[2025] KELAT 166 (KLR)

Chunky Limited v Coast Water Workers Development Agency & 3 others (Tribunal Case E037 of 2024) [2025] KELAT 166 (KLR) (14 April 2025) (Judgment)

Neutral citation: [2025] KELAT 166 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E037 of 2024

NM Orina, Chair & G Supeyo, Member

April 14, 2025

Between

Chunky Limited

Petitioner

and

Coast Water Workers Development Agency

1st Respondent

National Land Commission

2nd Respondent

Cabinet Secretary, Ministry of Water, Sanitation & Irrigation

3rd Respondent

The Attorney General

4th Respondent

Judgment

A. The Petitioner’s Case 1. The Petitioner through an amended petition dated 17th December 2024 avers that it is a Limited Liability Company incorporated under the Companies Act, Cap 486 of the Laws of Kenya. Its place of business is Mombasa County within the Republic of Kenya. The Petitioner is the registered proprietor of land reference no. MN/V/909, hereinafter, the suit property.

2. The Petitioner contends that despite not being served with a notice of intention to acquire a portion of the suit property, it was served with a letter by the 1st Respondent on 15th October 2014 addressed to its director purporting to award the Petitioner the sum of Kshs. 80,040. 00 for acquisition of 0. 580 acres of the suit property, which it rejected.

3. It is the Petitioner’s case that it was never involved in the acquisition process even though it was among the stakeholders that ought to have been involved in the process.

4. Further, the Petitioner contends that despite requests to the “Respondent”, it was not provided with a detailed justification regarding the valuation for the portion of the suit property acquired.

5. As a result, the Petitioner asserts that the Respondents have violated its rights under Article 27, 35, 40, 47, 48, 50, 60(1)(b), 64, 232 and 249 of the Constitution of Kenya, 2010. These violations, the Petitioner contends, have subjected it to indignity, discrimination, and suffering contrary to the provisions of Article 28 of the Constitution of Kenya, 2010.

6. On the specific violations, the Petitioner avers that the Respondents failed to comply with the provisions of Section 144 of the Land Act which require the 1st Respondent to serve a notice on the Petitioner as well as the County Government for the proposed wayleave that was created on the suit property.

7. It is the Petitioner’s case that the Respondents failed to comply with the provisions of Section 146 of the Land Act which requires consents of the County Government and the Cabinet Secretary to be sought. Furthermore, the Petitioner asserts that the Respondents failed to publish a notice in the Kenya Gazette for the creation of the wayleave as required under Section 146(6) of the Land Act.

8. The Petitioner, therefore, prays for the following orders:a.A Declaration that the acquisition and improvement done by the 1st, 2nd and 3rd Respondents in relation to the portion of land MN/VI/909 measuring 0. 580 acres was carried ultra vires the Constitution and Statutory Law thus infringing the Petitioners right to property;b.That the 2nd Respondent be directed to compensate the Petitioner the sum of Kshs. 12,867,953. 00 being just compensation owned to the Petitioner;c.An order of prohibition be issued prohibiting the 2nd Respondents, their servants, agents in any many (sic) whatsoever from vesting the right of way (wayleave) in favour of the 1st Respondent unless due process is followed and prompt payment of just compensation being Kshs. 12,867,953. 00 is made to the Petitioners;d.Costs of the Petition;e.An order directing the 2nd Respondent to pay interest on the compensation sum of Kshs. 12,867,953. 00 at Central Bank Rate from the date of acquisition;f.Any other relief that the court may deem fit to grant for a just determination of the issues raised herein.

9. The Petition is supported by the supporting affidavit of Harji Govind Ruda, a director of the Petitioner sworn on 18th December 2024. In his affidavit, Mr. Ruda reiterates the averments in the Petition and states that he engaged the services of a valuer whose valuation report is annexed to his affidavit and marked “D”.

B. 1st and 3rd Respondents’ Case 10. The 1st and 3rd Respondents responded to the Amended Petition through an affidavit sworn on 20th January 2025 by Mary Okioma – the Deputy Director for Legal Services of the 1st Respondent. Ms. Okioma also adopted by reference her affidavit sworn on 22nd September 2024 in response to the Petition.

