Villagers lose Sh97m land claim

The Court of Appeal has annulled Sh97 million awarded by a lower court to more than 480 residents from Mbeere in Embu County after their parcels of land were compulsorily acquired by the government to construct Masinga Dam.

High Court Judge Joyce Khaminwa had in October 2009 ordered Tana and Athi River Development Authority (Tarda) to pay the lumpsum to the area residents for the unlawful eviction from the trust land by the government in 1976.

But on October 3, 2013, three Appellate judges Alnashir Visram, Martha Koome and Otieno Odek invalidated the award on grounds that the residents had failed to prove they were entitled to be compensated to a tune of Sh100 million.

The appellate judges faulted the lower court’s ruling arguing that the judge allowed the residents to file the suit beyond the required statutory period contrary to Section 27(2) of the Limitations of Actions Act.

“Accordingly, we find the appeal has merit and it is hereby allowed with costs to the appellant (Tarda). The judgement of the High Court is therefore set aside,” ruled the judges. The residents moved to court in December 2001 seeking Sh100 million from the state corporation for their eviction to pave way for the construction of the hyro dam. They argued that Tarda had promised to compensate them prior to the project.

However, after an assessment report conducted by the then Ministry of Agriculture to establish the value of development undertaken by each inhabitant was forwarded to Tarda for the purpose of compensating the residents, the corporation rejected it arguing that some developments on the land were either undervalued or overvalued.

Consequently, Tarda commissioned an independent surveyor who prepared a fresh assessment to form the basis of compensation. The corporation told the appellate judges that on November 17, 1980, in liaison with the provincial administration, it paid out an estimated Sh2 million to some of the residents.

However, a dispute arose among the residents with some claiming they were either not compensated or that the developments they had carried out on their respective plots had been undervalued. They subsequently lodged the suit seeking Sh200,000 per person payable to 484 households.

In its defence, Tarda told the appellate judges that it had compensated those who had been affected by the construction of the hydro dam, saying the claim of Sh100 million was unrealistic.

TIME BARRED

The corporation also argued that the respondents’ case was time barred as the cause of action arose in 1976 when the residents were evicted and the trial court had the obligation to consider whether suit was out of the statutory period.

The judges concurred indicating that by virtue of Section 4(1) of the Limitations of Actions Act, the period within which the residents’ claim for compensation could have commenced in court was limited to six years from the date the cause of action had arisen.

“We disagree with the residents submissions that the cause of action arose when the negotiations failed in 2000,” ruled the judges.
Tarda accused the High Court judge of awarding the residents Sh97 million when the amount was not supported by any evidence.

The corporation further submitted that the judge misapprehended the law by holding that Tarda had a duty of producing documents in support of the residents’ case and hence shifting the burden of proof to them.

According to Tarda, the Sh200,000 allegedly demanded by each resident had not been supported by any documentary prove and the only evidence available was that of Mr Eliud Nthiwa, Mr Musau Kambo and Mr David Munyao whose value of the assessed developments was Sh57,000, Sh90,000 and Sh77,000 respectively.

Tarda observed that not all the inhabitants of the land had authorised Mr Joseph Mbindyo, Mr David Munyao, Mr Eliud Nthiwa and Mr John Musyoka to file the representative suit, arguing that nearly 70 residents had not sanctioned the filing of the case. The four residents had sued on behalf of the 484 members.