[2024] KELAT 510 (KLR)

James Finlay (Kenya) Ltd v National Land Commission & another (Tribunal Case 1 of 2023) [2024] KELAT 510 (KLR) (30 January 2024) (Judgment)

Neutral citation: [2024] KELAT 510 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case 1 of 2023

NM Orina, Chair & G Supeyo, Member

January 30, 2024

Between

James Finlay (Kenya) Ltd

Applicant

and

The National Land Commission

1st Respondent

The County Government of Kericho

2nd Respondent

Judgment

Background 1. This case was first instituted on 18th November 2021 at the Environment and Land Court - Kericho through a Petition. Pursuant to leave of the Court, the Applicant later amended the pleadings and filed an Originating Motion on 27th June 2023. The matter was thereafter transferred to the Tribunal after it was duly constituted for hearing and disposal.

2. On the 29th October 2021, the Chief Officer – Land, Housing and Physical Planning of the 2nd Respondent wrote to the Applicant indicating that the officers of the 2nd Respondent would be visiting the Applicant’s property otherwise known as L.R. No. 5468 (the suit property) on 3rd November 2021 for purposes of carrying out a survey and demarcation on the said suit property. It was indicated in the said letter that this was pursuant to an approval for acquisition of land granted by the 1st Respondent via letter dated 22nd April 2020. 22See, Cambridge Dictionary (online). Available at https://dictionary.cambridge.org/dictionary/english/uponFOOTNOTE 1The 2nd Respondent’s letter dated 29th October 2021 indicates that the 1st Respondent’s letter is dated 22nd April 2021. The letter which is attached to the Affidavit of Joel Bett and marked “JKB-4” sworn on 11th January 2022 is however dated 22nd April 2020.

3. On 2nd November 2021 the Applicant, through its Managing Director, wrote back to the 2nd Respondent indicating that it had not received any notices from the 1st Respondent and therefore it shall not be granting access to the 2nd Respondent for purposes of conducting the intended survey.

4. The 2nd Respondent responded to the Applicant’s letter dated 2nd November 2021 forwarding a copy of the letter from the 1st Respondent that requested for some information which the 2nd Respondent was seeking to obtain from the intended survey on the suit property.

5. Following this stand-off, the Applicant instituted this suit and sought reliefs from the Court as addressed below.

The Applicant’s Case 6. The Applicant alleges that the Respondents have breached Section 107(5) of the Land Act, Section 107(5A) of the Land Value (Amendment) Act 2019 and Rules 22 and 23 of the Land Regulations 2017. It is contended that once an application for compulsory acquisition is received by the 1st Respondent notification to affected parties under the said legal provisions is mandatory and must be issued at the onset and not at a later stage. In this case, the Applicant argues, the 1st Respondent ought to have issued within thirty (30) days, a gazette notice, an advertisement in the daily newspapers and effected personal service upon the Applicant on 9th February 2019 after receipt of the 2nd Respondent’s application dated 8th January 2019.

7. The Applicant further avers that as a result of the said breaches, the Respondents are in contravention of the Applicant’s inalienable constitutional rights under Article 40(1) and 40(3)(a) and (b) of the Constitution. In particular, Rule 23 of the Land Regulations 2017 provides that upon an application for compulsory acquisition, the commission shall publish a notice of at least thirty (30) days of intention to acquire the land in the Kenya Gazette, local newspapers and county offices.

8. The Applicant further states that, “the entire process is opaque and was carried out in bad faith with an intention to dispossess the Applicant of its property in (an) unlawful process.” Additionally, the Applicant asserts that Respondents are in breach of Article 10 of the Constitution as the entire process lacks transparency or consultations with the Applicant.

9. It is the Applicant’s case that it has not been given any opportunity to raise its concerns in respect of the acquisition process and/or challenge the process which is against the rules of natural justice and Sections 4(1), 4(3) (a, b & g) of the Fair Administrative Actions Act. The Applicant asserts that in so far as the Respondents have not complied with Sections 107(5) and 107(5A) of the Land Act together with Regulations 22 and 23 of the Land Regulations 2017, the Applicant is entitled to a review of the 1st Respondent’s actions pursuant to Sections 7(1), 7(2b,c,d,h,j,n,o), 10(1), 11(1)(a, b, d, e, f, g, i), 11(2) of the Fair Administrative Actions Act.

