Chepkonga Arap Ruto Robert Mwisani on Behalf of Themselves & 18 others v Municipal Council of Nakuru [2021] KEELC 1587 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO. 10 OF 2019

CHEPKONGA ARAP RUTO

ROBERT MWISANI ON BEHALF OFTHEMSELVES AND 18 OTHERS..........PLAINITFF

VERSUS

MUNICIPAL COUNCIL OF NAKURU..................................................................DEFENDANT

J U D G M E N T

1. The present suit was commenced before the Senior Principal Magistrate’s Court at Nakuru as SPMCC No.1341 of 1994 and was transferred to this Court by Hon. Lady Justice Ngetich on 31st January 2019 pursuant to an application for transfer made before the high court. Once received the file was re-numbered as Nakuru ELC No.10 of 2019. It is unclear how the matter had remained unresolved from 1994 when it was filed up to 31st January 2019 when an order for its transfer to this court was made.

2. In the plaint dated 24th January 1994 filed before the magistrate’s  court, the plaintiffs claimed they were members of Kalenjin  Enterprises  Ltd  and had been  allocated  plot numbers 925,813 and 908 respectively. The plaintiffs claimed the defendant was interfering with the said plots and wanted the defendant to be restrained from blocking access to their said plots or in any matter interfering with the said plots which they stated were public properties. The plaintiffs sought judgment against the defendant for:

1. A permanent injunction restraining the defendant her servants and/or agents including Konoike Construction Co. Ltd from  interfering  in any manner whatsoever with the plots and access road contained in and serving all that piece or parcel of land commonly known as Kalenjin Enterprises situate within Nakuru  Municipality.

2. Costs of the suit/and interest at court rates till payment in full.

3. Any other further relief this Honourable to grant to avoid defeat of the

3. The Defendant Municipal Council of Nakuru, filed a defence dated 14th September 1994 where it denied the averments contained in the plaint. The defendant stated it acquired the suit premises from Kalenjin Enterprises Limited through the Commissioner of Lands. The Defendant stated it acquired the suit premises for purposes of setting out sewerage works thereat. The defendant denied that it had blocked the plaintiffs access to their parcels of land and prayed that the plaintiffs  suit be dismissed  with costs.

4. Although the record shows there have been numerous applications made in this matter there is no evidence on record that the initial plaint and defence filed in the magistrate’s court were ever amended. However on 3rd  February  2020 pursuant  to a Notice  of Motion dated 26th December  2019, Nakuru  Water  & Sanitation Services  Ltd  were ordered to be enjoined to the proceedings as an interested party. The joinder of  the interested party  was on the basis  that they stood  to be directly  affected  by any decision  that  the court  may make as  they were  the party  who were  presently  utilizing  the suit  property for sewerage  works.

5. The foregoing was the state of the pleadings as at 18th February 2021 when  the suit was heard before me. At the trial, two witnesses  testified  on behalf  of the plaintiffs. The first of the plaintiffs witnesses was Chepkonga Arap Ruto (PW1) the 1st plaintiff herein who testified that  they filed  the present  suit  in 1994 as Nakuru CMCC No.1341 of 1994. He explained  that the file  got misplaced  and they had  the same  reconstructed vide Misc  App No.123 of  2018 after which  hearing  commenced on 6th June  2018 before the Chief Magistrate but the court  ruled that it lacked the pecuniary jurisdiction  to handle the matter precipitating  the filing of HC Misc Application No. 316 of 2018 pursuant  to which  the lower court file was  ordered transferred to this court.

6. PW1 testified that the suit involved damage caused to their properties in 1994 at Rhoda Kalenjin Enterprises  Ltd  land Block 29. He stated that  they had  cultivated  20 acres  where  they  had planted  maize and beans. It was  his evidence  that on an acre  they were harvesting  10 bags of beans and 20 bags of maize. He  also testified they had  planted  various  types of trees  and they had  a tree nursery  on   the land. He stated  that the defendant demolished 10 temporary structures including a house and store belonging to him.

