[2024] KELAT 509 (KLR)

Bombu Welfare Group v National Land Commission & another (Tribunal Case E003 of 2023) [2024] KELAT 509 (KLR) (5 February 2024) (Judgment)

Neutral citation: [2024] KELAT 509 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E003 of 2023

NM Orina, Chair & G Supeyo, Member

February 5, 2024

Between

Bombu Welfare Group

Complainant

and

National Land Commission

1st Respondent

Attorney General

2nd Respondent

Judgment

BACKGROUND 1. The complainant filed this complaint on 4th December 2023 vide a complaint dated 27th November 2023 and supported by an Affidavit sworn on the same date by Daniel Wagacha Gichura.

2. This Tribunal issued directions upon filing of the Complaint on 5th December 2023 to wit:- that the Respondents be served with the pleadings filed herein (together with these directions) forthwith; the Respondents to file and serve their responses within 14 days upon service; and, mention to confirm compliance and for further directions on 21st December 2023.

3. Inexplicably, the Respondents neither filed any responses nor appeared before the Tribunal.

4. When this matter was mentioned on 21st December 2023, we satisfied ourselves that service had been effected upon the Respondents. In particular, it was important that the Tribunal satisfy itself that the 1st Respondent as the main Respondent was duly served before any further directions could be issued.

5. The Complainant’s Affidavit of Service sworn on 7th December 2023 by Ms. Jacqueline Lorraine Akello, counsel appearing for the Complainant, details how service was effected. Ms. Akello avers that service was effected upon the Respondents on 6th December 2023 via their respective emails being: info@nlc.or.ke for the 1st Respondent and communications@ag.go.ke for the 2nd Respondent. The email thread was annexed to the affidavit and was marked “JLA1. ”

6. We nevertheless directed that the Respondents be served again with another mention date and be informed that they were required to put in written submissions in addition to responses to the Complaint. Ms. Akello confirmed through an Affidavit sworn on 16th January 2024 that she served the mention notice upon the Respondents via the aforestated emails and additionally served the 1st Respondent through the legal department email being nlc.legal@landcommission.go.ke.

7. We take judicial notice that the 1st Respondent routinely uses the email address nlc.legal@landcommission.go.ke as its correspondence email for filings before this Tribunal. For instance, the same email has been used in the following cases currently before the Tribunal being: TRLAP/E001/2023, TRLAP/E002/2023 and TRLAP/E004/2023.

8. We are, therefore, satisfied that service was effected upon the 1st Respondent through an email address that the 1st Respondent routinely uses for correspondence in its litigation matters. In regard to the 2nd Respondent, even though there is evidence that the 2nd Respondent was served, we do not think that its inclusion and participation in these proceedings was necessary as the 1st Respondent is represented by its own counsel.

The Complainant’s Case 9. The Complainant’s case is in regard to the compulsory acquisition for the construction of the Standard Gauge Railway (Phase 2A). The Complainant is the registered proprietor of the suit property otherwise known as Longonot/Kijabe Block 6/755 measuring approximately Four Decimal Zero Six hectares (4. 06 Ha) situate in Kiambu Nyakinyua within Naivasha County. A copy of a title deed in the name of the Complainant is attached to the affidavit of Daniel Wagacha Gichura and marked “DWG1”.

10. The Complainant further avers that sometime in the year 2018, the 1st Respondent gave notice of its intention to acquire part of the suit property and several neighboring parcels of land for purposes of construction of the Standard gauge Railway (Phase 2A) vide Gazette Notice No. 12526.

11. The Complainant states that it was offered an award of Kenya Shillings Two Million Eight Hundred and Nine Thousand Five Hundred and Ninety-Six (Kshs. 2,809,596. 00) which it accepted but the same has not been paid since the year 2018.

12. It is the Complainant’s contention, therefore, that the Respondents have violated its Constitutional rights, in particular, Articles 23, 40 and 47 of the Constitution of Kenya (2010). The Complainant further alleges that the Respondents are in breach of Section 4(1) of the Fair Administrative Action Act, 2015, and Section 111 of the Land Act.

13. The Complaint is supported by the Affidavit of one, Daniel Wagacha Gichura, the Chairperson of the Complainant. Mr. Gichura confirms the assertion in the Complaint and avers that the 1st Respondent issued a notice of intention to acquire the Complainant’s property via Gazette Notice number 2032 and 2033 published on 2nd March 2018. This notice is attached to his affidavit and marked “DWG2”.

14. Mr. Gichura further confirms that the Complainant was issued with an award for compensation for a sum of Kshs. 2,632,959/= dated 19th June 2018, which was reviewed to Kshs. 2,809,596/= through an award dated 9th February 2022. According to Mr. Gichura, both awards were accepted by the Complainant. Indeed, in the exhibit marked “DWG3” both awards are attached to Mr. Gichura’s Affidavit with the newer award showing a slight adjustment in the acreage from the initial 1. 1582ha to 1. 2359ha.

