Igainya Ltd v National Land Commission & another (Tribunal Appeal E011 of 2026) [2026] KELAT 19 (KLR) (9 June 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LAND ACQUISITION TRIBUNAL CASE NUMBER: TRLAP/E011/2026 IGAINYA LIMITED VS THE NATIONAL LAND COMMISSION AND KENYA URBAN ROADS AUTHORITY # JUDGMENT ## The Petition 1. The Petitioner avers that it is the registered proprietor of all that parcel ofland known as L.R. No. 7815/8 situated along Mombasa Road in Machakos County (hereinafter, the suit property). In support thereof, the Petitioner relies on a copy of the title document for the suit property issued on 9 August 1996. 2. It is the Petitioner’s case that around December 2022, the 2nd Respondent started excavating a portion of the suit land for purposes of constructing a road which road project has been completed. The Petitioner avers that it came to discover that a portion of the suit property had been compulsorily acquired by the 2nd Respondent for that construction. This was done, the Petitioner avers, without following the due process for compulsory acquisition under the Land Act. 3. The Petitioner contends it followed up with the Respondents through lettersdated 23 February 2023 and 16 April 2024 asking that due process be followed in the acquisition. Via letter dated 29 April 2024, the 2nd Respondent wrote back to the Petitioner stating that it had submitted a request to the 1st Respondent for compulsory acquisition of a portion of the suit property measuring 2.882 Ha. The Petitioner avers that it has not received any further communication prompting a further letter dated 13 October 2025 seeking to be compensated. 4. The Petitioner contends that it has ascertained that a portion of the suitproperty measuring 2.882 has indeed been affected by the activities of the 2nd respondent and that portion has been valued by the Petitioner’s valuers at Kshs. 688,780,000.00. 1. Consequently, the Petitioner avers that its rights under Article 40(3) toproperty and under Article 47 (1) & (2) to fair administrative action of the Constitution have been violated. The Petitioner prays for the following reliefs: 1. A declaration that the purported compulsory acquisition of landparcel known as LR. No. 7815/8 situated within Machakos county by the 2nd Respondent without adhering to strict and mandatory provisions of the Land Act 2012 violates the Petitioner’s constitutional right guaranteed under article 40(3)(a) & (b) of the Constitution of Kenya, 2010; * 1. A declaration that failure by the Respondents to comply with themandatory process of the Land Act 2012 on compulsory acquisition violates the Petitioner’s constitutional right to fair administrative action that is lawful, reasonable and procedurally guaranteed under article 47(1) of the Constitution; * 1. A declaration that the certificate of title held by the Petitioner inrespect of LR. No. 7815/8 situated within Machakos county constitutes conclusive evidence that the Petitioner is the absolute and indefeasible owner of the suit property and the 2nd Respondent has no legally recognised right over the property; 2. A declaration that the purported compulsory acquisition of the suitproperty without complying with the mandatory provisions of the Land Act 2012 is invalid, null, unlawful and/or irregular and an affront to Articles 40 and 47 of the Constitution; * 1. A judicial review order of mandamus calling into this Tribunal andcompelling the 1st Respondent to value at the current market rate the acquired portion of the suit property and issue an award for compensation to the Petitioner; 2. A judicial review order of mandamus calling into this Tribunal andcompelling the 2nd Respondent to disburse the compensation sums to the 1st Respondent for onward transmission to the Petitioner; 3. In alternative to prayer (e) above, an order directing theRespondents to jointly and severally compensate the Petitioner an amount of Kshs. 688,780,000.00; 4. An order of general damages for violation of constitutional rights toown and enjoy property and to administrative action that is lawful, reasonable and procedurally fair; 5. Compensation in form of mesne profits for trespass and/or loss ofincome as a result of the 2nd Respondent’s trespassing on land parcel LR No. 7815/8; * 1. Costs of the Petition; 2. Any other relief that this Tribunal may deem just, equitable, andexpedient to grant in the circumstances. 