[2023] KEELC 16005 (KLR)

Colfax Holdings Limited v National Land Commision (Environment & Land Petition 3 of 2022) [2023] KEELC 16005 (KLR) (6 March 2023) (Judgment)

Neutral citation: [2023] KEELC 16005 (KLR)

Republic of Kenya

In the Environment and Land Court at Kwale

Environment & Land Petition 3 of 2022

AE Dena, J

March 6, 2023

IN THE MATTER OF ENFORCEMENT OF RIGHTS AND FUNDAMENTAL FREEDOM UNDER CHAPTER FOUR ARTICLE 2, 22, 23(1) & (3), 25, 27, 28, 40, 43 & 47 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA.

IN THE MATTER OF CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOM OF THE INDIVIDUAL UPON COMPULSORY ACQUISITION OF THE PRIVATE PROPERTY TO COMMENCE, PROMULGATE AND ADVANCE GOVERNMENT PROJECTS UNDER ARTICLE 27, 40 & 64 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA.

IN THE MATTER OF SECTIONS 8 & 115 OF THE LAND ACTS NO. 6 OF 2012 LAWS OF KENYA.

IN THE MATTER OF ARTICLE 17(1) & 12 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) AS TO RIGHTS TO OWN PROPERTY AND COMPENSATION UPON COMPULSORY ACQUISITION OF LAND.

IN THE MATTER OF COMPENSATION BY THE MOMBASA PORT AREA ROAD DEVELOPMENT PROJECT (MPARD) MOMBASA SOUTHERN BYPASS AND KIPEVU NEW TERMINAL LINK ROAD

IN THE MATTER OF LAND PARCELS NO.MN/VI/29437/63/65/66/67/68/69/70/71/72

Between

Colfax Holdings Limited

Petitioner

and

The National Land Commision

Respondent

Judgment

Introduction and Pleadings 1. The Petitioners brought this petition against the National Land Commission (herein the Commission) following the compulsory acquisition of their land being MN/VI/29437/63/65/66/67/68/69/70/71/72 (herein the suit properties) for purposes of the construction of the Mombasa Southern Bypass project. The petition was provoked by the alleged failure on the part of the Commission to release the compensation for the said acquisition to date. The petitioners also claim that the compensation amount was arbitrary.

2. The National Land Commission is sued as the independent Commission in charge of the management of public land and the process of compulsory acquisition of land for government projects and compensation thereof.

3. The petition is premised upon the following grounds and facts;

4. That the Commission vide Gazette Notice dated 19th February 2016 declared its intention to acquire portions of the suit properties for purposes of the construction of the Mombasa Southern Bypass project. It stated in the petition that the acquisition process necessitated the consolidation and sub-division of the suit properties into one plot namely plot No. 29437/83/3 and which plot covers the acquired area along the Mombasa Southern Bypass corridor.

5. That the Petitioner commissioned a valuation of the compulsory acquired portions by M/s Burn and Fawcett licensed valuers which amounted to a total of Kshs. 615,422,500. That despite the land being acquired and utilized by the Respondent seven years now, the Petitioner has been denied compensation despite several requests to the Respondent starting with letter dated 16th June 2014. The same elicited no response.

6. It is stated that pursuant to the provisions of Sections 8 & 115 of the Land Act and Article 40 of the Constitution of Kenya 2010 it was imperative that the petitioners who were among those displaced for purposes of the project be compensated. That such compensation should be released within a reasonable timeframe.

7. It is stated that the said declination to release the said funds is due to the abrogation of statutory duty and mandate of the Commission and it is imperative that the said monies with interest, be forthwith released to the Petitioner there being no encumbrances and/or legal debacles preventing the said compensation. That by withholding the said compensation the Commission was acting with impunity and without due regard to the law and procedures provided in law.

8. The Petitioner is aggrieved that their rights to property enshrined under Articles 27, 40 and 64 of the Constitution of Kenya 2010 have been infringed. That the illegal acts and/or omissions of the Commission have subjected the Petitioners to indignity, discrimination and suffering contrary to express provisions of Article 27 of the Constitution.