15. Mr. Gichura indicates that the Complainant has severally written to the 1st Respondent inquiring about the payment of the award, but they have been met with total silence. It is detailed that in addition to enquiries upon the 1st Respondent, the Complainant has written officially to the 1st Respondent numerous letters dated: 13th September 2021, 19th September 2021, 30th May 2022, 31st May 2022, 29th August 2022, 21st September 2022, 24th November 2022, 5th May 2023, and 20th June 2023. The letters are marked “DWG4” in the Affidavit of Mr. Gichura.

16. Astoundingly, none of these letters have elicited a response from the 1st Respondent, according to the Complainant.

17. The Complainant, therefore, prays for the following orders:a.A declaration that the Complainant’s rights as enshrined in Article 23,40 and 47 of the constitution of Kenya 2010 have been violated by the Respondents jointly and severally in the manner pleaded in this Complaint.b.A declaration that the Complainant is entitled to prompt, just and adequate compensation in full within the meaning and tenor of Article 40(3) (b) (i) being the sum of Kshs. 2,809,596 for the compulsory acquisition of its proprietary interests in property Land Reference number Longonot/Kijabe Block 6/755 in Nakuru County.c.An order directing the 1st Respondent to make immediate payment of the Award sum to the Complainant plus interest in accordance with Section 117 of the Land Act, 2012. d.Any other order that the tribunal may deem just and expedient in the circumstances of the case.e.Costs of the complaint

Analysis and Determination 18. There are two issues which commend themselves to us in this matter. The first issue is whether the Complainant’s Constitutional rights have been breached, and, two, what remedies are available, if any?

19. The process of compulsory acquisition of land is well detailed in the Land Act, 2012. We reiterate the summary laid down by the Hugh Court in Patrick Musimba vs. National Land Commission & 4 Others (2016) eKLR as follows:“85. In summary, the process of compulsory acquisition now runs as follows: -86. Under Section 107 of the Land Act, the National Land Commission (the 1st Respondent herein) is ordinarily prompted by the National or County Government through the Cabinet Secretary or County Executive Member respectively. The land must be acquired for a public purpose or in the public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met; the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in those respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property.87. Under Sections 107 and 110 of the Land Act, the National Land Commission must then publish in the gazette a notice of the intention to acquire the land. The notice is also to be delivered to the Registrar as well as every person who appears to have an interest in the land.88. As part of the National Land Commission due diligence strategy, the National Land Commission must also ensure that the land to be acquired is authenticated by the survey department for the rather obvious reason that the owner be identified. In the course of such inquiries, the National Land Commission is also to inspect the land and do all things as may be necessary to ascertain whether the land is suitable for the intended purpose. See Section 108 of the Land Act.89. The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.90. The burden at this stage is then cast upon the National Land Commission and as can be apparent from a methodical reading of Sections 107 through 110 of the Land Act, the landowner’s role is limited to that of a distant bystander with substantial interest.91. Section 112 of the Land Act then involves the landowner directly for purposes of determining proprietary interest and compensation. The Section has an elaborate procedure with the National Land Commission enjoined to gazette an intended inquiry and the service of the notice of inquiry on every person attached. The inquiry hearing determines the person interested and who are to be compensated. The National Land Commission exercises quasi-judicial powers at this stage.92. On completion of the inquiry the National Land Commission makes a separate award of compensation for every person determined to be interested in the land and then offers compensation. The compensation may take either of the two forms prescribed. It could be a monetary award. It could also be land in lieu of the monetary award, if land of equivalent value, is available. Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into special compensation account held by the National Land Commission. See Sections 113-119 of the Land Act.93. The process is completed by the possession of the land in question being taken by the National Land Commission once payment is made even though the possession may actually be taken before all the procedures are followed through and no compensation has been made. The property is then deemed to have vested in the National or County Government as the case may be with both the proprietor and the Land Registrar being duly notified. See Sections 120-122 of the Land Act.94. If land is so acquired the just compensation is to be paid promptly in full to persons whose interests in land have been determined. See Section 111 of the Land Act. This is in line with the Constitutional requirement under Article 40(3) of the Constitution that no person shall be deprived of his property of any description unless the acquisition is for a public purpose and subjected to prompt payment in full of just compensation.”

20. The issue in contention in this case is the non-payment of the compensation after the compulsory acquisition was completed. It is contended that the 1st Respondent took possession of the suit property enabling the construction of the project earmarked for acquisition.

21. It is a Constitutional imperative that payment must be made promptly upon compulsory acquisition. Article 40(3) (b) (i) states in this regard:(3)The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation –…(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, or just compensation;

22. On the other hand, the Land Act, the legislation that outlines the process of compulsory acquisition provides in Section 111 as follows:(1)If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined.…..(1b)(a)….(b)monetary payment either in lump sum or instalments spread over a period of not more than one year;

23. It is evident that the legislature made a deliberate effort to ensure compliance with the constitutional dictates of ensuring prompt payment for persons who have been deprived of land through compulsory acquisition. We, therefore, have no doubt in our minds that the framers of our Constitution intended for the payment to be made without any delay to a person who has been deprived of their land through the process of compulsory acquisition. The reasoning behind this is a no brainer, in our view. The exercise of eminent domain has a disruptive effect on persons who are affected (Project Affected Persons – PAPs) and it is important to put them back as close as possible to the condition they were in before the compulsory acquisition, without delay.

