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Court of AppealDismissedCivil Appeal No. 78 of 2016

Nelson Kazungu Chai & 9 others v Pwani University College [2017] KECA 135 (KLR)

Court of Appeal of Kenya
23 November 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
5,860 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled that squatters on Pwani University land had no ownership rights because the land was already lawfully allocated, so their appeal failed.

What this practically means

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Executive summary

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The appellants, in a representative suit on behalf of themselves and 308 others, claimed ownership and occupation of land described as LR No. 5046/1 and LR No. 5024/1 in Kilifi County, asserting that the land had been allocated to them under a government-sponsored squatter resettlement programme arising from the Mtaani/Kisumu Ndogo upgrading scheme. Pwani University College, successor to the Kilifi Institute of Agriculture, claimed the land had been allocated to the Institute and counterclaimed for eviction, a permanent mandatory injunction and mesne profits. The High Court at Malindi (Angote, J.) dismissed the appellants' suit on 31st October 2014 and granted the respondent's counterclaim in full. On appeal, the Court of Appeal identified two issues: whether the appellants were entitled to the suit land and any relief, and whether the precedents relied on by the trial Judge were distinguishable. The Court held that the land had been allotted to the Institute and thereby ceased to be unalienated government land which the Commissioner of Lands could allocate under the repealed Government Lands Act; no PDP or allotment letters ever issued in the appellants' favour, and the PDP relied on was cancelled as null and void. The Court further held that no legitimate expectation arose, as the alleged promise was not made by the Commissioner of Lands and concerned land outside his mandate, and that the appellants, lacking any allotment letters, were squatters whose claims were merely aspirational. The Court affirmed the judgment of the High Court, dismissed the appeal, and ordered each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants were entitled to the suit land and by extension, to any relief
  2. 2.Whether the decisions relied upon by the learned Judge are distinguishable in the circumstances

Key legal issues

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01

Whether the appellants were allocated the suit land lawfully

Holding

No valid allocation was ever made; the land had been allocated to the Kilifi Institute of Agriculture and was no longer unalienated government land, so the Commissioner of Lands had no mandate to allocate it, and no PDP or allotment letters ever issued to the appellants.

Reasoning

The correspondence showed the Commissioner of Lands expressly noted the land was part of the Kilifi Institute of Agriculture. Once allotted, land ceased to be unalienated land under section 2 of the repealed Government Lands Act, and section 3 permitted allocation only of unalienated land. Any purported allocation would have been null and void. The Director of Physical Planning also cancelled the PDP relied upon.

p. 8
02

Whether the appellants had a legitimate expectation of being settled on the suit land

Holding

No legitimate expectation arose because the alleged promise was made by a Provincial Commissioner, not the Commissioner of Lands, and concerned land outside the latter's mandate to grant.

Reasoning

The doctrine requires that a public authority not renege on legitimate promises relied upon to a person's detriment. However, an expectation is legitimate only if grounded in law and the promise falls within the authority's mandate. The promise allegedly came from a Provincial Commissioner's public speech, while the Commissioner of Lands' response indicated the land already belonged to the Institute. Further, the appellants had not joined the Commissioner of Lands as a defendant.

p. 9
03

Whether the trial Judge erred in relying on precedents concerning squatters

Holding

The appellants were squatters as defined, since no allotment letters ever issued and their occupation rested on unfulfilled promises; the cited precedents were applicable.

Reasoning

A squatter is a person who settles on property without legal claim or title. By the appellants' own admission, no allotment letters were issued. Their occupation was pegged on promises of allotment allegedly made by government officials, and their 1996 letter showed they had already settled on the land before any allocation process was complete. The precedents relied on by the trial Judge therefore applied.

p. 9
04

Whether the appellants' human rights, including cultural rights, were violated by the threatened eviction

Holding

The appellants' claim was merely aspirational; no right existed to protect, and no international instrument was cited to elevate their cultural claims over the respondent's property rights under Article 40 of the Constitution.

Reasoning

Property rights are not inherent at birth but acquired in a manner prescribed by law. The appellants' claim to the suit property was aspirational or rhetorical. Counsel cited no specific international instrument that could elevate the appellants' cultural rights over the respondent's constitutionally protected property rights. In the absence of any colour of right, the trial court's findings could not be disturbed.

p. 9

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate, re-assess and re-analyse the evidence and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
  • An expectation can only be legitimate if it is couched in law and the promise made by the authority falls within its mandate to fulfil.
  • An action taken by the Commissioner of Lands without legal authority is a nullity and of no effect, whether under legitimate expectation, estoppel or otherwise.
  • Under the Government Lands Act, the Commissioner of Lands could only allocate unalienated land; once land was allocated, the Commissioner ceased to have the mandate to allocate it.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Malindi
ELC Civil Case No. 70 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate provisions of the Constitution and the Court of Appeal's appellate jurisdiction

Relief refused

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Declaration that the appellants are entitled to be registered proprietors of the portions of the suit land in their possession

The land had been allocated to the respondent's predecessor, the Kilifi Institute of Agriculture, and was no longer unalienated government land capable of allocation; the appellants held no allotment letters or valid title

p. 9

Alternative relief that the Government of Kenya compensate the appellants for the value of developments on the land

The appellants' occupation was unlawful; their claim rested on no enforceable right or legitimate expectation

p. 10

Costs

Each party bears its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.
p. 6Duty of the Court of Appeal on a first appeal
an action taken by the Commissioner of Lands without legal authority is a nullity and such an action, however technically correct, is null and void and is of no effect whether under legitimate expectation, estoppel or otherwise
p. 8Nullity of ultra vires allocations of government land
An expectation can only be legitimate if it is couched in law and if the promise made by the authority falls within its mandate to fulfil.
p. 9Limits of the doctrine of legitimate expectation
A right can only be protected when it exists in reality and not where it remains an illusion or a mere expectation.
p. 9Protection of rights requires an actual right
In sum, we are satisfied that this appeal lacks merit and the same is dismissed, with an order that each party bears its own costs.
p. 10Final orders and costs

Issues in the judgment

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minor

Ground 10 of the grounds of appeal is incomplete, ending with 'That the learned judge. (sic)'

minor

The letter quoted from the Commissioner of Lands is dated 3rd April, 1998 but begins by referring to an application dated 10th March, 1998, while the Town Clerk's follow-up letter is described as dated 10th March, 1998 in a passage describing it as a follow-up to a 1996 letter

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nelson Kazungu Chai & 9 others v Pwani University College [2017] KECA 135 (KLR)", Case Analysis (2017). Civil Appeal No. 78 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/135/eng@2017-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.