7. PW1 stated  that the defendant  did not demonstrate how they  acquired  the land where they constructed  some houses. He stated the plaintiffs were seeking damages from the defendant for the loss they had suffered. He testified  that  they had  assessed  the loss  at Kshs.224,540,000/= as tabulated  at page  24  of the bundle  of documents  they had  filed. He  however  stated  they had not sought  services of a Valuer  or loss assessor  to quantify the loss.

8. On cross examination PW1 stated  he was a member  of Kalenjin  Enterprise Limited  having  purchased  the share of one Teres  Mrefu . He stated  that Kalenjin  Enterprises owned  several  parcels of land within  Nakuru  including  Rhoda  Block 29 which measured  about  756 acres. He stated the defendant took 56 acres of the said 756 acres. He testified at the time the defendant moved in,  no titles had been processed. He said his parcel of land was Number  813 and stated that the place where the sewerage was put  was where they had been  cultivating. He said the defendant appropriated  the 56 acres and was not given by the directors of Kalenjin Enterprises Ltd.

9. Daniel  Maina Kirungui testified  as Pw2. In his testimony  he relied  on the witness  statement filed  in court  on 11th  May 2019. He stated he was a shareholder of Rift Valley  Enterprises and that he owned plot No.Mugwathi Block 2/470. He stated he was elected a director of Kalenjin Enterprises Limited in 1998. He stated the plaintiffs complained to the company about  the defendant interfering with their  plots. He testified that the Commissioner of Lands  never paid any compensation  to the company  in regard to the land acquired  by the defendant for sewerage works.

10. Under  cross examination the witness  stated the Gazette Notice  for the acquisition of the Land for the defendant was issued  in 1973. He said  the plaintiffs  land was within  the 56 acres allegedly acquired for the defendant and he affirmed  there were sewerage  works  on the disputed  site.

11. The defendant called Enerst Amugune ( DW1)  as their sole  witness. In his evidence he relied on the witness  statement dated 20th September  2019 and the bundle  of documents filed in  support  of the defendant’s  case. He  testified  that Nakuru  Municipality  Block 29 was initially  L.R No.6273 and belonged  to Kalenjin  Enterprises Ltd. He stated  at the time of subdivision, Kalenjin Enterprises Ltd gave to the Municipal council of Nakuru 56 acres and the Commissioner  of Lands  vide a Gazatte Notice issued on 14th June 1973 gave notice of intention  to acquire  the land which was to be set aside  for sewerage works purposes .

12. The witness stated that the 56 acres were clearly delineated in the Registry Index Map (RIM) relating to Nakuru Municipality Block 29 (Rhoda)  formerly  LR No.6273 ( RIM produced as “DEX2”). The 56 acres are designated as  Nakuru  Municipality Block 29/1201. The witness indicated the plaintiffs plots were distinctly shown on the RIM  and were  quite  apart  and separate from the defendant’s  land parcel  Nakuru  Municipality  Block  29/1201. He  stated Kalenjin  Enterprises Ltd  did not raise any objection  to the intended acquisition of the 56 acres. The  witness  explained  that presently sewerage services are undertaken by the interested  party. He stated there were no crops  or trees damaged  by the defendant as alleged by the plaintiffs.  He stated at the land parcel Nakuru Municipality Block  29/1201 there are  staff houses  for the interested party.

13. Under cross examination by the 1st plaintiff the witness  stated that the Gazette Notice  issued by the Commissioner  of Lands Covered  land from Mwariki Farm (246 acres)  and  land from  Kalenjin  Enterprises Farm  ( 56 acres). He affirmed Kalenjin Enterprises  Ltd never objected to the acquisition.

14. Following the closure of the trial the court directed the parties to file their submissions.  The plaintiff did not file any submissions and none were on record at the time of the  preparation of the judgment. The defendant filed their submissions on 20th May 2021. I have reviewed the pleadings, the evidence adduced, and the submissions filed on behalf of the defendant. The issues that arise for determination are as follows: -

(i)   Whether the plaintiffs have demonstrated they had a proprietary interest on the portion of 56 acres acquired by the defendants?