9. The Petitioners seek the following verbatim orders; -a.A declaration that the Respondent has contravened Articles 2,3,10,25,27,28,40,43 and 47 of the Constitution by purporting to compulsorily acquire the Petitioners Land Reference No. MN/VI/29437/63/65/66/67/68/69/70/71/72 and declining to make prompt payment for the just compensation of the same.b.An order compelling the Respondent to forthwith pay to the Petitioner the full compensation being the sum of Kshs. 615,422,500. 00 due from the compulsory acquisition of land parcels number MN/VI/29437/63/65/66/67/68/69/70/71/72 together with interest at Central Bank of Kenya Base Lending Rate as provided in section 117 of the Land Act calculated from the year 2014 when the land parcels were acquired by the Respondent.c.Costs and Incidentals to the petition.d.Such other orders as the Honourable court shall deem fit to grant in the interest of justice.

10. The Petition is supported by the affidavit sworn by Harji Govind Ruda a director of the petitioner. In addition to the grounds stated earlier the Petitioner deponed that he was in possession of the title for the compulsorily acquired area registered as CR.70062, Plot No. 29437/83/3 and would only release the same to the Commission upon compensation. That the Mombasa Southern bypass project is complete with a road already passing through what used to be the Petitioners land. The Petitioner states upon advise of his counsel that no prejudice will be suffered since the suit properties are already acquired and it continues to be utilized by the government. That several other letters have been written to the Commission but no response had been forthcoming thus the present petition.

Response 11. The Respondent answered to the initial petition dated 13th August 2021 through the affidavit sworn by Fidelis K. Mburu its Ag. Director Valuation and Taxation. It was admitted that the suit properties were identified for compulsory acquisition and all project affected persons invited to an inquiry on 13th May 2014. That the Respondent had gazetted LR.No.4526 formerly LR.No.1042/1/2 but the Petitioners thereafter subdivided the land into the suit properties herein necessitating the publishing of the Gazette Notice Number 951 of 19th February 2016 for inquiry on 15th March 2016 which the Petitioners attended and presented their claim for compensation. That after the inquiry the payable compensation for the acquisition of 9. 844 ha of what was originally MN/VI/4526 was determined at Kenya shillings. 107,904,500/-.

12. It was further deponed that the Respondent received complaints from Hamisi Tsuma Mwero on behalf of squatters allegedly residing on the land, Chongowe Community and Mwamdudu Primary School, Kenya National Highway Authority, County government of Mombasa alleging that the suit property was unlawfully acquired. That a tribunal of the Commission held hearings on 3rd August 2015 on the same where the Petitioners attended and responded to the complaint through its director Mr.Harji Govind Ruda a Director. That on 1st December 2015 the Commission resolved that further investigations be undertaken before a determination could be rendered. However before a determination could be rendered and the compensation paid out, several court cases were filed key among them being Mombasa ELC Number 405 of 2017 between Kahia Transporters Limited v National/ Land Commission and others wherein the Court granted injunctive orders stopping the Commission from making compensation over the suit properties and which were confirmed by the Court on 25th January 2021 and the matter was yet to be set down for hearing on merits and the orders were still subsisting. The Respondent exhibited copies of the Gazette Notice No.405 of 2014 (addenda) notice of intention to acquire the suit properties herein among others and the Plaint in Mombasa ELC No. 405 of 2017 Kahia Transporters Limited & Ano. v National Land Commission.

13. It was also stated that the Land Act provided that where there is a dispute any payable compensation of funds should be held in an interest earning account of the Commission until resolution. The Respondent urged that the entire petition is merely a claim for money, baptized a Petition and raised no constitutional issues failing the test in Anarita Karimi Njeru v Republic

Submisions Of The Parties 14. The Petition was dispensed by way of written submissions. The Commission did not file their final submissions.

Petitioners Submissions 15. The Petitioners submissions were filed on 12th October 2022 and identified three issues for determination; -a.Whether the Petitioners rights to prompt compensation under the constitution have been infringed by the acts/omissions of the Respondent.b.Whether injunctive orders were granted with regard to the subject plots in Mombasa ELC NO. 405 of 2017 between Kahia Transporters Ltd v NLC and others.c.Whether the amount of Ksh 107,904,500 mentioned in the Respondents Replying affidavit can be deemed just compensation.

