[2025] KELAT 169 (KLR)

Kiema & another v National Land Commission & 2 others (Tribunal Case E026 of 2024) [2025] KELAT 169 (KLR) (8 May 2025) (Judgment)

Neutral citation: [2025] KELAT 169 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E026 of 2024

NM Orina, Chair & G Supeyo, Member

May 8, 2025

Between

Lawrence Muema Kiema

1st Petitioner

Michael Musyoka Muema

2nd Petitioner

and

The National Land Commission

1st Respondent

Kenya National Highways Authority

2nd Respondent

The Attorney General

3rd Respondent

Judgment

Background 1. The 1st Petitioner avers that he is the registered proprietor and lawful occupier of all that parcel of land known as Kisasi/Mosa/413 (hereinafter referred to as “the suit property”), situated in Mosa Location, Kitui County, within the Republic of Kenya. The 2nd Petitioner, who is the son of the 1st Petitioner, is asserted as the beneficial owner and occupier of the suit property.

2. The substratum of this Petition is that on or about May 2018, the Respondents, without the consent or authority of the Petitioners, unlawfully entered upon and took possession of the suit property, together with the developments thereon, for purposes of constructing a public road project. The said construction entailed the creation of wayleaves and re-routing, all of which substantially interfered with the Petitioners’ proprietary rights. The road is now in full public use.

3. The Petition, initially filed as ELC PET/E006/2022 – Lawrence Muema Kiema & Michael Musyoka Muema v National Land Commission, Kenya National Highways Authority & Another, was, by the order of the Honourable Justice M. Kimani dated 7th May 2024, transferred to this Tribunal for hearing and final determination.

The Petitioners’ Case 4. The Petitioners aver that, as the legal, beneficial, and actual occupiers of the suit property parcel number Kisasi/Mosa/413 they undertook various developments and improvements thereon over time. These developments included:a.Residential dwellings and ancillary structures such as pit latrines, water tanks, gates, and perimeter fences;b.Cultivated crops;c.A variety of trees, andd.Livestock-related structures, including but not limited to cowsheds, poultry pens, and beehives (hereinafter collectively referred to as “animal structures”).

5. It is the Petitioners’ further contention that on or about the year 2018, they were informed by the area administrator that the 2nd Respondent intended to implement an infrastructural development initiative involving the expansion and tarmacking of the Kitui–Kibwezi Road, which would traverse, inter alia, Mutomo area in Kitui County, including the Petitioners’ village (hereinafter referred to as “the Road Project”). This development would necessitate the creation of wayleaves and re-routing across the suit property.

6. Subsequently, the 1st Respondent published its intention to compulsorily acquire the suit property and the developments therein on behalf of the 2nd Respondent, this was vide Gazette Notice No. 177 dated 12th January 2018, Gazette Notices Nos. 5075 and 5076 dated 20th May 2018, and Gazette Notice No. 2188 dated 9th March 2018.

7. Pursuant to the foregoing, the Petitioners were invited to attend inquiry sessions convened by the 1st Respondent in relation to the Road Project. The Petitioners raised objections and sought detailed clarifications concerning the proposed acquisition. However, no substantive response was offered by the Respondents. Instead, the Petitioners assert that the inquiries proceeded in a manner that was procedurally flawed, opaque, and devoid of meaningful consultation amounting, in their view, to a sham process.

8. Following the inquiries, the 1st Respondent proceeded to issue compensation awards as follows:I.The 1st Petitioner, Lawrence Muema Kiema, was awarded the sum of Kenya Shillings Three Million, Two Hundred and Ninety-Four Thousand, Nine Hundred and Thirty (Kshs. 3,294,930. 00) for the compulsory acquisition of the suit property and developments thereon; and;II.The 2nd Petitioner, Michael Musyoka Muema, was awarded the sum of Kenya Shillings One Million, Six Hundred and Sixty-Two Thousand, Six Hundred and Thirty (Kshs. 1,662,630. 00) for developments on the suit property.

