[2025] KELAT 168 (KLR)

Dembena International Limited v National Land Commission & another (Tribunal Case E059 of 2024) [2025] KELAT 168 (KLR) (28 April 2025) (Judgment)

Neutral citation: [2025] KELAT 168 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E059 of 2024

NM Orina, Chair & G Supeyo, Member

April 28, 2025

Between

Dembena International Limited

Complainant

and

National Land Commission

1st Respondent

Kenya National Highways Authority

2nd Respondent

Judgment

1. Vide a Complaint dated 12th November 2024, the Complainant avers that it is the registered proprietor of Land Reference No. Nairobi/Block 98/78 measuring 0. 809 hectares (the suit property) which it acquired sometime in the year 2014.

2. On 12th March 2020, a portion of the suit property measuring 0. 0263 hectares was earmarked for compulsory acquisition through Gazette Notice No. 2116 of the same day. On 4th September 2020, the 1st Respondent indicated an intention to amend the portion of the suit property being acquired to 0. 6443 hectares. A notice of inquiry was also published on the same day through Gazette Notice no. 6602 indicating that an inquiry would be carried out on 30th September 2020.

3. Further, through Gazette Notice no. 78 of 11th January 2021, the 1st Respondent corrected the area acquired from 0. 6443 hectares to 0. 8096 hectares (the whole portion of the suit property). This was followed by a letter of award in favour of the Complainant for the total sum of Kshs. 1,019,425,121/=.

4. However, on 23rd September 2021, the 1st Respondent revised the award issued to the Complainant from the sum of Kshs. 1,019,425,121/= to the sum of Kshs. 804,144,317/=. The 1st Respondent also indicated that the area acquired had reduced from 0. 8096 hectares to 0. 6338 hectares. The Complainant avers that this was done on the allegation that part of the suit property was a road reserve.

5. Subsequently, the Complainant was paid a sum of Kshs. 300,937,160/= out of the revised awarded sum. However, the balance of revised sum was not paid prompting the Complainant to go to the Environment and land Court (the ELC) in Nairobi ELC No. E005 of 2023 where it obtained judgement for the undisputed balance of the revised award being Kshs. 503,207,157/=.

6. The instant suit, therefore, seeks the setting aside of the revised award of 23rd September 2021 for Kshs. 804,144,317/= and replacing the same with the initial award of 3rd February 2021 for Kshs. 1,019,425,121/=. The Complainant seeks judgement for the difference thereof being the sum of Kshs. 215,280,840/= together with interest.

1st Respondent's Case 7. The 1st Respondent opposed the Complaint through a Replying Affidavit sworn by Danson Njenga, its Senior Valuation & Taxation Officer. This Affidavit is undated.

8. Mr. Njenga contends that the 2nd Respondent received a letter dated 23rd August 2019 requesting for the acquisition of parcels of land for the construction of the Nairobi Expressway Road Project. The 2nd Respondent, therefore, went on to publish in the Kenya Gazette an intention to iquire vide Gazette Notice No. 2161 of 12th March 2020, then a Notice of Inquiry vide Gazette Notice No. 6601 and 6602 of 4th September 2020.

9. Mr. Njenga states that a valuation exercise was conducted following which the Applicant was issued with an award of compensation on 3rd February 2021 for the sum of Kshs. 1,019,425,121. 00 for the acquisition of 0. 8096 hectares of the suit property.

10. However, Mr. Njenga contends that the 1st Respondent received communication from the 2nd Respondent through a letter dated 30th April 2021 regarding a list of parcels of land encroaching on an 88-metre road reserve and 30 metre buffer zone. A portion of the suit property measuring 0. 1708 hectares was determined to fall within this road reserve and buffer zone.

11. Consequently, Mr Njenga contends that the Respondent withdrew its award dated 3rd February 2021 and issued a revised award of compensation of Kshs. 804,466,000. 00 for a revised area of 0. 6388 hectares.

12. Out of this amount, Mr. Njenga contends that a total sum of Kshs. 300,937,160. 00 has been paid to the Complainant and the balance thereof will be paid upon availability of funds from the 2nd Respondent.