16. It was submitted that the Petitioners ownership of the acquired suit properties, consolidation of the same into one plot which was awaiting surrender to the Respondents and their ongoing utilization by the government has not been disputed by the Respondents including the fact that the Petitioners have been claiming for compensation since the year 2014. That in the absence of any viable justification as to why the Commission has refused to promptly compensate the Petitioner as required by article 40 of the Constitution, the Petitioners right to prompt compensation under the constitution have been infringed by the Respondent. The case of Isaiah Otieno & 6 others v County Government of Vihiga( 2018) eKLR was relied upon in this regard.

17. It is contended that the Respondents averment that the main reason the Petitioner has not been compensated is existence of an order of injunction stopping compensation in Mombasa ELC Number 405 of 2017, was false since the suit properties were not mentioned in the said order. That there being no dispute that exists regarding ownership of the subject plots the Respondent was obligated under the provisions of Article 40(3) (b) (i) to promptly issue fair compensation to the Petitioner once the land had been acquired. Further that the only scenario where a party can be denied right to fair compensation was under article 40(6) if it is found that the property has been acquired unlawfully which didn’t apply in the present case. Therefore, the issue of injunctive orders stopping compensation to the Petitioner does not arise. The court was referred to Modern Coast Builders & Contractors Ltd v National Land Commission (2021) eKLR.

18. It was further submitted failure by the Commission to provide any written responses to the Petitioners letters herein on the compensation was a violation of the Petitioners rights under article 47(2) of the Constitution as captured in the case of Ravaspaul Kyalo Mutisya v National Land Commission (2022) eKLR. That even the replying affidavit of Fidellis Mburu had not justified the award of Kshs 107,904,400/= amidst emerging variances in the amounts communicated to the Director General Kenya National Highways Authority of Kshs 359,115,369.

19. Citing Section 4 of the Land Assessment of Just Compensation Rules 2017 it was urged that award ought to be based on the market value of the land. Referring to the valuation by Burn and Fawcet which placed an acre at Kshs.22 million counsel estimated the twenty-four acres acquired at Kshs 615,422,500. It was urged that the Respondent had previously valued land within the same area at Kshs 19. 65 million per acre for the Petitioners sister company Chunky Limited. Attached was a copy of the award letter by the Respondent to Chunky Limited, a sister company, showing different award amounts).

20. It was contended that there being no explanation to justify the substantial variance in the different valuations there was absolutely no basis for the Kshs 107,904,500(which amounts to kshs 4,042,000 per acre) quoted by the Commission. That the amount is arbitrary and violates the Petitioners rights under the constitution, specifically the right to just compensation. Additionally, it was pointed that the suit properties were industrial land in 2013 also noting the contents of the Burn and Fawcet valuation herein in the absence of any justification, the compensation value of Kshs 107,904,500 was unjust and arbitrary.

21. Counsel implored the court to be guided by the Burn and Fawcet Valuation of Kshs 615,422,500 as the just compensation and urged that the Petition as amended on 12th July, 2022 be allowed as prayed.

Analysis And Determination 22. Upon considering the foregoing, the issues that arise for determination are;a.Whether the petition meets the threshold for a Constitutional Petition.b.Whether the Petitioner’s rights to prompt and just compensation under the constitution have been infringed.c.Whether the Respondents action of withholding the compensation was lawful.d.Whether the Petitioner is entitled to the prayers sought in the petition.e.Who should bear the costs of this petition