10. The Applicant seeks the Court’s intervention to stop the 2nd Respondent’s intended survey and acquisition of the suit property for its alleged unlawfulness. The Applicant, therefore, prays for the following orders:A.A declaration that the compulsory acquisition process initiated by the 2nd Respondent’s letter dated 8th January 2019 and all subsequent steps undertaken pursuant to the said letter are a nullity for breach of the Applicant’s rights to notification under sections 107(5) of the Land Act, Section 107(5A) of the Land Value (Amendment) Act 2019 and Rule 22 and 23 of the Land Regulations 2017. B.A declaration that the Applicant is entitled to receive notifications and to be consulted in respect of any compulsory acquisition of its property L.R 5468/3 under Sections 107(5) of the Land Act, Sections 107(5A) of the Land Value (Amendment) Act 2019, Sections 4(1) and 4(3) of the Fair Administrative Actions Act and Rules 22 and 23 of the Land Regulations 2017. C.An order for certiorari to quash the 1st Respondent’s approval letter dated 22nd April 2020 and any survey of the Applicant’s property L.R 5468/3 and all other consequential steps taken pursuant to the letters dated 22nd April 2020 and 8th January 2019. D.A permanent injunction restraining the Respondents, their agents and officers from carrying out any survey on the Applicant’s L.R 5468/3 and from carrying out any acquisition pursuant to the letters dated 22nd April 2020 and 8th January 2019. E.Such other orders as the Honourable Court shall deem just.F.Costs.

The 1st Respondent’s Response 11. The 1st Respondent did not file any response to the amended application but had filed a response to the original pleadings. As the matters in dispute remained substantially the same, we have also considered that response.

12. Through an Affidavit sworn by the 1st Respondent’s Director Legal Affairs and Regulatory Services, Mr. Brian Ikol, on 11th March 2022, the 1st Respondent opposes the Applicant’s claim. Mr. Ikol states that the 1st Respondent received a request from the 2nd Respondent for acquisition of land via letter dated 8th January 2019 which was responded to by the 1st Respondent on 22nd April 2020, “requesting them to fulfill the laid down statutory preliminary requirements as provided for under Section 107(2) of the Land Act, 2012. ”

13. Mr. Ikol contends that the 1st Respondent’s letter dated 22nd April 2020 is not an approval and the process of compulsory acquisition is yet to begin. Instead, he states, that the suit is pre-emptive as the Applicant would have an opportunity to ventilate any concerns it has at “subsequent stages of the acquisition process.”

14. According to the 1st Respondent, if the orders sought in the suit are allowed, it will restrict the state’s power, through the 1st Respondent, of eminent domain.

The 2nd Respondent’s Response 15. The 2nd Respondent responded to the motion through a Replying Affidavit sworn on 19th June 2023 by Mr. Wesley Bor - the County Secretary of the 2nd Respondent. Mr. Bor reiterates the contents of the 2nd Respondent’s Replying Affidavit dated 11th January 2022 sworn by his predecessor, the then County Secretary and opposes the motion of the Applicant.

16. The 2nd Respondent avers that under Section 107 of the Land Act 2012, the National Land Commission (the 1st Respondent) is ordinarily prompted by the National or County Government through the Cabinet Secretary or County Executive Member, respectively. In this regard, the 2nd Respondent contends that the 1st Respondent needs to be satisfied that the provisions of Article 40(3) of the Constitution are complied with, to wit – the land is acquired for a public purpose or a public interest.

17. It is the 2nd Respondent’s further contention that the 1st Respondent required to undertake further due diligence inquiries that necessitated authentication by the survey department, but the Applicant refused to grant access for the same to be done. Furthermore, the 2nd Respondent avers, the inspection is necessary for the 2nd Respondent to ascertain whether the land is suitable for the intended purpose – in this case the construction of the official residence for the Governor of the 2nd Respondent.

18. It is the 2nd Respondent’s case that the process which the Respondents had initiated were only preliminary or pre-inquiry and do not involve the Applicant who is a “distant bystander with substantial interest.” In sum, the 2nd Respondents contend that the Applicant’s suit is premature as no decision has been made on the acquisition.

