https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3439

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELC NO 20 OF 2023** **SAID TSUMA CHIMERA (Suing on his own behalf and as the administrator of the estate of NDEGWA CHIMERA MWAMUNGA & JUMA CHIMERA MWAKWAKWA (DECEASED) .......1ST PLAINTIFF** **NDEGWA RAMA CHIMERA...........................................2ND PLAINTIFF** **VERSUS** **COUNTY GOVERNMENT OF KILIFI.......................1ST DEFENDANT** **NATIONAL LAND COMMISSION...........................2ND DEFENDANT** **JUDGMENT** 1. The plaintiffs instituted the suit by filing the plaint dated 21st March, 2023, in Court on 22nd March 2023. The plaintiffs are seeking the following prayers against the defendants: 2. **An order is hereby entered directing that the Plaintiffs have acquired proprietary rights and interest in the suit property, being plot no. Kilifi/Mgumopatsa/Mazeras/911.** 3. **An order is hereby issued ordering/directing the defendants jointly and severally to compensate the plaintiffs upon valuation of the suit property.** 4. **An order is hereby issued directing/ordering the Defendants, upon compliance with order 2 above, to proceed and facilitate the transfer of the suit property in favor of the 1st Defendant.** 5. **Any other order that the Court may deem fit to grant.** 6. **Costs of this suit and interest at Court rates since the year 1996 until payment in full.** 7. The 1st and 2nd defendants defended the suit via the statements of defense dated 6th February 2024 and 1st of July 2024, respectively. On 27th May 2025, the case proceeded to a hearing, during which the 1st plaintiff, Saidi Tsuma Chimera (PW1), testified and had the statement dated 21st March 2023 admitted into evidence. PW1 also produced the list of documents dated 22nd March 2023 as Plaintiffs' Exhibits 1-6. The Plaintiffs closed their case on 27th May 2025. Plaintiffs' cause of action arises from the judgment dated 23rd August 1996, РЕХН 3. The proceedings to Objection No. 62/92/93 concern the land No. being Mugumo Patsa/Mazeras and Plot No. 911. The parties are Ndegwa Chimera Makwakwa Mwamunga and Juma Chimera Makwakwa, the Plaintiffs, and the County Council of Kilifi, the Defendant. The dispute concerned the suit property. The decision was that the suit property was to be owned equally. The judgment in Objection No. 62/92/93 (PEXH 3) was never appealed to the Minister as provided for under Section 29 of the Land Adjudication Act. The appeal was to be filed within 60 days. This was not done, as evidenced by the letter dated 12th June 2003 under PEXH 2. The Court is therefore left with the issue of compensation to be determined. The compensation to the Plaintiffs is based on the judgment on Objection No. 62/92/93 (PEXH 3). The plaintiffs have done a valuation of the suit property and produced it in evidence as PEXH 6. The current market value of the suit property is estimated at Kenya Shilling seven hundred million only (700,000,000/=). The plaintiffs' evidence is that the 1st defendant has not compensated them. 1. The 1st defendant called two witnesses, David Mwango Ngombo (DW1) and Abbas Kibwana Mwinga (DW2). Both DW1 and DW2 adopted their respective witness statements dated 7th February 2024, which were filed in court on 9th February 2023. DW1 produced the list of documents dated 6th February 2024 as the 1st defendant's Exhibit 1. The 1st defendant closed their case. 2. The witnesses for the 1st defendant testified that the suit property was initially approximately 50 acres and had been designated as a Mazeras Trading Centre, per the 1991 PDP. After due diligence, it was discovered that part of the 1991 PDP had title deeds issued after adjudication, leaving half of the area available for allocation as the Mazeras Trading Centre. 3. The 1st defendant’s witness testified that an adjudication process was to be undertaken and that, from the 1996 decision, the plaintiffs’ names would be entered in the adjudication process until full compensation was provided. Before the adjudication process could be completed, the plaintiffs moved to the Land Registry. They procured the issuance of the Title Deed on 20th September 2019, in which the 1st defendant was not involved, despite being an owner. 