1. The Petition is supported by the supporting affidavit of Mr. IsaacGathungu, who is a director of the Petitioner, sworn on 5 March 2026. Mr. Gathungu reiterates the averments of the Petition and prays for the Petition to be allowed. ## The Responses 1. The 1st Respondent responded to the Petition through the replying affidavit of Austin Odhiambo – its senior valuation & taxation officer – sworn on 20 April 2026. The 1st respondent acknowledges receiving a letter dated 27 January 2025 from the Cabinet secretary for the Ministry of Roads and Transport on behalf of the 2nd Respondent for acquisition of land for the construction of Access Road to Daystar and East Africa Portlands Affordable Housing Project in Machakos County. This letter was further to another letter of 22 January 2024 which had requested the 1st Respondent to acquire a portion measuring approximately 2.882 hectares of the suit property. 2. However, the 1st Respondent avers, despite receiving the request for acquisition, it has not published an intention to acquire because it has not received the necessary funds to undertake the acquisition and to compensate project affected persons. The 1st Respondent, therefore, distances itself from any activities of the 2nd Respondent on the suit property averring that no acquisition has been undertaken. Nevertheless, the 1st respondent contends that it has recently undergone a transition period and it is now fully constituted after a period when it did not have commissioners in office. 3. The 2nd Respondent responded to the Petition through a replying affidavit sworn by Paul Owino Adak – its Assistant Director for Surveys – sworn on 30 March 2026. Mr. Adak avers that the 2nd Respondent undertook a project to rehabilitate several roads including 25 kilometres of access roads serving the proposed affordable housing development within the Athi River area under the Athi Smart City Project whereupon it realised that certain sections of the road realignment traversed privately owned property including the suit property. This, he avers, necessitated regularisation of the corridor through formal compulsory acquisition. 4. Mr Adak avers, however, that prior to the 2nd Respondent’s activities on the suit property, the road section traversing the suit property was an existing road alignment that had been in use by the public prior to the 2nd respondent’s formal involvement. He contends that the 2nd Respondent’s involvement was primarily the upgrading of the road to bitumen (tarmac) standards to facilitate access to the proposed affordable housing development and supporting infrastructure. 5. Nevertheless, Mr. Adak avers, the 2nd Respondent formally submitted a request for compulsory acquisition of a portion of the suit property measuring 2.882 hectares to the 1st Respondent vide a letter dated 22 January 2024. This was also followed by a letter dated 27 January 2025 from the Cabinet Secretary. 6. The 2nd Respondent denies the proposition that the suit property was acquired without due process and avers that the process is ongoing. The 2nd Respondent also contends that any valuation conducted by the Petitioner is premature and without the framework of the formal inquiry process under the Land Act. ## Analysis and Determination 1. Parties filed rival submissions identifying issues for determination with thePetitioner filing submissions dated 21 April 2026 and the 1st Respondent’s submissions dated 29 April 2026. The 2nd Respondent did not file any submissions within the timelines stipulated. The issues identified for resolution are whether there was compulsory acquisition of the suit property; whether the Petitioner’s rights to property and to fair administrative action have been infringed; and, whether the Petitioner is entitled to the reliefs sought. We shall address these issues and other sub-issues that are evident in the pleadings in the analysis below. 2. The process of compulsory acquisition of land is laid down in Part VIII ofthe Land Act. However, the starting point is the Constitution. Article 40(3) of the Constitution 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-* * 1. *results from an acquisition of land or an interest in land or aconversion of an interest in land, or title to land, in accordance with* *Chapter Five; or* * 1. *is for a public purpose or in the public interest and is carried outin 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.* 15. Under Part VIII of the land Act, 2012, the process starts with a checkpoint under Article 40(3) whereby the National Land Commission has to satisfy itself that the intended acquisition meets the constitutional threshold. The Commission is prompted by an acquiring body (which is a county or national government) requesting it to acquire land on its behalf. At this stage, the Commission must satisfy itself that the acquisition meets the constitutional threshold – that the land sought to be acquired will serve a public purpose or is in the public interest. 