[2016] KEELC 779 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET

E & L CASE NO. 20 OF 2013

HARJIT PANDHAL SINGH....................................................................PLAINTIFF

VERSUS

AGRICULTURAL DEVELOPMENT CO-OPERATION............1ST DEFENDANT

THE ATTORNEY GENERAL.....................................................2ND DEFENDANT

JUDGMENT

On 14th September 2009, Harjit Pandhal Singh (hereinafter referred to as the plaintiff) commenced this suit against the Agricultural Development Co-operation (hereinafter referred to as 1st defendant) by way of plaint dated 8th September 2009, claiming Kshs.145,000,000/- as consequential losses suffered by the plaintiff as a result of destruction of his property thus sugar cane crop, buildings, tractors and loose items by squatters during the 2007/2008 post elections violence. The 1st defendant filed his defence on the 29th September 2009 denying the claims by the plaintiff. The plaintiff filed a reply to defence on the 2nd October 2009 and therefore closing pleadings.

However, on the 15th June 2012, the plaintiff filed an amended plaint claiming that on or about the year 1980 to the year 1981, while the Plaintiff was possessed of a subsisting lease over the Kiptegat Farm, Land Reference No. 7697, 1st the defendant wrote to the Plaintiff asking him to surrender his lease making reference to a Presidential Directive expressing the requirement that the lease be surrendered. The true nature of the said Directive was manifested in 1991 when 1000 acres were excised out of the Kiptegat Farm in favour of the squatters who had been in occupation of the same Kiptegat Farm, Land Reference No. 7697. It was manifest that the Defendant still held title to the land which was subject to a charitable trust. However, some of the said squatters, while remaining on the farm, were not granted any title to the land despite indications that they also constituted part of a body of squatters entitled to such grants.

The plaintiff claims that there has been a continuing presence in, and occupation, of the Kiptegat Farm, Land Reference No. 7697, by the squatters, from the time the Plaintiff first took possession of the lease to-date. Aggrieved by the said excision of 1000 acres out of the Kiptegat Farm, the Plaintiff sought legal redress by instituting Civil Suit No. 2757 of 1995. By a letter dated 17th August 2004, the 1st Defendant offered the Plaintiff a 5 (five) year lease in consideration for the withdrawal of Civil Suit No. 2757 of 1995 filed by the Plaintiff. The Plaintiff accepted the offer. The lease was to commence on 1st January 2005. Specifically, the offer detailed that the Plaintiff would pay Kshs.1,000/= per acre per month every quarter and retain Kshs.200/- per acres per month, which amount would be treated as compensation for the excision of 1,000 acres or thereabouts out of the above L.R. No. 7697. The said Lease Agreement embodied a series of covenants, among them, was a covenant granting the Plaintiff quiet enjoyment.

On the strength of the various assurances expressed in terms of rights and obligations under the Lease Agreement, the Plaintiff utilized the land for sugarcane crop farming and, with the consent of the Defendant, made infrastructural improvements to it. Particularly, under clause 3(i) of the Lease Agreement, the Defendant granted the Plaintiff quiet enjoyment stating that the Plaintiff would enjoy the land during the period of the lease, without interruption by the lessor or any person rightfully claiming under the lessor's title or under or in trust of it.

During the currency of the lease, in the context of the 2007/2008 post-election violence, persons referable to as squatters, who had even before the commencement of the lease, lived in the land caused destruction to the Kiptegat Farm, L.R. No. 7697. Moreover, during the currency of the lease, in the context of the 2007/2008 post-election violence Person referable to as squatters who had been brought onto the land and or allowed to occupy part of the land which was excised out of the land leased out to the Plaintiff entered into the Plaintiff's land and caused massive destruction of crops and property thereupon.

As a consequence of the aforesaid post-election violence a Tractor KAQ 436 J, Water storage tanks, Farm equipment, Farm inputs, 1km of water pipeline, Spares for farm machinery, Furniture and household goods belonging to the Plaintiff were destroyed, The consequent losses, suffered by the Plaintiff, as a result of the aforesaid destruction amounted to Kshs.145,000,000/- made up as follows: Sugarcane crop – Kshs.120,000,000/=, Buildings – Kshs.15,000,000/=, Tractors and loose Items – Kshs.10,000,000/=, Totalling to Kshs.145,000,000/=. The Plaintiff was also forcefully evicted from his land and was prevented from regaining access to the land by the invaders who took over his land, his crop of sugarcane which they have been harvesting and selling. At the time the Plaintiff was forcefully evicted from his land, the lease entered into between him and the Defendant had not expired and the Plaintiff was entitled to the remainder period of three (3) years under the lease with an option to renew the same for a further period upon such terms as would be agreed upon between the Plaintiff and the Defendant. The Plaintiff has therefore been deprived of the use of his land for a period of three (3) years, namely, the years 2008, 2009 and 2010 and has been denied the right to exercise the option to renew the lease. The Plaintiff in addition to the claim set out hereinabove also claims the sum of Kshs.129,000,000. 00 per year for three (3) years, namely; 2008, 2009 and 2010 making a total sum of Kshs.387,000,000. 00 on account of loss of profit and income for the remainder of the leasehold period particularized as follows:-

