[2023] KEELC 21591 (KLR)

Geyser International Assets Limited v Attorney General & 3 others (Constitutional Petition 209 of 2015) [2023] KEELC 21591 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEELC 21591 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Constitutional Petition 209 of 2015

LL Naikuni, J

November 6, 2023

IN THE MATTER OF: ARTICLE 22 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: ARTICLES 10, 19, 20, 23, 163(3) AND 258 OF THE CONSTITUTION OF KENYA,2010 AND IN THE MATTER OF: SECTION 13 OF THE ENVIRONMENT AND LAND COURT ACT, 2011 AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE BILL OF RIGHTS UNDER ARTICLES 40, 47 AND 64 OF THE CONSTITUTION OF KENYA, 2010

Between

Geyser International Assets Limited

Petitioner

and

The Attorney General

1st Respondent

Kenya Railways Corporation

2nd Respondent

National Land Commission

3rd Respondent

China Road & Bridge Corporation (Kenya)

4th Respondent

Judgment

I. Preliminaries 1. The Judgement of this Honourable Court pertains the filed Further Amended Constitution Petition dated 6th February, 2019 by Geyser International Assets Limited, the Petitioner herein on the same date against the Attorney General, Kenya Railways Corporation, National Land Commission and China Road & Bridge Corporation (Kenya), Respondents herein. The Constitution Petition is brought under the dint of the provisions of Articles 2, 10, 19, 20, 22, 23, 40, 47, 64, 162(3) and 258 of the Constitution of Kenya 2010 and Section 13 of the Environment and Land Court Act, 2011.

2. Upon service being effected, the 1st and 2nd Respondents did file their replies accordingly. Its instructive to note That vide a Ruling by this Honourable Court, it was found That the main liability was between the 1st and 3rd Respondents herein. The Court found That The Kenya Railways Corporation and the China Road & Bridge Corporation (Kenya) the 2nd and 4th Respondents had already executed their part of the compensation by remitting the funds to the 2nd Respondents as the procuring entity and the 1st Respondent as the Government of Kenya for onward transmission to the Petitioner. For this reason, the 2nd and 4th Respondents were found not to be liable them having accomplished their part. However, for ease of provision of information and other related assistance to the Court, the Honourable Court requested the 2nd and 4th Respondents to remain in the proceedings as “Amicus Curae” and which the diligently did so upto the logical conclusion of the matter thereof.

II. The Petitioner’s Case 3. From the main Petition, the Petitioner sought for the following orders:-a.A declaration That the Petitioner's rights to acquire and own property guaranteed under Article 40 of the Constitution of Kenya were breached by the Respondents when they contravened if the Government of Kenya, the 2nd Respondent and the 4th Respondent forcefully entered upon and/or otherwise commenced and/or implemented and/or carry-ied out the intended construction of the Standard Gauge Railway on the suit property before prompt payment in full of just compensation is made by the Government of Kenya and/or the Respondents to the Petitioner.b.A declaration That the Petitioner’s rights to fair administrative action guaranteed under Article 47 of the Constitution of Kenya were breached by the 1st and 3rd Respondents is threatened and will be contravened if when the Respondents continued with the implementation and/or commencement and/or construction of the Standard Gauge Railway project on the Petitioner’s property before the 3rd Respondent has had delivered its decision on the Petitioner's claim for compensation;c.An order of Judicial Review in the nature of prohibition and/or otherwise a permanent injunction prohibiting the Government of Kenya, the 2nd Respondent and the 4th Respondent and their employees, servants, agents, assigns, representatives, contractors from unlawfully entering upon and constructing and/or from demolishing, excavating, clearing, destroying or otherwise interfering in any way with the Suit Property namely, L.R No. Mainland North/Section VI/3892 before the Petitioner has been paid just compensation in full;-d.An order That the Respondents do pay to the Petitioner interest on the delayed payments at such rates as are prescribed by law and/or as shall be awarded by this Honourable Court.e.Such other or further orders or directions including an award for damages for violation of the Petitioner's right to property and right to fair administrative action as the Court may deem fit to grant so as to meet the interest of justice;f.The costs of this Petition be awarded to the Petitioner.

III. The Legal Foundation Of The Petition 4. The Petition was founded on the following legal provisions:a.Article 40 of the Constitution of Kenya 2012, which provides That every person has the right to acquire and own property of any description and That the state shall not deprive a person of property of any description unless the deprivation is carried out in accordance with the Constitution. and provides for compensation to be made to property holders, in the event of acquisition of Land by the State.

IV. Brief Facts 5. Based on the filed pleadings, the brief facts of the case were That the Petitioner is theregistered proprietor of all That parcel of land known as L.R No. MN/VI/3892 (hereinafter the “Suit Property”).The Petitioner held the suit property on a grant No. C.R. 31370 from the Government of Kenya for the unexpired period of the term of ninety-nine (99) years with effect from 1st June, 1985 on terms and conditions That are set out in the said Grant.The suit property measures approximately 25 acres and is situated in Mombasa Mainland in Miritini, off the Mombasa-Nairobi Highway. The Petitioner acquired the leasehold interest therein from the original grantee – ‘Krystalline Salt Limited’ - on or about 2nd July, 2007 for a sum of Kenya Shillings Sixty Four Million (Kshs. 64, 000,000. 00/=) which was the purchase price thereof.

6. On 9th January, 2015, the Petitioner was served with a notice of the Government of Kenya’s intention to acquire part of the Suit Property for and on behalf of the 2nd Respondent for the purposes of construction of the Standard Gauge Railway (Hereinafter referred to as “The SGR”). On 8th May, 2015, the Petitioner made representations in regard to its claim for compensation before the 3rd Respondent at public hearings held by the 3rd Respondent at Changamwe in Mombasa, whereafter the 3rd Respondent promised to deliver a decision in due course.

7. The said decision by the 3rd Respondent had not been was delivered on 2nd March, 2016 as at the date of this Petition and a written award for compensation in the sum of Three Seventy Five Million Two Fifty Four and Ninety One Thousand (Kshs. 375,254,091. 00/=) was issued on 3rd March, 2016 but the Petitioner had not been compensated. On or about 7th September, 2015, the Petitioner’s employees/ servants/ agents noted That the 4th Respondent together with the engineers/servants/employees of the 2nd Respondent were excavating or otherwise clearing land with earth moving equipment and construction machinery just outside or within the boundaries of a neighbouring plot L.R. No.MN/VI/4805 which borders the suit property along the suit property’s western, south western and southern boundaries. The Petitioner became apprehensive That the 2nd and 4th Respondents and/or their employees/servants and/or agents and/or those of the Government of Kenya being offices from the National Police Service and/or other Government departments, would at any time forcefully enter upon the Suit Property and commence construction activities related to the SGR thereon, and therefore filed this Petition and obtained conservatory orders on 17th September, 2015 which orders were duly served upon the Respondents herein.

8. The Petitioner's apprehension became a reality on 20th October, 2015 when the Respondents allowed and/or directed their employees, servants, contractors and/or agents to demolish the Petitioner's boundary/perimeter wall erected on the suit property, entered upon the suit property and had since fully constructed thereon the Standard Gauge Railway (SGR). According to the Petitioner, this was a blatant breach and disobedience of the Order issued on 17th September, 2015. On 21st October, 2015, the 2nd Respondent issued an award of a sum of Kenya Shillings Five Million Eight Seventy Thousand Nine Eighty Hundred (Kshs.5,870,980. 00/=) for the demolished boundary wall. On 9th November, 2017, the Petitioner was paid the principal amount a sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071. 00/=) as compensation for both the acquired property and the demolished boundary wall. The Petitioner averred That the above payment was made over 2 years since the Respondents unlawfully entered the suit property on 19th October, 2015. According to the Petitioner, they were entitled to a sum of Kenya Shillings One Hundred and One Million Five Thirty Four Thousand Six Hundred and Thirty (Kshs. 101,534,630. 00/=) being the amount of interest That accrued from the 19th October,2015 when the Respondents unlawfully entered the suit property to 9th November, 2017 when the compensation award of a sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071. 00) was paid.

9. From the facts, the Petitioner was not paid based on prompt, just and full compensation as required by law. The Government of Kenya's and/or the 2nd and 4th Respondents' entry onto the Petitioner's property and construction of the SGR thereon was in contravention of a lawful conservatory order issued by this Honourable Court. It was a breach of the Petitioner's rights to property under the provision of Article 40 of the Constitution of Kenya, 2010 which prohibited the deprivation of a person’s right to property without inter alia the payment in full of just compensation.

10. It was an unreasonable and clearly inefficient administrative action for the Government to publish its intention to acquire the private property of the Petitioner, invite it to make submissions on the value of compensation payable and then enter upon the suit property without or before communicating the compensation payable. The Petitioner therefore prayed to this Honourable Court to intervene and safeguard the Petitioner’s constitutional and civil rights. That was adequate on facts.

11. The Petition is premised on the testimonial facts, grounds and the averments made out in the 23 paragraphed affidavit of peter kimanga, the director of the petitioner together with annextures marked as “PK”. He deposed That:a.The Petitioner is registered as proprietor of all That parcel of land known as L.R No. Mainland North/Section VI/3892 (hereinafter referred to as the “suit property”). The Petitioner held the suit property on a lease from the Government of Kenya for the remainder of the term of ninety-nine (99) years with effect from 1st June, 1985 on various terms and conditions That are set out in Grant No. C.R. 31376. He annexed and marked as exhibit “PK - 2” a true copy of the said Grant.b.The Petitioner acquired the suit property lawfully and for valuable consideration by purchasing the same from the previous registered proprietor and original grantee known as Krystalline Salt Limited for a consideration sum of Kenya Shillings Sixty Four Million (Kshs. 64,000,000. 00/) on or about 2nd July, 2007. Annexed hereto and marked as exhibits “PK – 3 (a-f)” were are copies of the Transfer of Lease dated 2nd July, 2007 and registered on 4th July, 2007, the Stamp Duty declaration and pay-in slip No.0234356 dated 4th July, 2007,the National Bank of Kenya deposit slip dated 4th July, 2007 for stamp duty of a sum of Kenya Shillings Two Million Five Sixty Thousand One Hundred and Five Thousand (Kshs. 2,560,105. 00/=) the Rates Clearance certificate dated 11th May, 2007, the Application for Registration dated 4th July, 2007 and the Memorandum of Registration of Transfer of Lands No.20208/48. c.The suit property was situated in Miritini off the Mombasa-Nairobi highway and was a highly valuable industrial property on which the Petitioner had well developed plans to set up an Export Processing Zone and to relocate and expand its existing tea packing factory. The suit property was uniquely suited to our business development plans, being located near the Mombasa Port as well as the largest tea producers warehouses such as Kenya Tea Development Authority.d.When he informed the Petitioner’s advocates of this development on 7th September, 2015, they advised That the Petitioner should arrange for photographs of the equipment and personnel to be taken for purposes of showing the nature of the threat to this Honourable Court and he took the same on 8th September, 2015 copies of which he annexed in the affidavit and mark as exhibit “PK7 (a - b)”.On exhibit PK - 7(b), he had marked the location of the Petitioner's boundary wall in relation to the location of the vehicles and equipment which were now in L.R No. MN/VI/4805. e.From the confines of the Petitioner's property, he would be capable of taking clearer photographic evidence of the impending incursion by the Respondents but unfortunately, the Petitioner had since been denied access onto the suit property via a disputed public access which passed through Plot L.R No. MN/VI/3666. f.The issue of the blocked access was raised by the Petitioner as well as the Mombasa County Government before the 3rd Respondent on 3rd, 5th and 6th August, 2015 when the 3rd Respondent held hearings at the Kenya School of Government in Mombasa to address complaints raised by the County Government of Mombasa requiring the 3rd Respondent to inquire into the legality of various titles held at Miritini prior to payment of compensation for compulsory acquisition.g.The Respondents had no power to compulsorily acquire private land without following due process of law.h.Under the provisions of the Land Registration Act, 2011 Articles 22, 40 and 64 of the Constitution of Kenya, 2010 as read together with the Land Acquisitions Act (Cap. 295, Laws of Kenya)(now repealed).i.The Petitioner’s fundamental rights to ownership of property as set out in the Constitution of Kenya, 2010 were threatened by the Respondents and was likely to be infringed.j.The intended entrance by the Respondents onto the suit property was unprocedural, illegal and unconstitutional, null and void as the Petitioner had not been compensated and its permission has not yet been sought.k.It was the Petitioner’s prayer to this Honourable Court to intervene and safeguard the Petitioner’s Constitutional and Civil rights.l.Unless the prayers sought herein were granted, the Petitioner stood to suffer irreparable harm as the suit property is uniquely suited to the Petitioner’s well-developed business plans and there was no alternative land available for the same and the prayers sought in this Petition would be rendered nugatory.m.The Petitioner had “a prima facie case” for breach and threatened breach of constitutional rights against the Respondents.