1. Upon being satisfied that the request from an acquiring body meets theconstitutional requirement, the Commission is required to publish a notice in the Kenya Gazette of an intention to acquire the land earmarked for acquisition.**[1]** This notice will ordinarily identify the parcel or portion of land sought to be acquired and the ownership details. At this stage, the Commission is expected to have conducted the necessary due diligence about the identity of the parcel of land to be acquired and to have geo-referenced the same while guided by the acquiring authority’s acquisition plan. The law requires that such a notice must be served upon all the project affected persons.**[2]** 2. Upon publication of the notice of intention to acquire, the Commission isrequired to publish a notice in the Kenya Gazette for purposes of conducting an inquiry.**[3]** The inquiry is a quasi-judicial process to determine the interests affected and to receive representations from project affected persons before making an award.**[4]** It goes without saying that project affected persons must again be served with this notice.**[5]** 3. On completion of the inquiry, the Commission is required to issue anaward to each project affected person whose interests have been determined.**[6]** The notice of award and offer of compensation is also to be served on each person whom the Commission has determined to be interested in the land.**[7]** Thereafter, the Commission is required to promptly pay compensation unless the person entitled to compensation does not consent to receive the amount awarded.**[8]** The acquired land is then vested in government and the Commission is required to conduct a final survey,**[9]** and to cause issuance of new titles to that effect.**[10]** This marks the end of the process. 4. The facts underpinning this dispute are not in contention. The parties donot dispute that the process as outlined above has not been undertaken. The process has not even been commenced with the issuance of a notice of intention to acquire. However, it is evident that a request for acquisition of a portion of the suit property has been made by the Cabinet secretary for acquisition of 2.882 hectares of the suit property. The 1st respondent, however, contends that it has not commenced the process for the reason that it was in a transition and that the 2nd respondent has not availed the necessary funds for the process and for compensation. 5. The facts are also not in contention that the 2nd Respondent has undertaken some activities on a portion of the suit property which it intends to acquire. These activities involve rehabilitation of a road that serves the affordable housing project. The 2nd Respondent, however, contends that the road existed as a public road prior to its activities. This averment is difficult to accept. Even though we were to accept that a road existed on the suit property as the 2nd Respondent contends, undertaking activities for its rehabilitation without confirming its status either through survey reports or its records is evidence of a violation of the Petitioner’s rights under Article 40(3). We hereby make a finding that the 2nd Respondent has violated the rights of the Petitioner by trespassing into a portion of the suit property measuring 2.882 hectares. It is also evident that the 2nd Respondent’s actions which were followed up with enquiries by the Petitioner through letters in 2023, 2024 and 2025 were undertaken in contravention of the Petitioner’s rights under Article 47 of the Constitution. 6. On whether the Petitioner is entitled to the reliefs sought, we notice thatthe 1st Respondent has not undertaken any process of compulsory acquisition of land but is ready to undertake the same subject to availability of funds from the 2nd Respondent. We have also considered whether the Petitioner should be compensated the sum of Kshs. 688,780,000.00 pursuant to its own private valuer. The Petitioner is entitled to compensation for the compulsory acquisition of its property and the appropriate remedy considering the circumstances of this case are to require the 1st respondent to undertake the process of compulsory acquisition of land and to issue an award of compensation. 