3632 published on 6^th June 2003, for the removal of illegal structures on road reserves.

iii. It would be against public policy to enforce compensation upon an irregularly acquired title.

The Defendant claimed that on special damages, the Plaintiff had not proved the same as special damages. It was also submitted that no claim lies for general damages and that the claim on loss of future earnings was remote. The Defendant concluded by reiterating the Plaintiff is not the rightful proprietor of the suit property and is thus not entitled to any rights or compensation.

This Court has now carefully considered the available evidence and the exhibits produced in court therein.  The court has also considered the written submissions, the cited authorities and the relevant provisions of law and it renders itself as follows;-

There is no doubt that the Plaintiff herein Mike Maina Kamau, is the registered owner of the property known as LR.No.15045/4, wherein he obtained such registration on 28^th October 2008 (IR.No.116128).  There is also no doubt that this suit property is a resultant amalgamation of IR 54730 and 54731, which were originals LR.No.15045/2-3.  The said amalgamation was approved by the Ministry of Lands, through the Commissioner of Lands.  There is also no doubt that according to the Correspondence file No.12687, at the Lands office, this land parcel came into being by way of allotment dated 22^ndAugust 1990, wherein a Part Development Plan (PDP) was annexed as no.42/27/90/1.  According to the evidence of DW2, this parcel of land was initially allotted to M/S Pelican Engineering & Construction Co. Ltd, as a un-surveyed Plot ‘B’.  It is also apparent that the history and root of this parcel of land can be traced from the lands office through the records available therein and the said Correspondence File No.126871.

It is also not in doubt that the Plaintiff herein started construction of the demolished house in the year 2008.  It is evident that in the year 2003, the Ministry of Roads vide a Gazette Notice No.3632 dated 6^th June 2003, allegedly issued a Notice to the general public advising that they should remove structures encroaching or erected on road reserves, and failure of which the Ministry would have them removed.  However, it is not in doubt that the said Gazette Notice did not specify any land parcel nor did not state without ambiguity that the suit land LR.No.15045/4 was one of the said parcels of land encroaching on the road reserves.  Further, it is apparent that the Plaintiff herein acquired the suit property in his name on 28^th October 2008, and therefore in 2003 when the alleged Gazette Notice was issued, he was not the proprietor of the suit land and there is no evidence that he was aware of the said Gazette Notice No.3632 of 2003.

Further, it is not in doubt that the Plaintiff’s house or property which had been constructed from the year 2008, and was almost complete and ready for occupation was demolished on 14^th July 2010, by the Ministry of Roads officials, supervised by the then Minister for Roads Hon. Franklin Bett.  It is also evident that the Court in Petition No.6 of 2010 had issued a Conservatory Order on 13^th July 2010, restraining the Ministry of Roads from carrying out the said demolition.  However, despite the existence of the said Court Order, the Ministry of Roads officials, in the presence and supervision of the Minister for Roads, demolished the Plaintiff’s house and reduced it to rubbles.  The Defendant has alleged that the Plaintiff had been served with Notice to remove the said house and he had been made aware that the said house was on a road reserve.  The Defendant has not denied that indeed the Ministry for Roads through the supervision of the then Minister for Roads and Public Works did demolish the said Plaintiff’s house which was almost near completion.

It is also not in doubt that although the Defendant has alleged that the Plaintiff’s parcel of land was on a road reserve, at the time of demolition and even todate, his title deed for the suit land LR.NO.15045/4 had not and has not been cancelled and/or revoked.  The Plaintiff herein is still in possession of the said title deed.  As the holder of uncancelled title deed, then as provided by Section 23 of the Registration of Titles Act, Cap 281(now repealed), the Plaintiff was deemed to be the absolute and indefeasible proprietor of the said parcel of land.  Section 23 of Registration of Titles Act provides:-

“the certificate of title issued by the registrar to a purchaser of land upon transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as the proprietor of the land is the absolute and indefeasible owner thereof subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon”

After the demolition of the Plaintiff’s house which was allegedly 95% complete and was near occupation, the Plaintiff filed this suit seeking for various orders among them compensation for the loss incurred.  However, the Defendant has contested the Plaintiff’s claim and has even filed a Counter-claim alleging that the Plaintiff’s title was irregularly, fraudulently and unlawfully obtained.  The Defendant has urged the Court to cancel the Plaintiff’s title deed as the suit property is a Government land and specifically a road reserve.