V. The Court’s Direction On Disposing Of The Petition. 12. In the presence and consensus of all the parties, direction on how to dispose off the Petition was taken. It was mutually agreed That it proceeds by way of adducing ‘viva voce’ evidence and subsequent submissions. Resultantly, the Petitioner called its witness, - Petitioner Witness (PW) - 1, Mr. Peter Ndungu Kimanga, a director in the Petitioner Company. He was led in examination in chief by Mrs. Onesmus Advocate. He informed the Honourable Court That he was a director of Geyser International Assets Ltd. He lived in Mombasa. He had recorded and signed a witness statement dated 23rd March, 2022 filed the same day. There was both a List and Supplementary list of documents dated 23rd March, 2022 and which he produced as part of his evidence in support of his case. He testified That the suit property for the Petitioner was compulsorily acquired for the construction of the SGR. He relied on the gazette notice served upon the Petitioner. The Petitionerwas intended to attend a session with the Respondents on 8th May, 2016. On 9th November, 2017 they were compensated a sumof a sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-). However, the Petitioner was now claiming;a.A declaratory order for the breach of award.b.The delay in payment.c.The damages.d.The costs.

13. He told the court That he was claiming interest from the time they took occupation. He asserted That took three (3) years before they were compensated. They were not able to purchase alternative land as they had intended to do.

14. Upon being cross examined by Mr. Makuto Advocate for the 1st Respondent, he told the court That he had proof to show That he was the Director of the Petitioner. Unfortunately, he never had any resolution authorizing him to appear before Court on behalf of the company. While making reference to photographs pages 140 to 142 he told the court That neither the dates nor the locations when and where they were taken shown. He told the court That he was the one who took the photographs himself. He took them using his mobile camera phone in the year 2015. He could not show the Court the equipment he used in taking the photographs.

15. He testified That he sued the 3rd Respondent for contempt of Court. He was not sure of the outcome of the application for contempt. There were documents showing the acceptance of the award but he did not have them in Court. He had no complaint before the award by the County Government of Mombasa. They only had the knowledge of it later. The award was paid on 3rd March, 2019 and is captured in page 146. The issuance of the award and determination was done with no delays on 21st October, 2015. It was only the payments That took so long – a period of three years on 9th November, 2017. It was the company That determined the account where payments were to be made and National Land Commission, the 3rd Respondent then remitted the money having received it from the 2nd and 3rd Respondents herein. This tantamount to acceptance of the award. This was after the monies were paid to them. With reference to the surrender of the title the same was surrendered on 24th February, 2022, this was after the money was paid to them. There was no report made to the police. There was nothing to show That the Respondent had taken the land. They were gone to court to object the taking the possession. They resisted then from taking possession. They went to court and the Respondent demolished the boundary/perimeter wall.

16. He told the court That the interest being claimed a sum of Kenya Shillings One Hundred and One Million Five Thirty Four Thousand Six Hundred and Thirty (Kshs. 101,534,630. 00/=) being the amount of interest That accrued from the 19th October,2015 was from the time the taking of the occupation and possession of the land as required by law. The award on page 143, never stated the demolished boundary/perimeter wall. He was not aware whether the Attorney General came to the land nor was he aware of the identity of the person who demolished the wall. He sued the Attorney General as he represented the government of Kenya.

17. According to the witness he sold part of the land after the year 2021. There was no sale agreement and he did not have a presentation number. They paid for it but they did not have the receipt hence had no proof they had bought the land. There was no acceptance of land acquisition.

18. Upon being cross examined by Mr. Mbuthia Advocate for the 2nd Respondent, PW – 1 told the court he was a fila taster. He was claiming for a sum of Kenya Shillings One Hundred and One Million Five Thirty Four Thousand Six Thirty Hundred (Kshs. 101,534,630/-) as interest for the delay caused in making the payment in the year 2017 despite of the Respondents having taken the occupation and possession of the suit land in the year 2017. He told the court That he filed the supplementary list of documents dated 24th March, 2022, there was an attached cancelled file which was a copy of the surrender. He never had a current official search. The last entry was number 3. The government never entered a caveat against the title. there was a contempt proceedings against the 2nd Respondent for allowing the breaking down of the wall occur. There was no ruling made by the Court on the contempt proceedings as against any of the Respondents herein. He was admitted having been paid the principal amount a sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs 381,125,071. 00/=) as compensation. He was claiming a sum of Kenya Shillings One Hundred and One Million Five Thirty Four Thousand Six Hundred and Thirty (Kshs. 101,534,630. 00/=) being the amount of interest That accrued from the 19th October,2015 said amount being claimed for the two years. He could not remember the rate at which they arrived at That figure. He could not recall whether it was a compound rate.

19. PW – 1 stated That in year 2015, the property was gazetted. He never received any communication from the Respondents regarding the property between the years 2016 and 2017. They could not utilize the suit property as there was no access to it. He saw the gazette notice. They filed a suit and urged the Court to stop the government from accessing the property. The valuation of the property was done earlier. There was an office and boundary/perimeter wall but there was no access to the land. They were paid 15% and disturbance allowance.

20. On page 144 of the bundle, PW – 1 told the court That it was the acceptance and it was not signed. He never challenged the award. Had the award come at the right time, they could have been satisfied. Unfortunately, it delayed. Referred to Pages 149 to 151 on the determination for review of grants and dispossession dated 2nd March, 2016 by the National Land Commission. They never challenged it. There was a complaint. The land was public land upon acquisition and the compensation was paid. He amended the Petition in 2015 to include the interest. He had nothing to show That there was any development on the suit land. The award was dated 2nd March, 2015. The Petitioner signed it the same day. The Petitioner filed the Amended Petition in the year 2015 after he was paid. After the compensation in 2019, the land became public land. Whereas as at the year 2019, they continued paying land rates on part of the land which remained in their name.

21. The witness further told the court That although between the years 2015 and 2019, the Respondents were using the land but the Petitioners paid the rates and rent. In the year 2015, he was paid for improvements (c) a sum of Kenya Shillings Five Million One Sixty Five Thousand Two Hundred (Kshs. 5,165,200/-) and 15% disturbance allowance of a sum of Kenya Shillings Five Million Eight Seventy Thousand Nine Eighty Hundred (Kshs 5,870,980/-). They were also paid for the demolished boundary/perimeter wall. He had never refunded the money to the Respondents.

22. When re - examined by Mrs. Onesmus Advocate, he confirmed That there were minutes of Board of directors. He was shown the set of photographs found from page 142. He was aware of the Complaints by the County Government of Mombasa where they got a copy of the award letter on 2nd March, 2016 by the National Land Commission.

23. He told the court That demolishing of the boundary/perimeter wall took place on 20th October, 2015 yet they were on paid on 20th October, 2016. The awards were issued after the breaking of the perimeter wall. The payments should have been made before and not after the occupation and possession of the land had taken place.

24. Later on, the witness was recalled. He informed the court That he managed to file a Certificate of photography dated 11th April, 2022 which he produced with the photographs from pages 138 to page 142 of the list of documents of Petitioner and marked as Petitioners exhibits as required by law. According to him, he used a black berry cellphone Zen 10 to take the photographs. There were no questions posed.

VI. The 1st Respondent’s Case 25. In response to the Petition, the 1st Respondent, the Office of the Attorney General filed a 15-paragraph response to Petition dated 10th September, 2015. At the same time, the Attorney General opposed the further Amended Petition dated 6th February, 2019 on the following grounds:-a.The Further Amended Petition was misconceived, vexatious and an abuse of the process of court.b.The Further Amended Petition was filed without leave and or out of the leave period granted by court and was therefore defective and ought to be dismissed with costs.c.The National Land Commission, the 3rd Respondent, received a complaint from the County government of Mombasa regarding the legality of title held by the Petitioner and proceeded to hear the matter exercising its powers under the provision of Articles 68 (c) of the Constitution and Sections 14(4), (5), (6) and (7) of the National Land Commission Act,2012. d.A decision on the complaint lodged by the County Government of Mombasa mentioned herein above was delivered on 2nd March, 2016. e.On 3rd March, 2016 an award was thereafter issued in favour of the Petitioner herein.f.Pursuant to the award of 3rd March, 2016 the National Land Commission was to pay the Petitioner the sum of Kenya Shillings Three Seventy Five Million Two Fifty Four and Ninety one Thousand (Kshs. 375,254,091/- ) for the land and improvements thereon.g.Afurther award of a sum of Kenya Shillings Five Million Eight Seventy Thousand Nine Eighty Hundred (Kshs 5,870,980. 00/=) was made on 21st October, 2015 for loss occasioned by demolition of the boundary wall.h.On 9th November, 2017 the Petitioner was paid the principal amount being the sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) as compensation for the acquired property and the demolished boundary/perimeter wall.i.The Petitioner had no claim against the 1st Respondent.j.The Petitioner had not availed evidence to support his allegation That the Respondents took possession of the suit parcel of land as envisaged in Section 120 (1) of the Land Act, 2012. k.The Petitioner had failed to surrender the Certificate of title to the suit property to the 3rd Respondent to allow for finalization of the compulsory acquisition process to enable the 3rd Respondent issue a Notice of taking possession as envisaged under the provision of Section 120 of the Land, Act.l.The Petitioner had failed to discharge the burden of proving That the respondents took possession of the suit parcel of land in the manner prescribed by Section 120 (1) before payments were made to warrant an award of interest.m.The 3rd Respondent having made payment promptly, noting That the awards were paid and or settled before formal taking of possession as envisaged in Section 120 of the Land Act of 2012, the Petitioner was not entitled to interest on the award made the 3rd Respondent.n.This Honourable court lacked jurisdiction to entertain the Petition before it in light of the provisions of Section 133A and 133 C of the Land Act, 2012 as amended by the Land Value (Amendment) Act, 2019. o.The Further Amended Petition raised no claim against the 1st Respondent and the Petition against the 1st Respondent ought to be dismissed with costs.

VII. The 3rd Respondent’s Case 26. In response to the Petition the 1st respondent filed a 23 paragraphed reply to the petition dated 17th march, 2022 sworn by fidelis k.mburu,the deputy director, valuation and taxation with the national Land Commission where he averred That:-a.The 3rd Respondent is a Constitutional Commission established under the provision of Article 67 of the Constitution with a wide mandate inter alia to compulsorily acquire land under the provision of Article 40 of the Constitution and Part VIII of the Land Act on behalf of national and county governments.b.The suit property herein was one of the properties identified for compulsory acquisition for purposes of Construction of the Standard Gauge Railway Phase 1. c.Upon gazettement of the Intention to acquire the suit property, the 3rd Respondent received a complaint from the County government of Mombasa regarding the legality and propriety of title held by the Petitioner.d.In line with its mandate under the provision of Article 68 (v) and Section 14 of the National Land Commission Act, the 3rd Respondent duly notified all the parties to the dispute and invited the parties to a hearing which the Petitioners duly attended and made their representations on how they acquired the suit property.e.Thereafter, the 3rd Respondent retired and rendered a determination dated 2nd March 2016 upholding the title held by the Petitioners herein effectively paving the way for the Petitioner’s compensation. (Annexed herein and marked as “NLC – 1” was a copy of the said determination).f.Subsequently and immediately thereafter an award of compensation of a sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) for the land and improvements was issued in favour of the Petitioner herein on 3rd March, 2016. g.On 9th November, 2017 the Petitioner was paid the sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) as compensation for the acquired property and improvements.h.Compensation or interest could not crystalize or be made before the complaint raised by the County Government of Mombasa on the legality and propriety of the title held by the Petitioners could be determined.i.The interest only becomes due and accruing under the provision of Sections 117 and 120 of the Land Act once the 3rd Respondent has issued a notice of formal taking of possession.j.The 3rd Respondent had not issued any notice of formal taking of possession and neither had it been exhibited in court by the Petitioner That such a notice had been issued.k.The interest could not become due and accruing while the property was yet to vest in government since the Petitioner was yet to surrender title documents for purposes of vesting and taking of possession.l.For emphasis the Petitioner was still the registered owner of the property despite being compensated and it was the Petitioner who owed the 3rd Respondent in terms of rent and benefits subsequently derived such as bank facilities despite receiving full compensation. Interest if any could only be computed as simple interest at the Central Bank of Kenya base lending rate and not at compound interest.m.The interest as compounded was erroneous, highly exaggerated, inflated and not based on any known scientific or arithmetic method.n.The Petitioner had not availed evidence to support his allegation That the Respondents took possession of the suit parcel of land as envisaged in Section 120 (1) of the Land Act, 2012. o.The 3rd Respondent having made payment promptly, noting That the awards were paid and or settled before formal taking of possession as envisaged in the provision of Section 120 of the Land Act of 2012, the Petitioner was not entitled to interest on the award made the 3rd Respondent.p.The Petition raised no constitutional issues and the same was simply a claim for a liquidated sum of money whose jurisdiction lies in a civil suit. The Petition never set out with reasonable precision the rights That were violated and in what manner thus falling short of the threshold set out in this case.q.Public interest militated against the grant of the orders sought.r.Affidavit in opposition to the Petition dated 6th February, 2019 and pray That the same be dismissed with costs

VIII. Submissions 27. On 2nd November, 2022 upon the close of the cases, the parties were directed to file written submissions. On 9th December, 2022 upon confirming compliance, they were accorded an opportunity to highlight their written submissions and pleadings accordingly. Indeed, the Court is sincerely grateful to M/s. P. Onesmus, Mr. E. Makuto and Mr. S. Mbuthia Advocates for overly executing their professional duties with great resilience, dedication and devotion. Thereafter, the Honorable Court reserved a date for the delivery of Judgment on notice accordingly.

