Marian Mueni Musembi & another v Commissioner of Lands & 6 others [2015] eKLR

Key Facts

Issues

• Whether the consent of 8th February 2005 between the Plaintiffs' advocate and the Defendants' Litigation counsel binds the Defendants.
• Whether the consent of 8th February 2005 amounted to admission of liability by the Defendants.
• Whether the Plaintiffs are entitled to damages and if so the quantum thereof.

Holdings

• The Plaintiffs were awarded compensation totaling Kshs.125,000,000 (market value of the land), exemplary damages of Kshs.6,250,000 (5% of compensation), and costs of Kshs.19,687,500 (15% of compensation). Interest at 14% per annum was also ordered on the total sum from the date of the Judgment until full payment.
• The court found that the consent dated 18th February 2005 between the Plaintiffs' advocate and the Defendants' counsel is binding on the Defendants, as the latter did not provide evidence to challenge the authority of the signatory (Mr. Rabala) or the terms of the agreement. The consent, which conceded to the Plaintiffs' allegations, was deemed legally effective and enforceable as a contract between the parties.
• The court declared that the cancellation of the Plaintiffs' titles (Chembe/Kibabamshe/428 and Kilifi/Jimba/427) by the Commissioner of Lands on 22nd December 1986 was unconstitutional, null, and void ab initio. This was confirmed by prior High Court rulings (e.g., Nairobi HCCC No. 3106 of 1997) and the lack of due process in the revocation.

Remedies

• Costs of the suit were awarded at 15% of total compensation (Kshs.19,687,500) plus 14% annual interest on the costs from the filing date until full payment.
• The court awarded compensation of Kshs.125,000,000 to the Plaintiffs for the market value of parcels Chembe/Kibabamshe/428 (Kshs.86,000,000) and Kilifi/Jimba/427 (Kshs.39,000,000).
• Interest at 14% per annum was awarded on the compensation, exemplary damages, and costs from the date of judgment until full payment.
• Exemplary damages of Kshs.6,250,000 (5% of total quantified damages) were awarded to the Plaintiffs as per the consent agreement.

Monetary Damages

Legal Principles

• The principle that agreements (consents) between parties are binding and must be honored was central to the court's reasoning. The consent signed by both parties' advocates in 2005 was deemed a valid and enforceable contract, even though it was not formally adopted as a court order. The court reiterated that the consent remains valid unless set aside or varied.
• The court found that the Defendants are estopped from denying the validity of the consent agreement. By not challenging the authority of their litigation counsel (Mr. Rabala) who signed the consent, the Defendants are bound by its terms. The court emphasized that the refusal to call Mr. Rabala to testify implied his actions were authorized by the Defendants' principals.

Precedent Name

• Nairobi Civil Miscellaneous Application No. 185 of 1987
• Regina Ngaku & Others Vs Commissioner of Lands & 4 Others
• Kenya Commercial Bank Limited Vs Benjoh Amdgamated Limited
• Helena Kithinji Vs The Attorney General

Cited Statute

• Kenya Constitution
• Land Registration Act
• Land Adjudication Act
• Kenya Order in Council
• Trust Land Ordinance
• Kenya (Independence) Order in Council
• Kenya (Annexation) Order in Council
• Kenya Native Areas Order in Council
• Registered Land Act

Judge Name

Passage Text

• The court found that the consent signed on 18th February 2005 is binding on the Defendants, stating: 'Until it is set aside or varied, the consent that was entered into between the Plaintiffs advocate and the Defendants' advocate, on instructions from their principals, is binding on both parties, notwithstanding that the same was not adopted as an order of the court.'
• The court declared: 'The suit lands... were at all material times before 31st May 1963 private land under the sovereignty of the Sultan of Zanzibar... and from 1st June 1963 to present day the same area did become Trust Land... and since then has been at all material times Trust Land.'
• The court awarded compensation: 'The Plaintiffs are entitled to compensation in respect of parcels of land... Kshs.125,000,000... plus exemplary damages of Kshs.6,250,000 and costs of Kshs.19,687,500, with interest at 14% per annum.'