4. That it is the 1st defendant’s case that the adjudication process has not been finalized. that the market does not occupy the entire 50 acres as it appears in the title, but only occupies 13.7 Ha. 11 The 1st defendant further testified and produced contracts between third parties and the plaintiffs for the sale of portions of the property forming the subject matter of the suit. 5. The 2nd defendant did not call any evidence but, in its defense, contends that it is a stranger to the arrangements between the plaintiffs and the 1st defendant and that, if anything, the same occurred before its creation. 6. Based on the record, the issues for this Court's determination are whether the plaintiffs are entitled to compensation, and to what extent, and who should bear the costs of the current litigation. 7. Plaintiffs aver that they are entitled to compensation in the amount disclosed in the Valuation Report to the tune of Kshs. 700,000,000/- and that the 1st respondent has failed to pay the compensation, hence this lawsuit. 8. On the other hand, the 1st defendant asserts that the suit herein is premature because a tenure regularization process is ongoing to issue title deeds, which includes the plaintiffs’ families. The plaintiffs admitted that they have benefited from the sale of some parts of the parcel of land they now claim for compensation. Therefore, allowing the plaintiffs’ claim would amount to unjust enrichment to the prejudice of the 1st defendant. The valuation process has yet to be carried out, which would enable the parties to address the issues of compensation for what is occupied, utilized, or under the 1st defendant’s control. The issues of transfer in favor of the 1st defendant will be addressed after the issues of compensation have been finalized, a process that will consider what is occupied or utilized by the 1st defendant. 9. The Constitution of Kenya (Article 40) guarantees the right to private property but allows the state to acquire private land if necessary for public use or in the public interest. Compensation must be *"prompt, just, and full."* 10. Under the Land Act 2012, all compulsory land acquisitions—whether by the National or County government—are overseen by the National Land Commission (NLC). The process involves several steps: The County Executive Committee Member (CECM) submits a formal request to the NLC, including an approved County Spatial Plan, project designs, and proof of funds for compensation. The NLC reviews the request and makes a decision within 14 days. If accepted, it publishes a notice of intention to acquire in the Kenya Gazette and the County Gazette. Public inquiries are then held to gather claims from landowners affected by the acquisition. Valuers assess the property to determine *"just compensation,"* considering market value, damages, and any developments such as buildings or crops. The NLC issues a formal "Award of Compensation" outlining the land's value and the payable amount. The County Government transfers the funds to the NLC, which disburses them to landowners. Legally, full compensation must be paid before the County Government takes possession. Landowners who are unhappy with the compensation or the process can appeal to the Environment and Land Court (ELC) or the Land Acquisition Tribunal (LAT). 11. The land in question is registered in the names of the plaintiff and the 1st defendant. One of the conditions for such registration was that, because the land is situated in the Mazeras Trading Area, the part to be used by the 1st defendant and the part to be acquired by the plaintiffs had to be ascertained. The 1st defendant correctly asserted that, before this process was undertaken, the plaintiffs had already sold part of the land, and proper regularization and valuation had not been carried out. This valuation obviously has to be undertaken by the NLC, which, in this case, has not been approached by either party; instead, the plaintiffs undertook their own valuation without involving the 1st and 2nd defendants, leading to the conclusion that such a valuation was premature. I agree that the procedure adopted by the plaintiffs is not known in law, given the allegations that part of the land has been sold to 3rd parties and that the actual family members of the plaintiffs to be compensated are unknown. 12. Consequently, the plaintiffs’ suit cannot stand. It is dismissed with costs. **Dated, signed, and delivered electronically in Nyeri on this 13th day of May, 2026** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Lisanza for the Plaintiffs** **Mr.Gathu for the 1st Defendant** **Kendi: Court Assistant** **In the absence of:** **Mr. Kiilu for the 2nd Defendant**