11. Ms. Okioma’s affidavit deals with many aspects. First, it is Ms. Okioma’s contention that the ownership of the suit property is contested by the Board of management of Mwamdudu Primary School which has been located on the said parcel of land since 1965. She avers that the ownership is also contested by Hamisi Yongo and 99 others through a case filed in court reference number Kwale: ELC/E006/2021.

12. In further response to the Petition, Ms. Okioma asserts that the Petitioner was invited and failed, refused and or neglected to avail itself at the session where questions on the justification for the awards given would be addressed. It is the 1st and 3rd Respondents’ case, therefore, that the Petitioner rejected the award without the benefit of attending any meetings that were called by the 1st Respondent to deliberate with project affected persons.

13. It is also the 1st and 3rd Respondents’ case that the cut-off date for compensation for members of the public affected by the expansion and rehabilitation of Marere Pipeline was 2nd September 2011. This date, Ms. Okioma asserts, was well publicized and explained at the public forums which the Petitioner failed, refused and or neglected to attend. It is also contended by the 1st and 3rd Respondents that the offer of compensation made to the Petitioner lapsed on 30th May 2015 when the “Defects Liability Period” of one year came to an end.

14. Ms. Okioma also refers to the Resettlement Action Plan (RAP) report which contained guidelines on compensation of persons affected by the rehabilitation and expansion of Marere Water Pipeline. The said Resettlement Action Plan which is annexed to Ms. Okioma’s affidavit of 22nd September 2024 and marked “MO2” addresses the roadmap for consultation with the project affected persons and the compensation structure. In the relevant part, the RAP notes that two scheduled public consultation meetings were conducted on 31st August 2011 at Lutsangani and on 1st September 2011 at Miritini Magada. The report also notes at 4. 4 that the cut-off date for eligibility for compensation for the project was 2nd September 2011.

15. In further response to the allegation that no notice was issued on the acquisition of a portion of the Petitioner’s land, Ms. Okioma states that the 1st Respondent communicated its intention to compulsorily acquire the Petitioner’s portion of land vide an advert that was carried in the “Daily Nation” of 11th September 2011. Thereafter, Ms. Okioma asserts that the 1st Respondent engaged the members of public about the Resettlement Action Plan. She, however, notes that from the attendance registers, the Petitioner did not attend the public forums.

16. It is also Ms. Okioma’s assertion that the process was done openly and members of the public affected participated actively and minutes of the said public consultations were taken.

17. Further, Ms. Okioma asserts that the Marere Water Pipeline was initially constructed in 1916 and what the 1st Respondent was embarking on was rehabilitation and expansion to improve water supply to the coast region. In that regard, Ms. Okioma avers that the Marere Water Pipeline was a State Scheme in the context of Section 19 of the Water Act, 2002 (now repealed).

18. It is also Ms. Okioma’s contention that by the time the suit property was transferred to the Petitioner in the year 2012, the subject pipeline had already been designated as a state scheme and had been sitting on the suit property since 1916.

19. In any case, Ms. Okioma contends, the new pipeline was constructed alongside the old one inside the wayleave that had been set aside for Marere Pipeline when it was improved in 1930. In that case, it is the 1st and 3rd Respondents’ case that it was not necessary to serve a notice on the County Government of Kwale or Mombasa.

20. On the amount of compensation awarded, Ms. Okioma asserts that valuation was conducted in line with Principle 8 of the International Resettlement Standards. Ms. Okioma contends that the value paid included, among other things, miscellaneous expenses, disturbance to project affected persons, value of structures, value of crops, as well as the length, width and depth of the pipeline. This, she asserts, culminated in the offer of compensation given to the Petitioner for the sum of Kshs. 84,040. 00, which the Petitioner rejected.

21. Finally, Ms. Okioma contests this tribunal’s jurisdiction by making two arguments. First, it is her contention that Clause 3. 13 of the Resettlement Action Plan ousts this tribunal’s jurisdiction. The clause provides that disputes are to be sorted out by an arbitrator to be appointed by the Kenya Dispute Resolution Centre. Second, it is Ms. Okioma’s averment that the RAP established a grievance redress mechanism which the Petitioner did not take advantage of. It is her case, therefore, that the Petition offends the doctrine of exhaustion.