23. The Respondent averred that the petition was a claim for money but christened a petition and hence failed the test as was set out in Annarita Karimi v Republic (1979). The filing of pleadings in constitutional litigation is guided by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules). Rule 10 (1) outlines the content which includes the facts relied upon, the constitutional provision violated and the nature of the injury caused or likely to be caused. Indeed, the courts have in numerous constitutional petitions pronounced on the threshold to be met. It is now a requirement that a petitioner must set out with a reasonable degree of precision the nature of the alleged violations, the person or institution responsible for the violation, the manner of the violation and the provision of the constitution which creates and gives the constitutional right that is under violation or threatened violation also see Ahmed Abdulahi Adan v Attorney General & 2 Others[2021] eKLR. My review of the petition shows it clearly sets the constitutional provisions that are alleged to be violated key being articles, 27, 40 on the right to property and 47 on fair administrative action. The nature of the infringement has been stated as the acquisition of properties registered in the name of the petitioner that were compulsorily acquired for a government project without prompt and just compensation 6 years since such acquisition. It is also stated that the land was now under public use since the SGR and road were complete and operational being utilised to the exclusion of the petitioner. The institution responsible for the said violation is named as the National Land Commission the 1st Respondent. In my view the threshold for a constitutional petition has been satisfied.

Whether the Petitioners rights to prompt and just compensation under the constitution have been infringed by the acts/omissions of the Respondent. 24. The gist of this petition in my view is whether the Petitioner’s right to prompt compensation under the constitution have been infringed by the Commission. Article 40 (3) of the Constitution provides that 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 is for a public interest and is carried out in accordance to the Constitution and any Act of Parliament that requires prompt payment in full, of just compensation of the person. To claim a breach of this fundamental right to property it was incumbent upon the Petitioner to establish the right of ownership over the suit property. The Petitioner has exhibited copies of title deeds for CR60263, CR 60261, CR 60262, 60257, 60260,60266, 60258, 60264, CR 70062 all in the name of Colfax Holdings Limited. The petitioner further demonstrated how the parcels were subdivided into MN/VI/29437/63/65/66/67/68/69/70/71/72 (the suit properties herein) and consolidated into a new plot LR No. 29437/83/3. A Certificate of Title along the bypass corridor, subdivision certificate dated 29/05/2017 were produced in this regard. Moreover, it is not in dispute between the parties herein that the suit properties belong to the Petitioner before acquisition. This is not controverted by the Respondent except for the claim on the complaints received by the Commission which I will address later in this judgement. It is therefore clear that the Petitioner had proprietary rights over the suit properties.

25As noted under the provisions of article 40 above deprivation of one’s property or interest thereof is permitted for a public interest. However, it must be carried out in accordance to the Constitution and any Act of Parliament. The procedure in place at the time of the acquisition was the Land Acquisition Act since no regulations had been promulgated under the Land Act. The body seized of the mandate for compulsory acquisition for public purpose mostly government projects is the National Land Commission. Briefly the process of acquisition is set out under the provisions of sections 107 – 110 which set out the preliminary or pre-inquiry stage to the point of publishing the notice of intention to acquire. Section 112 thereafter kicks in where the land owner is involved for purposes of determining their proprietary interest and compensation. Upon inquiry award is made, offered and compensation is paid see 113- 133. It is not in dispute that the suit properties herein were compulsorily acquired but it is the release of compensation funds and quantum that are in issue. The Petitioner exhibited copies of Gazette Notice No. 951 addenda to Gazette Notice No. 405 of 2014 dated 19/02/2016 which were also produced by the Respondent. It is admitted by the Respondent they had gazetted LR.No.4526 formerly LR.No.1042/1/2 but the Petitioners thereafter subdivided the land into the suit properties herein necessitating the publishing of the Gazette Notice Number 951 of 19th February 2016 for inquiry on the same on 15th March 2016 which the Petitioners attended and presented their claim for compensation. It is also not in dispute that the compulsory acquisition was for a public purpose. What then precipitated this petition? This takes me to the next issue.

Whether the Respondents actions of withholding compensation was lawful 26. The main issue herein is that since the compulsory acquisition of the Petitioner’s suit properties the compensation has not been paid. This is not controverted by the Respondent, it is admitted that the compensation payable has not been released to the Petitioners. The Respondent claim that there were complaints on behalf of squatters residing on the land, KENHA and County Government of Mombasa that the suit properties were illegally acquired and that upon hearing of the same by the Commission it was resolved that further investigations be undertaken. That thereafter and before determination and payment, several court cases were filed key among them being Mombasa ELC Number 405 of 2017 wherein the Court granted injunctive orders stopping the Commission from making compensation over the suit properties. That these orders were confirmed by the Court on 25th January 2021 and the matter is yet to be set down for hearing on merits and the orders are still subsisting. This court then had to query whether the law envisages such withholding.