A. The Written & Oral Submissions by Petitioner 28. On 28th June, 2021, the Petitioners through the Law firm of Messrs. Anjarwalla & Khanna Co. Advocates filed their written submissions dated 28th June, 2022. M/s. Onesmus Advocate commenced by stating That the submissions were in respect to the Petitioners’ further amended Petition filed on 6th February, 2019.

29. According to the Learned Counsel, the brief facts of the case were That the Petitioner commenced the present proceedings by way of a Petition dated 10th September 2015, due to a dispute arising over the compulsory acquisition of a portion of its property known as Plot No.MN/VI/3892 (the Suit Property) by the 2nd Respondent. At the time, the 3rd Respondent had conducted an inquiry as to compensation but failed to render its award. The Petitioner was also apprehensive That the Respondents would forcefully enter the Suit Property and commence construction before the acquisition process was finalized. Accordingly, on 17th September 2015, the Petitioner sought and obtained conservatory orders prohibiting the Respondents from invading the Suit Property, interfering with the developments thereon and from constructing on the Suit Property, which orders were duly served upon the Respondents.

30. The Learned Counsel submitted That on 20th October 2015 and in breach of the conservatory orders, the Respondents and/or their servants, employees, contractors and/or agents, invaded the Suit Property, demolished the Petitioner's boundary wall, and commenced construction. Consequently, the Petitioner filed an application dated 22nd October 2015, citing the Respondents and their officials for contempt and/or breach of the conservatory orders (the Contempt Application).

31. On 9th November 2017, before both the Petition and Contempt Application could be head and determined, the Petitioner was paid the sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) as compensation for both the acquired portion of the Suit Property and the demolished boundary wall. However, by then, the 2nd and 4th Respondents had already invaded the Suit Property and taken possession of the Property since 20th October 2015. Given the aforementioned developments, the Petitioner obtained leave to amend its Petition to set out the new facts and to include prayers for interest for the delayed payment of compensation as well as damages for violation of its right to property and fair administrative action. Although the Respondents attempted to raise preliminary objections to the Further Amended Petition dated 6th February 2020 (the Further Amended Petition), this Court dismissed them and has ordered That the Further Amended Petition be disposed of by way of written submissions.At the outset, it was their submission That in the absence of a substantive response to the Further Amended Petition by the Respondents, the allegations in the Further Amended Petition were uncontroverted.

32. The Petitioners sought for the following declaratory orders:-a.The issue under this head concerns the application of Articles 40 and 47 of the Constitution of Kenya, 2010(the Constitution).b.Article 40(1)provides as follows“...Every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya." Article 40(2) and (3) further provide That “Parliament shall not enact a law That permits the State or any person to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description...unless the deprivation-i.results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; orii.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 requires prompt payment in full, of just compensation to the person...”(emphasis own).

c.The thrust of the provision of Article 40 was thus to protect proprietary rights under the law and must strictly be adhered to. The leraned Counsel held That this position was upheld in the case:- “James Shikwati Shikuku – Versus - County Government of Kakamega & 3 others; Isaac Shivachi Mutoka & 2 others(Interested Parties) eKLR”, where Justice N.A. Matheka held as follows:“If land is so acquired (through compulsory acquisition), then just compensation is to be paid promptly in full to persons whose interests in land have been determined. 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. From my above observations, the 1st and 2nd Respondents have not proved in any way how their actions are in accordance with the law hence their actions are illegal. The Respondent’s actions are in contradiction with Sections 2, 2(4), 3,10,40 and 47 of the Constitution of Kenya.”d.The Court further cited with approval the decision in “Commissioner of Lands & Another – Versus - Coastal Aquaculture Ltd Civil Appeal No. 252 of 1996 KLR (E&L 264)” where the Court of Appeal held That “in cases of compulsory acquisition, the government is required to strictly adhere to the provisions of the Constitution”.e.Accordingly, the Counsel argued That the final award of compensation of the sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) paid more than two (2) years after the 2nd and 4th Respondents had invaded the Suit Property and/or after the 2nd Respondents had taken possession of the land, was in breach of the principle of prompt and just compensation guaranteed under Article 40 (3) of the Constitution. In expropriating the Suit Property without following due process laid out in the Constitution and statute, the Respondents violated the Petitioner’s right to property. Just because they have since compensated the Petitioner never and could not sanitize their prior unlawful actions which this Court, they submitted, ought to discourage.f.The Learned Counsel averred That the Respondents were under a constitutional duty imposed under the provision of Article 10 of the Constitution to adhere to the principles of integrity, transparency and accountability. By demolishing the Petitioner’s boundary/perimeter wall and invading the Suit Property without first adhering to the constitutional and statutory procedures for compulsory acquisition, the Respondents violated the provision Article 10 of the Constitution. On the other hand, Article 47 (1) provides That:- “Every person has the right to administrative action That is expeditious, efficient, lawful, reasonable and procedurally.”g.Lawful procedural action, in as far as compulsory acquisition is concerned, requires That a notice of the award is served upon persons interested in the land followed by just and prompt compensation, before the taking of possession.The provision of Sections 107 to 133 of the Land Act No.6 of 2012, contain elaborate provisions on the procedure to be followed in the process of compulsory acquisition. Of particular interest are the provisions of sections 114, 115 (1) and 125 of the Act. Section 114 of the Land Act provides That:“On making an award, the Commission shall serve on each person whom the Commission has determined to be interested in the land, a notice of the award and offer of compensation.” Further, Section 115 (1) provides That:-“After notice of an award has been served on all the persons determined to be interested in the land, the Commission shall, promptly pay compensation in accordance with the award to the persons entitled thereunder.” 33. According to the Learned Counsel submitted That lastly, the provision of Section 125 provides That:-“the Commission shall, as soon as is practicable, before taking possession, pay full and just compensation to all persons interested in the land.”Therefore, the Learned Counsel argued That followed That the 3rd Respondent bore the responsibility of ensuring That all the procedures relating to compulsory acquisition of the Petitioner’s property are complied with in so far as the provisions of Sections 114, 115 (1) and 125 of the Land Act, as well as Article 40 (3) of the Constitution, are concerned. Moreover, by dint of Section 125 of the Land Act, the 3rd Respondent must ensure That the funds required for the acquisition are within its control so That as soon as the formalities of valuation and award were completed but before possession of the land was taken, the proprietor of the land was fully compensated. The Respondents’ action to take possession of the Suit Property without complying with the statutory process of compulsory acquisition was therefore illegal, null and void.

34. Applying the above, the Learned Counsel submitted That it was not in dispute That the Respondents forcefully took possession of the Suit Property on 20th October 2015 and/or otherwise carried out the intended construction of the Standard Gauge Railway on the Suit Property before a notice of award was issued and prompt payment in full of just compensation, was made to the Petitioner. The Learned Counsel referred to the supporting affidavit sworn by Peter Kimanga on 28th May 2018, particularly annexure “PK-1” and “PK-2” attached thereto, copies of notice of award issued on 21st October 2015 (award for damaged boundary/perimeter wall) and a notice of award issued on 3rd March 2016 (award for the acquired property).

35. The Learned Counsel further submitted That it was undisputed That payment of compensation was made on 9th November 2017, more than 2 years after the Respondents forcefully took possession and permanently dispossessed the Petitioner of the Suit Property. Accordingly, by their conduct, the Respondents breached the Petitioner's right to acquire, own property and be paid full and just compensation before possession was taken, as guaranteed under Article 40 of the Constitution of Kenya. Similarly, the procedural impropriety exhibited by the 3rd Respondent, as afore detailed, amounts to a breach of the provision of Article 47 (1) of the Constitution. The Learned Counsel submitted That prayers (a) and (b) of the Further Amended Petition, seeking declaratory orders, are thus merited.

36. On the issue of the interest on compensation award, the Learned Counsel submitted That the requirement to pay interest on compensation award was a provision of the law. The provision of Section 117 (1) of the Land Act provides That:-“If the amount of any compensation awarded is not paid, the Commission shall on or before the taking of possession of the land, open a special account into which the Commission shall pay interest on the amount awarded at the base lending rate set by the Central Bank of Kenya and prevailing at That time from the time of taking possession until the time of payment.”

37. In addition, Subsection 2 provides That:-“If additional compensation is payable...there shall be added to the amount of the additional compensation interest thereon at the base lending rate set by the Central Bank of Kenya and prevailing at That time, from the time when possession was taken or compensation was paid, whichever is earlier.”

38. The Learned Counsel submitted That the law above was crystal clear That interest was payable where payment of compensation was made following taking of possession. Similarly, That such interest applied to both compensation award for the acquired property as well as any additional compensation payable to person(s) interested in the acquired land. In addition, the rate of interest is prescribed as the base lending rate set by the Central Bank of Kenya and prevailing at That time, from the time when possession was taken or compensation was paid, whichever was earlier.

39. Additionally the Learned Counsel submitted That the Petitioner had established That the 2nd and 4th Respondents invaded the Suit Property on 20th October 2015 and commenced with construction of the Standard Gauge Railway. Accordingly, possession was taken on the said date of invasion as the Petitioner was unlawfully dispossessed of ownership and possession of the Suit Property. The Petitioner had also established That compensation was paid on 9th November 2017. Accordingly, and in line with the provisions of section 117 of the Land Act, interest on the amount awarded of a sum of the sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) (for the acquired property as well as compensation for the damaged boundary wall), is payable from the date when the 2nd and 4th Respondents invaded the Suit Property and/or forcefully took possession without payment of full and just compensation.To buttress her point, the Learned Counsel cited the decisions in the case of: “Arnacherry Limited – Versus - Attorney General [2014] eKLR” and “Christabel Akinyo Onyango vs Kenya Aiports Authority(2014) eKLR” where the court considered That the law governing the acquisition in the suit was the Land Adjudication Act (now repealed) and not the Land Act. The provisions of the repealed Act provided for interest at a rate of not less than 6% from the date of taking possession. Accordingly, the Court held That “As for interest thereof, I see no justification for commercial bank rates to apply (as provided under the Land Act). Let the Court rates apply in the circumstances.”. The court equally relied on the provisions of the repealed Act to award interest for delayed compensation at the rate of 12% per annum, from the date of taking possession, until payment in full.

40. The Learned Counsel submitted That the prayer for interest was merited and pray That the same be awarded as pleaded in the Further Amended Petition, with further orders on the rate of interest to be applied.

41. On general damages, the Learned Counsel submitted That Section 13 (1) of the Environment and Land Act No.19 of 2011 gives this Court discretion to grant any orders it deemed fit, including an award for damages. The provision reads as follows “In exercise of its jurisdiction under this Act, the Court (Environment and Land Court) shall have power to make any order and grant any relief as the Court deems fit and just, including...compensation...award for damages.”

42. The Learned Counsel relied on the case of “Anacherry (Supra)”, the court whilst dealing with a similar prayer for damages in a compulsory acquisition dispute, referred to the Ugandan decision in the case of:- “Jephtar & Sons Construction & Engineering Works Ltd – Versus - The Attorney General HCT-00-CV-CS-0699-2006 for a definition of the term damages, including general damages. The Ugandan Court had this to say on the issue “...Compensatory damages, also called actual damages, are typically broken down into two broad categories: General and Special...General damages are given for losses That the law will presume are natural and probable consequence of a wrong. The general principle is That they are awarded to compensate the plaintiff, not as punishment to the Defendant...”

43. The court in the Arnacherry case went further and considered a claim for damages in constitutional petitions, referring to various decisions from foreign jurisdictions, before concluding as follows “Regarding general damages for breach of the right to property under Article 40 of the Constitution, I agree That by dispossessing the Petitioner of its land, some compensation is awardable under Article 23(3) of the Constitution...In invoking the above Article of the Constitution and the authorities cited above, I am satisfied That an award of Ksh.3Million is reasonable taking into account the fact That the full value of the land has been ordered to be paid to the Petitioner.”

44. They relied on the aforementioned decision and submit That the Petitioner had demonstrated breach of the provision of Article 40 of the Constitution, by the Respondents. The Respondents had neither denied nor controverted the Petitioner's allegations. Similarly, the Petitioner had invoked the provision of Article 23 of the Constitution in seeking general damages for breach of its right to property.

45. The Learned Counsel submitted That the prayer for general damages was merited and pray That this Court should proceed to assess and/or quantify damages That would be payable to the Petitioner.

46. On the costs of the Petition, the Learned Counsel argued That the general rule was That costs shall follow the event. As held in “Depar Limited – Versus - County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another [2021] eKLR”,“a successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise.”

47. This position was upheld in “Hussein Janmohamed & Sons - v Twentsche Overseas Trading Co. Ltd [1967]EA 28”. The Learned Counsel further submitted That it was the Respondents’ unlawful conduct That forced the Petitioner to file the present proceedings. The Petitioner had proved That it is deserving of the reliefs sought in the Further Amended Petition. Therefore, the Counsel prayed That the Court should award costs to the Petitioner.

48. In conclusion, the Learned Counsel prayed That the Further Amended Petition be allowed, as drawn, with further orders on rate of interest to be applied and general damages payable to the Petitioner.

49. On 24th November, 2022, the Petitioner through the law firm of Messrs. Anjwarwalla & Khanna Co. Advocates filed supplementary written submissions dated 22nd November, 2022 where the Learned Counsel commenced the submissions by stating That the Submissions were filed further to the Petitioner’s written submissions dated 28th June 2021 (the Principal Submissions).