22. Further, Ms. Okioma contends that this tribunal does not have jurisdiction to adjudicate over the matter as it does not involve an appeal from the National Land Commission.

C. 2nd Respondent’s Case 23. In response to the Petition, the 2nd Respondent filed grounds of opposition dated 15th January 2025 contending that it has been wrongly joined in these proceedings as it was not involved in the impugned process.

D. Analysis and Determination 24. The issue of our jurisdiction necessitates our attention before we delve into the merit of the Petition. On the first issue raised by the 1st and 3rd Respondent, we are guided by the provisions of Section 6(1) of the Arbitration Act which provides as follows:A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when the party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds –a.That the arbitration agreement is null and void, inoperative or incapable of being performed; or;b.That there is not in fact any dispute between the parties with regard to the matters to be referred to arbitration.1. In these proceedings, the 1st and 3rd Respondents have only raised the issue of an arbitration clause in their response to the Petition contrary to the mandatory prescription of Section 6(1) above that such an application, to stay the proceedings, ought to be brought “not later than the time when the party enters appearance or otherwise acknowledges the claim”. In Eunice Soko Mlagui versus Suresh Parmar& 4 others [2017] eKLR. The Court of Appeal stated as follows in this regard:Section 6 of the Arbitration Act is a specific provision of a statute that provides for stay of proceedings and referral of a dispute to arbitration where parties to the dispute have entered into an arbitration agreement. The conditions under which the court can stay proceedings and refer a dispute to arbitration are prescribed by section 6 and in our view, the purpose of that provision is to regulate and facilitate the realization of the constitutional objective of promoting alternative dispute resolution. We do not therefore find anything in the provision that can be described as derogating or subverting the constitutional edict as regards alternative dispute resolution. The provision, for example, of section 6 which require parties to make an application for referral of a dispute to arbitration at the earliest opportunity and before taking any other action, or those that require the court not to refer a dispute to arbitration if the arbitration agreement is null and void, or is incapable of being performed, or if there is no dispute capable of being referred to arbitration, cannot be described as inconsistent with the constitutional principle of promoting alternative dispute resolution because the court is also obliged to take into account the equally important constitutional principle that justice shall not be delayed, by for example sending to arbitration a non- existent dispute, or allowing a party who has otherwise elected to pursue proceedings in the court, to belatedly purport to opt for arbitration.

26. It is, therefore, our finding that this objection is without merit and the same must fail. Besides, the parties herein did not have a valid arbitration clause that would lead to such an application. The Resettlement Action Plan that the 1st and 3rd Respondents refer to is not an agreement between the parties that would oust a court’s jurisdiction.

27. On the second limb of the objection on jurisdiction, it is our finding that internal dispute resolution mechanism established by the 1st Respondent do not oust a party’s right to litigate alleged violation of constitutional rights. The Petition before us alleges the violation of the Petitioner’s rights under Article 40(3), among others. Finally, the tribunal’s jurisdiction under Sections 133C (6) and (8) extends to any matter relating to compulsory acquisition of land which means that its jurisdiction is not restricted to appeals from the decisions of the National land Commission. This limb fails as well.

28. Having established that our jurisdiction has been properly invoked, it is now our duty to consider whether the claim before us is merited and what remedies are available, if any. In order to do so, it is important that we establish what the applicable law is. From the pleadings, it is evident that the process of rehabilitation and expansion of the Marere Water Pipeline was commenced in the year 2011. Even though the impugned compensation was offered to the Petitioner in the year 2014, the evidence presented in the Resettlement Action Plan demonstrates that the process of establishing the project affected persons and their entitlements was done and completed in 2011. This was before the Land Act, 2012 was enacted into law. The relevant laws at the time in regard to this project were the Land Acquisition Act, the Water Act 2002 and the Wayleaves Act (all repealed).