YEAR PROJECT SUGARCANE TONNAGE PRICE PER TONNE TOTAL

2008 30,000 TONNES Kshs.4,300. 00 Kshs. 129,000,000. 00

2009 30,000 TONNES Kshs.4,300. 00 Kshs. 129,000,000. 00

2010 30,000 TONNES Kshs.4,300. 00 Kshs. 129,000,000. 00

TOTAL

Kshs. 387,000,000. 00

The plaintiff' contends that the actions of the stated squatters, as persons with an enforceable interest under the charitable trust, in causing destruction to the Kiptegat Farm during the said post-election violence amounts to a breach of the covenant of quiet enjoyment which the Defendant was obligated to ensure that the Plaintiff enjoyed at all material times. The particulars of breach of contract according to the plaintiff are:-

1. Failure to ensure that the Plaintiff enjoyed peaceful enjoyment as expressly and/or impliedly stated in the lease agreement.

2. Allowing third parties to invade the Plaintiff's land thereby occasioning grave loss to the Plaintiff.

3. Bringing in and or settling third parties on what was all along part of the Plaintiff's land thereby making the Plaintiff's stay on the land insecure and increasing the risk of attack and the destruction of the Plaintiff's property.

4. Allowing third parties to occupy and harvest the Plaintiff's sugarcane.

5. Failing to remove third parties from the Plaintiff's land in furtherance of the Plaintiff's right to peaceful occupation and enjoyment of the same.

The Plaintiff claims that he has persisted in asking the 1st Defendant to put him into vacant possession of the leasehold parcel land but the Defendant has allowed the said squatters to remain in the land and to cause further damage to the land and infrastructural developments therein. The plaintiff's claim against the Defendant is therefore for a declaration that the Defendant breached the terms of the lease agreement entered between the Plaintiff and the 1st Defendant. The Plaintiff ultimately prays for an award of the sums of Kshs.145,000,000. 00 and Kshs.387,000,000. 00 against the 1st Defendant on account of the value of the destroyed sugarcane crop, buildings, tractors and loose items and for loss of profit/income respectively. He prays for costs of this suit plus interest.

The 1st defendant filed an amended defence denying that the Plaintiff was lawfully possessed of a lease over the Kiptegat Farm, Land Reference No. 7697 and or that the Defendant at no any time wrote to the Plaintiff asking him to surrender his lease for whatever reason. The Defendant further denies any reference by itself to the alleged Presidential directive expressing the requirement that the lease be surrendered and avers that in any event, government held and to date retains lawful avenues of land acquisition without necessarily engaging the agency of the Defendant. The Defendant strongly denies involvement of any nature over Land L.R. NO. 7697 aside from the effecting of government policy within its competence and further contends that the alleged allotment, if any to squatters was a legitimate government function in accordance with the law. The 1st defendant contends that issues of conferment of title are a preserve of government through appropriate mechanisms under the office of commissioner of lands and that the 1st Defendant is not liable for non issuance of title to part of the squatters as alleged or at all and that it never acquiesced to any unlawful presence and occupation of any squatter. The 1st Defendant claims that Civil Suit No. 2757 of 1995 supposedly instituted by the Plaintiff raised no issues at all to warrant attributing liability against him and maintains that there has been no judicial determination of liability against it in respect of the said case and denies the allegations that the withdrawal of Civil Suit No. 2757 was in consideration for a five year lease are denied as there was never a set-off in the alleged proceedings. The Defendant strongly avers that the alleged actions occasioned by the post-election violence of 2007/2008 were not of the Defendant's making. The Defendant contends that in fact losses enormous magnitude were sustained by diverse people not excluding the Defendant itself as a result of the spontaneous and widespread post-election violence.

The 1st defendant denies that the Plaintiff was forcefully evicted from his land and was prevented from regaining access to the land by the invaders who took over his land, his crop of sugarcane which they have been harvesting and selling and the said Defendant further avers that he has no knowledge of the alleged invaders. Moreover the 1st defendant denies that the Plaintiff was forcefully evicted from his land, the lease entered into between him and the 1st Defendant had not expired and the Plaintiff was entitled to the remainder period of three (3) years under the lease with an option to renew the same for a further period upon such term as would be agreed upon between the Plaintiff and the 1st Defendant and particularly that he was deprived the use of his land for a period of three years namely, the years 2008, 2009 and 2010 and has been denied the right to exercise the option to renew the lease. The said Defendant avers that the alleged losses, if at all, were not envisaged by itself as they were occasioned by adverse facts beyond the 1st Defendant's control. In the alternative, and strictly without prejudice to the foregoing, the 1st Defendant avers that in fact the alleged lease agreement was rendered impossible to sustain in the circumstances following the post-election and that there is thus no breach of contract as alleged or at all and that the alleged agreement was frustrated by the unprecedented events of the 2007 – 2008 post election violence the purported agreement was severed by the unfortunate events occasioned by the post election violence which were beyond the control of the Defendant. According to the defendant, the Plaintiff is not entitled to an award of the sum of Kshs.145 Million and 387 Million as sought herein. The 1st defendant prays that the suit be dismissed with costs.