27. Article 40 (6) qualifies the rights thereunder by providing that the rights under the article do not extend to any property that has been found to have been unlawfully acquired. Further Section 115 of the Land Act 2012 makes exceptions to prompt payment of compensation where there is no person competent to receive payment or the person entitled does not consent to receive the amount awarded or there is a dispute as to the right of persons entitled to receive the compensation or as to the shares in which compensation is to be paid. The Respondent further averred without citing the specific section/s that the Land Act permitted where there is a dispute compensation funds payable should be held in an interest earning account of the Commission until resolution. Of course, this is under Section 115 of the Act.

28Mr. Borona for the petitioner contended that article 40(6) above does not apply in the present circumstances. That there is no dispute regarding ownership of the subject plot and therefore there was no justification for failure on the part of the Respondent to pay the compensation. Considering the reasons averred by the Respondent the court had to establish if the suit properties herein formed part of the subject suit properties in the litigation in the case cited by the Respondent and if yes if there were orders of injunction stopping the release of the compensation. As noted elsewhere in this judgment the Respondent only attached the plaint, a copy of the alleged orders of injunction were not attached. The same was however attached to the Petitioners submissions which is irregular as he ought to have annexed this to a supplementary affidavit with leave of the court see Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another[2014] eKLR where it was held that submissions cannot take the place of evidence.

29. Be that as it may the court having been provided with particulars of the alleged litigation requisitioned for the ELC file No. 405 of 2017. The parties in the suit are Kahia Transporters & Trade Lead Limited v National Land Commission and Chunky Limited, Curly Wurly Limited, Julius Kea Mbawa (as administrator of the Estate of Mbawa wa Mbinu alias Mbawa Mbinu Deceased), Kachungo Edward Bekwekwe,Charles Mulole Shanga, Hamisi Tsuma Mwero Redalu Mbove Mgandi as Interested Parties. From the proceedings I noted the additional parties not reflected in the plaint attached by the Respondent were added subsequently with leave of the court as interested parties. Mr. Borona herein represents Chunky Limited, Curly Wurly Limited in the said suit.

30. It is noteworthy from the above the Petitioner M/s Colfax Ltd is not a party to the proceedings but there is a nexus between them and M/s Chunky Limited who Mr. Borona in his submission attaches a copy of the award letter by the Respondent to Chunky Limited whom he states is a sister company to M/s Colfax. I’m also aware they are distinct legal persons. But what about the properties? According to Mr. Borona suit no.405 of 2017 does not involve the properties in the present suit and the same are not mentioned in the injunctive orders and therefore no dispute with regard to the present suit properties. From the plaint in 405 of 2017 the properties subject of the suit therein are plots Nos. MN/VI/1040, MN/VI/1040/1, MN/VI/1042, MN/VI/29437/12, MN/VI/29437/11, MN/VI/29437/19, MN/VI/29437/20, MN/VI/29437/21, MN/VI/29437/22, MN/VI/29437/23, MN/VI/910, MN/VI/909, MN/VI/224, MN/VI/1042, MN/VI/745, MN/VI/3888, MN/VI/4838, MN/VI/4948, MN/VI/4948 and MN/VI/4805 situate at Mombasa within Mombasa County.

31. On the alleged orders of injunction, on perusal of the court file therein I noted that Justice Komingoi following an application by the plaintiff on 8th November 2017 made the following orders; -1. The application be and is hereby certified as urgent2. Pending hearing and determination of the application a temporary and inhibition order be and is hereby issued prohibiting/inhibiting the defendant by itself, its agents and/or assigns from in any manner releasing any money towards whole or part acquisition of plots Nos. MN/VI/1040, MN/VI/1040/1, MN/VI/1042, MN/VI/29437/12, MN/VI/29437/11, MN/VI/29437/19, MN/VI/29437/20, MN/VI/29437/21, MN/VI/29437/22, MN/VI/29437/23, MN/VI/910, MN/VI/909, MN/VI/224, MN/VI/1042, MN/VI/745, MN/VI/3888, MN/VI/4838, MN/VI/4948, MN/VI/4948 and MN/VI/4805 situate at Mombasa within Mombasa County.3. A date to be taken at the registry on priority basis4. The Respondent be served.