50. The background being That on 17th March, 2022 parties attended Court for highlighting of submissions with respect to the Further Amended Petition. Mr. Mbuthia Advocate appeared in Court claiming to be representing the 3rd Respondent. Prior to his appearance on 17th March 2022, the firm of Messrs. Ndegwa & Sitonik Advocates represented the 3rd Respondent (refer to the replying affidavit sworn by Muhammad Swazuri, former chairperson for the 3rd Respondent and filed in Court on 22nd April 2016, amongst other documents). There is no evidence to show That the firm of Messrs. Ndegwa & Sitonik Advocates had been removed and Mr. Mbuthia Advocate appointed to represent the 3rd Respondent.

51. Nonetheless, Mr. Mbuthia sought to have the hearing adjourned and to have an officer of the Petitioner attend court for cross-examination. Also, That he be allowed to file a response to the Further Amended Petition. The Petitioner opposed the application by Mr. Mbuthia on various grounds and sought to proceed with the highlighting of its submissions.Following submissions by the respective parties, the Court allowed Mr. Mbuthia’s application and ordered That the matter be heard both orally and by way of affidavit evidence.

52. According to the Learned Counsel, the trial proceeded with the matter being heard in open court on 24th March 2022 and 27th May 2022 respectively. The Petitioner called one witness-Peter Kimanga who produced Petitioners Exhibits 1 to 17 (this is the Petitioner’s List & Bundle of Documents dated 23 March 2022-in these submissions simply referred to as P – EXB - 1) and Petitioner’s Exhibits 18 to 19 (this is the Petitioner’s Supplementary List & Bundle of Documents dated 23rd March 2022-in these submissions simply referred to as PEXB2). Though the 3rd Respondent intimated intention to call a witness which prompted the Court to issue a further hearing date for 2nd November 2022,the said Respondent failed to avail its witness. The 1st and 3rd Respondents now seek to rely on affidavit evidence.

53. It was the Petitioner's submission That the whole process of compulsory acquisition of its property known as Land Reference Number MN/VI/3892 (hereinafter the Suit Property) was flawed and marred with unreasonableness and outright unlawfulness by the Respondents. Accordingly, the Petitioner is entitled to the remedies sought in the Further Amended Petition and as demonstrated in both its Principal Submissions and these submissions.

54. According to the Learned Counsel the undisputed facts were That vide Gazette Notice No.149 of 9th January 2015, the 3rd Respondent declared its intention to acquire the Suit Property, for and on behalf of Kenya Railways Corporation,(now the 1st Interested Party),for the construction of Phase 1 Mombasa Nairobi Standard Gauge Railway Line (refer to PEXH1 at pages 18-19). On 8th May 2015, the Petitioner made representations regarding its claim for compensation before the 3rd Respondent at a public hearing held at Changamwe in Mombasa, whereafter the 3rd Respondent promised to deliver an award in due course.

55. At the time of filing of this Petition, the 3rd Respondent had conducted an inquiry as to compensation but had yet to render its award. Together with the Petition, the Petitioner filed an application seeking interim prohibitory orders, citing its apprehension That the Respondents may Line before the acquisition process for the Suit Property was finalized. conservatory orders prohibiting the Respondents and Interested Parties from constructing on the Suit Property, pending hearing and determination of this Petition.

56. On 22nd October 2015, the Petitioner filed a contempt application citing the Respondents, the Interested Parties, and their officials for contempt and/or breach of the conservatory orders for having demolished the Petitioner’s boundary wall and commenced construction on the Petitioner’s Suit Property (the Contempt Application). In its Contempt Application, the Petitioner provided a survey diagram (refer to P – EXH - 1 at page 12) and photographic evidence (refer to P – EXH - 1 at pages 13-15) in support of its assertion That the destruction of its boundary wall and/or the invasion by the Respondents and Interested Parties occurred on 20th October 2015.

57. On 21st October 2015, one day after the alleged invasion by the Respondents and Interested Parties onto the Petitioner’s Suit Property and one day before the Contempt Application was filed, the 3rd Respondent issued an award for a sum of Kenya Shillings Five Million Eight Seventy Thousand Nine Eighty hundred (Kshs.5,870,980/-) for the loss occasioned by the demolition of the boundary wall (refer to P – EXH - 1 at page 16. Also see admission by the 1st Respondent in its Reply to Petition dated 12th February 2022, clause 6).The award for the demolition of the boundary wall was issued way before the conclusion of the alleged investigations by the 3rd Respondent into the legality and propriety of the title held by the Petitioner (refer to P – EXH - 1 at pages 149-151 letter dated 2nd March 2016 by the 3rd Respondent rendering its determination on the investigations and upholding the Petitioner’s title).

58. The Learned Counsel guided the Honourable Court to the following issues:-a.Whether critical steps precedent to compulsory acquisition of the Suit Property were strictly followed.b.Whether and/or when the Government took possession of the Suit Property.c.Whether the Petitioner was entitled to the remedies sought in the Further Amended Petition.

59. On whether critical steps precedent to compulsory acquisition of the Suit Property were strictly followed, the Learned Counsel submitted That the process of compulsory acquisition was very elaborate. It was anchored under the provision of Article 40 of the Constitution of Kenya and Sections 107 and 133 (both inclusive) of the Land Act, 2012 (the Land Act). Reference was made to this Court’s decision in the case of” “Fort Properties Limited – Versus - Attorney General & 2 Others [2021] eKLR” L. Naikuni J, detailed the process as provided under the Law.The Petitioner contends That the process of compulsory acquisition of the Suit Property was flawed. In its Principal Submissions, the Petitioner has extensively discussed the breaches of law committed by the Respondents.

60. The Learned Counsel held That it was noteworthy That in its Replying Affidavit filed on 17th March 2022, the 3rd Respondent claims That upon gazettement of the notice of intention to acquire, the 3rd Respondent embarked on an investigation as to the legality and propriety of the title held by the Petitioner. Similarly, That the 3rd Respondent rendered a determination dated 2nd March 2016 upholding the title held by the Petitioner. Ironically, by then, the 3rd Respondent had already issued an award dated 21st October 2015 for demolition of the boundary wall for the Suit Property. The question That begged to be answered was on what basis did the 3rd Respondent issued an award if it questioned the legality of the Petitioner’s title. This very same issue was dealt with in the case of:- “African Gas and Oil Company Limited – Versus - Attorney General & 3 Others [2016] eKLR” where the Honourable A. Omollo held That “logic demands That the 3rd Respondent should have awaited final determination of the issue of title before making the awards.”

61. The Learned Counsel submitted That the alleged investigations into the legality and propriety of the title held by the Petitioner was nothing more than a stunt by the 3rd Respondent and a crude attempt at sanitizing the illegalities That had been committed in interfering with the Petitioner’s property and was aimed at justifying the delayed compensation of the Petitioner.It was also apparent from the record That the 2nd Respondent, the Kenya Railways Corporation and/or the Respondents occupied the Suit Property before an award was delivered and compensation paid to the Petitioner, contrary to mandatory provisions of the law. The Learned Counsel refereed Court to the case of:- “National Land Commission – Versus - Afrison Export Import Limited & 10 others [2019] eKLR”, this Honourable Court, in dealing with a similar situation where public schools were built on private property before a notice of taking of possession was issued, held That the same amounted to breach of the provisions of Section 120 (1) of the Land Act. The Petitioner reiterated That the 1st and 3rd Respondents failed to follow the provisions of the provisions of Sections 114, 115(1), 120(1) and 125(1) of the Land Act as read together with the provision of Article 40 of the Constitution, which provisions underscore the procedure for perfecting acquisition of private land.

62. Whether and/or when the Government took possession of the Suit Property, the Learned Counsel argued That it was a matter of public notoriety That the construction of Phase 1 Mombasa Nairobi Standard Gauge Railway Line started back in the year 2014. Similarly, That the project was completed and commissioned for public use in June 2017, Madaraka Day hence acquiring the name Madaraka Express. It was also not in dispute That the Suit Property was part of the Mombasa Nairobi Standard formal taking of possession had been achieved as per the provisions of Section 120 of the Land Act. The Learned Counsel submitted as follows:-a.In Elizabeth Wambui Githinji & 29 Others vs Kenya Urban Roads Authority & 4 others [2019]eKLR, the Court of Appeal dealt with the issue of formal taking of possession. The Honourable Otieno Odek. JA referred to what he termed as requisite notices envisaged under the Land Act. The Court referred to the decisions in Balwant Narayan Bhagde vs. M. D. Bhagwat & Others AIR 1767, 1975 SCR 250 by the Indian Supreme Court and Banda Development Authority, Banda vs. Moti Lal Agarwal & Others, (2011) Civil Appeal No.3604 of 2011 by the Kenyan Court of Appeal. In the Balwant case, the Indian Supreme Court held That “if the property is land over which there is no building or structure, possession becomes complete and effective by going upon the land. “In the Banda case, the Court of Appeal held That “if the land acquired is vacant, the act of the state authority going to the spot will ordinarily be treated as sufficient to constitute taking of possession.”b.The Learned Counsel also relied on the decision in African Gas and Oil Company Limited v Attorney General & 3 Others [2016] eKLR where the Honourable A. Omollo, in dealing with a similar dispute, confirmed That where construction works are undertaken on a property subject of compulsory acquisition by an acquiring body (in this case the Kenya Railways Corporation in conjunction with China Road and Bridge Corporation), the same amounts to taking of possession. The Court noted That the Respondents in the suit took possession of the property subject of the suit in June 2015 where after awards were made on 15th December 2015 and 6th January 2016 respectively. This position was also acceded to by the National Land Commission who confirmed That the Petitioner in the suit can be compensated by damages and is entitled to additional remedies in terms of interest. Finally, the Court dismissed the claim by the National Land Commission That the legality of the title held by the Petitioner in the suit was subject of investigations hence the delay in paying compensation. The Court opined That “the respondents are enjoying possession of the suit premises irrespective of their claim That the determination and the awards issued by the 3rd Respondent are not final and there is a “dispute” yet to be resolved. The Respondents thus want to have their cake and eat it at the same time...The Petitioners rights also need to be secured.”c.The Learned Counsel also referred to the decision in “Broadway Enterprises Ltd v Ministry of Land, Housing and Urban Development & 3 others [2017] eKLR” where this Honourable Court, in dismissing a claim That the 3rd Respondent was yet to take formal possession of land in accordance with Section 120 of the Land Act, took cognizance of the fact That land subject of dispute “is part of the Thika SuperHighway’s expansion programme and it is a matter of public notoriety That the Petitioner is not in possession of the...land That was acquired.”

63. During trial, PW - 1 testified That the Petitioner had not been in possession of the suit land as the China Road & Bridge Corporation Kenya (now the 1st and 2nd Interested Parties respectively) invaded the Suit Property and demolished the Petitioner's demolition and invasion by the 1st and 2nd Interested Parties). The Respondents had not challenged or rebutted the Petitioners of the Petitioner’s property before following due process as provided in law. It was also noteworthy That on 21st October 2015, one day after the alleged invasion by the Respondents and Interested Parties onto the Petitioner's Suit Property, the 3rd Respondent issued an award for a sum of Kenya Shillings Five Million Eight Seventy Thousand Nine Eighty Hundred (Kshs. 5,870,980/-) for the loss occasioned by the demolition of the boundary wall (please see admission by the 1st Respondent in its Reply to Petition dated 12th February 2022, clause 6). It is therefore incredible That the 3rd Respondent would issue an award in respect of the boundary wall if they had not taken possession of it. Lastly and as aforementioned, it was a matter of public notoriety That the construction of Phase 1 Mombasa Nairobi Standard Gauge Railway Line started back in the year 2014. Similarly, That the project was completed and commissioned for public use in June 2017. Taking all the aforementioned into consideration, it was as clear as day That at the time when the two awards were issued (That is, for demolition of the boundary wall on 21st October 2015 and for compensation for the acquired Property on 9 November 2017), the 1st Interested Party was already in occupation of the Suit Property having taken possession and constructed the Mombasa Nairobi Standard Gauge Railway Line and the Project commissioned and handed over for public use.

64. Accordingly, the Learned Counsel submitted That the Respondents took possession of the Property on 20th October 2015 as had been evidenced by the Petitioner. The claim by the Respondents That they were yet to take formal possession of the Suit Property was preposterous, to say the least, and aimed at benefiting the 3rd Respondent; the entity That failed to follow due process in acquiring the Suit Property and what the Honourable Justice Omollo referred to as “The Respondents thus want to have their cake and eat it at the same time.” It would be a mockery of the rule of law if the 3rd Respondent were to be allowed to further the argument That “possession” only occurs when a statutory notice is issued. It would further allow lawlessness to reign and would encourage the 3rd Respondent to invade private land and take it over without following due process.

65. On the interest accrued in delayed payments, the Learned Counsel submitted That interest on delayed compensation for the demolished wall and compensation for the acquired Property accrued from 20th October 2015; the date when the Interested Parties invaded the Suit Property and the date when the Respondents took possession of the land. They reiterated the contents of the Principal Submissions That interest is payable from the date of taking of possession. The interest rate applicable is as provided under Section 117 of the Land Act “the base lending rate set by the Central Bank of Kenya and prevailing at That time from the time of taking possession until the time of payment.”