9. The Petitioners aver that upon reviewing the said awards, it became apparent that the 1st Respondent failed to disclose the applicable valuation rates and the specific values assigned to the suit property and its improvements. Furthermore, no justification or transparent basis was provided for the valuations undertaken or the compensation amounts awarded.

10. The Petitioners further contend that the 1st Respondent applied inordinately low valuation rates which failed to reflect the true market value of the suit property and its improvements.

11. It is the Petitioners’ case that in December 2020, the 1st Respondent issued them with Notices of Taking Possession pursuant to Section 120(1) of the Land Act, 2012, requiring them to vacate the suit property within fourteen (14) days.

12. The Petitioners contend that thereafter, the 1st and 2nd Respondents unlawfully took possession of the suit property and proceeded with the construction of the road project without providing fair compensation or depositing any compensation sum in a special account as required by law.

13. Notwithstanding the Petitioners’ numerous attempts to obtain information regarding the valuation rates used in determining the awards, the Respondents failed and/or refused to disclose the same.

14. Consequently, the Petitioners assert that since May 2018, the 1st and 2nd Respondents have unlawfully remained on the suit property, thereby infringing upon the Petitioners’ constitutional rights, including the right to just and fair compensation, fair administrative action, and the right to be heard.

15. The Petitioners further aver that the Respondents’ collective actions have been, and continue to be, oppressive, arbitrary, oppressive, capricious, unfair, unreasonable and unconstitutional, causing the Petitioners significant loss, hardship, and suffering.

16. The Petitioners pray for the following;a.A declaration that the purported compulsory acquisition based on Gazette Notice No. 117 dated 12th January 2018 and subsequent Gazette Notices of the Suit Properties and improvements undertaken by the Respondents was carried out ultra vires the Constitution and statutory law, thus infringing and violating the Petitioners’ rights to property.b.Special damages under Article 23(3)(e) of the Constitution as pleaded at Paragraph 90 of the Petition, being the just compensation for the Suit Properties and Improvements as valued on 17th October 2020, together with interest thereon at the court rate of 14% from the date of filing the Petition until payment in full.c.In the alternative to prayer (b) above, the 2nd Respondent, being a body corporate, be and is hereby ordered to acquire the Suit Properties and Improvements from the Petitioners through private treaty, and to pay the values agreed upon through a joint valuation with the Petitioners of the Suit Properties and Improvements in accordance with the valuations to be arrived at.d.Further to prayer (c) above, in the event the joint valuation is not conducted within thirty (30) days of the judgment of this Honourable Court, the 2nd Respondent be and is hereby ordered to compensate the Petitioners for the Suit Properties and Improvements in accordance with the valuation reports as pleaded at Paragraph 58 of the Petition.e.A declaration that the Respondents have breached and disregarded the national values and principles of governance, namely public participation, accountability, and the rule of law.f.Further to prayers (b) and (c) above, general damages under Article 23(3)(e) of the Constitution for the denials, threats, infringements, and violations of the Petitioners’ constitutional rights, national values, and principles of governance including the rule of law.g.That this Honourable Court do award interest on the general damages awarded at the prevailing court rate of 14% from the date of judgment until payment in full.h.That the costs of the Petition be borne by the Respondents jointly and severally.i.The Honourable Court do make in the circumstances, any such other or further orders as it may deem just and expedient to remedy the violation of the Petitioners' fundamental rights.

The 1st Respondent’s Case 17. The 1st Respondent filed a Replying Affidavit sworn on 20th March 2023 by Austine Odhiambo Ogutu, a Senior Valuation & Taxation Officer, opposing the Petition.

18. Mr. Ogutu avers that the 2nd Respondent requested the 1st Respondent to acquire, among others, Parcel No. Kisasi/Mosa/413 for the upgrading of the Kibwezi–Mutomo–Kitui–Kabati Road.

19. The 1st Respondent published Gazette Notice No. 6380 of 20th August 2020 expressing its intention to acquire the land, followed by a ground inspection and valuation exercise.

20. He depones that a physical inspection was conducted to verify the property and assess interests in line with the law.