32 .This court was left with the task of establishing whether the suit properties the subject of this petition featured in the said suit and therefore the said order. Prima facie the suit properties MN/VI/29437/63/65/66/67/68/69/70/71/72 do not seem to form part of the above order. I went further to look into the history considering the depositions in Mr. Mburus affidavit herein that the Respondent had gazetted LR.No.4526 formerly LR.No.1042/1/2 but that the Petitioners thereafter subdivided the land into the suit properties herein. The parcels particularized in the order do not include the said LR.No.1042/1/2. I proceeded to look into the initial Gazette Notice No. 405 of 21st March 2014 before the addendum herein which confirmed LR No. 4526 (1042/1/2) was the one that was gazetted as averred. Clearly there was no mention of the said suit properties herein in the orders for injunction neither did the suit properties in the present petition form part of the claim in ELC 405 of 2017.

33. I find it necessary having perused the file containing the above proceedings to mention that the Commission had sought to set aside the above orders for material non-disclosure on the part of the applicant and burden to tax payers since the awards would accrue interest at very high rate. I came across a ruling in ELC case no. 206 of 2016 pitting Hamisi Tsuma Mwero & 9 Others v National Land Commission, Kenya National Highway Authority and Colfax Holdings Limited the Petitioner herein. (The same was attached to submissions filed by the NLC with regard to a Notice of Motion Application dated 7/2/2018). The plaintiff in that suit sought to stop the NLC from paying compensation to Ms Colfax Ltd the 3rd Defendant therein in respect of acquisition of Plot numbers LR. 29437/63/65/66/67/68,69,70,71 and 72 pursuant to Gazette Notice No. 4672 of 2016. Let me state at the earliest opportunity that these are the suit properties subject of the present petition. From the grounds of the said application as narrated by the learned judge in the ruling the plaintiffs therein claimed that these plots were subdivisions of the larger plot No. MN/VI/4526(CR 8727) which they stated was subject of litigation in Msa. HCCC No. 632 of 2011 pitting the applicants and others v Colfax Holdings and Another, a claim for adverse possession. The said application was opposed by both the Commission and KENHA. The Commission filed grounds of opposition stating mainly that they were obligated by article 40 to pay prompt compensation and that the claim for adverse possession had not yet crystalized. The court found that the applicants will not suffer irreparable loss if the orders were not granted and that should they succeed in their claim for adverse possession then they would sue the 3rd defendant therein M/s Colfax Ltd. The court found the balance titled in favor of the 3rd defendant who was the registered owner of the said titles. The court also pointed that there was no evidence that had been placed before it to prove that the parcels were a subdivision of 4526.

34. Having noted the ruling above, this court finds no reason to depart from the same which though not binding I’m persuaded with the said finding. In any case the Respondent never made efforts to attach what transpired in those proceedings and while Mr. Mburu states that the Commission decided that further investigation be conducted no minutes were provided in proof. Moreover, upon further search in eKLR I did not come across any appeal or judgement in respect of the rulings and case for adverse possession respectively.

35. The petitioner also attached in the list of documents dated 10/06/22 and filed on even date a letter Ref. NLC/CHAAIRMAN/VOL.XIII/315 dated 14/12/2015. The letter concerns the compulsory acquisition of Plot LR. No.MN/VI/29437/23 for the Mombasa Nairobi Standard Gauge Railway Project. The letter is addressed to the petitioner and states that the Commission had received complaints from resident’s area west of Miritini and the county government of Mombasa requesting it to review the legality or propriety of the grants for illegality and fraud regarding some properties. The properties are stated to have been acquired under gazette notices 149 of 9/01/2015 and No. 1991 of 27/03/2015. This letter informs the Petitioner that notice of awards had been prepared but the compensation amounts cannot be disbursed as the legality of the title to the suit properties was questioned. Clearly this letter also does not refer to the suit properties herein. In any case after hearing the parties, the grant to the petitioners was upheld.