66. The Learned Counsel further submitted That the base lending rate set by the Central Bank of Kenya (the CBK Rates) finding on the applicable CBK Rates especially noting That this was a matter of general notoriety of which the Court may take judicial notice of under Section 60 (1) (a) of the Evidence Act. The Learned Counsel relied on the decision in “Rose Florence Wanjiru – Versus - Standard Chartered Bank Kenya Limited & another [2015] eKLR” where the High Court held That “in this case it is possible for the court to make a finding on the approved and applicable rates Finance Minister is always through the official Gazette Notice of which the court will simply take judicial notice... Ordinarily, and I have said this, such official communication on interest rate or bank charges is done through the official gazette notice of which the court simply takes judicial notice.” See also “Isaac Aluoch Polo Aluochier – Versus - National Alliance and 542 others [2016] eKLR”.

67. The Learned Counsel further argued That this Honourable Court ought to take judicial notice of gazette notice number 7240 of 30 September 2015 and banking circular number 5 of 2015 dated 9th June 2015 for the CBR Rates applicable as at the date of taking of possession of the Suit Property.

68. In conclusion, the Learned submitted That the 3rd Respondent played a vital role in the compulsory acquisition of land by overseeing the whole process from pre-inquiry stage to the tail end of the process when possession of land passes to the government and compensation was made to private persons. The provisions of the Constitution and the Land Act were very clear on the role to be played by the 3rd Respondent in the perfection of the process of compulsory acquisition. The Petitioner could not be faulted for failure by the 3rd Respondent to adhere to the provisions of the Constitution and the Land Act. Any failure by the 3rd Respondent to issue notices as required of the 3rd Respondent and resultant consequences thereof could not be visited upon the Petitioner and the 3rd Respondent cannot be allowed to use the law as a shield for its illegal actions.

69. It is the Learned Counsel’s submission That the acquisition, though flawed, was completed with possession of the Suit Property passing to the Respondents. In addition, during his examination, PW - 1 produced evidence of surrender of its title to the Land Registrar (refer to P - EXH - 2 at Pages 1-2), which title was cancelled in conclusion of the process Registered proprietor of the Suit Property was absurd and unsupported by evidence. In light of the foregoing, the Learned Counsel prayed for the further amended petition be allowed, as against the Respondents herein, with further orders on the rate of interest applicable and general damages payable to the Petitioner.

B. The Written and Oral Submissions by the 1st Respondent. 70. On 8th December, 2022, the 1st Respondent through the State Offices of the Honourable Attorney General filed their written submissions dated the same date. Mr. Makutu Advocate commenced the submission by providing the Court with a detailed background of the matter, he averred That vide a ruling delivered on 11th January, 2019 the Petitioner was granted leave to file an Amended Petition within 14 days and he filed an Amended Petition amended on 28th January, 2019.

71. The Petitioner subsequently further amended the Amended Petition (without leave of court). The Petitioner filed a further amended petition amended on 6th February, 2019. The Petitioner’s further Amended Petition was filed pursuant to leave granted on 14th January, 2019. At the onset the Learned Counsel submitted That leave granted on 14th January, 2019 lapsed upon the Petitioner filling an Amended Petition and in any event after 14 days of 14th January, 2019. Any other subsequent amendment required the petitioner to seek leave a fresh as required by Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

72. The Learned Counsel made reference to Rule 18 which provides as follows:-“A party That wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court.”

73. The Learned Counsel submitted That the further Amended Petition having been filed without leave of court was improperly on record. The orders sought therein could not issue. The Petitioner alleged That he held the suit property on a Grant No.CR 31370 from the from the year 1985. The Petitioner further alleged That on 9th January, 2015 he was served with a notice of intention to acquire the suit property for and on behalf of the 2nd Respondent. On 8th May, 2015 he made representations in a public inquiry regarding his claim after which the 3rd Respondent promised to deliver a decision. According to the Petitioner, the 3rd Respondent made a decision on 2nd March, 2016 and an award for compensation was issued on 3rd March, 2016. The Petitioner alleged That prior to issuance of an award the Respondents directed their employees, servants, contractors and/or agents to demolish the Petitioner’s boundary/perimeter wall and constructed thereon the standard gauge railway. The Petitioner however admitted That an award of a sum of Kenya Shillings Five Million Eight Seventy Thousand Nine Eighty Hundred (Kshs. 5,870,980/=) was issued as compensation for the damaged boundary wall. According to the Petitioner the amount was paid on 9th November, 2017. The Petitioner now claimed interest due to the delayed payments at such rates as were prescribed by law among other orders.

74. On analysis, the Learned Counsel submitted That the Petitioner failed to disclose That 3rd Respondent, received a complaint from the County government of Mombasa regarding the legality of title held by the Petitioner and proceeded to hear the matter exercising its powers under the provision of Articles 68 (c) of the Constitution and Sections 14(4), (5), (6) and (7) of the National Land Commission Act, 2012. A decision on the complaint lodged by the County Government of Mombasa mentioned herein above was delivered on 2nd March, 2016 and on 3rd March, 2016 a decision was issued in favour of the Petitioner.

75. Pursuant to the award of 3rd March, 2016, the National Land Commission was to pay the Petitioner the sum of Kenya Shillings Three Seventy Five Million Two Fifty Four and Ninety one Thousand (Kshs. 375,254,091/=) for the land and improvements thereon. A further award of a sum of Kenya Shillings Five Million Eight Seventy Thousand Nine Eighty hundred (Kshs 5,870,980/-) had been made on 21st October, 2015 for loss occasioned by demolition of the boundary wall however payment could not be made until a determination on the complaint by the County Government was made. To support his argument That there existed a dispute, the Counsel referred to the provision of Section 115 of the Land Act provides as follows:-115. (1) After notice of an award has been served on all the persons determined to be interested in the land, the Commission shall, promptly pay compensation inaccordance with the award to the persons entitled thereunder, except in a casewhere 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 the persons entitled to receive the compensation or as to the shares in which.

76. The Learned Counsel urged the Honourable Court to note That after the award made on 21st October, 2015 of Kenya Shillings Five Million Eight Seventy Thousand Nine Eighty hundred (Kshs. 5,870,980/=) for demolition of a boundary wall a complaint was made by the County government of Mombasa. This necessitated a determination of the complaint and so no payment could be made in line with the provision of Section 115 (c). After determination of the dispute on ownership of the suit parcel of land a consent to receive amount awarded had to be received from the Petitioner before payment could be made.Listed at page 143 of the Petitioners List and Bundle of Documents was the award dated 21st October, 2015. Page 144 contained a statement of acceptance or non-acceptance of the award and page 145 contained a form wherein the Petitioner was expected to provide bank details of the account he wished to use in the transaction.

77. The Learned Counsel averred That during cross-examination, the Petitioners witness admitted having been paid after accepting the award and providing bank account details to the National Land Commission. He however could not tell the trial court when he accepted the award and provided the account details for the bank to be used in the transaction.

78. The Learned Counsel submitted That the provision of Section 115 (1) (b) of the Land Act 2012 placed an obligation on the Petitioner to communicate to the 3rd Respondent his acceptance and or refusal of the award issued by the 3rd Respondent and the 3rd Respondent was obligated by law to wait for the Petitioner’s communication of acceptance or refusal/rejection of the award. Before such communication the 3rd Respondent could not make any payment by reason of the provision of Section 115 (1) (b) of the Land Act 2012. In fact the Petitioner conceded That he was paid immediately he provided Account details to the National Land Commission during his testimony in court. It was therefore a material fact and the trial court ought to have been told when acceptance occurred and when communication of such acceptance was relayed to the 3rd Respondent for a claim of interest to be warranted.

79. The Counsel asserted That in this case however the Petitioner had not availed to court evidence of acceptance of the That the delay in payment was occasioned by the Respondents could not hold and his claim for interest ought to be dismissed. He cited the provision of Section 2 of the Land Act 2012 was amended by the Land Value (Amendment) Act, 2019. The amendment introduced among others the definition of “prompt” so That prompt as used in the Land Act 2012 means;-“within a reasonable time of, and in any case not more than one year after, the taking of possession of the land by the Commission;

80. On the issue of taking possession, the Petitioner alleged in paragraph 13 of the Further Amended Petition That on 7th September his employees noted That the 4th Respondents and 2nd Respondent were clearing land outside and within the boundary of the plot neighboring the suit property. At paragraph 14 A the Petitioner stated That on 20th October, 2015 the Respondents allowed and or directed their employees servants contractors and or agents to demolish it’s boundary wall and have since fully constructed thereon a Standard Gauge Railway. It must be noted however That the further amendment to the Petition was done on 6th February, 2019 after the Petitioner had been paid compensation for the suit property.

81. When the Petitioner was asked for proof That the Respondents gained access to his property on 20th October, 2015 and took possession he produced photographs which are at pages 138-142 of the Petitioners list of documents dated 23rd March, 2022. When taken to task during cross-examination he conceded That the photographs never indicated the date and or location where the photographs were taken, none of the vehicles bore number plates associated with government or the 1st Respondent and no motor vehicle search certificate had been presented in court to prove ownership of the vehicles appearing on the photos.

82. From the foregoing it was the Learned Counsel’s submission That the Petitioner failed to prove That the Respondents entered his suit parcel of land and took actual possession of the land on 20th October, 2015 as alleged.All the Petitioner was able to prove was That he received an award for damage to his boundary wall on 21st October, 2015.

83. He cited the provision of Section 126(b) of the Land Act 2012 provides for payment of compensation limited to the damage done to trees, plants, growing crops and permanent improvements on the land. by reason of use of any parcel of land.Section 126(b) provides as follows:-“If the Commission is satisfied That any land of which the occupation or use has been secured under this Part is needed solely as a means of access to other land, then-(a)the use of the land shall extend to the passage of vehicles of all kinds, including heavy machinery, whether owned or operated by the public body occupying or using the land or by any contractor or servant employed by That body; and(b)the compensation to be paid under section 120 shall be limited to the damage done to trees, plants, growing crops and permanent improvements on the land, together with a periodical sum for diminution in the profits of the land and of adjoining land by reason of That use.

84. The contention by the Counsel was That, the Petitioner was paid for demolition of the boundary wall That occurred before completion of the compulsory acquisition process That would have changed ownership of the suit parcel of land and the petitioner accepted such compensation. The argument That damage to the wall was equivalent to taking possession of the suit property would amount to absurdity.

85. On the issue of Concept of Taking possession, the Learned Counsel submitted That taking possession is a legal concept in the process of compulsory acquisition and the procedure of taking possession was laid out in the provision of Section 120 and 121 of the Land, Act No. 6 of 2012. Section 120 (1) of the Land, Act No. 6 of 2012 provides That:-“120. (1)Only after the award has been made, and the amount of the first offer has been paid, the Commission shall take possession of the land by serving on every person interested in the land a notice That on a specified day possession of the land and the title to the land will vest in the national or county governments as the case maybe.”

86. The procedure of taking possession was thereafter set out in the provision of Section 121 of the Land Act No. 6 of 2012 which provides as follows:-121. (1)If the documents evidencing title to the land acquired have not been previously the documents of title to deliver them to the Registrar, and thereupon That person shall forthwith deliver the documents to the Registrar.(2)On receipt of the documents of title, the Registrar shall-a).cancel the title documents if thewhole of the land comprised in the documents has been acquired;b).if only part of the land comprised in the documents has been acquired, the Registrar shall register the resultant parcels and cause to be issued, to the parties, title documents in respect of the resultant parcels.(3)If the documents are not forthcoming, the Registrar will cause an entry to be made in the register recording the acquisition of the land under this Act.

87. The Learned Counsel submitted That the Petitioner had not availed proof That he had received a notification requiring him to deliver documents evidencing title to the commission or That he received a Notice of Taking possession and vesting of the land in government.He had not tendered proof That the title to the suit parcel of land had been cancelled or That subdivision of the suit parcel of land had been undertaken or That he had been issued with a fresh title for the remaining piece of land That had not been acquired.Simply put, the Petitioner had not tendered evidence That the Respondents had formally taken possession of the suit parcel of land.

88. The Learned Counsel submitted Thatthe Petitioner had not availed evidence to support his allegation That the Respondents took possession of the suit parcel of land as envisaged in the provision of Section 120 (1) of the Land Act, 2012. No Notice of Taking Possession under the provision of Section 120 of the Land Act 2012 was availed to court. The Petitioner had failed to discharge the burden of proving That the Respondents took possession of the suit parcel of land in the manner prescribed by Section 120 (1) before payments were made to warrant an award of interest. The Petitioner had failed to discharge the burden of proving That the 3rd Respondent failed to pay promptly as envisaged in the provision of Section 2 of the Land Act No 6 of 2012 as amended by the Land Value (Amendment) Act,2019.

89. The Learned Counsel argued That it was on record That the 3rd Respondent made payment on 9th November, 2017, upon acceptance of the award and account details being communicated to the 3rd Respondent.Noting That payment of the sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071. 00/=) on 9th November, 2017 was done before the formal taking of possession envisaged in the provision of Section 120 of the Land Act of 2012, it was the Learned Counsel’s submission That the petitioner was paid promptly and was not entitled to interest on the award made by the 3rd Respondent.

90. As to whether the Petitioner had no claim against the 1st Respondent, the Learned Counsel submitted That the mandate compulsory acquisition was statutorily vested in the 3rd Respondent. He held That the provision of Section 107 (1) of the Land Act 2012 provides as follows:-107. (1) Whenever the national or county government is satisfied That it may be necessary to acquire some particular land under section 110, the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for acquisition of public land to the Commission to acquire the land on its behalf.