24. In this case, the 1st Respondent gave an initial award on 19th June 2018 and made no effort to pay even a part of it until 9th February 2022, almost four years later when it gave a revised award. Even then, the 1st Respondent has made no effort to satisfy any of these awards, even partly.

25. Granted, there could be circumstances where the 1st Respondent may withhold an award due to an ongoing dispute over the property ownership thereby necessitating holding the funds, lis pendens. It could also be the case that the owners of a property that is sought to be acquired or has already been compulsorily acquired cannot be traced or need to be verified. In whichever circumstances, the affected persons’ rights to fair administrative action have to be observed by the 1st Respondent.

26. Further, pursuant to Article 47(1) of the Constitution of Kenya, every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. This Constitutional provision binds the 1st Respondent in discharging its mandate in the process of compulsory acquisition of land. In the instant case, the Complainant asserts that the 1st Respondent has violated its rights under Article 40(3) and Article 47(1) of the Constitution. We agree with the Complainant for the following reasons.

27. The 1st Respondent has not provided any explanation to the Complainant which would justify its failure to comply with Article 40(3) of the Constitution and Section 111(1B) (b) of the Land Act. In fact, the 1st Respondent has not respondent to any of the not less than ten letters sent to its officers inquiring about the payment of the award. The 1st Respondent has without a doubt created a situation of double-despondency on the part of the Complainant by using the coercive powers of the state to deprive the Complainant of its land, and thereafter shutting its doors on the Complainant when it seeks compensation. In this regard, we are guided by the High Court in Patrick Musimba (Supra) where it was stated:82. As the taking of a person’s property against his will is a serious invasion of his proprietary rights, the application of constitutional or statutory authority for the deprivation of those rights requires to be most carefully scrutinized. In short, in our view, there must always exist a presumption against an intention to interfere with vested property rights as the legislative and constitutional intention is always the protection rather than interference with proprietary rights. (Emphasis ours.)

28. The 1st Respondent has had not less than ten chances to make amends with the Complainant but it chooses not to! Section 4(3) of the Fair Administrative Action Act requires that a body exercising administrative action – like the 1st Respondent herein – informs any person whose rights are likely to be adversely affected by administrative action of reasons, at the very least. We hereby hold that a decision not to pay an award issued pursuant to compulsory acquisition is an administrative action that needs to be reasonable, and requires reasons to be given to a person whose rights under Article 40(3) are affected.

The Respondent’s Conduct 29. Before issuing our final orders, we feel compelled to make some remarks in regard to the 1st Respondent’s conduct.

30. The 1st Respondent is a Constitutional commission with a very important mandate in regard to management of public land. It is borne out of the need that was felt in regard to the streamlining and dealings in public land were concerned post the 2010 Constitution. In this mandate, the legislature also extensively dealt with the issue of compulsory acquisition through the Land Act 2012 and mandated the 1st Respondent with this role.

31. We reiterate our pronouncement in James Finlay vs. National Land Commission and County Government of Kericho (TRLAP/1/2023) in regard to the critical role played by the 1st Respondent in the process of compulsory acquisition as follows:32. It is also important to understand the mischief that the Land Act 2012 sought to cure in its detailed procedure for compulsory acquisition. The exercise of eminent domain by the government has historically faced criticism for its arbitrary nature and there was a deliberate effort to remedy the same. The National Land Policy of 2009 recognised these challenges as necessitating the revision of laws to streamline the process.11See, Augustus Mutemi Mbila and Edmond Shikoli, ‘Application of the Doctrine of Eminent Domain in Kenya: Towards a Rights Based Approach to Compensation.’ Available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/KLReviewJournal/Application-of-the-Doctrine-of-Eminent-Domain.pdf

32. We are, therefore, perplexed and must necessarily deprecate the cavalier attitude of the 1st Respondent in handling its affairs completely oblivious of the public trust and the Constitutional ideals of good governance and accountability in discharging its mandate.

Final Orders 33. The upshot of our analysis and findings above is that the Complainant’s case is merited and is hereby allowed. We make the following orders:a.A declaration be and is hereby issued that the Complainant’s rights as enshrined in Articles 40 and 47 of the constitution of Kenya 2010 have been violated by the 1st Respondent.b.An order be and is hereby issued directing the 1st Respondent to pay the Complainant, within 21 days hereof, the full compensation awarded to the Complainant being the sum of Kshs. 2,809,596/= for the compulsory acquisition of its proprietary interests in property known Land Reference number Longonot/Kijabe Block 6/755 in Nakuru County.c.An order be and is hereby issued directing the 1st Respondent to pay the Complainant the interest earned on (b) above at commercial rates with effect from 19th June 2018, the date of the first award, until payment in full;d.Costs shall be borne by the 1st Respondent.

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF FEBRUARY 2024. DR. NABIL M. ORINA - CHAIRPERSONGEORGE SUPEYO - MEMBERIn the presence of:Ms. Akello for the Complainant;No appearance for the Respondents;Ms. Everlyne Kenyando - Court Assistant.