On the 1st October 2014, the plaintiff filed an “amended amended plaint” enjoining the Attorney General in the proceedings in his representative capacity as the legal advisor of the government and on behalf of the cabinet secretary for special programnes. The Plaintiff's claim against the 2nd Defendant is for its negligence of statutory duty resulting to the loss and damages as a result of the 2nd Defendant failure to accord him peace and security as his entitled right and enjoyment. The Plaintiff avers that his loss, and damages is as a result of the 1st Defendant failing to give him vacant, exclusive occupation and utilization of the subject leased land by allowing third parties to dwell in, interfere and cause destructions and damages to his property and further occasioning him loss and loss of user. The Plaintiff's further averment is that the actions and interferences by the third parties, occasioning him the damages, loss and loss of user is as a result of the precipitated post-election violence which was a failure and/or an inaction of the part of the government and hence blames and claims against the ministry of special programmers thereof and claims from the Kshs.145,000,000. 00/- as consequential losses and Kshs.387,000,000. 00/- as lost profits, costs of this suit and interest.

The Attorney General hereinafter referred to as the 2nd Defendant filed his defence on 31st March 2015 denying any act of negligence of duty and the particulars of loss or loss of profit or income, he contends that the suit is misconceived and that he would raise a Preliminary Objection on that rate, so that the suit could be struck out. He further contends that the plaintiff's suit is statutory time-barred by virtue of the provisions of the Public Authorities Limitations Act Cap 30, Laws of Kenya and the 2nd Defendant shall at the earliest opportunity raise a preliminary objection to have the suit struck out with costs and that if at all the plaintiff suffered the alleged losses, which is denied the same was principally or solely caused or contributed by third parties who the 2nd defendant or its agencies had no control over and the 2nd defendant cannot therefore be held liable and that if at all the plaintiff sustained the alleged losses, which denied, the same was solely or principally caused or contributed by forces beyond the 2nd defendant's control and his claim, if any, was frustrated by force majeure.The 2nd defendant contends that the 2007/2008 post-election violence was sporadic and spontaneous and was unplanned and caused by political factors. The alleged loss was caused by third parties/licenses on the suit property and that both the plaintiff and 1st defendant harbored nuisance hence assumed the risk and that the 2nd defendant and its agencies did not foresee the propensity of the violence and that the plaintiff did not take reasonable or practicable measures to avert or minimize the loss. The plaintiff failed to immediately lodge a complaint for investigation and to exercise due diligence. The 2nd Defendant contends the plaintiff is by law estopped from dragging 2nd defendant into its contractual relationship with the 1st defendant. The 2nd defendant further states that the 2nd defendant and its agencies upheld the provisions of Article 29 of the Constitution and that at the material time the 2nd defendant and its agencies took all reasonable and practicable measures to safeguard life and property and if the plaintiff's property was destroyed as alleged or at all the plaintiff was negligent by failing to safeguard his alleged property and failing to take reasonable or practicable measures to safeguard property. Moreover, the 2nd defendant contends that by allowing or permitting third parties to access his property, exposing his life and property to unforeseeable peril, failing to exercise due diligence and failing to take precautionary measures to avert or minimize the loss the defendant was the author of his misfortune. The 2nd Defendant specifically denies that the plaintiff's loss amounted to Kshs.145,000,000/= as alleged or at all and invites strict and specific proof of the alleged loss. The 2nd defendant further specifically denies that the Plaintiff's loss of income and profit amounted to Kshs.387,000,000/= as alleged or at all and invites strict and specific proof of the alleged loss of profit and income. The 2nd defendant further denies that the plaintiff was ever evicted from his land or any other land or was ever prevented from regaining access to his land by the invaders and maintains that no complaint was lodged for investigation and prosecution of the culprits. The 2nd Defendant further maintain that if at all the plaintiff was ever evicted or prevented from regaining access of the land, which is denied, the same was by the third parties who the plaintiff had harbored on the alleged land and the 2nd defendant cannot be liable. The 2nd defendant avers that the plaintiff is indolent and guilty of laches and a court of equity should shut its ears and refuse to entertain this claim. The Jurisdiction of this court is denied in toto as the plaintiff's claim is not about land or environment but a claim of special damages.