13. Finally, it is the 1st Respondent’s case, through Mr. Njenga’s averments, that the Complainant’s claim can only crystallize once the question of ownership in relation to the buffer zone is determined by the Environment and Land Court.

2nd Respondent's Case 14. The 2nd Respondent opposes this suit through Grounds of Opposition dated 24th February 2025 and a Response to the Complaint dated 4th March 2025. The 2nd Respondent also filed a witness statement of one Eliud Munene, its Deputy Director, Survey Department in the Directorate of Highway Design and Safety.

15. In the Grounds of Opposition, the 2nd Respondent avers that the Complaint is time barred being an appeal from the decision of the National Land Commission. In this regard, the 2nd Respondent asserts that appeals from the decision of the 1st Respondent must be filed within thirty days of the impugned decision.

16. Further, the 2nd Respondent contends that the Complaint is res judicata as the matter in question was litigated and decided by a court of competent jurisdiction in Nairobi ELC No. E005 of 2023. The 2nd Respondent, therefore, asserts that the complaint is an abuse of the court process and the same should be dismissed with costs.

17. In its Response to the Complaint, the 2nd Respondent avers that as part of the due diligence undertaken during the exercise of compulsory acquisition in regard to the suit property and others, the suit property was among the parcels of land that were identified as encroaching into the 88 metres road reserve along Mombasa road. The 2nd Respondent reiterates the assertions of the 1st Respondent in regard to the portion of the suit property which was allegedly found to be encroaching into the road reserve and buffer zone.

18. The 2nd Respondent further avers that the matter in issue in the complaint was determined by Justice E. K. Wabwoto in Nairobi ELC No. E005 of 2023 through a judgement dated 30th May 2024. In that judgement, the 2nd Respondent avers, the Court found that the Complainant had not provided sufficient proof that the suit property was not part of a road reserve.

Analysis and Determination 19. Parties agreed, by consent, to have the matter disposed of by way of documentary evidence and written submissions. They filed written submissions and identified various issues for determination. The Complainant identified the following issues:a.Whether the 1st Respondent’s Replying Affidavit should be struck out for being incompetent;b.Whether the Complaint is time barred;c.Whether the Complaint is res judicata; andd.Whether the suit property comprises of a road reserve.

20. On its part, the 2nd Respondent identified the following issues for determination:a.Whether the Tribunal has jurisdiction to hear and determine this matter;b.Whether the subsequent award of Kshs. 804,144,917. 00 is just compensation for acquiring the suit property; andc.Whether the Complaint is entitled to the orders sought.

21. The 1st Respondent did not file submissions.

22. The point of departure in this analysis is the question of jurisdiction which has been raised as a two-pronged challenge by the 2nd Respondent. The first limb of the same is the objection on the grounds that the matter before us is res judicata. That will be the starting point and if satisfied that the suit is properly before us then we will proceed to determine the second limb of the jurisdictional challenge being whether the claim is time barred before we address the substantive issues.

23. Section 7 of the Civil Procedure Act, Cap 21 of the laws of Kenya provides as follows:No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

24. Much ink has been spilled on the doctrine of re judicata. Courts have reiterated its fundamental underpinnings and we find it necessary to rehash the findings of the Supreme Court in Kenya Commercial Bank Limited & another v Muiri Cofee Estate Limited & 3 others [2016] KESC 6 (KLR) (Muiri Coffee case) where the Court stated as follows:52. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights…53….54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.55….56. The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293): The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”57. The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson [1843] 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].

25. It is our duty at this stage to examine the decision which forms the basis of the challenge on the basis of res judicata in order to answer the question whether the issue in the suit that led to that decision is the same issue before us. As held by the Supreme Court in Muiri Coffee Case, supra:58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.

26. In Nairobi ELC No. E005 of 2023, the Complainant (who was then the Applicant) framed the main issue for determination as follows:"Whether the Revised Award of 21st September, 2021 for KES. 804,144,317/- issued by the Respondent the National Land Commission should be set aside and be replaced with Initial Award of 3rd February, 2021 for KES. 1,019,425,121/= also issued by the Respondent."