The above being the undisputed facts, the Court will now embark on determination of the disputed facts.  The parties had agreed on the statement of agreed issues.  The said agreed issues will therefore be considered as the issues for determination.

These issues are:-

i. Whether or not the Plaintiff holds a good title to the suit property.

ii. Whether or not the Plaintiff unlawfully acquired the suit property through fraud, misrepresentation and/or mistake and if so what is the effect thereof.

iii. Whether or not the actions of the officials from the Ministry of Roads as regards the development on land Ref.No.15045/4 (IR.No.116128 [Original No.15045/2-3) was lawful. 

iv. Whether or not the public interest overrides the private interest in the suit property and if so what is the effect thereon.

v. Whether or not the suit herein is an abuse of the court process and whether the Defendant is entitled to the prayer sought in the Counter-claim.

vi. Whether or not the Plaintiff is entitled to any of the declaration sought.

vi. Whether or not the Plaintiff is entitled to any compensation and if so under what heads, in each case, what should be the quantum thereof.

vii. What should be the order as to costs.

i. Whether or not the Plaintiff holds a good title to the suit property.

As the Court had earlier observed, the Plaintiff herein is the holder of LR.No.15045/4, which was issued in his name on 28^th October 2008.  Upon the issuance of the said title, the Plaintiff became the absolute and indefeasible owner of the suit property.  However the Defendant has alleged that the suit land herein was initially LR.No.8444, which was compulsorily acquired from its previous proprietor Ms. Feneast Nominees Ltd in 1970s.  The Court has indeed seen the Government report on the proposed Link Road of Scalaters – Redhill Road dated March 1972.  The Court has also seen a letter dated 20^th February 1976, which stated that compensation for the acquisition of LR.No.8444, was complete and that the said land had been acquired for purpose of road construction. It further stated that the house on the said land was taken over and handed over to the Government pool housing for allocation in the usual manner.  The said land was allegedly 18.848 acres.  It is apparent that even after the acquisition of the said land LR.No.8444, construction of the said road did not start until the year 2003, when the Ministry of Roads issued a Notice to the general public informing the persons who had allegedly encroached on the road reserve to remove the structures thereon.  However, the said Gazette Notice did not specify which were these persons and the land parcels that had allegedly encroached on the road reserve.

It is very clear that the Gazette Notice No.3632 of 6^th June 2003, was issued after lapse of a very long time after the above stated land was allegedly compulsorily acquired.  However, it is evident from the evidence of DW2 that the suit land referred to by the Plaintiff was allotted to M/S. Pelican Engineering & Construction Co. Ltd in 1990, as unsurveryed plot. DW2 did not avail any evidence to link the suit land herein with LR.No.8444, which was allegedly compulsorily acquired by the Government.  So is LR.NO.15045/4 part of LR.No.8444?  That evidence ought to have been availed by the witnesses from the Ministry of Lands. DW2 herein was one of such witnesses but that linkage or evidence was not brought out.  Failure to call any evidence to link LR.No.15045/4 to LR.8444, leaves more questions than answers herein.  Even if LR.15045/4 was part of LR.8444, could the Government have later hived part of LR.No.8444, and allotted to other persons?  The Court asks this question because the allotment letters that gave rise to LR.No.15045/4, were allegedly issued by the Government and so is the title deed held by the Plaintiff.  In the case of Town Council of Awendo….Vs…Nelson Odour Onyango & Others (2013) eKLR, the Court of Appeal held that;

“Even land that has been the subject of compulsory acquisition can revert to private hands or use if such land is not wholly utilized for the public purpose for which it was acquired”.

It is apparent that LR.No.8444, was allegedly compulsorily acquired in 1974, and compensation paid in 1976.  By the time the letters of allotment were issued to M/S Pelican Engineering & Construction Co. Ltd the said property had not yet been utilized for the purpose which it was acquired for and it is possible that the Government allotted part of it to private individuals. 