When the matter came up for hearing on the 7th December 2010,the plaintiff testified that he is engaged in farming business at Chemilil. He knows the 1st Defendant since 1978 as he had leased a farm measuring 2582 acres from 1st Defendant between 1978 – 1979 upto 2008. The last agreement he entered into with the 1st defendant was in 2004 whereby the lease was to run for 5 years. The land was comprised of Hills, bushes, rocks and valleys as it is on a foot of a mountain. He put caterpillars and tractors on the land to make it arable. The 1st defendant did not inform him that there were people on the land and that the said defendant grabbed his land and gave 1000 acres to squatters. Before the election of 2007, he was involved in meeting with the 1st defendant on 5th August 2007 however, he did not finish his five year lease. His all property was destroyed as he fled due to the post-election violence. He feared for his life and did not go back. The squatters and people on his land destroyed his property. He went to the police but they could not offer security. His sugarcane plantation was torched. His tractor was burnt. His house was destroyed. He produced the valuation report. He also blames the government as he had asked the government to remove squatters but they failed or neglected to do so. He prays for judgment in terms of loss of sugarcane valued at Kshs.150,000,000/- and loss of properties and income.

He was cross-examined by Mr. Wekesa, learned counsel for the 1st defendant and stated that the first defendant wanted him out of the land and therefore failed to offer him security. He reiterated that the first defendant ought to have given him security as they were the owners of the property as the lessor. He claims that William Kirwa told him that the he did not want to see him on the land as it belonged to squatters and that at the same time Henry Kosgey told people to take up the farm. He informed the police but they did not take any action. The first defendant asked the police to provide security but the police did not do so before the violence broke out on the eve of election.

On cross examination by Mr. Odongo, learned state counsel, he states that his property was destroyed 2 days before election by the squatters. He made a report on the 30th December 2007 but the police feared going to the parcel of land as people were on the land.

PW2 was Mr. Ishminder Singh Pandhal who stays at Chemelil and is a farmer by profession. He knows the plaintiff as he is his father and that they run the same business. They had leased a farm from Agricultural Development Corporation known as Kaptegat farm on LR 7697(2882). The land was bushy hence they had to do a lot of work. There were no squatters on the land but moved in slowly, they complained to the first defendant who never took action instead he decided to excise 1000 acres for squatters. The land under cultivation was 1200 acres whilst the rest was under trees. The agreement was for five years but they could not finish due to election violence. The police did not help then when they were attacked by the people during post-election violence. They used to get a good harvest on the land. The yearly income was 30,000 which they lost and that machinery was destroyed.

On cross-examination by Mr. Wekesa he confirmed that he is not a signatory of the lease but his father was. There was no one in the land in 1978 when they were allocated the same, but in 1984, people began moving into the land. This property was burnt in 2007 but the police did not help. The Agricultural Development Corporation excised 1000 acres from them and gave squatters.

The plaintiff closed his case and the 1st defendant opened the defence case and called DW1 Mr. Samwel Birgen who testified that he was in court because Harjit Singh had claimed that they refused to protect him. He was a lessee of the farm from 3rd December 2004 for a term of five years. He vacated the land before expiry of lease. This was in the year 2007 in December. The reason were that he was evicted by his neighbours due to post election violence. They did not give him any security, but they were to afford him quiet possession of the land and they did exactly that.

He denied the claim, that they did allowed squatters on the land. Initially Mr. Singh had leased 2500 acres of land. However, it came a time when the government excised 1000 acres to settle people on the land. Mr. Singh was adequately compensated. Instead of paying 1000/- per acre, he was allowed to pay 1000/- and this was captured in clause 3 of the agreement of lease produced as PEX.1A. The squatters were on 1000 acres excised in 1995 where the plaintiff had been fully compensated.

DW 2 was Antony Ademba, the Corporation Section Agricultural Development Corporation who stated that Agricultural Development Corporation and Lands Limited are different. Agricultural Development Corporation is a state corporation established under the Agricultural Development Corporation Act Cap 444, Laws of Kenya in the Ministry Of Agriculture and that Lands Limited is a subsidiary wholly owned by, and which manages land on behalf, Agricultural Development Corporation and the plaintiff is one of their lessees in respect of land in Kaptegat leased in the '70's'. His lease was executed in 1. 1.2005 for five years in respect of land measuring approximately 1500 acres for sugar cane. In 2007/2008 during elections, there was violence that was was spontaneous and that they were informed that their lessee had lost machinery and cane when people invaded his farm. They advised the plaintiff that the government had opened a fund for compensation of all victims of post elections violence. They did some letters to the Provincial Administration as it then was to secure the lessee parcel in 2008 to after the violence.

He insists that the lease was not breached by land 1st defendant as the lessee abandoned the lease property. They wrote several letters to the plaintiff but he refused to go back. They gave him quiet possession all way back until 2007-2008 election violence.