(ii)  Whether  the plaintiffs are entitled  to an order of permanent  injunction?

(iii) Whether  the plaintiffs would be entitled  to an award of damages when by their pleadings the same had not been pleaded?

(iv)  Who bears the costs of the suits?

15. The plaintiffs case is that they were members of  Kalenjin Enterprises Limited that owned several  parcels of land within Nakuru including L.R No.6273 which after  conversion under the Registered  Land Act, Cap 300  Laws of  Kenya  ( now repealed became Nakuru Municipality Block 29). The plaintiffs claim they were shareholders of the company and by reason of their shareholding they were each allocated individual  parcels of land which  they occupy. The dispute involves  a portion  of 56 acres out of Block  29 that the defendant stated was given  to then by the company following acquisition by the commissioner of lands. There is no dispute that the portion of land was owned by Kalenjin  Enterprises Limited. The  plaintiffs did not adduce any evidence that either  of them   had been allocated any plot by the company  within  the 56 acres. PW2 who testified  in support of the  plaintiffs case  stated  that he was elected  a director  of Kalenjin  Enterprises Limited  in 1998 that was long after the plaintiffs  had instituted  the present  case. PW2 did not himself  own any  land within  Block  29 but had land in Dundori Mugwathi farm also  owned by  Kalenjin Enterprises  Limited. It was  his evidence that the plaintiffs came to  the company’s office complaining that the defendant  was  interfering  with their plots. It remains  unclear  how the plaintiffs  came to be in possession and/or occupation of the 56 acres  if  they had  not been allocated by the company.

16. The defendant tendered in evidence Gazette  Notice  No.1790 issued by the Commissioner Lands on 11th of  June 1973 which signified the Government’s intention to acquire  part of LR No.8894 Nakuru District Company  246. 132 acres ( Mwariki Farm) and part of LR  No.6273 Nakuru District comprising 56. 00 acres (Kalenjin Enterprises Farm).The  Commissioner  of Lands  vide  Gazettee Notice  No.1791 of same date gave notice of inquiry which was  to take  place  on 30th July 1973 at 11. 00 a.m at  the Nakuru  Municipality  to hear any  compensation claims  from any  persons interested  in the said  Lands. Finally, the Commissioner  of Lands  vide Gazettee Notice No.1792  equally  of the same  date gave notice of intention  to take possession  of the Lands  pursuant to section 19 (2) of the Land Acquisition Act (now repealed ).The taking  of possession was  to take  place  on the expiry of 15 days from the date of the publication of  the   Notice of intention to acquire  the said  lands.

17. The  Notice  of intention to acquire  is clear  that the land was required for Nakuru sewage schemes. Once the intention to acquire the land was notified the only option  available  to  any person who had  any  interest in  the land  was to file  a claim  for  compensation  which was  to  be heard during the date scheduled  for the inquiry. There is no indication whether Kalenjin Enterprise Limited filed any claim and if so how the same was disposed of. Kalenjin Enterprises Limited not being party in these proceedings, it is not possible to ascertain whether they freely gave  out  the land and/or they were compensated following the acquisition of the land by the  government. What is apparent however, is that the plaintiffs had at the time  no interest  over the 56 acres acquired  by the government  for Nakuru  Sewarage  Scheme .The process  of acquisition having been carried out in 1973 and the commissioner  of Lands having given  notice that  he would take possession of the land on behalf of the government, the land became vested in the government, and Kalenjin  Enterprise Ltd  in my view  ceased to have any further  interest  and/or  right over the land.

18. From my foregoing discussion and analysis it follows, in 1994 when the plaintiffs  claim to have  been in possession and using the suit premise, neither Kalenjin Enterprises Ltd  or themselves had any proprietary interest over the suit  property. The property (56 acres) belonged to the government as it had already vested following the acquisition. In the premises I answer the first issue in the negative that the plaintiffs had no proprietary interest in the suit land.