On whether the Plaintiff’s hold a good title to the suit property, the Court finds that the root of the Plaintiff’s title is traceable.  DW2 told the Court that the correspondence file No.12687, is still available at the lands office and it shows that letters of allotment dated 22^nd August 1990, were issued to M/S Pelican Engineering & Construction Co. Ltd on 22^nd August 1990.  Further that there was a formal acceptance by the said allotee M/S Pelican Engineering & Construction Co. Ltd, and a Certificate of titles were issued on 27^th October 1992.  In the case of Joseph N. K. Arap Ngok…Vs…Justice Moijo Ole Keiuwa & 4 Others,  Civil Appl. NO.60 of 1996, the Court of Appeal held that:-

“It is trite that such title to landed property can only come into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of a title document pursuant to the provisions of the Act under which the property is held.”

DW2 testified that the allottee M/S Pelican Engineering & Construction Co. Ltd, met all the conditions set out in the letters of allotment and consequently certificates of title were issued on 27^th October 1992.   

The above position was also held in the case of Wreck Motor Enterprises…Vs…The Commissioner of Lands & Others (1997), where the Court of Appeal also held that:-

“Title to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of title document pursuant to provisions held.”

From the above findings of the Court, it is apparent that after M/S Pelican Engineering & Construction Co. Ltd was issued with the Certificates of title, and it became the absolute and indefeasible owner of the properties that were amalgamated into the suit property. [See Section 23 of Cap 281 (Now repealed)].  It was the evidence of DW2, that M/S Pelican Engineering & Construction Co. Ltd transferred this suit property to Muthithi Investiments Co. Ltd in 1993, who applied to amalgamate the two referred properties and the Commissioner of Lands gave his consent. All this time, the Commissioner of Lands who was the custodian of all the land records in Kenya did not raise a finger that the suit land was a road reserve. Further in the year 2008, the amalgamated property LR.No.15045/4 was transferred to the Plaintiff herein.  The Plaintiff thereafter became the absolute and indefeasible proprietor of the suit land.  This is the position held by the Court of Appeal in the case of Dr. Joseph Arap Ngok….Vs…Justice Moijo Ole Keiwua & 5 Others (supra), where the Court held that:-

“Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property.  The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party.  Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and the law takes precedence over all other alleged equitable rights of title.  In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of title and the entire system in relation to ownership of property in Kenya would be placed in jeopardy”.

The Plaintiff herein acquired the suit property after it was transferred to him by Muthithi Investments Co. Ltd.  There was no Notice that the title held by Muthithi Investments Co.Ltd was tainted with fraud.  Therefore the Court presumes that the Plaintiff acquired a good title.  The Plaintiff herein having checked and confirmed that Muthithi Investments Co. Ltd was the registered owner of the suit property as at 2008, then he had no reason to question how Muthithi Investments Co. Ltd acquired the land.  See the case of David Peterson Kiengo & 2 Others…Vs… Kariuki Thuo, Machakos HCCC No.180 of 2011, where the Court held that:-

“The Registered Lands Act is based on the Torrens System.  Under this system, indefeasibility of title is the basis for land registration.  The state maintains a Central Register of land title holdings which is deemed to accurately reflect the current facts about title.  The whole idea is to make it unnecessary for a party seeking to acquire interest in land to go beyond the register to establish ownership.  The person whose name is recorded on the register holds guaranteed title to the property. Since the state guarantees the accuracy of the register, it makes it unnecessary for a person to investigate the history of past dealings with the land in question before acquiring an interest”.

Equally, on this matter, it was unnecessary for the Plaintiff to investigate the history of the past dealings, so long as he was satisfied with the certificate of title existence at the lands office.

The certificate of title herein was issued by the lands officials.  There was no evidence availed that the Plaintiff was involved in fraud or irregular registration of the suit property.  Given that the history and root of this title can be traced, the Court finds and holds that the Plaintiff herein holds a good title to the suit property which title has not been cancelled and/or revoked.  See the case of Munyu Maina..Vs..Hiram Gathiha Maina, Civil Appeal No.239 of 2009, where the Appeal Court held that:-

“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership.  It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”

DW2 has given the history or root of the Plaintiff’s title herein and that history showed how the Plaintiff acquired the title to the suit property.

ii. Whether or not the Plaintiff unlawfully acquired the suit property through fraud, misrepresentation, and/or mistake and if so what is the effect.