36Having satisfied myself that the suit properties herein are not subject to the litigation in ELC 405 of 2017, that article 40(6) does not apply and having concurred with Justice Komingoi’s ruling on the adverse possession claim further having not come across any appeal or judgement as stated hereinabove, the court must exhaust the other exceptions mentioned under section 115 of the Land Act 2012. The remaining exception with regard to prompt payment of compensation is where the person entitled to the said compensation does not consent to receive the amount awarded, the other exceptions having been exhausted in the foregoing discussions.

37. Did the Petitioner reject the award which can then be said to be a justification for the withholding of the compensation? My answer is in the negative for reason that the Respondent does not state so in their reply to this petition but that there was a dispute regarding the legality of the ownership of the properties by the petitioners and the litigation wherein injunctive orders were allegedly issued, which this court has already expressed itself on. I have also not come across any proof herein that compensation was offered and rejected. Section 8 of the Land Acquisition Act is to the effect that where land is acquired compulsorily, full compensation shall be paid promptly to all persons interested in the land and the petitioners in the present suit are yet to be compensated for their land parcels. In my view the withholding of the compensation was not supported by any of the legal exceptions pointed out in the foregoing discussions and therefore the Respondents actions were unlawful and infringed on the petitioners right to prompt compensation.

38. The foregoing discussions confirm that the Petitioners rights to prompt compensation under the constitution have been infringed by the acts/omissions of the Respondent.

39. I will then proceed to determine whether the Petitioners rights to just compensation under the constitution have been infringed by the acts/omissions of the Respondent. The Petitioners submitted their claim for compensation via their letter dated 11/07/2014 which bears the Respondents received stamp of 19/9/2014. The letter submits the petitioners claim for Kshs. 617,206,056 compensations with relevant documentation including a valuation by BURN AND FAWCETT dated June 2014. According to the Respondent the payable compensation was determined for the acquisition of 9. 844 ha of what was originally MN/VI/4526 at Kshs. 107,904,500/-. Mr. Mburu averred that this was after inquiry held on 16/03/2016 as per the addenda gazette notice which the Petitioners attended and duly presented their claim. The Respondent did not attach this award neither did the Petitioner. It is noteworthy that Section 113 of the Act provides for a written award and is couched in obligatory terms. Be that as it may a copy of a compensation schedule was however produced in the petitioners list of documents (page 5-6). I will at this juncture add that the said schedule does not appear to be on the letter head of the 1st Respondent. On 28/03/23 when the matter was slated for delivery of the judgement I directed that Mr. Borona should produce a clearer copy to the court. On 3/3/23 Mr. Borona informed this court the copy on the court file was the best the petitioner could find and Mr. Mbuthia confirmed the position and that the information was the same. I proceeded to rely on the schedule as analyzed here below.

40. The schedule according to the Petitioner is addressed to Kenya National Highway Authority which outlines the awards and include the suit properties MN/VI/29437/63/65/66/67/68/69/70/71/72 whose total award is Kshs. 359,105,371 and which are the suit properties the subject of this petition. The schedule readsLand Act No.6 Of 2012- Construction Of Mombasa Southern Bypass: Gazette Notice No.951 & 4762 Of 2016-addenda To Gazette Notice No.405 Of 2014: Compensation ScheduleReference is made to our letter Ref. Val.1449/61 dated 29th September 2016 on the above captioned matter.The Commission wishes to draw your attention to the payment advise that was attached to the said letter. Kindly be advised that the said payment advice does not reflect the true position as it is an attachment error. That advice refers to the application of 2014 compensation rates in contrast to the gazette Corrigendum Gazette Notice Numbers 951 of 19th February 2016 and 4762 of 24th June 2016.

