HIGH COURT OF KENYA AT NAIROBI
(Harris, J) OCTOBER 10TH & 11TH, 1967 AND JANUARY 31, 1968)
CIVIL CASE 1655 OF 1961
Constitutional Law – Operation of the doctrine of equitable estoppel against the Commissioner of Lands – Whether an individual can be deprived of the right to property.
In 1942, the army authorities verbally suggested to defendant’s father to erect, at his own expense buildings for a canteen in an area of land in Nairobi then occupied by the army. An agreement was reached between the defendant’s father and the army that the defendant’s father should if he built the suggested canteen be granted a lease of thirty years by the arm. The army prepaid and approved defendant’s plans for the building and spent a substantial amount of money putting up the building. The land where the building stood was and remained unalienated Crown (later government) land subject to the Crown (later government) Lands Act Cap. 199.
In 1964, the army moved out of the land and the land was handed over to the Minister of Health. No lease or other registrable interest was ever given to the defendant’s father and even after his death the defendant who was one of the executors and trustees of the property made several requests in correspondence between 1942 and 1965 for a lease of not less than three years but nothing was forthcoming. The plaintiffs made requests first to the defendant’s father and later to the defendant to quit the land and when they refused the plaintiffs brought this action for possession of the land. Defendant in his defence argued (inter alia) that the plaintiff was prevented from ejecting him by the doctrine of equitable estoppel given the fact that his deceased father had put up a building on the instigation of the army.
Held:
1.The actions of the army authorities are the actions of the Crown in its executive capacity.
2. The person or authority by whose permission the militaryforces were in possession or occupation of the suit premises in 1942 constituted representation by the Crown.
3. Despite the disappearance of the Crown from the field of the domestic law of this country, the defence of estoppel is still available to defendant by virtue of the transitional and other statutory provisions in that behalf to the same extent as it would or might have been had this hearing taken place prior to such disappearance.
4. The army authorities suggested to and encouraged deceased at his own expense to erect or develop buildings on the land. He xpended a substantial amount of money in his undertakings on the understanding fostered by them that he could and would be given a reasonable measure of security of tenure. The plaintiff is therefore estopped from turning around and asking the defendant to quit the land.
Suit dismissed with costs without prejudice to a fresh one being brought after 1972.
Legislation considered:
1. Government Lands Act, Cap. 155 & S.133
2. Crown Lands Act.
3. The Limitation Act, Cap. 11, Laws of Kenya, 1948 ed.
4. The Civil Procedure (Revised) Rules 1948, O.7 r. 8(2)
Cases cited:
1. Bejoy Chunder Banerjee vs Kelly Prosonno, Moorkejee (1879) I.L.R. 4. Cal. 327
2. Nyali Ltd. vs A.G., [1957] A.C. 253
3. Parameswaram Mumbannoo vs Krishnan Tengal [1920] .I.L.R. 26 Mad. 535
4. Ramsden vs Dyson [1866] L.R. I.H.L. 129
5. Gregory vs Mighell [1811], 18 Ves. 328; 34 E.R. 1211.
6. Philling vs Armitage [1805] 12 Ves 78; 33 E.R. 31
7. Plimmer vs The Mayor, Councillors & Citizens of the City of Wellington [1884] 9 AC 699
8. Inwards vs Baker [1965] 2 OB 29
9.Ward vs Kirkland [1966] 1 WLR 601
10. E.R Ives Investments Ltd vs High [1967] 1 A11 E.R 504
11. Dillwyn vs Lsewellyn [1862] 4 De G.F. & J. 517; 45 E.R. 1285.
12.Ahmed Yar Khan vs Secretary of State for India in Council [1901] L.R. 28 I.A 211.
External link
1. https://www.jstor.org/stable/4189500
External link
1. https://www.jstor.org/stable/4189500