The Court has found and held that the root of the Plaintiffs title can be traced. Being the registered owner of the suit property, the Plaintiff is deemed to be the absolute and indefeasible owner of this suit property.  However, the said certificate can be challenged if the same was acquired through fraud or misrepresentation in which he is found to have been aware and involved.  See Section 23(1) of the Registration of Titles Act (now repealed) and repeated in Section 26(1)(a)&(b) of the Land Registration Act 2012, which provides:-

“The certificate of title issued by the registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge except:-

a. On the  ground of fraud or misrepresentation to which the person is proved to be a party: or

b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

The Defendant has alleged in its Counter-claim that the Plaintiff’s certificate of title was acquired irregularly, fraudulently or unlawfully.  However, when DW2 gave evidence, he only confirmed what the records at the Lands Office reflect. He never availed any evidence of fraud on the part of the Plaintiff or even fraud during the registration of the suit property.  Fraud is a serious allegation. The certificate of title was issued by the land officials. None of them gave evidence of how irregular or fraudulent the Plaintiff’s title is. None of them disputed the existence of the certificate of title in issue.  In the case of Urmilla ^W/_O Mahendra Shah..Vs…Barclays Bank International Ltd & Another (1979) KLR 76,  the Court held that:-

“Allegations of  fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, but something more than a mere balance of probabilities is required.”

Further in the case of Davy…Vs…Garrette (1878) 7 ch.473 at Pg 489, the Court held that:-

“In the common law courts, no rule was more clearly settled than that fraud must be distinctly proved and that it was not allowable to leave fraud to be inferred from the facts…”

Though the Defendant alleged fraud on the part of the Plaintiff herein, the Defendant failed to discharge its duty through its witnesses.  There was no evidence led by the Defendant herein to prove the allegations of fraud especially on the part of the Plaintiff.  The Defendant therefore failed to discharge its duty as provided by Section 107 of the Evidence Act, which

provides:-

1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Allegations of fraud being extremely serious and which must be strictly proved, the Court finds that the Defendant herein failed to discharge that duty as provided by Section 109 of the Evidence Act, which states as follows:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”.

Therefore this Court finds and holds that there was no evidence availed to prove that the Plaintiff’s Certificate of title was acquired through fraud, misrepresentation and/or mistake.  The Court consequently comes to a conclusion that the Plaintiff’s title herein is absolute and indefeasible.

iii. Whether or not the actions of the officers from the Ministry of Roads as regards Development on land ref.No.15045/4 (IR.No.116128) original No.15045/2-3 was lawful.

There is no doubt that the Plaintiff herein still holds the original title deed to LR.No.15045/4, although the house that he had built thereon was demolished on 14^th June 2010.  The Defendant’s witnesses alleged that the officers from the Ministry of Roads were justified in demolishing the said house and/or property on allegations that the same was on a road reserve. As the Court observed earlier, though the Ministry of Roads issued a Gazette Notice No.3632 of 6^th June 2003, notifying the general public to remove all structures that had encroached on the road reserves, the said Notice did not specify the said persons nor the affected land parcels.  The Plaintiff was not named in the said Gazette Notice.  Furthermore, in the year 2003, the Plaintiff herein Mike Maina Kamau, was not the registered owner of the suit property herein but the same was registered in the name of Muthithi Investment Co. Ltd. 

Again even if the Defendant witnesses alleged that in the year 2010, the Plaintiff was given Notice of road encroachment, that Notice was not produced in court. The alleged marking of the building was also not shown to court.  There was no evidence of the alleged marking nor visits by the Ministry of Roads officials to the Plaintiff’s premises and warning him of the impending demolitions.  The Ministry of Roads had a duty to issue sufficient and reasonable Notice to the Plaintiff as provided by Section 49(1) of the Kenya Roads Act 2007, which provides as follows:-

“Where a person without the permission required by Subsection (1) or contrary to any permission given hereunder, erects, Constructs, lays or establishes a structure or other thing, or makes a structural alteration or addition to a structure or other thing, an authority may be Notice in writing direct that person to remove the unauthorized structure, other thing, alteration or addition within a reasonable period which shall be stated in the notice but which may not be shorter than thirty days calculated from the date of the notice”.