The 1st Defendant closed his case and paved way 2nd defendant who called one witness one Robert Kiio the Divisional Criminal Investigations Officer Nandi East who stated that the Kiptagat Farm is situated within Nandi East and Tenderet Sub-Counties in Nandi County and is part of expansive Agricultural Development Corporation Farm. The Farm has changed hands on lease terms since the corporation did not put it into maximum use. The nearest police institution is Mberere Police Post. He is aware that between December, 2007 and January 2008 the plaintiff was still the owner of the Farm having leased it from the corporation and that some squatters were residing on part of the Farm. The squatters also provided labour to the plaintiff on the Farm. There was peaceful existence between the plaintiff and squatters. During the period in question the country experienced the worst ever post-election violence that was sporadic, spontaneous, unplanned and was occasioned by political motivations. The violence saw massive destruction to property and loss of lives a situation that was very difficult for the police to control. On 30. 12. 2007, the Mberere Police Post received a report that vide OB Nos. 6, 7 and 8 of 30. 12. 2007 that sugarcane belonging to the plaintiff had been burnt. It alleged that the said torching occurred between 2230 hours and 2243 hours but the reportees could not identify the real suspect. Police initiated investigations and Vide OB No. 10 of 29. 12. 2007 at around 2220 hours police officers proceeded on routine patrols around Kiptegat Farm and its environs. On 30. 12. 2007, vide OB No. 2 at around 0300 hours a report of theft of a tractor Reg No. KAQ 463J was made. The suspect was the plaintiff's driver. OB No. 5 of same day shows investigations underway. OB No. 13 of same day shows investigations leading to Lessor's area but the same were suspended when the situation became tenser. It was later reported that the tractor was recovered at Moiben and returned to the owner (plaintiff). Vide OB No. 2 of 1. 1.2008 at 0310 hours, police officers proceeded to Kiptegat Farm to escort the plaintiff and his tractors to Chemelil garage. OB No. 3 of same day shows police officers returning from Chemelil. Vide OB No. 10 of 1. 1.2008 at 1340 hours, three police officers went on patrols/inquiries to Kiptegat Farm. Vide OB No. 14 of the same day, the officers returned from patrols and reported to have visited the house of the plaintiff which had been broken into by armed gang and unspecified valuables stolen whose value could not be established. On 2. 1.2008 vide OB No. 5 at 0815 hours, the plaintiff reported that his sugarcane growing on Kiptegat Farm had been set ablaze by locals for the previous four days. He reported that the locals were now demolishing his houses from where he had removed and moved some unspecified things the previous day and had not finished and now requested police assistance. Vide OB No. 16 at 0815 hours, two police officers responded to his aid. Vide OB No. 11 at 1340 hours of the same day, the OCPD Paul Wanjama visited the area on a fact finding mission following reports of sugarcane torching. This included the plaintiffs. The post-election violence lasted for a few days. I also know that the security forces did what was reasonably practicable. They acted on the plaintiff's every report and repulsed any further destruction, as and when the reports were made. They were vigilant, as usual. Finally, government cannot be held liable for actions or omission arising out contractual arrangement between plaintiff and 1st defendant. The government was not privy to the alleged lease and can neither deny nor confirm the contents therein. The police as a department was not privy to the alleged lease or excision of 1000 acres from the Farm to settle squatters. The plaintiff did not offer information that would have assisted in arresting the suspects; plaintiff failed to record statements; plaintiff did not avail witnesses; plaintiff also failed to identify particular person(s) who committed alleged offence(s). Since plaintiff accepted and lived with squatters on the Farm, he was negligent and cannot transfer his negligence to anyone including the government. The police did a commendable work to their ability and in the prevailing circumstance. In fact, the plaintiff was more favoured than any other Kenyan at the material time. Notwithstanding, the post election violence and massive destruction and damage investigations in relation to the violence were terminated by the DPP. He prays for dismissal of plaintiff's suit plus costs.

On cross examination by Mr. Wekesa, he stated that the report made first was the burning of sugarcane on 2nd January 2008 by the plaintiff. The tractor was stolen on 29th January 2008. It was recovered at Moiben and nobody was charged because the plaintiff never followed. There was a lot of tension in the country and that it was the police duty to give security and not Agricultural Development Corporation. He did not know that there were squatters.

On Cross examination by Mr. Aseso, learned counsel for plaintiff, he states that the report of the burning of sugar was made by Harjit Singh but nobody was arrested. The violence was spontaneous and sporadic and unplanned. On re-examination, he states that there was no request by Agricultural Development Corporation for security in the area.

The gravamen of the plaintiff's submission is that there was a lease agreement between the plaintiff and lands limited a subsidiary of the 1st defendant. Secondly, the plaintiff submits that it is not in dispute as all parties are in agreement that indeed violence occurred in 2007/2008 within the Republic of Kenya which negatively and adversely affected the plaintiff causing him injury inform of damages to his farm and operations. According to the plaintiff's counsel, all defence witnesses agreed that the plaintiff was affected by the post election violence as his farm was invaded. On the extend of damage on the farm, it is claimed that the plaintiff suffered damage amounting to Kshs. 532,000,000/-.

The plaintiff further submits that the term of the lease was breached by the 1st defendant. According to the plaintiff, the lease term contemplated the plaintiff enjoying quiet possession and vacant occupation of the premises, however the right was breached by the 1st Defendant, by allowing squatters to settle and continue dwelling on the suit land and therefore was liable for the breach. Against the 2nd defendant the plaintiff submitted that the Kenyan Police Service is tasked under the constitution of Kenya to promoting enforcing and ensuring peace and security is maintained within the Kenyan land and about the boundaries. There is a constitutional right that cant be taken away. Failure to adequately perform constitutional functions to the detriment of citizens will lead the governmental agencies being held liable and accountable and will be penalized with orders of payment of damages.