19. On the second issue whether or not the plaintiff would be entitled to an order of permanent injunction it follows that having found and held that the plaintiffs had no proprietary interest over the suit property, they would not be entitled  to an order of permanent injunction. The suit  property  in 1994  had vested in the government and the land had been reserved  for the development  of Nakuru  sewerage Scheme. The fact that the sewerage works may not have been commenced, did not give the plaintiffs any rights over the land. The government  cannot be injuncted  from utilizing its own land for the intended purposes. The prayer for a permanent injunction  was misconceived  and would not be available to the plaintiffs .

20. The plaintiffs at the trial appeared to have totally altered their claim against the defendant. What they sought to prove  was not  what they had pleaded. The plaintiffs  were  pitching  for an award of damages for allegedly  structures  that had been demolished, crops and trees  that had  been damaged  including  a  tree  nursery  that was supposedly destroyed. The 1st plaintiff (PW1) quantified the loss/damage at a staggering sum of Kshs.224,540,000/=. The plaintiffs did not plead any claim of damages in their plaint and even though the suit has now been before the court for over 25 years, no application to amend the plaint was ever made.

21. It is a cardinal rule of law that parties are bound by their pleadings. A party cannot be allowed to adduce evidence to prove what they had not pleaded in their pleadings. The plaintiffs in the present case sought to prove a case that  was not before the court. Indeed the damages that the plaintiffs were seeking to prove were in the nature  of  special  damages  and would have  required to have been  specifically  pleaded  and specifically proved. In the case of Hahn -Vs- Singh  (1985)  KLR 716the court stated:-

“—special damages must not only be claimed specifically but proved strictly for they are not  the direct  natural  or probable   consequences of the act complained  of  and may not  be inferred from the act. The degree of certainty and particularity of proof  required  depends  on the circumstances  and the nature  of act themselves.

22. The necessity to particularly plead special damages  is so that the opposing  party is put  on notice  respecting  the loss and /or  damage  sought  and its make up  so  that  they determine  how to respond  to the claim. The rationale for the rule that parties are bound by their own pleadings is that a party cannot be allowed to raise what amounts to a fresh case or issue without due amendment of the pleading being  made. The essence is  so  that  each party  is aware  of the case they have to meet  at the trial  to avoid  instances of trial by surprise and/or ambush. The court for its part is bound by the pleadings of the parties as they are and the court is not  free  to adjudicate  upon any issue  that has not been pleaded.

23. In the case of Caltex Oil ( Kenya ) Ltd  -vs-  Rono  Limited  (2016)  eKLR the court of Appeal  commenting on award of general  damages where the same  had not been pleaded  stated as follows :-

“ In the  plaint, we have noted  that the respondent never  claimed  to have  suffered any damage as a result  of the appellant’s  breach. In the circumstances, having not   made a claim  for general  damages,  there cannot  be a basis  for awarding  the same. The court has no inherent  jurisdiction  to award damages whether  separate or  in addition to specific  performance where no such plea was made in its pleadings. Damages  cannot be plucked  from the air simply  because  a party  alleges to have suffered injury or loss. Damages must be pleaded  so that the other party can reply  through  the defence. That is not what happened in this matter. It was not right for the trial court to purport to  engage in an exercise in futility”.

24. In the instant case it is not clear why the plaintiffs never pleaded either special and/or general damages and as the  court of appeal held in the Caltex Oil ( Kenya)  Ltd  case (supra) this  court would  be acting in futility  if it was to entertain  the plaintiffs claim for damages adverted to during  the trial.

25. The net result  is that I find  and hold that  the plaintiffs  have failed to   prove their  case on a balance of probabilities. The same  is devoid  of any merit  and is dismissed with costs to the defendants.

26. Orders accordingly .

DATED SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 7TH DAY OF OCTOBER 2021.

J M MUTUNGI

JUDGE