 From the above provisions of law, it is clear that Kenya National Highway Authority (Kenha) or Kenya Urban Roads Authority (KURA) needed to give a reasonable Notice of 30 days to the Plaintiff for removal of the allegedly illegal structures.  There is no evidence of such Notice and if the Ministry of Roads demolished the Plaintiff’s house without having given the relevant mandatory Notice, then the action of the Ministry of Roads officials was illegal and arbitrary.

The Defendant has alleged that the Plaintiff’s parcel of land was acquired fraudulently and therefore did not fall under the protection of Article 40 of the Constitution.  The Defendant relied on Article 40(6) of the Constitution which provides that:-

“The rights under this Article do not extend to any property that has been found to have been unlawfully acquired”.

It is clear that the above provisions of law is available in instances where the property is found to have been unlawfully acquired.  How is the property found to be unlawfully acquired?  It is not through the whims of any party but through due process of law.  The Plaintiff herein was not found to have acquired his property unlawfully by any court of law or any legally established institution.  The Ministry of Roads officials did not have any Court Order authorizing them to demolish the suit property.  They acted arbitrary and unlawfully.  In the case of The National Land Commission & Others Exparte vivo Energy Kenya Ltd (2015) eKLR, the Court held that:-

“The impugned Gazette Notice seems to suggest that there was an illegality, involved in the registration of the suit land in the  name of the Applicant.  No doubt under the provisions of Article 40(6) of the Constitution, property rights protected under Article  40 of the Constitution do not extend to any property that has  been found to have been unlawfully acquired.  Therefore, there must be a finding that the property in question was unlawfully acquired”.

There was no finding herein by any legally recognized institution, that the Plaintiff’s property was unlawfully acquired and therefore the Ministry of Roads officials were not justified in demolishing the Plaintiff’s house herein.  Further in the case of Isaac Gathungu Wanjohi & Another…Vs… Attorney General & 6 Others (2012) eKLR, the Court held that:-

“Where the state contended a property was acquired illegally, the state must follow due process to establish the illegality”.

Though the Defendant herein contends that the Plaintiff’s parcel of land was acquired illegally or through fraud, there was no due process followed to establish any fraud or illegality on the part of the Plaintiff.  Therefore the Ministry of Roads officials carried on illegal demolition. 

It is also not in doubt that by the time the demolition was carried out, the Court had issued a Conservatory Order in Petition No.6 of 2010, restraining the Ministry of Roads from carrying out any demolition of the Plaintiff’s premises.  However, the Ministry of Roads officials went against

the said Court Order, and carried out the impugned demolition. Even if the Plaintiff’s suit land was on a road reserve, the fact that there was a Court Order restraining any demolition, any act done in contravention of the said Court Order was null and void.  See the case of Koinange Investment & Development Ltd…Vs…Nairobi City Council & 3 Others (Supra), where it was held that:-

“The sale by auction that followed thereafter was in contravention of the court order.  Accordingly, it follows that and so I hold that the sale of the suit property by auction on the 17^th October 2006 was unlawful, null and void and of no effect whatsoever”.

The Ministry of Roads officials carried out demolition in contravention of the existing Court Order in Petition No.6 of 2010.  Therefore their action was illegal, null and void.

Having found that the Plaintiff had an absolute and indefeasible title which had not been cancelled, then he was entitled to protection of the Constitution.  This protection is accorded by Article 40(2)(a) which provides:-

(2) Parliament shall not enact a law that permits the State or any  person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description.

Further, Article 40(3) of the Constitution provides:-

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of  any description, unless the deprivation—

a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in  accordance with Chapter Five; or

b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

i. requires prompt payment in full, of just compensation to the person; and

ii. allows any person who has an interest in, or  right over, that property a right of access to a court of law.