The First defendant through Mr Wekesa submits that the events of 2007/ 2008 were sporadic spontaneous, unplanned politically motivated and that the 1st defendant had nothing to do with the violence. The persons who attacked the plaintiff's property were unknown and had no relations with the 1st defendant. On whether the covenant on quiet enjoyment was breached and how, the 1st defendant argues that the plaintiff at clause 9 of the lease agreement accepted to sign the lease agreement subject to the covenants agreements conditions restrictions provisions and stipulations set forth in the agreement. He accepted the agreement on condition that he would not get the whole of the suit land which measures 2581 acres but instead he was to get 1500 acres only. The 1st defendant further argues that the losses emanating from the spontaneous and widespread violence after the 2007/2008 post-election violence are justifiably recoverable against the 2nd defendant by the plaintiff'. On Quantum, the 1st defendant submits that the plaintiff has not proved the loss as claimed.

The Second Defendant through Mr. Odongo Learned State Counsel submitted that the 1st defendant while conceding the existence of the lease stated that the plaintiff consented the excision of 1000 acres out of the Kaptegat farm. The 2nd defendant argues that the claim is too remote as the damage was done by the squatters brought to the land with the permission of parties to the lease. According to Mr Odongo the circumstances of this case call for exoneration of state from any liability as the relevant state agencies discharged their constitutional and statutory duties amidst the varying challenges of the spontaneous violence and that the criminal and political acts of third parties who weer allowed on the suit land by consent of the plaintiff and 1st defendant cannot extend to the the 2nd defendant who was not privy to the arrangement. Ultimately, the 2nd defendant submits that this being a private affair between the plaintiff and the first defendant's any liability should be borne solely by the 1st defendant.

I have considered the pleadings, testimonies and witnesses and submissions of counsel and do find the following issues ripe for determination.

1. Whether there was a lease agreement between plaintiff and 1st Defendant and whether was breached.

2. Whether the 1st Defendant owed the plaintiff any duty to provide security and whether it breached.

3. Whether the 2nd defendant owed the plaintiff any duty as to security and was it breached.

4. Whether there is any remedy available in the circumstances.

WHETHER THERE WAS A LEASE AGREEMENT BETWEEN PLAINTIFF AND 1ST DEFENDANT AND WHETHER WAS BREACHED.

On the 3rd of December 2004 the 1st defendant agreed to lease to the plaintiff part of all that land situated in Muhoroni Kisumu-Londiani district and known as Kiptegat farm measuring approximately 1500 acres or thereabouts for a term of five years from the first of January two thousand and five subject to the payment of the annual rent quarterly in advance. The 1st defendant agreed to accept only 1000 per acre per year and to allow the lessee to retain a sum a sum of Ksh.200 only per acre per year which would be treated as compensation for the excision of 1000 acres of the demised property and which was subject to a civil suit no HCCC 2757 of 1995. The plaintiff and 1st Defendant covenanted that the plaintiff was to plant sugarcane and other crops related to sugar cane without prejudice to the generality thereof whose final product would be mainly refined sugar or molasses. This court finds that it has been proved on a balance of probabilities that there was a lease agreement between the plaintiff and the 1st defendant, however the same was breached by the 1st defendant when he failed to put back the plaintiff in possession even after the end of post-election violence and allowed squatters to remain on the leased property. Though the plaintiff and 1st defendant had agreed that 1000 acres to excised out of the entire 2581 acres for which the plaintiff was compensated by reduction of the annual rent from Ksh.1200 to 1000 per acre, it was a duty of the 1st defendant to put back the plaintiff in possession of the parcel of land. Though there is an attempt by the 1st defendant to put the plaintiff back in possession on August 2008 this happened too late.

WHETHER THE 1ST AND OR THE 2ND DEFENDANTS OWED THE PLAINTIFF ANY DUTY TO PROVIDE SECURITY AND WHETHER IT WAS BREACHED.

Chapter V Of The Repealed Constitution provided for protection of fundamental rights and freedoms of the of the individual.

Section 70 Provided As Follows;

Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression and of assembly and association; and

(c) protection for the privacy of his home and other property and from deprivation of property without compensation, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

The spirit of Section 70 Paragraph C Of The Constitution was to protect an individual from being deprived of his property without compensation. An individual can be deprived of his property by the state or another individual or individuals through violent means.

Article 40 of the constitution of Kenya 2010 provides that Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property––

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of an description, or of any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.

(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.

(6)The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.

The import of the provisions of the repealed constitution and the constitution of Kenya 2010 is that the state had a duty to protect property of individual of any description.

Section 14(1) of the repealed Police Act Cap 84 Laws Of Kenya as it then was and which was in force when the plaintiff's property was destroyed provided that the Force shall be employed in Kenya for the maintenance of law and order, the preservation of peace, the protection of life and property, the prevention and detection of crime, the apprehension of offenders, and the enforcement of all laws and regulations with which it is charged.