41. A keen review of the above shows it is correcting an error on the previous gazette of 2014 and the compensation of Kshs. 107,904,500/- stated in the replying affidavit of Mr. Mburu refers to the initial gazette that dealt with MN/VI/4526 and not the addenda. I have laid a lot of focus on this letter because it is the only one to me that looks more persuasive in terms of the amounts of compensation. Why do I say so? It is because it also contains awards for parcels acquired from persons other than the petitioners and which make good comparables and is also prepared in the year 2016 when the addendum was published and when the Commission had already received the petitioners claim since it is clear that the petitioner did not participate at the initial inquiry in respect of the initial gazettement. The valuation presented by Bawn & Fawcett is not convincing to me. The report states that it has evidence of recent sales of plots, which are some distance from the main road of Kshs. 15,000,000 million and such evidence is not attached for one to appreciate the features of the same and what may have informed the figures. No much explanation is given for the valuation of Kshs. 22,000,000 per acre in the report except that the land is prime which to me may have as well become prime because of the project. There is also no further explanation why there would be almost a 200% increase on the figure given in the schedule and how the valuation as individual parcels made a difference when the size of the land acquired still remained 9. 8441 hactares. I’m also emboldened by the fact that it is the Commission that is mandated to determine the values of compulsorily acquired land and in any event the Respondent having been privy to the schedule does not disown the schedule as having not emanated from the Commission. Section 2 of the Land Act defines just compensation in relation to compulsorily acquired land to mean a form of compensation that is assessed and determined through a criteria set out under the Act. It has always been the principle that compulsory acquisition should not be an opportunity for profit making and this court too has a duty to ensure the public coffers are protected.

42. The court was also invited to note the valuation by the Commission of Kshs 19. 65 million per acre for land in similar area applied to the Petitioners sister company. This invitation I will decline to consider since the evidence was introduced as an attachment to the Petitioners submission which is irregular. Faced with the three compensation figures that emerged herein, I choose to go with the figure in the schedule as presented to Kenya National Highway Authority which to me I find just compensation.

43. Is the petitioner then entitled to the orders sought? The Petitioner craves for a declaration that the Respondent has contravened articles 2,3,10,25,27,28,40,43 and 47 of the Constitution by purporting to compulsorily acquire the suit properties and declining to make prompt payment for the just compensation of the same. Article 2 reiterates the supremacy of the Constitution, article 3 enjoins every citizen to obey the constitution while article 10 concerns national values and principles of governance. Article 25 is on fundamental rights and freedoms that cannot be limited, while article 28 deals with human dignity as a fundamental human right. Article 40 sets out requirements on protection of property and 43 on economic and social rights and lastly article 47 speaks to the right to fair administrative action. Considering the courts discussions herein and the circumstances this court is satisfied that there has been an infringement. Article 40 has been breached and the first relief should be granted on this basis.

44. Interest is prayed at Central Bank of Kenya Base Lending Rate as provided in section 117 of the Land Act calculated from the year 2014 when the land parcels were acquired by the Respondent. I have looked at the said section 117 and it provides that interest is payable from the time of taking possession until the time of payment. From the documentation filed in the proceeding’s possession appears to have been taken in the year 2015. The year of possession is derived from the petitioners letter dated 15th June 2015 wherein it is stated that the project manager had not yet been allowed to take possession as at that date. I find this prayer is supported by the law except for the date when interest shall be computed.

45. The upshot of the discussions herein is that this court finds the petition merited and proceed to make the following orders:a.A declaration that the Respondent has contravened Articles 2,3,10,25,27,28,40,43 and 47 of the Constitution by purporting to compulsorily acquire the Petitioners Land Reference No. MN/VI/29437/63/65/66/67/68/69/70/71/72 and declining to make prompt payment for the just compensation of the same.b.An order compelling the Respondent to forthwith pay to the Petitioner compensation in full within the meaning and tenor of Article 40 (3) (b) (i) the sum of Kshs. 359,105,371 for the compulsory acquisition of her proprietary interests in parcels MN/VI/29437/63/65/66/67/68/69/70/71/72 situate in situate at Mombasa within Mombasa County.c.Interest shall be payable at Central Bank of Kenya Base Lending Rate as provided in section 117 of the Land Act calculated from the year 2015 being the date of possession.d.Costs shall be to the Petitioner.

It is so ordered.

DELIVERED AND DATED AT KWALE THIS 6TH DAY OF MARCH,2023A.E. DENAJUDGEJudgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr. Litoro for the PetitionerN/A for the RespondentMr. D. Disii Court Assistant.