Analysis and determination 19. When this matter came up for hearing on 15th January 2024, the Applicant presented one witness – Ms. Evalyne Ngeno-Koko – its Legal Services Manager. Ms. Koko adopted her written statement dated 12th January 2024 which reiterates the contents of her supporting affidavit sworn on 18th November 2021.

20. Ms. Koko, in her testimony, contended that prior to receiving the letter from the 2nd Respondent of 29th October 2021, the Applicant had not received any communication or letter in regard to the intended compulsory acquisition. On cross examination by the 2nd Respondent’s counsel, Ms. Koko affirmed that the Applicant is opposed to the process of the compulsory acquisition and the acquisition itself.

21. The Respondents did not present any witnesses and this matter was reserved for judgement on the basis of the documents filed and submissions by the parties.

22. Having considered the pleadings and submissions, we have identified two main issues for determination in this case as follows: (i) whether the Respondents breached the provisions of Section 107(5) of the Land Act, 2012, and (ii) what remedies are available, if any.

23. The process of compulsory acquisition of land begins with a request for land from a county government or the national government directed to the 1st Respondent. Upon being satisfied that the request meets the Constitutional threshold – the land being acquired must be for a public purpose or in the public interest, the 1st Respondent will kickstart the acquisition process. This process has been set out in extenso in the case of Patrick Musimba vs. National Land Commission & 4 Others (2016) eKLR as follows:“85. In summary, the process of compulsory acquisition now runs as follows: -

86. Under Section 107 of the Land Act, the National Land Commission (the 1st Respondent herein) is ordinarily prompted by the National or County Government through the Cabinet Secretary or County Executive Member respectively. The land must be acquired for a public purpose or in the public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met; the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in those respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property.

87. Under Sections 107 and 110 of the Land Act, the National Land Commission must then publish in the gazette a notice of the intention to acquire the land. The notice is also to be delivered to the Registrar as well as every person who appears to have an interest in the land.

88. As part of the National Land Commission due diligence strategy, the National Land Commission must also ensure that the land to be acquired is authenticated by the survey department for the rather obvious reason that the owner be identified. In the course of such inquiries, the National Land Commission 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. See Section 108 of the Land Act.

89. The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.

90. The burden at this stage is then cast upon the National Land Commission and as can be apparent from a methodical reading of Sections 107 through 110 of the Land Act, the landowner’s role is limited to that of a distant bystander with substantial interest.

91. Section 112 of the Land Act then involves the landowner directly for purposes of determining proprietary interest and compensation. The Section has an elaborate procedure with the National Land Commission enjoined to gazette an intended inquiry and the service of the notice of inquiry on every person attached. The inquiry hearing determines the person interested and who are to be compensated. The National Land Commission exercises quasi-judicial powers at this stage.

92. On completion of the inquiry the National Land Commission 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. It could also be land in lieu of the monetary award, if land of equivalent value, is available. Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into special compensation account held by the National Land Commission. See Sections 113-119 of the Land Act.

93. The process is completed by the possession of the land in question being taken by the National Land Commission once payment is made even though the possession may actually be taken before all the procedures are followed through and no compensation has been made. The property is then 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. See Sections 120-122 of the Land Act.

94. If land is so acquired the just compensation is to be paid promptly in full to persons whose interests in land have been determined. See Section 111 of the Land Act. 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.”

24. The issue in contention in this case is whether the 1st Respondent complied with the preliminary requirements in the intended acquisition of the Applicant’s land. The Applicant contends that the 1st Respondent failed to issue a notice pursuant to Section 107(5) of the Land Act, Section 107 (5A) of the Land Value (Amendment) Act 2019 and Rules 22 and 23 of the Land Regulations 2017. Section 107 (5) provides as follows:Upon approval of a request under subsection (1), the Commission shall publish a notice to that effect in the Gazette and the county Gazette, and shall deliver a copy of the notice to the Registrar and every person who appears to the Commission to be interested in the land.