91. “The Commission" is defined by section 2 of the Land Act 2012 as follow:-“Commission” means the National Land Commission established by Article 67 of the Constitution;

92. It was the Learned Counsel’s submission That the Petitioner was not entitled to an award of interest but even if they were the provision of Section 125 (1) of the Land Act 2012 provides That the responsibility to pay belongs to the National Land Commission.125. (1)The Commission shall, as soon as is practicable, before taking possession, pay full and just compensation to all persons interested in the land.(2)An acquiring authority shall pay the first offer of compensation to the interested parties before taking possession.

93. The Learned Counsel relied on the case of “Republic – Versus - NLC & 2 Others Ex-Parte Samuel M.N. Mweru & 5 Others [2018] eKLR” where the court held the law imposes the obligation to pay compensation for the compulsory acquisition of land exclusively and squarely on the National Land Commission, the 3rd Respondent herein and not any other person or agency.

94. On the issue of lack of jurisdiction, the Learned State Counsel contention was That this Honourable court lacked jurisdiction to entertain the Petition before it in light of the provisions of Sections 133A and 133 C of the Land Act, 2012 as amended by the Land Value (Amendment) Act, 2019. Section 133A sets up a tribunal known as the Land Acquisition tribunal. It provides as follows:-133A.(1)There is established a Tribunal to be known as the Land Acquisition Tribunal which shall consist of three persons appointed by the Cabinet Secretary through a notice in the Gazette.

95. Section 133C of the Land Act sets out the jurisdiction. The provision Sections 133C (1) and (2) of the Tribunal. It was the Learned Counsel submitted That the Petitioner ought to have moved the tribunal and not the court to deal with the issue of interest as this court has an appellate jurisdiction and not an original jurisdiction.

96. On 9th December, 2022 the 1st Respondent through the Attorney General’s officer, filed further submissions dated 8th December, 2022 further argued That Section 117(1) of the Land Act provides That:If the amount of any compensation awarded is not paid, the Commission shall on or before the taking of possession of the land, open a special account into which the Commission shall pay interest on the amount awarded at the rate prevailing bank rates from the time of taking possession until the time of payment.

97. In the current case the award was made on 3rd March,2016 and the Petitioner was paid on 9th September, 2017 within 1 year and 7 months of the award and before issuance of a Notice of Taking of Possession. The provision of Section 115 of the Land Act provides as follows:-115. (1) After notice of an award has been served on all the persons determined to be interested in the land, the Commission shall, promptly pay compensation in accordance with the award to the persons entitled thereunder, except in a case where-

98. Taking into account Section 2 of the Land Act 2012 That was amended by the Land Value (Amendment) Act, 2019 to introduce the definition of “prompt” so That prompt as used in the Land Act 2012 means:-“within a reasonable time of, and in any case not more than one year after, the taking of possession of the land by the Commission.

99. In conclusion, the Learned Counsel submitted That under the provision of Section 120(1) of the Land Act, 2012 the Petitioner was not entitled to interest as payment was made before taking of possession.

IX. Analysis and Determination 100. I have carefully considered all the filed pleadings pertaining to the Further Amended Petition dated 6th February, 2019, the responses by the 1st and 3rd Respondents herein, the articulate written and oral submissions, the cited authorities the appropriate and relevant provisions of Constitution of Kenya, 2010 and the provisions of the law.

101. For the Honorable Court to reach an informed, just, fair and reasonable decision, it has crystalized the subject matter into the following four (4) salient issues for its determination. These are:-a.Whether this Honourable Court is vested with primary jurisdiction to adjudicate the dispute in this Petition.b.Whether the Constitution Further Amended Petition dated 6th February, 2019 meets the threshold of a Constitution Petition.c.Whether the Petitioner herein is entitled to the relief sought from the filed Further Amended Petition dated 6th February, 2019. d.Who will bear the costs of this Petition.

a). Whether This Honourable Court Is Vested With Primary Jurisdiction To Adjudicate The Dispute In This Petition. 102. Under this Sub – heading, first and foremost, the Honourable Court wishes to deliberate on an issue of Jurisdiction of this Court raised by the 1st and 3rd Respondents herein as a matter of preliminary dispensation. The centrality of the concept of jurisdiction in Kenya’s legal system cannot be gainsaid. Nyarangi JA outlined the significance of jurisdiction in the adjudication of civil disputes in “Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd [1989] KLR 1” in the following words:“I think That it is reasonably plain That a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it at the moment it holds the opinion That it is without jurisdiction.”

103. The Supreme Court of Kenya pronounced itself on the concept of jurisdiction in “Samuel Kamau Macharia & ano – Versus - Kenya Commercial Bank Limited & 2 others [2012] eKLR” as follows:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding That which is conferred upon it by law. We agree with counsel for the first and second respondents in his submissions That the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in In the Matter of Interim Independent Electoral Commission (Applicant), Constitution Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

104. The broad jurisdiction of this court is set out in Article 162(2) of the Constitution as follows:“(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to:(a)employment and labour relations; and(b)the environment and the use and occupation of, and title to, land.”

105. The 1st Respondent has argued the Jurisdiction of the Court is ousted by the Provisions of Section 133B and 133C of the Land Act, 2012(2016) amended by the Land Value (Amended) Act 2019 which sets up a tribunal known as the land Acquisition Tribunal .

106. First and foremost, the provisions of Sections 133A, 133B and 133C of the Land Act, 2012 only deal with the establishment of the land Acquisition Tribunal and also set the terms of office of the members of the tribunals and not otherwise.On the other hand, Section 133C of the Land Act, 2012 provides for the functions and the powers of the tribunal to hear Appeals from decisions of the National Land Commission in matters pertaining to and/or concerning compulsory acquisition to hear such matters of land acquisition issues. They have argued That it gives parties a chance of second appeal before this Court which is an appellate court.

107. Notwithstanding the foregoing, from the onset I beg to point out That the contention by the 1st and 3rd Respondents That this court does not have original jurisdiction on matters pertaining to compulsory acquisition of land, is not well founded. For clarity, the said submissions have missed the import and tenor of the provision of Section 13(2) b of the Environment and Land Court Act, No. 19 of 2011 which provides as hereunder;13. Jurisdiction of the Court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes?(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.(4)In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.(5)Deleted by Act No. 12 of 2012, Sch.(6)Deleted by Act No. 12 of 2012, Sch.(7)In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including?(a)interim or permanent preservation orders including injunctions;(b)prerogative orders;(c)award of damages;(d)compensation;(e)specific performance;(g)restitution;(h)declaration; or(i)costs”

108. Undoubtedly, it is clear from the wording of the Further Amended Petition and from the reliefs sought thereof, the Petitioners are challenging the intended compulsory acquisition of the parcels of land specified in the Gazette Notice. The concept of compulsory acquisition of private land by the state is popularly known as the doctrine of eminent domain. The doctrine of eminent domain refers to the eminent power of the state to compulsorily acquire privately owned land for public use. Scholars, jurists and policy makers concur That when the state requires privately owned land for public use, it cannot be stopped from compulsorily acquiring the privately-owned land.

109. The framers of the Constitution of Kenya 2010 deemed it necessary to provide a clear framework on how the state is to exercise the power of eminent domain. Article 40(3) of the Constitution provides thus:“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:(a)results from an acquisition of land or an interest in land or conversion of an interest in land, or title to land, in accordance with Chapter Five; or(b)is for 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 to the person; and(ii)allows any person who has an interest in or right over, That property a right of access to a court of law.

110. In addition to the above constitutional framework, Part VIII of the Land Act provides an elaborate framework on how the power of eminent domain is to be exercised. Part VIIIA provides a framework on how disputes relating to the state’s exercise of the power of eminent domain are to be adjudicated. Under Section 112 of the Act, the National Land Commission is obligated to publish a notice of intention to compulsorily acquire land on behalf of either of the two levels of Government. The Section obligates the National Land Commission to appoint a date for an inquiry into the intended compulsory acquisition. At the stage of inquiry, the Commission hears issues relating to propriety and claims for compensation by persons interested in the land. Under Section 123, the Commission is mandated to withdraw or revoke a notice of intended compulsory acquisition provided this is done before possession of the land is taken by the Commission.

111. Because of the many disputes That arise in relation to the state’s exercise of the power of eminent domain, Parliament established the Land Acquisition Tribunal. The provision Section 133C of the Land Act sets out the jurisdiction of the Tribunal as follows:1)The Tribunal has jurisdiction to hear and determine appeals from the decision of the Commission in matters relating to the process of compulsory acquisition of land.2)A person dissatisfied with the decision of the Commission may, within thirty days apply to the Tribunal.3)Within sixty days after the filing of an application under this part, the Tribunal shall hear and determine the application.4)Despite subsection (3) the Tribunal may, for sufficient cause shown, extend the time prescribed for doing any act or taking any proceedings before it upon such terms and conditions, if any, as may appear just and expedient.5)If, on an application to the Tribunal, the from or sum which in the opinion of the Tribunal ought to have been awarded as compensation is greater than the sum which the commission did award, the Tribunal may direct That the Commission shall pay interest on the excess at the prescribed rate.6)Despite the provision of Sections 127, 128 and 148(5) a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, be referred to the Tribunal.7)Subject to this Act, the Tribunal has power to confirm, vary or quash the decision of the Commission.8)The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23(2) and 47(3) of the Constitution, using the framework set out under Fair Administrative Action or any other law.

112. In its wisdom, Parliament through the Kenya Gazette No. 15 of 2019 enacted Section 133D of the Land Act, vesting in this court appellate jurisdiction in disputes relating to the exercise of the state’s power of eminent domain in the following terms:(1)A party to an application to the Tribunal who is dissatisfied with the decision of the Tribunal may, in the prescribed time and manner, appeal to the court on any of the following grounds:(a)the decision of the Tribunal was contrary to law or to some usage having the force of law;(b)the Tribunal failed to determine some material issue of law or usage having the force of law; or(c)a substantial error or defect in the procedure provided by or under this Act has produced error or defect in the decision of the case upon the merits.(2)An appeal from the decision of the Tribunal may be made on a question of law only.

113. It is therefore clear from Part VIII and Part VIIIA of the Land Act That disputes relating to propriety and claims for compensation by persons interested in land which is the subject of compulsory acquisition are to be adjudicated by the National Land Commission through the mechanism of inquiry contemplated under Section 112. It is instructive to note That this provision with the term “May” is discretionary. Hence, if there is no satisfactory resolution of the dispute, as it is in the instant case, the next port of call, as a matter of election by the parties would be the Land Acquisition Tribunal established under Section 133A of the Land Act. If a party is dissatisfied with the determination of the Tribunal, the next port of call would this court. In That case, then the appellate jurisdiction of this court would, however, be restricted to issues of law and not facts.

114. From the brief facts of the Petition, the Petitioner claims That on or about 9th January, 2015, the Petitioner was served with a notice of the Government of Kenya’s intention to acquire part of the Suit Property for and on behalf of the 2nd Respondent for the purposes of construction of the Standard Gauge Railway. On 8th May, 2015, the Petitioner made representations in regard to its claim for compensation before the 3rd Respondent at public hearings held by the 3rd Respondent at Changamwe in Mombasa, whereafter the 3rd Respondent promised to deliver a decision in due course.The said decision by the 3rd Respondent has not been was delivered on 2nd March, 2016 as at the date of this Petition and a written award for compensation in the compensation sum was issued on 3rd March, 2016 but the Petitioner has not been compensated.

115. It was after full participation of the full trial of this matter, during the submissions That the 1st Respondent seem to have all of a sudden remembered That this Court did not have jurisdiction to entertain the dispute in this Petition. To me this was the last minute decision and perhaps an afterthought. In so doing, they contend That the Petitioners had invoked the jurisdiction of this court prematurely. They argued That the Petitioner should exhaust the dispute resolution mechanisms.

116. Suffice it to say, and to give the 1st Respondent some benefit of doubt, our courts have umpteen times stated That where Parliament has, through statute, provided a clear procedure for seeking redress, That procedure must be followed. Prior to the promulgation of the Constitution of Kenya 2010, the Court of Appeal reiterated this principle in “Speaker of the National Assembly – Versus - James Njenga Karume [1992] eKLR” in the following words:-“In our view, there is considerable merit in the submission That where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, That procedure should be strictly followed.”

117. The Supreme Court of Kenya rendered itself on this principle in the case of “Benard Murage – Versus - Fine Serve Africa Limited & 3 others [2015] eKLR” as follows:-“Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable That such a statutory remedy should be pursued first.”

118. Not too long ago, the Court of Appeal [Makhandia J] emphasized this principle and stated the following regarding multifaceted pleadings in “Kibos Distillers Limited & 4 others – Versus - Benson Ambuti Adega & 3 others [2020] eKLR” [the Kibos Distillers case]:“To this extent, I find That the learned judge erred in law in finding That the ELC had jurisdiction simply because some of the prayers in the petition were outside the jurisdiction of the Tribunal or National Environmental Complaints Committee. A party or litigant cannot be allowed to confer jurisdiction on a court or to oust jurisdiction of a competent organ through the art and craft of drafting of pleadings. Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs That have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause That ousts the jurisdiction of other competent organs. Neither is original jurisdiction an inclusive clause That confers jurisdiction on a court or body to hear and determine all and sundry disputes. Original jurisdiction simply means the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance. To this end, I reiterate and affirm the dicta That is “Speaker of the National Assembly v James Njenga Karume [1992] eKLR” where it was stated That where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, That procedure should be strictly followed.”