7. However, considering our findings that the 2nd Respondent has unlawfully occupied the Petitioner’s land since the year 2023, it is our finding that the Petitioner is entitled to damages for trespass. Oguttu Mboya J, in [***Ngoje & 7 others v National Irrigation Authority & another [2025] KEELC 771 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/771/eng%402025-02-14)observed as follows: *188…It is instructive to recall and reiterate that the law on trespass is to the effect that trespass is actionable per se. In this regard, the moment a claimant proves trespass then the court chargeable with handling the matter in question is obligated to award damages for trespass.* *189.The manner of assessing and awarding damages for trespass to land is now well documented and settled. Suffice it to state that the court concerned is enjoined to take into account the size of the land trespassed upon; the duration of trespass; the gravity of the actions complained of; the nature of benefits, if any, accrued to the trespasser and the location of the property trespassed upon. Additionally, where the factors are aggravating, the court is obligated to enhance the award of general damages.* 1. The Court of Appeal in ***Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] eKLR*** has elaborated that the essence of such damages is to make up for the loss the affected party has suffered as a result of the unlawful occupation of its property. The Court held as follows: *The damages so awarded are intended to return the party back to the position he or she was in before the wrongful act was committed.* ***Halsbury’s Laws of England******4th Edition Volume 45 para 26 1503*** *provides as follows on computation of damages in an action for trespass:* * + 1. *If the Plaintiff proves the trespass, he is entitled to recovernominal damages even if he has not suffered any actual loss* 2. *If the trespass has caused the Plaintiff actual damage, he isentitled to receive such amount as will compensate him for his loss* 3. *Where the Defendant has made use of the Plaintiff’s land, thePlaintiff is entitled to receive by way of damages such an amount as would reasonably be paid for that use* 4. *Where there is an oppressive, arbitrary or unconstitutionaltrespass by a Government official or where the Defendant cynically disregards the rights of the Plaintiff in the land with the object of making a gain by his unlawful conduct, damages may be awarded* 5. *If the trespass is accompanied by aggravating circumstanceswhich do not allow an award of exemplary damages, general damages may be increased”* ***[****Emphasis ours.]* 1. It is our finding that an award of damages of the sum of Kshs.3,000,000.00 assessed at Kshs. 1,000,000.00 per year from the year 2023 is sufficient compensation for trespass. We also make an award of Kshs. 2,000,000.00 for violation of the Petitioner’s rights under Article 40(3) and Article 47 of the Constitution. 2. For the foregoing reasons, we hereby make the following orders: 1. *A declaration be and is hereby issued that the 2nd Respondent has violated the Petitioner's rights as enshrined under Article 40(3) and 47(1) of the Constitution of Kenya 2010, the Fair Administrative Act, and part VIII of the Land Act No 6 of 2012.* 2. *An order be and is hereby issued directing the 1st Respondent to undertake to completion the process of compulsory acquisition of a portion measuring 2.882 hectares of LR. No. 7815/8 belonging to the* *Petitioner within a period of 45 days from the date of this judgement;* * 1. *An order be and is hereby issued directing the 2nd Respondent to pay the Petitioner general damages for trespass assessed at the sum of* *Kshs. 3,000,000.00;* * 1. *An order be and is hereby issued directing the 2nd Respondent to pay the Petitioner general damages for violation of the Petitioner’s rights assessed at the sum of Kshs. 2,000,000.00;* 2. *Costs of the Petition shall be borne by the 2nd Respondent.* 1. This matter shall be mentioned in 60 days to confirm compliance. 2. Orders accordingly ## Dated and Delivered at Nairobi this 9th Day of June 2026 **Hon. Nabil M. Orina, PhD** **Chairperson** **Hon. George Supeyo** **Member** **Hon. Ruth Okal** **Member** ## FOOTNOTES [1] Section 107(5) of the Land Act, 2012. [2] Section 131(1)(d), *ibid.* [3] Section 112 (1) (a), *ibid.* [4] Section 112 (5), *ibid.* [5] Section 112 (1) (b), *ibid.* [6] Section 113 (1), *ibid.* [7] Section 114 (1), *ibid.* [8] Section 115 (1), *ibid.* [9] Section 118 (1), *ibid.* [10] Section 118 (2), *ibid.* ***Page 19 of 19*** SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **DR. NABIL ORINA** **GEORGE SUPEYO** **HON. RUTH ACHIENG OKAL** Land Acquisition Tribunal Tribunal Date: 2026-06-20 11:31:17 |