25. Our understanding of Section 107(5) of the Land Act is that the process of notification in the gazette follows an approval of a request for an acquisition. The same should be undertaken immediately after an approval has been granted. Our position is supported by looking at the literal meaning of formulation of the relevant statute which requires that upon approval, a notice shall be published. The word upon which is synonymous with the word on, in this context means as soon as.22(content missing)

26. In our view, therefore, the issuance of a notice upon approval of the request for acquisition of land is not only an important step but is the first official procedure towards compulsory acquisition of land. We agree with the 2nd Respondent’s submissions that the intention of a notice is to inform the affected persons of the intended acquisition, but it doesn’t stop there. The notice serves to notify the affected party of the intended acquisition and to further give an opportunity to such a party to be satisfied that the intended acquisition complies with the Constitution and that their views and concerns are taken into account in the process.

27. The mandatory nature of notification was also underscored in the case of Ravaspaul Kyalo Mutisya v National Land Commission [2022] eKLR, as follows:……the Preliminary notice provided for under Section 107 (5) of the Land Act is a mandatory requirement in the process of compulsory acquisition and the same must be served on every person who appears may be interested in the land and this would include the Appellant herein as the registered proprietor of the land. The Court thus finds that the Respondent did not follow the law in acquiring the Appellants property due to failure to issue a notice of intention to acquire land under Section 107 (5) of the Land Act.

28. The issuance of the notice under Section 107(5) is, in our considered view, not a “box-ticking” exercise but should afford a meaningful chance to the affected parties to engage with the 1st Respondent before their land is compulsorily acquired. This engagement, as detailed in Rule 23(1) of the Land Regulations, 2017 gives an opportunity to the persons who are being deprived of their land through the exercise of the state’s power of eminent domain, a chance to also present their views on the location, area to be acquired, the proposed land use, existing use of the land, improvements on the land, how the compulsory acquisition will affect them, and any other relevant information.

29. Our reading of the Land Act, 2012 and the regulations therein, in particular Regulation 23(1) of the Land Regulations, 2017, is that the 1st Respondent is required to issue a notice of at least thirty (30) days before any intrusive processes can begin to deprive the affected persons of land sought to be compulsorily acquired. We must also note that the period of thirty (30) days provided for under Regulation 23 refers to the minimum period of notice before the acquisition process begins and not a period within which a notice must be issued, as suggested by the Applicant.

30. In the instant case, even though the Applicant has expressed unwillingness to part with a portion of their land for the proposed project to be undertaken by the 2nd Respondent, the exercise of eminent domain does not deprive them completely of a say in the process. The 1st Respondent is under a duty to engage meaningfully with the affected party in order to minimize the overall impact of the intended project on their land. This would then take into account measures that all the parties can consider to ensure that the portion of the land sought to be compulsorily acquired would occasion minimal disruption to its economic endeavours and other environmental considerations that are relevant to the use of the land.

31. It is, therefore, not envisaged that upon approval, an acquiring body will “march on” the property waving the approval letter and fence it off without the affected persons having been given a chance to engage with the 1st Respondent or less without being notified through the official channels and in person as required by the law.

32. It is also important to understand the mischief that the Land Act 2012 sought to cure in its detailed procedure for compulsory acquisition. The exercise of eminent domain by the government has historically faced criticism for its arbitrary nature and there was a deliberate effort to remedy the same. The National Land Policy of 2009 recognised these challenges as necessitating the revision of laws to streamline the process.33See, Augustus Mutemi Mbila and Edmond Shikoli, ‘Application of the Doctrine of Eminent Domain in Kenya: Towards a Rights Based Approach to Compensation.’ Available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/KLReviewJournal/Application-of-the-Doctrine-of-Eminent-Domain.pdf

33. In this case, however, the Respondents have contended that an approval had not been granted and the 2nd Respondent was merely complying with conditions set by the 1st Respondent before an approval could be granted. This is a relevant issue to determine if the Respondents complied with the processes under the Land Act. In this regard, the 1st Respondent, in the Affidavit of Brian Ikol (referred to earlier), avers as follows:7. That vide a letter dated 22nd April, 2020, the commission wrote to the 2nd Respondent requesting them to fulfill the laid down statutory preliminary requirements as provided for under section 107 (2) of the Land Act, 2012. Attached herein and marked BI 2 is a copy of the letter.…..11. That the allegations made by the Applicant are pre-emptive and speculative as compulsory acquisition is yet to be approved. (Emphasis ours)

34. The 1st Respondent’s letter dated 22nd April 2020, in the relevant part, states as follows:The Commission hereby wishes inform (sic) you that approval of a request to acquire land is granted subject to fulfilment of preliminary requirements that are either statutory or derived from practice. The Commission has reviewed your request and hereby requests you to submit the following: 1. Geo-referenced land acquisition plan showing how the proposed project excises the affected land and actual acreage to be acquired.