119. The import of the doctrine of stare decisis [precedent] is That where a higher court has made a pronouncement on a question, That pronouncement is the one That prevails on That question. Be That as it may, as I had already started pronouncing herein, I have a few reservations to the fore going and in as far as this matter is concerned. Firstly, I have noted the That the provision of Section 133C (2) which states:-“A person dissatisfied with the decision of the Commission may, within thirty days apply to the Tribunal.Is crafted in a discretionary nature as opposed to be mandatory. A party aggrieved by the decision by the Commission as it is in the instant case may opt to institute an appeal before the tribunal or not. The Petitioners herein decided to institute its case and submit itself before this Court instead.

120. Secondly, it is important to note That the 1st Respondent waited until the point where this Honourable court was to render itself with a final decision before raising the issue of jurisdiction. I do note That the Petitioner approached the 3rd Respondent in regard to its claim for compensation before the 3rd Respondent at public hearings held by the 3rd Respondent at Changamwe in Mombasa. The inordinate and unreasonable delay in raising this objection is unfair, unjust and inexplainable contrary to the doctrines on Judicial authority founded under the provision of Article 159 (1) and (2) of the Constitution of Kenya, 2010.

121. Thirdly, as it has become rather conventional and common where “quasi Judicial bodies” are statutorily created but are never implemented nor properly executed. This Court would have expected e the 1st and 3rd Respondents to have displayed and demonstrated with empirical documentary evidence such as affidavits or otherwise on the existence and operational mechanisms in form of proceeding and/or decisions or precedents emanating from the said Tribunal for the past few days. Without That evidence, this Court would rudely throwing the Petitioners out there in the wilderness contrary to the provisions of Section 70 of the Constitution of Kenya, 2010 and the Doctrine of Exhaustion. This Court in the case of Constitution Petition No 33 of 2021 – Okiya Omtatah Okoiti – Versus – the National Assembly & 5 others” where I equally declined to send the Petitioners away from this Court based on the fact That the Court had no Jurisdiction. I am persuade by the scripture quote from Psalms 121 which the petitioner would querying from this Court in the given circumstances:“I Lift my eyes to the Hills. From whence does my help come? My help comes from the Lord, who made heaven and earth. He will not let your foot be moved, he who keeps you will not slumber…..”,

122. Indeed, it will be an art of abdication and dereliction of duty and its responsibility by this Court to send this matter before the tribunal. That is after the Court will have already heard the matter and the submissions herein from the year 2015 todate after a period of over none (9) years and awaiting to deliver this Judgement to be sending it away to the Tribunal. It is unacceptable.

123. For the above reasons, therefore, it is my finding That this Honourable Court is clothed with the jurisdiction to hear and determine the matters raised from the Further Amended Petition.. The objection is rejected outrightly in the interest of justice.

b). Whether The Constitution Further Amended Petition Dated 6Th February, 2019 Meets The Threshold Of A Constitution Petition. 124. Under this Sub heading, the Honourable Court assesses the Further Amended Petition dated 6th February, 2019. The Petitioner seeks for the following reliefs:-a.A declaration That the Petitioner's rights to acquire and own property guaranteed under Article 40 of the Constitution of Kenya were breached by the Respondents when they contravened if the Government of Kenya, the 2nd Respondent and the 4th Respondent forcefully entered upon and/or otherwise commenced and/or implemented and/or carry-ied out the intended construction of the Standard Gauge Railway on the suit property before prompt payment in full of just compensation is made by the Government of Kenya and/or the Respondents to the Petitioner.b.A declaration That the Petitioner’s rights to fair administrative action guaranteed under Article 47 of the Constitution of Kenya were breached by the 1st and 3rd Respondents is threatened and will be contravened if when the Respondents continued with the implementation and/or commencement and/or construction of the Standard Gauge Railway project on the Petitioner’s property before the 3rd Respondent has had delivered its decision on the Petitioner's claim for compensation;c.An order of Judicial Review in the nature of prohibition and/or otherwise a permanent injunction prohibiting the Government of Kenya, the 2nd Respondent and the 4th Respondent and their employees, servants, agents, assigns, representatives, contractors from unlawfully entering upon and constructing and/or from demolishing, excavating, clearing, destroying or otherwise interfering in any way with the Suit Property namely, L.R No. Mainland North/Section VI/3892 before the Petitioner has been paid just compensation in full;-d.An order That the Respondents do pay to the Petitioner interest on the delayed payments at such rates as are prescribed by law and/or as shall be awarded by this Honourable Court.e.Such other or further orders or directions including an award for damages for violation of the Petitioner's right to property and right to fair administrative action as the Court may deem fit to grant so as to meet the interest of justice;f.The costs of this Petition be awarded to the Petitioner.

125. Additionally, the Petitioner was now claiming;e.A declaratory order for the breach of award and delay in payment of the principal sum.f.The interest for the delay I payment of the principal amount for a period of 2015 to 2017 from the time the Respondent took possession of the suit land.g.The damages.

126. This Honourable Court must establish the constitutional basis of the Petition which is founded under several Paragraphs which include:-a.Article 10 - all state officers and public officers are bound to adhere to national values and principles of governance.b.Article 20 (1) (2) and (3) (b) -protection of fundamental rights to be mandatorily protected by the court by adopting the interpretation That most favors the enforcement of a right or fundamental freedom.c.Article 23 (1) (3) - the right to a conservatory order.d.Article 25-the right to a fair trial.e.Article 27- right to equality and freedom from discrimination.f.Article 40 (1) (2) & ( 3) -right to private property and compulsory acquisition of the property for public use.g.The Petitioner's fundamental rights as set out in the constitution shall be infringed if the interim measures of protection are not granted as stipulated under Articles 22 and 23 of the Constitution of Kenya.

127. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:-This Constitution shall be interpreted in a manner That:-a.Promotes its purposes, values and principles;b.Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;c.Permits the development of the law; andd.Contributes to good governance……”

128. This Court must give a liberal interpretation and consideration to any provision of the Constitution and have regard to the language and wording of the Constitution and where there is no ambiguity attempt to depart from the straight texts of the Constitution must be avoided. Further, it is important to fathom That the Constitution is “a living instrument having a soul and consciousness of its own” . It must always be interpreted and considered as a whole with all the provisions sustaining and coordinating each other and not destroying the other.

129. Based on the principles set out in the edit of the Court of appeal case of “the Mumo Matemu – Versus - Trusted Society of Human Rights Alliance & Another (2013) eKLR provided the standards of proof in the Constitutional Petitions as founded in the case of “Anarita Karimi Njeru –Versus - Republic [1980] eKLR 154 where the court is satisfied That the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:-“Constitutional violations must be pleaded with a reasonable degree of precision…………”Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR said in the year 1876 and which hold true today:“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule……was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing”.

130. In application of these set out principles for filing a Constitutional Petition to this case, the Honourable court is fully satisfied That the Petitioner herein have dutifully complied and fully met the threshold of reasonable precision in pleadings for instituting this Petition against the 1st and 3rd Respondents herein and pleading for the prayers sought.

c). Whether The Petitioner Herein Is Entitled To The Relief Sought From The Filed Further Amended Petition Dated 6Th February, 2019. 131. Under this sub heading, it’s imperative to extrapolate indepth on the concept of Land Compulsory acquisition and in Kenya. The current law or statutory framework governing compulsory acquisition of interest in land is founded under Part VIII, Sections 107 to 133 of the Land Act No. 6 of 2012 and Article 40 (1), (2) and (3) of the Constitution of Kenya (See Viranda Ramji Gudka & 3 Others – Versus - The AG (2014)eKLR as read together with Part V of The Land Regulations of 2017. The process of the compulsory acquisition is in summary provided as follows:-The Article 40 (3) provides as follows:-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—a.results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; orb.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, of just compensation to the person; and(ii)Allows any person who has an interest in, or right over, That property a right of access to a court of law.

132. Under the provisions of the Land Act, No. 6 of 2012, the provisions of Section 107 of the Act holds That, the NLC - the 3rd Respondent herein is ordinarily prompted by the request of the National or County Government through the Cabinet Secretary or County Executive member respectively for authentication of the compulsory acquisition of land are required to submit the request to NLC providing a reason for the land acquisition which must not be remote or fanciful. Strictly, the Land must be acquired for public purpose or in public interest and not any other purpose as dictated by Article 40 (3) of the Constitution of Kenya. In this case the threshold must be met. Significant variation in the law includes the provision of Section 107 (3) of the Land Act, of 2012 which gives the NLC powers to reject a request for acquisition if it establishes That the requirement prescribed in Section 107 (3) of the Land Act and Article 40 (3) of the Constitution of Kenya. Under the provision of Section 108, as part of the NLC’s due diligence, it must ensure That the land to be acquired is authenticated by the survey department to ascertain the real owner. It must be satisfied That the purpose for public use has been met through conducting intense inquiry That the land is suitable for the intended acquiring body. (See “Nas Auto Spares – Versus – Land Acquisition & Compensation Tribunal & 2 Others (2015) eKLR). This process is thereafter followed by a verification meeting (See Section 107 (2) with the acquiring body where the latter provides a list of affected parcels of land and the respective owners, title searches details, Cadastral Maps of the affected areas, a Resettlement Action Plan (RAP) accompanied by a list or Persons Affected by the Project (PAPs) so That their applications can be put into consideration. Under the provisions of Sections 107 (5) & 110 (1) of the Act, the 3rd Respondent upon approval of a request for the compulsory acquisition a Notice of the intention to acquire the land is published in the gazette and County gazette. A notice must clear. Failure to give notice in itself is a denial of the natural justice and fairness. The notice is delivered to the Land Registrar as well as every person who appears to have an interest in the land. The NLC should also ensure That the land to be acquired is georeferenced and authenticated by the authority responsible for survey department both County and national governments – Section 107 (8) of the Land Act for the identification of the legal owner. In the course of such inquiries the NLC 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 as stated out under Section 108 of the Land Act. This preliminary or per inquiry stage of the land acquisition is merely undertaken by the NLC.

133. The land owners plays no role at all hereof. Under the provision of Section 112 of the Land Act is where the land owner gets to be involved directly for purposes of determining proprietary interest and compensation. The section makes an elaborate procedure where at least 30 days after the publication of the notice of intention to acquire land in gazette and at least fifteen (15) days before the actual date of inquiry of an intended inquiry. The NLC is required to serve the notice of inquiry on every person who appears to have an interest on the land in question. The inquiry hearing determines who the interested persons are based written claims for compensation received by the NLC by the date of the inquiry (See Section 112 (2) of the Act. At this stage, the NLC exercises a quasi - judicial powers.

134. For purposes of conducting this inquiry, the NLC has powers of court to summon and examine witnesses including the interested persons and the public body for whose land is acquired and to administer oaths, affirmation and to compel production of documents and delivery of title documents (See Section 112 (5) of the Act 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 or land in lieu of the monetary award of land of equivalent value is available. Once the award is accepted, it must be promptly paid by the NLC. Where it is not accepted then the payment is to be made into a special compensation account held by the NLC – as stated under the provision of Sections 113-119 of the Act. If the Land is so acquired the compensation which is just, adequate, full and prompt is to be to persons affected by the project or have interest on the land under the provision of Section 111 of the Act.

135. Upon the conclusion of the inquiry, the NLC makes compensatory awards to every person whom it has determined to be interested in the land after serving such person with a notice of award and offer of compensation. (See. Sections 113 & 114). Adequate and conclusive compensation can also be in form of land if available, whose value is not exceed That amount of money the NLC considers should have been awarded (See. See Section 142 (2). Once the award is accepted, it must be promptly paid by the NLC, after which the process of compulsory acquisition of land is completed by the taking possession of the Land in question being taken by the NLC. The property is 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. Where the award is not accepted then the payment is made into a special compensation account held by NLC and which NLC shall pay interest on the amount awarded at the prevailing bank rates from the time of taking possession until the time of payment and such award is not subject to taxation. A compensation award can be successfully reviewed by court when there has been an error in assessing an award payable through the misapprehension of the nature of the user of property in question as envisaged under the provision of Sections 120-122 of the Land Act.

136. In the case Patrick Musimba (Supra) the word compensation was viewed as carrying a corollary That the loss to the seller must be completely made up to him on the ground That unless he receives a price That fully equaled his pecuniary detriment the compensation would not see equivalent to the compulsory sacrifice. Just compensation is therefore mandatory. It should be prompt and in full, and should use principles of equivalence but must also protect coffers from improvidence. Therefore, from the above detailed statutory analogy, its clear That the compulsory acquisition of Land by the state for public use is ordinarily a creature of statute. While this is the case, the citizens should not be deprived, disowned and/or dispossessed of their land by the state or any public authority whatsoever against their wish unless expressly authorized by law and public interest also decisively demands so. The citizen has to be protected from wanton and unnecessary deprivation of their private property. There is no doubt to the fact That deprivation of a person’s private property against their will is an invasion of their proprietary rights. There is no contention That while the state is indeed entitled to compulsory acquisition rights of land for public use this fundamental rights must be keen and exercised with circumspect to be checked lest it is being done merely as an abuse and sheer whimsical gimmick to deprive the citizen their private rights. It’s a extremely delicate balance to be weighed with utmost case.