27. In the case before the ELC, the parties were the Complainant and the 1st Respondent. Although the 2nd Respondent was not a party in that suit, the 2nd Respondent was not initially a party in this suit until later when it was included by consent of the parties. Importantly, however, the suit before the ELC sought the setting aside of the revised award of Kshs. 804,144,317. 00 and in its place the upholding of the initial award of Kshs. 1,019,425,121. 00. The instant suit seeks the same orders to the effect that the revised award of 23rd September 2021 for Kshs. 804,144,317/= be set aside and the same be replaced with the initial award of 3rd February 2021 for Kshs. 1,019,425,121/=

28. The ELC suit was determined on 30th May 2024 with the main determination being as follows:“In the instant case, even though the suit was not defended, the court was shown a revised award dated 23rd September 2021 which showed the total compensation to be Kshs. 804,144,317/=. From the documentation that was provided to the court the Respondent revised the said award on the basis that part of the suit land was a road reserve. The Applicant has not demonstrated any evidence to the contrary that indeed the same was not part of the road reserve to warrant the revision of the award. There was no evidence that the Applicant also provided any information to the Respondent disputing the fact that part of its property was not on a road reserve. The Applicant did not furnish this court with any survey and or expert report demonstrating that part of its land did not fall on a road reserve to warrant the revision of the award. In the circumstances this court is not satisfied that the Applicant has made a case for grant of the reliefs sought."

29. The Complainant has, however, argued that the determination of 30th May 2024 was set aside, hence there is no bar to the current proceedings. It is, therefore, necessary to look at the subsequent proceedings after the judgement was rendered by the ELC on 30th May 2024.

30. The Complainant herein filed an application to review the judgement of 30th may 2024 which culminated in a decree issued by the same court on 2nd October 2024 to the effect that:“That judgement be and is hereby entered against the Respondent in favour of the Applicant for the undisputed sum of Kshs. 503,207,157. 00 being the balance of the revised award for Kshs. 804,144,317. 00 issued on 23rd September 2021 together with interest accrued pursuant to Section 117(1) of the Land Act No. 6 of 2017. "

31. Indeed, the application dated 1st July 2024 only sought the review of the judgment of 30th may 2024 to the extent that a judgment be entered in favour of the Applicant, then, for the undisputed sum of Kshs. 503,207,157/= being the balance of the revised award for Kshs. 804,144,317/= issued on 23rd September 2021 together with interest. The review application did not impugn and in any way seek the setting aside of the Court’s determination that the Applicant had not made a case for the setting aside of the revised award.

32. Contrary to the assertions of the Complainant, the judgement of the ELC of 30th May 2024 was not set aside but the same was reviewed to the extent that the Complainant obtained judgement for the undisputed sum of Kshs. 503,207,157. 00. The findings in regard to the rest of the issues remained undisturbed. Importantly, the findings that are relevant to the matters in issue in the instant suit to the effect that the Complainant had not provided sufficient proof to show that part of the suit property was not on a road reserve were not set aside.

33. Furthermore, at the time the suit was before the ELC, the court had concurrent jurisdiction with the jurisdiction of the tribunal in hearing and determining appeals from the decision of the National Land Commission. The judgement of the ELC of 30th May 2024 remains a final decision as the same was not appealed. We are therefore satisfied that the issue before us was determined in Nairobi ELC No. E005 of 2023 with finality.

Conclusion 34. Having found that the substratum of this suit is an issue that was determined in Nairobi ELC No. E005 of 2023 and that this determination had neither been set aside through the decree of 2nd October 2024 as purported by the Complainant nor through appeal, it is, therefore, our finding that the suit is res judicata and the same is an abuse of the court process. It is hereby dismissed with costs.

35. Orders accordingly.

DATEDAND DELIVEREDVIRTUALLY AT NAIROBI THIS 28TH DAY OF APRIL 2025………………………………… ……………………………DR. NABIl M. Orina, Ph.D GEORGE SUPEYOCHAIRPERSONMEMBERBefore: - QUOTE{startQuote “}Mr. Mbaji h/b for Mr. Ngugi for the ComplainantMs. Kwamboka for the 2nd RespondentN/A for the 1st RespondentBuluma – Court Assistant