2. Authenticated cadastal maps (survey plan) for the subject lands.

3. Land ownership details including copy of searches for the affected parcels.

4. Copy of the environmental and social impact assessment report for the project.

5. Approved County spatial planKindly expedite to ensure quick approval of the land acquisition request and subsequent execution by the Commission. (Emphasis ours)

35. It is clear that even though the 1st Respondent indicates that an approval had been granted to the 2nd Respondent, that approval was conditional on satisfaction of the outlined conditions. The 2nd Respondent asserts that certain conditions needed to be met before the acquisition process is commenced. In this case, the 1st Respondent required the 2nd Respondent to supply it with information that would have been relevant for the issuance of a notice to commence the process of compulsory acquisition, to wit: the acreage sought to be acquired and land ownership details. The 1st Respondent’s letter also sought to obtain information which would have assisted it to make a final decision on whether or not to approve the compulsory acquisition being an environmental and social impact assessment as well as a County spatial plan.

36. We are, therefore, not persuaded that the 1st Respondent’s letter dated 22nd April 2020 was an approval as per the terms of Section 107 (5) of the Land Act which would have necessitated the issuance of a notice in the gazette as per the provisions of Section 107(5A) of the Land Act. Instead, the communications between the 1st and 2nd Respondent indicate a pre-approval process which requires the acquiring body to satisfy certain set conditions by the 1st Respondent before an approval can be granted as per Section 107(2) of the Land Act.

37. It may be difficult or impossible for an acquiring body to supply such requested information without, at least, some minimal intrusion into the land sought to be compulsorily acquired, for purposes of conducting a survey. It may be expected, like in the case of the 2nd Respondent, that the acquiring body would send a request to the affected persons for permission to access the land earmarked for acquisition. Whenever such a request is turned down, as it happened in this case, then the acquiring body may turn to the 1st respondent for assistance. It is the role of the 1st Respondent to ensure that the required due diligence is satisfied. As held in Patrick Musimba (supra):88. As part of the National Land Commission due diligence strategy, the National Land Commission must also ensure that the land to be acquired is authenticated by the survey department for the rather obvious reason that the owner be identified. In the course of such inquiries, the National Land Commission 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.

38. Furthermore, under Section 23 of the Survey Act, the Director of Survey or any other person authorized by him or her may enter upon any land for purposes of conducting a survey. The import of this legal provision is that the 2nd Respondent or any acquiring body may seek the assistance of the Director of Survey in a case where any person affected has refused access to the land sought to be compulsorily acquired. In effect, the 2nd Respondent is not restrained in conducting a survey on the Applicant’s land in order to satisfy the pre-approval requirements set by the 1st Respondent. A finding that such a body would not have a right to conduct a minimally invasive survey on the land prior to commencement of an acquisition process would be antithetical to the concept of eminent domain.

39. We are, therefore, unable to find that the request from the 2nd Respondent for access to the suit property, in itself, violated the Applicant’s rights as alleged. Indeed, the 2nd Respondent merely sought the consent of the Applicant to access the suit property in order to provide information to the 1st Respondent that would have determined whether or not the compulsory acquisition would have commenced.

40. In conclusion, we are not satisfied that the Applicant has proved its case, and we hereby dismiss it with costs to the Respondents.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY 2024. DR. NABIL M. ORINA - CHAIRPERSONMR. GEORGE SUPEYO - MEMBERDelivered in the presence of:Mr. Rao h/b for Mrs. Opiyo for the ApplicantMr. Ikol for the 1st RespondentMs. Lumumba h/b for Ms. Wachira for the 2nd Respondent