Between the period 1992 and 2008 Kenyans fought very hard to change the constitution and part of the changes sought included reforms in the police force. Their efforts paid off in 2010 when a new constitution was promulgated on 27 August 2010 and chapter 14 of the constitution was dedicated to national security. According to the new constitution the principles of National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests. Accordingly, the national security of Kenya shall be promoted and guaranteed in accordance with national security and subject to the authority of this, national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms. Article 243 of the constitution establishes the national police service whose objects as per Article 244 are to strive for the highest standards of professionalism and discipline among its members; prevent corruption and promote and practice transparency and accountability; comply with constitutional standards of human rights and fundamental freedoms; train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and foster and promote relationships with the broader society. By the force of the provisions of Article 245(8), Parliament enacted the National Police Service Act Act No 11a of 2012 . Section 24 provides the functions of the police as follows

Functions of the Kenya Police Service provision of assistance to the public when in need; maintenance of law and order; preservation of peace; protection of life and property; investigation of crimes;collection of criminal intelligence;prevention and detection of crime;apprehension of offenders;enforcement of all laws and regulations with which it is charged; and performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

It is clear from the repealed law and the new law that he police have a duty to protect property of every person living within the boarders of Kenya and therefore every such person has a right to protection of property as affirmative claim against the state.

I associate myself with the finding in Gullid Mohammed Abdi Vs OCPD Isiolo Police Station and 7 Others 2006Eklr by Onyancha J that the duties of the police force in Kenya include prevention and detection of crime and the apprehension of the offenders The police force is also tasked to protect life and property it is asked which crime is to be prevented and detected? An appropriate answer would be any crime committed within the republic is targeted under the above law provisions. That means that the police force has a duty to prevent or protect crime as well as to preserve life and property and apprehend possible offenders. The property and life to be protected must be the property and life of the Kenyan citizens including that of the government and those at anytime who claim protection of the law of Kenya. Otherwise there is no other life or property in Kenya that the above law provisions would be referring to except those found and living in Kenya. In Roshanali Karmali Khimji Pradhan Vs Attorney General Civil Case No 276 of 1998, Justice Joyce Khaminwa found that the law of human rights and freedoms was founded on and inspired by the United nations Charter and that the guarantees made to every person in under section 70 of the constitution are that every person is entitled to life liberty and security of the person and the protection of the law. To ensure this guarantee the government is under the duty and obligation of actively taking measures to secure the life of individual by preserving public security in the country and by ensuring there is maintained law and order.

This court finds that this was not the first time there was post-election violence in Kenya as it happened in the year 1992 that resulted to the creation of the commission of inquiry to investigate post election violence. It is also within the public domain and this court takes judicial notice that there was pre and post election violence in Kenya in 1997 that led that led to loss of property and lives that led to people likes of Roshanali to file the aforesaid suit. The state ought to have detected that violence was likely to erupt as it was an electoral pattern and taken measures to pre-empt the same. I have considered the evidence on record and do find the government having settled squatters on part of the land leased by the plaintiff ought to have given him security as there was a high propensity of crime due to the presence of the squatters introduced on the parcel of land by the office of the president through the provincial administration. The 1st defendant produced a letter dated 12th November 2008 written by W. K, Kirwa indicating that the land measuring 1500 acres was still under lease by Mr Harjit Singh from ADC however Mr Singh had been evicted by from the farm and his entire cane and machinery destroyed. It had come to the notice of ADC that some people calling themselves squatters had invaded the land and were busy subdividing the land amongst themselves and harvesting the cane to the detriment of Mr Harjit Singh who was the lessee. ADC requested the district commissioner Nandi east to give security to Mr Singh to harvest and deliver his cane and to ensure that the squatters were removed from the farm. There is no evidence that the squatters were removed. This court finds that the state is obligated to investigate every situation of violation of the rights protected by the convention and that if the state apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the state has failed to comply with its to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the state allows private persons or groups to act freely and with impunity to the detriment of rights recognized by the convention. I am in agreement with the 1st defendant that the acts of violence meted on the plaintiff and his farm were not instigated by the 1st defendant and that the said defendant had no control over acts of commission or omission by the said persons or squatters. The plaintiff testified in his evidence in chief that the police were given prior information that there was likely to be an attack on the sugarcane plantation but the police never took action. Moreover, the 2nd defendant failed to demonstrate that he had put any mechanism in place to stop the occurrence of violence that occurred between 2007 and 2008. In conclusion on this issue, I do find that all state organs failed in their duty they owed the plaintiff in ensuring that his property was protected during the post election violence and therefore I find the 2nd defendant liable for the consequential loss incurred by the plaintiff and that the defendant's are jointly liable for loss of profits for both failing to put the plaintiff back in possession.