137. In what has now become “the Classicus Locus” case on compulsory acquisition of land, the case of: “Patrick Musimbi –Versus - National Land Commission & 4 Others” Petition No. 613 of 2014” held inter alia:-“As the taking of a person’s property is a serious invasion of his proprietary rights, the application of constitutional or statutory authority for the deprivation of those rights require 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 intentions is always the protection rather than interference with the proprietary rights………………….the power to expropriate private property as donated in the State by both the Constitution and statute law (the Land Act) leaves the private land owner with no alternative. The power involves the taking of a person’s land against his will. It is a serious invasion of his proprietary rights through the use of statutory authority. The private land owner has no alternative but wait for compensation. It is consequently necessary That the court must remain vigilant to see to it That the State or any organ of the State does not abuse the constitutional and statutory authority to expropriate private property. It is on this basis That courts have consistently held That the use of statutory authority to destroy proprietary rights requires to be most carefully scrutinized. Just compensation is mandatory”

138. In application of these principles to this case, it is seen That, the Petitioner’s parcels of land known as the brief facts of the case were That the Petitioner commenced the present proceedings by way of a Petition dated 10th September 2015, due to a dispute arising over the compulsory acquisition of a portion of its property known as Plot No.MN/VI/3892 (the Suit Property) by the 2nd Respondent. At the time, the 3rd Respondent had conducted an inquiry as to compensation but failed to render its award. The Petitioner was also apprehensive That the Respondents would forcefully enter the Suit Property and commence construction before the acquisition process was finalized. Accordingly, on 17th September 2015, the Petitioner sought and obtained conservatory orders prohibiting the Respondents from invading the Suit Property, interfering with the developments thereon and from constructing on the Suit Property, which orders were duly served upon the Respondents.

139. On 20th October 2015 and ostensibly in breach of the conservatory orders, the Respondents and/or their servants, employees, contractors and/or agents, invaded the Suit Property, demolished the Petitioner's boundary wall, and commenced construction. Consequently, the Petitioner filed an application dated 22nd October 2015, citing the Respondents and their officials for contempt and/or breach of the conservatory orders (the Contempt Application). On 9th November 2017, before both the Petition and Contempt Application could be heard and determined, the Petitioner was paid the sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) as compensation for both the acquired portion of the Suit Property and the demolished boundary wall. However, undisputedly, by then the 2nd and 4th Respondents had already gotten into and taken possession of the Suit Property since 20th October 2015. Given the aforementioned developments, the Petitioner amended its Petition to set out the new facts and to include prayers for interest for the delayed payment of compensation as well as damages for violation of its right to property and fair administrative action. Accordingly, it is not in dispute That the final award of compensation of the sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) paid more than two (2) years after the 2nd and 4th Respondents had taken possession of the Suit Property. They must have been in breach of the principle of prompt and just compensation guaranteed under Article 40 (3) of the Constitution. In expropriating the Suit Property without following due process laid out in the Constitution and statute, the Respondents violated the Petitioner’s right to property. It is instructive to note That all this time the Petitioner could not utilize the land. A clear case of eating the cake and having it. The provision of Section 125 provides That:-“the Commission shall, as soon as is practicable, before taking possession, pay full and just compensation to all persons interested in the land.”Therefore, it followed That the 3rd Respondent bore the responsibility of ensuring That all the procedures relating to compulsory acquisition of the Petitioner’s property are complied with in so far as the provisions of Sections 114, 115 (1) and 125 of the Land Act, as well as Article 40 (3) of the Constitution, are concerned. Moreover, by dint of Section 125 of the Land Act, the 3rd Respondent must ensure That the funds required for the acquisition are within its control so That as soon as the formalities of valuation and award were completed but before possession of the land was taken, the proprietor of the land was fully compensated. The Respondents’ action to take possession of the Suit Property without complying with the statutory process of compulsory acquisition was therefore illegal, null and void.

140. Further, it was not in dispute, I reiterate That, the 2nd and 4th Respondents forcefully took possession of the Suit Property on 20th October 2015 and/or otherwise carried out the intended construction of the Standard Gauge Railway on the Suit Property before a notice of award was issued and prompt payment in full of just compensation, was made to the Petitioner. Indeed, payment of compensation was made on 9th November 2017, more than 2 years after the Respondents forcefully took possession and permanently dispossessed the Petitioner of the Suit Property. I emphasize That this was a breach of the Petitioner's right to acquire, own property and be paid full and just compensation before possession was taken, as guaranteed under Article 40 of the Constitution of Kenya. Similarly, the procedural impropriety exhibited by the 3rd Respondent, as afore detailed, amounted to a breach of the provision of Article 47 (1) of the Constitution.

141. Regarding the issue of the interest on compensation award, after the delay as stated herein. The 1st and 3rd Respondents have strongly contended That interest in the subject matter could only accrue and become due under the provision of Sections 117 and 120 of the Land Act, No. 6 of 2012 on the basis after the 3rd Respondent has issued a notice of formal taking possession. According to them, the 3rd Respondent had not as yet issued the said notice and hence no interest could accrue. I totally differ with That argument in the given circumstances for the following reasons. Firstly, from the facts and inferences herein, the award was given in the year 2015. Immediately, 2nd and 4th Respondents forcefully invaded the suit land, demolished the boundary/perimeter wall and commenced the construction of the SGR. Secondly, thus the argument That for interest to accrue would only be after the statutory and formal possession has taken place would preposterous as it would mean only benefiting the 3rd Respondent and allowing them into invading private without paying compensation and interest mainly as there was no formal notice issued by them for taking possession. Very unfair and a mockery indeed. Why blame the Petitioner for the failures of the Petitioners. Thirdly, the provision of Section 120 never provides any dictum or conditions for the issue of the said notice. The 3rd Respondents would deliberately take their time as work was going on. Fourthly, the requirement to pay interest on compensation award was a provision of the law. The provision of Section 117 (1) of the Land Act provides That:-“If the amount of any compensation awarded is not paid, the Commission shall on or before the taking of possession of the land, open a special account into which the Commission shall pay interest on the amount awarded at the base lending rate set by the Central Bank of Kenya and prevailing at That time from the time of taking possession until the time of payment.”

142. In addition, Sub - section 2 provides That:-“If additional compensation is payable...there shall be added to the amount of the additional compensation interest thereon at the base lending rate set by the Central Bank of Kenya and prevailing at That time, from the time when possession was taken or compensation was paid, whichever is earlier.”

143. The interest rate applicable is as provided above “the base lending rate set by the Central Bank of Kenya and prevailing at That time from the time of taking possession until the time of payment.”That the base lending rate set by the Central Bank of Kenya (the CBK Rates) finding on the applicable CBK Rates especially noting That this was a matter of general notoriety of which the Court may take judicial notice of under Section 60 (1) (a) of the Evidence Act. The law above was crystal clear That interest was payable where payment of compensation was made following taking of possession. Similarly, That such interest applied to both compensation award for the acquired property as well as any additional compensation payable to person(s) interested in the acquired land. In addition, the rate of interest is prescribed as the base lending rate set by the Central Bank of Kenya and prevailing at That time, from the time when possession was taken or compensation was paid, whichever was earlier. Besides, the 2nd and 4th Respondents had invaded the Suit Property on 20th October 2015 and commenced with construction of the Standard Gauge Railway. Accordingly, possession was taken on the said date of invasion as the Petitioner was unlawfully dispossessed of ownership and possession of the Suit Property.

144. Therefore, I strongly hold That the Petitioner is entitled to interest at a rate of not less than 12% from the date of taking possession of the delayed payment of the principal sum of Kenya Shillings Three Eighty One Million One Twenty Five and Seventy One Thousand (Kshs. 381,125,071/-) (for the acquired property as well as compensation for the damaged boundary wall) amounting at a sum of Kenya Shillings One Hundred and One Million Five Thirty Four Thousand Six Thirty Hundred (Kshs. 101, 534, 630. 00/=) . It should be payable from the date when the 2nd and 4th Respondents invaded the Suit Property and/or forcefully took possession without payment of full and just compensation.

145. Further, the Petitioner is also entitled to general damages as founded under the provision of Section 13 (1) of the Environment and Land Act No.19 of 2011 which gives this Court discretion to grant any orders it deemed fit, including an award for damages. The provision reads as follows “In exercise of its jurisdiction under this Act, the Court (Environment and Land Court) shall have power to make any order and grant any relief as the Court deems fit and just, including...compensation...award for damages.”

146. Suffice to it say, the main quest in the matter is compensation. As was stated by Scott L.J. in relation to compulsory acquisition in the case of “Horn –VS- Sunderland Corporation [1941] 2KB 2640 “The word “Compensation” is almost of itself carried the corollary That the loss to the seller must be completely made up to him, on the ground That unless he receives a price That fully equated his pecuniary detriment, the compensation would not be equivalent to the compulsory ……………”Based on the above legal expose, the Law demands That where land has been acquired compulsory from an owner That just compensation is to be paid in full to the said affected person(s). This is in line with the Constitutional requirement under Article 40 (3) of the Constitution of Kenya and That person should not be deprived of their property of any description unless the acquisition is for a public purpose and subjected to prompt payment in full of just compensation. For these reasons, I strongly hold That the Petitioner is well entitled to the reliefs sought from the Further Amended Petition dated 6th February, 2019 herein.

c). Who will bear the costs of this Petition. 147. It is not well established That and from Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules 2013, the award of costs is at the discretion of the Cost.

148. In exercising its discretion to award costs, the court shall take appropriate measures to ensure That every person has access to court to determine their rights and fundamental freedoms. The Proviso of the Provisions of Section 27(1) of the Civil Procedure Act Cap 21 holds That costs follow the event. By event it means the results of the legal action or process in any litigation (see the Supreme Court Case of Jasbir Rai Singh Rai – Versus- Tarhochan Singh (2014) eKLR and Mary Wambui Munene –Versus- Ihururu Dairy Cooperative Societies eKLR (2014). The Courts held:“the basic rule on attribution of costs is That Costs follow the events…it is well recognized That the principles That costs follow the events is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case.”

149. In the instant case the Petitioner has succeeded in protecting its case and gotten the orders sought. Thus, they are entitled to costs.

X. Conclusion and Disposition 150. In the long run, having intensively and thoroughly deliberated on all the framed issues herein, this Honorable Court arrives at the finding That: -a.That notwithstanding the provisions of Sections 133A and 133C of the Land Act, No. 6 of 2012 as Amended by the Land Value (Amendment) Act, 2019 which are couched in discretionary manner, this Honourable Court has Jurisdiction to hear and determine this Petition through the Further Amended Petition dated 6th February, 2019. b.That Judgment be and is hereby entered in favour of the Petitioner in terms of the Further Amended Petition dated 6th February, 2019 in its entirety with costs.c.That a declaration be and is hereby made That the Petitioner's rights to acquire and own property guaranteed under Article 40 of the Constitution of Kenya were breached by the 1st, 2nd, 3rd and 4th Respondents herein when they contravened the Government of Kenya, the 2nd Respondent and the 4th Respondent forcefully entered upon and/or otherwise commenced and/or implemented and/or carry-ied out the intended construction of the Standard Gauge Railway on the suit property before prompt payment in full of just compensation was made by the Government of Kenya and/or the 3rd Respondent to the Petitioner.d.That a declaration be and is hereby made That the Petitioner’s rights to fair administrative action guaranteed under the provision of Article 47 of the Constitution of Kenya, 2010 were breached by the 1st and 3rd Respondents was threatened and contravened when the Respondents continued with the implementation and/or commencement and/or construction of the Standard Gauge Railway project on the Petitioner’s property before the 3rd Respondent had delivered its decision on the Petitioner's claim for compensation;e.That an order of Judicial Review in the nature of prohibition and/or otherwise a permanent injunction be and is hereby made prohibiting the Government of Kenya, the 2nd Respondent and the 4th Respondent and their employees, servants, agents, assigns, representatives, contractors from unlawfully entering upon and constructing and/or from demolishing, excavating, clearing, destroying or otherwise interfering in any way with the Suit Property namely, L.R No. Mainland North/Section VI/3892 before the Petitioner has been paid just compensation in full;-f.That an order be and is hereby made That the 3rd Respondent do pay to the Petitioner a sum of Kenya Shillings One Hundred and One Million Five Thirty Four Thousand Six Thirty Hundred (Kshs. 101, 534, 630. 00/=) as the interest accrued on the delayed payments after taking possession for a period of three (3) years from 19th October, 2015. g.That an order That the Petitioner be awarded general and exemplary damages at 5% of the principal sum arising from the delay in the payment of the award of compensation from the compulsory acquisition of the suit land.h.That costs of the suit to be awarded to the Petitioner to be borne by the 3rd Respondents jointly and severally.

It is so ordered accordingly.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS 6th DAY OF NOVEMBER, 2023. HON. JUSTICE L.L. NAIKUNI (MR.)Judgement delivered in the presence of:-a. M/s. Yumna – The Court Assistantb. M/s. Kamau Advocates holding brief for M/s. Onesmus Advocate for the Petitioner.c. No appearance Advocates for the 1st Respondentd. Karina Advocate for the 2nd & 4th Respondentse. No appearance for the 3rd Respondent.