By demolishing the Plaintiff’s house which was erected on the suit property, the state through the Ministry of Roads officials and Minister of Roads and Public Works Hon. Franklin Bett, arbitrarily deprived the Plaintiff of his property and failed to allow him a right to access a court of law before the said demolition took place.  The Court of Appeal in the case of Christopher Ndarathi Murungaru…Vs…Kenya Anti-Corruption Commission & Hon. Attorney General (2006) eKLR, held that:-

“….Kenya has opted for the rule of law and the rule of law implies due process.  The court must stick to that path even if the public may in any particular case want a contrary thing and even if those who are mighty and powerful might ignore the court’s decisions… The court must continue to give justice to all and sundry irrespective of their status or previous status…”

From the analysis of the facts herein, it is clear that the Ministry of Roads officials and the Minister of Roads (Hon. Franklin Bett) did not observe or follow the due process while carrying out the said demolition of the Plaintiff’s property.  Failure to follow the due process rendered the whole process illegal and unlawful.

iv. Whether or not the public interest overrides the private interest in the suit property and if so what is the effect thereof.

It was alleged by the Defendant that the Plaintiff’s property which was on the road reserve was demolished to pave way for construction of the Northern By-pass.  DW1 testified that the construction of the Northern By-pass was for the public use and it was therefore a public interest and the private interest of the Plaintiff could not override the interests of the Kenyan citizens.  As the Court had earlier observed, the Plaintiff’s title was issued and registered by the Commissioner of Lands.  The Plaintiff did not allocate the suit property to himself.  The Plaintiff therefore has an absolute and indefeasible title which has not been revoked.  If the State required his parcel of land for the purpose of road construction, the State should have followed the due process as laid down in Part VII of the Land Act on Compulsory Acquisition of interest in land and further Section 75 of the former Constitution of Kenya.

In demolishing the Plaintiff’s property without following the due process, the State through the Ministry of Roads contravened the Plaintiff’s Constitutional right as provided by Article 40(3) of the Constitution which provides:-

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of  any description, unless the  deprivation—

a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

i) requires prompt payment in full, of just compensation to the person; and

ii) allows any person who has an interest in, or  right  over, that property a right of access to a court of law.

Even if the public interest always supersede the private interest, at least due process ought to have been followed and the State had no right whatsoever to trample on the Plaintiff’s rights and/or breach his right to property as provided by Article 40 of the Constitution.  The action of the State or Ministry of Roads officials and specifically the Minister for Roads who supervised the said demolition contravened Article 47 of the Constitution.  Article 47(2) of the Constitution provides:-

47. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action

Having considered the available facts and evidence, the Court finds that the public interest herein as alluded by the Defendant did not permit or give a license to the State or officials of Ministry of Roads, to breach the Plaintiff’s constitutional rights, as due process ought to have been followed.  Having demolished the Plaintiff’s property without authority or having failed to follow the due process, the Court cannot hold and find that the public interest herein overrides the private interest of the Plaintiff in the suit property (LR.No.15045/4).

v. Whether or not the suit herein is an abuse of the court process and whether the Defendant is entitled to the prayers sought in the Counter-claim.

A suit is said to be an abuse of the court process where it is frivolous, vexatious or both.  A suit is frivolous if it has no substance and it is vexatious when it has no foundation or no chance of succeeding. 

The Plaintiff filed this suit seeking for compensation for loss incurred due to the demolition carried out on his property by the State (Ministry of Roads),  while there was in existence a Court Order, while he was a holder of an unrevoked title deed and also without Court Order allowing such demolition.  The above issues have raised reasonable cause of action and the Plaintiff herein is seeking for declaration that his rights were trampled upon by the State.  The Plaintiff therefore has a reasonable cause of action and this suit is not an abuse of the court process. 

There were no findings by any recognized institution that the Plaintiff’s property was unlawfully acquired.  The Plaintiff therefore had a right to come to court to seek the protection of the court of law.  Therefore, this Court cannot hold and find that the Plaintiff’s suit is an abuse of the process of court. Further the Plaintiff herein is seeking for compensation for the alleged illegal demolition of his property. In Petition No.6 of 2010, the Plaintiff herein who is the Petitioner therein, was seeking for various declarations of breach of his Constitutional rights but not compensation for the said demolition.  The two suits are therefore separate and this suit is not an abuse of the court process.