29. It is also clear from the evidence presented that the Petitioner only became the owner of the suit property in 2012. This was after the project had commenced and the 1st Respondent had established the project affected persons who were entitled to compensation. The Resettlement Action Plan notes at 4. 4 that the cut-off date for eligibility for compensation for the project was 2nd September 2011. It is, therefore, not clear to us the proprietary interest held by the Petitioner at the time of the project that was to be compensated for. Nevertheless, we note that the 1st Respondent determined that the Petitioner had an interest and determined the award payable to the Petitioner at Kshs. 84,040. 00 which the Petitioner rejected.

30. Under the Water Act 2002 (repealed) the Cabinet Secretary had powers to initiate works upon any land and determine compensation payable for purposes of state schemes. The relevant section provided as follows:22. Construction of works for state schemes.(1)The Minister may, after reasonable notice to any landholder concerned, construct and maintain upon any land such works as he may deem necessary or desirable for the purposes of any state scheme.(2)Compensation on just terms shall be payable by the Government to the owner of the land on which any such works are constructed, but in assessing the amount of compensation payable the Minister shall take into consideration any benefit accruing to the land by the construction of the works and any adverse effect on the land caused by the works, as the case may be.

31. It is uncontroverted in evidence that the original wayleave in respect of this project was created in 1916 and later rehabilitated in 1930. Any works that were subsequently done in 2011 did not, therefore, involve creation of a new wayleave but rather rehabilitation and expansion works along the existing wayleave. In any case, any project affected person had a right to seek audience before a court of law in case they were aggrieved with the process or amount of compensation awarded.

32. In 2014 when the Petitioner purportedly rejected the impugned award, there was recourse to the Environment and Land Court to contest the award. The Petitioner has not provided an explanation why that recourse was not followed until 10 years later when this Petition was filed before the tribunal. Even though the matter before us is a petition alleging the violation of rights under the Constitution of Kenya, 2010, we note that the substratum of the complaint is the dissatisfaction with the amount of compensation awarded. Framing an appeal over the amount of compensation awarded for creation of a wayleave as a matter of violation of fundamental rights does not transform the same to a claim under Article 22(1) of the Constitution.

33. The Petition before us alleges that the Respondents violated Article 40 of the Constitution of Kenya, 2010 and provisions of the Land Act, 2012 in respect of creation of wayleaves. Our findings above are to the effect that the impugned project was commenced before the enactment of the Land Act and the provisions therein on creation of wayleaves. The same cannot be applied retroactively. To that extent, the Petition fails the specificity test on the actual violations that are complained of. Furthermore, the Petition has not demonstrated that the alleged acts which in its claim amount to a violation of the Constitution happened at the time when the Petitioner had acquired proprietary interests on the suit property in order to benefit from the protections under Article 40 of the Constitution. We are, therefore, not convinced that the Petition has pleaded with sufficient specificity a violation of its rights under the Constitution complained of.

34. We have also considered the uncontroverted evidence that the 1st Respondent conducted a public participation process with the project affected persons and adopted a clear methodology in valuations for purposes of compensation. The evidence indicates that the Petitioner did not take part in the process which commenced in 2011 but was given an award for compensation in 2014. This award which was issued on 15th October 2014 notes that the Petitioner had been left out having not taken part in the public consultations which happened. Despite indicating that it rejected the award that was given then, the Petitioner did not conduct an independent valuation at that time in order to challenge the said award. The valuation which has been filed by the Petitioner was conducted in 2023 and relies on comparables from the year 2016. We note that these are comparables from compensation for the construction of the Standard Gauge Railway. The same cannot give an indication of what the values of land were in 2011 when the impugned project was undertaken.

35. The Petitioner has, therefore, not made out a case that the suit property was undervalued at the time of the expansion and rehabilitation of the Marere Water Pipeline in 2011. We find no reason to interfere with the award issued by the 1st Respondent.

E. Final Orders 36. For the foregoing reasons, the Petitioner’s case fails and is hereby dismissed with costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF APRIL 2025. NABIL M. ORINA, PHD GEORGE SUPEYO - CHAIRPERSON MEMBERIn the Presence of:Ms. Okioma for the 1st, 3rd and 4th RespondentsN/A for the PetitionerBuluma – Court Assistant