I have considered the facts in Charles Murigu Muriithi And 2 Others Vs Attorney General and the decisions relied upon and do find the facts herein and theCharles Muriithis case are not the same as in the former the plaintiffs land was taken over by squatters for the remaining term of the lease and therefore dispossessing the plaintiff as opposed to the latter where it is not clear whether the attackers took possession of the property. Moreover, it is evident that the plaintiff approached the defendant to put him back in possession but the defendants failed and or neglected to do the same. Moreover, the facts in the common law authorities and the circumstances are different from the facts and the circumstances of the post election violence as the latter was a replay of the happenings in 1992 and 1997 during the election period and therefore foreseeable.

The Plaintiff ultimately prays for an award of the sums of Kshs. 532,000,000 thus Ksh.145,000,000. 00 and Kshs.387,000,000. 00 against the Defendants on account of the value of the destroyed sugarcane crop, buildings, tractors and loose items and for loss of profit/income respectively. He prays for costs of this suit plus interest.

I have considered the valuation report prepared by L K Rotich a registered valuer wherein he reports that the suit land is a gently sloping irregular shaped parcel with hills and river valleys comprising red loam and sandy soils with rock outcrops barbed wire marks the parcel boundaries. The section of the parcel of 1,012 acres was under sugarcane crop before the damage. The available harvest records the average tonnage was 60,698 tonnes which they consider as the value of the standing cane before the destruction. The parcel is zoned for agricultural user. Erected on the parcel before post election violence that led to the destruction were the following developments that were similarly constructed;

(i) Farm house

(ii) Workshop

(iii) Staff quarters

Walls are constructed of natural stones externally rendered, keyed and colourwashed and internally plastered and painted or gladded with ceramic tiles to dado levels in all the wet areas. Roof is a mono pitched timber trussed overlaid with gal sheets. Floor is mass concrete finished in wood blocks and ceramic tiles. Doors are glazed metal plates externally and timber braced t&g timber types internally. Windows are glazed metal casements fitted burglar proof metal grilles.

This area is served by a murram road, and from here the parcel is accessed by an earth road hence it is easily accessible. Electricity and water from the mains are having been connected into the property. Waste disposal in this area would be to a pit latrine.

All the other social, economic, educational and religious facilities are available within the neighbored since shopping facilities and churches are within a walking distance from the property. According to the valuer, this is a good agricultural tract of land located within Nandi County with favourable climatic condition for sugarcane growing.

The surrounding properties to the subject parcel are mainly used for agricultural purposes. Within the immediate surroundings of this property, there is no evidence of pollution and or land contamination either to the subject plot or to the surrounding plots which can affect the value of the subject property. In their site observations, they did not come across any environmental issues, which can cause problems or have adverse effects on the current or future ownership of this property including mortgage in possession or in receivership.

The leasehold title to this property is good security. Besides the prevailing political and economic conditions in our country at this time, there are no other factors known to them that would hinder this property's marketing and sale or cause potential buyers to hold off in the event of a forced sale or a public auction. They foresee no significant prospect for change of user of the subject property that could materially affect its value adversely.

On the basis of the foregoing particulars, their terms of reference and other relevant factors, it is the valuers opinion that the improvements on TITLE NO. 7697 (KIPTEGET FARM), NANDI COUNTY free from all encumbrances whatsoever has an open market value of Kshs.150,000,000/= (Read: Kenya Shillings One Hundred and Fifty Million) Only broken down as;

Sugarcane crop - Kshs.120,000,000. 00

Buildings and other site works – Kshs. 20,000,000. 00

Tractor and other loose assets - Kshs.10,000,000. 00

TOTAL - Kshs.150,000,000. 00

I do find that the valuation report is not controverted and therefore do award Ksh.150,000,000/= to the plaintiff against the 2nd defendant in terms actual loss as a result of breach of statutory duty. I do find that the defendant's are jointly liable for failing to put the plaintiff back in possession after the post election violence as evidenced by DEX1 the letter dated 12th November 2008 written by the Managing Director ADC to Mr Saul Maywaya the District Commissioner Nandi East as he then was. On loss of income and profit, the plaintiff testified that they used to get a good harvest on the farm and that they were working above par. The plaintiff claims that they had a fully developed infrastructure and crops yielding 30,000 tonnes a year at a cost of 3000 tonnes and had lost business of Ksh.387,000,000/=. I have considered the claim on lost business and lost profit and the contents of the letter dated March 2004 produced as plaintiff exhibit 7a, where the honourable Professor Anyang' Nyongo states that the above farm is a key supplier of cane to Chemelil sugar company and had a development worth Kshs.30,000,000/= or more and do find that the plaintiff the plaintiff's claim of Ksh.387,000,000 but that does not mean that the plaintiff did not suffer lost profits is on the highest side is entitled to lost income and profit and do award the plaintiff's Kshs.100,000,000/= for the remainder of term to be paid jointly and severally by the defendant's for failing to put the plaintiff back in possession. Costs of this suit and interest at court rates to the plaintiff. Orders accordingly.

DATED AND DELIVERED AT ELDORET THIS 20TH DAY OF MAY, 2016.

ANTONY OMBWAYO

JUDGE