The next issue is whether the Defendant is entitled to its prayers sought in the Counter-claim.  The Defendant’s Counter-claim is hinged on fraud.  As stated earlier, fraud is a serious allegation which must be strictly proved.  See the case of Ratlal Gordhanbhai Patel...Vs...Lalji Makonji, Civil App.No.70 of 1956, where the Court held that:-

“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, but something more than a mere balance of probabilities is required”.

As the Court observed, the Defendant did not attempt to prove how the Plaintiff herein was engaged in fraud in acquisition of his title deed.  There was no evidence from the Commissioner of Lands or any witness from the Lands office (Ministry of Lands), to testify on how the Plaintiff was a party to the acquisition of the Certificate of title held by him in a fraudulent manner. Apart from making general allegations of fraud, the same was not strictly proved.  The Court therefore comes to a conclusion that the Defendant herein is not entitled to the prayers sought in its Counter-claim, as allegations of fraud were not strictly proved.

vi. Whether or not the Plaintiff is entitled to any of the declaration sought in the Plaint.

The Plaintiff herein has sought for various declarations.  The Court has held and found that the Plaintiff was the absolute and indefeasible owner of LR.No.15045/4 at the time of demolition.  The said Certificate of title had not been cancelled and/or revoked.  The Plaintiff was also not given reasonable Notice of the impending demolition.  Further the demolition was illegal and unlawful as it was carried out without any Court Order authorizing the same.  Further there was a Court Order restraining the Ministry of Roads officials from demolishing the said property, but they still went ahead and demolished the Plaintiff’s house which was near completion.  The action of demolition was therefore null and void, even if the Plaintiff’s property was on a road reserve as alleged by Defendant. 

Further, the Plaintiff has a right to seek for protection from the court and therefore his suit is not an abuse of the court process.  The Court further finds that, even if the Defendant has alleged that the Plaintiff’s property was built on a road reserve, it is evident that he applied and obtained approvals from the relevant Government bodies such as the Commissioner of Lands, the Nairobi City Council on building and development plans and Nairobi Water for water connection. The Plaintiff was and had always paid the relevant land rates and rents and according to the exhibits produced in court, he was update with the payments of the said land rates and rent.  The Plaintiff therefore had legitimate expectation which was later thwarted when the suit property (his house, which was near completion) was demolished.  The Plaintiff is therefore entitled to the declarations sought in his Plaint.  See the case of Mr. Virendra Ramji Guoka & 3 Others...Vs...The Hon. AG, ELC No.480 of 2011, where the Court held that:-

“The City Council of Nairobi in approving the development plans must have been satisfied that the property was not on a road reserve. Further during the course of the development uptil the development was completed, the Defendant does not appear to have raised any objection to the development on the basis that the development was taking place on a road reserve or was encroaching on land reserved for construction of a road”.

Equally in this matter, the State through the Ministry of Roads did not raise any objection until the said property was near completion.  Further, the City Council of Nairobi approved all the development plans.  The Defendant cannot come at the tail-end of the construction and allege that the title to the property was irregularily acquired and that the development was illegal.  The Court has a duty to uphold the sanctity of the title and the tenents of the Constitution.  For the above reasons, the Court finds that the Plaintiff herein is entitled to the declarations sought.

vii. Whether the Plaintiff is entitled to any of the compensation and if so under what heads and what should be the quantum in   each case.

The Defendant had submitted that the Plaintiff was not entitled to be compensated at all as he was aware that the suit property had been set aside by the Government for public purpose.  However, there was no such evidence of this awareness and the Court finds and holds that the Plaintiff’s right to property was breached by the actions of the State officers, that its officials from the Ministry of Roads and specifically the Minister for Roads himself, who supervised the said illegal demolition.

Plaintiff called various expert witnesses to support his claim and also attached various exhibits, which this Court has carefully considered.  On the expert evidence, there was no evidence called by the Defendant to dispute their allegations.  The documentary evidence produced by the Plaintiff has also not been controverted by the Defendant.  Under Section 13(7) of the Environment and Land Court Act No.19 of 2011, the Court has jurisdiction as follows:-

“In exercise of its jurisdiction under this Act, the Court shall have power to make any order or grant, any relief as the Court deems fit and just including:-

a) Interim or permanent preservation orders including  injunction.

b) Prerogative orders

c) Award of damages

d) Compensation

e) Specific performance

f) Restitution

g) Declarations or

h) Costs.

It is therefore clear that the Court has power to award damages as well as compensation under Section 13(7) (c)&(d) plus costs. The Court will now proceed to determine the quantum of damages having found that the Plaintiff is entitled to the declarations sought.  On the issue of damages, the Court will rely on the case of Livingstone …Vs…Rawyards Coal Co.(1880) 5 App Cases 25, where Lord Blackburn stated as follows;-

 “that sum of money which will put the injured party in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.” 

The Court will now look at each claim raised by the Plaintiff.

(a) The compensation damages based on the replacement value of the suit property was given as Kshs.651,588,204/=.  The same was not challenged by the Defendant and PW4 was able to explain how he arrived at each specific item.  There were receipts attached to back each claim. The Court will therefore accept the figure of Kshs.651,588,204/= as compensatory damages based on full replacement value of the suit property.

(b) Loss of future earnings. Though the Plaintiff had alleged that he was building the said house for rental  purposes, PW5 told the Court that the Plaintiff was building his palatial home. There was no evidence that the Plaintiff had even obtained a tenant to lease the said palatial home at Kshs.500,000/= per month. There was no evidence of loss of future earnings and/or lost anticipated rental income of Kshs.500,000/= per month.  The Court disallows the same.

(c) General damages.  It was alleged that the Plaintiff suffered distress, anxiety and anguish during and after the demolition of the house. 

The Plaintiff has pleaded Kshs.50,000,000/= as general damages for pain and suffering and the Court will accept the same.

(d)  The Plaintiff had pleaded Kshs.10,000,000/- as aggravated and exemplary damages.  The same has not been challenged by the Defendant and the Court will accept the same.

The Plaintiff had also submitted that once the Judgement is entered in his favour for compensation, then he can be ordered to surrender his title to the Defendant to avoid unjust enrichment.  The Court will allow the same as alternative to prayer No.J.       

viii What should be the orders as to costs

Section 27 of the Civil Procedure Act provides that ordinarily, costs are awarded at the discretion of the court.  It provides as follows:-

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.

(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

However, ordinarily, costs normally follow the cause or event.  Costs are usually awarded to the successful litigant but as provided in Section 27(i) above, it is awarded at the discretion of the court.  The Plaintiff herein is the successful litigant.  The matter has been in court since the year 2011.  Therefore the Court finds that the Plaintiff is entitled to costs of this suit plus interest at the courts rate.

Having now carefully considered the available evidence herein, the Court finds that the Plaintiff has proved his case on the required standard of balance of probabilities.  Consequently, the Court enters Judgement for the Plaintiff against the Defendant in the following terms:-

a) Compensatory damages based on the full replacement of the suit property – Kshs.651,588,204/=.

b) General Damages for distress, pain and sufferings – Kshs.50,000,000/=.

c) Aggravated and exemplary dated – Kshs.10,000,000/=.

d) The Defendants Counter-claim be and is hereby dismissed with costs to the Plaintiff.

e) To avoid unjust enrichment, the Plaintiff to surrender his certificate of title for LR.No.15045/4 to the State.

f) Plaintiff is entitled to costs of the suit plus interest from the date of this Judgement until payment in full at the court’s rate.

It is so ordered.

Dated, Signed and Delivered at Thika this 29^th day of  November 2017.

L. GACHERU

JUDGE

In the presence of

Mr. James Ochieng Odour for Plaintiff

Mr. Telel for Defendant

Timothy - Court clerk.

L. GACHERU

JUDGE

29/11/2017

Court – Judgement read in open Court in the presence of the above stated advocates.

Mr. Telel – We seek for stay of execution.

Mr. Oduor – I oppose any stay of execution.  The declarations cannot be stayed.  The Defendant can make a formal application.

L. GACHERU

JUDGE

Court – Defendant to make a formal declaration on the stay.

L. GACHERU

JUDGE

29/11/2017