21. Mr. Ogutu confirms that, pursuant to Section 112 of the Land Act, the landowners were invited for an inquiry held on 14th October 2020 at Mosa Chief’s Camp via Gazette Notice No. 6381 of 28th August 2020.

22. He states that the Petitioners were identified as the owners of Parcel No. Kisasi/Mosa/413.

23. Mr. Ogutu states that the inquiry’s purpose was to identify interested parties and receive written claims. Following this inquiry, the 1st Respondent issued compensation awards based on the provisions of Section 113(2)(a) of the Land Act 2012 and Legal Notice 283 of 2017, The Land (Assessment of Just Compensation Rules).

24. He explains that the compensation assessment considered: the market value of the land; damages sustained due to severance or injury to other property; reasonable expenses related to relocation; and damages due to loss of profits from the land between the publication in the Kenya Gazette and possession.

25. Mr. Ogutu confirms that the Petitioners submitted a valuation claim of Kshs 12,700,000/-, which differed significantly from the awards of Kshs 3,294,930. 00 for the 1st Petitioner and Kshs 1,662,630. 00 for the 2nd Petitioner. Copies of these awards were attached to his affidavit and marked “AO-4”.

26. In its assessment, the Commission used records of stamp duty transactions from the Ministry of Lands and referred to construction costs from the Institute of Quantity Surveyors of Kenya (IQSK) to value the improvements.

27. Mr. Ogutu notes that the valuation of the improvements on Kisasi/Mosa/413 was based on the type of material used, quality of finishes, and workmanship. A copy of the valuation report was attached and marked“AO-5”.

28. He further states that the main variance in the assessment stemmed from the determination of the compensable amount for diminution of profits and alternative accommodation. The Commission was unable to verify the Petitioners' claims due to a lack of supporting evidence, including tax returns.

29. In line with Section 113(1) of the Land Act 2012, the Commission offered an award of Kshs 3,294,930. 00 to the 1st Petitioner and Kshs 1,662,630. 00 to the 2nd Petitioner on 16th December 2020.

30. He emphasizes that the subject compulsory acquisition process was conducted in accordance with the Constitution, the Land Act 2012, and other relevant laws.

31. He,however, admits that the Commission has not complied with the constitutional requirement for prompt payment under Article 40, due to the project-affected persons' failure to consent to the award as stipulated under Section 115(1b) of the Land Act.

The 2nd Respondent’s Case 32. The 2nd Respondent filed a Replying Affidavit sworn by Anthony Kusimba on 8th June 2023. Mr. Kusimba is a Surveyor employed by the 2nd Respondent.

33. Mr. Kusimba states in his affidavit that the Kibwezi–Mutomo–Kitui–Kabati–Migwani (A9/B64) Road Project commenced in August 2017. The project spans approximately 167 kilometres and is part of the Northern Corridor Transport network.

34. He avers that private property was affected, and acquisition was approved by the Ministry of Transport showcasing an approval letter dated 2nd October 2018 attached and marked “AK-1”.

35. Mr. Kusimba confirms that 0. 9313 hectares were compulsorily acquired from the 1st Petitioner’s land parcel Kisasi/Mosa/413 through Gazette Notices No. 6380 and 6381. Inquiries were thereafter held on 28th August 2020, in line with Section 112 of the Land Act, 2012.

36. He deposes that after valuation, the 1st Petitioner was awarded Kshs 3,294,930. 00 and the 2nd Petitioner Kshs 1,662,630. 00 via letter dated 2nd March 2021. He affirms that the acquisition complied fully with applicable legal provisions.

37. Mr. Kusimba further avers that the 2nd Respondent is still awaiting Treasury allocation and will release the awarded sums to the National Land Commission once funds are received.

The 3rd Respondent’s Case 38. The 3rd Respondent filed its grounds of opposition on 21st March 2023 stating as follows;I.The Application is incurably defective, an abuse of the court process, and ought to be dismissed at the first instance.II.The Petitioners are only entitled to fair and just compensation based on valuations and current market prices of their land and not on speculative figures.III.The Petitioners’ request for a fresh valuation five years later is questionable.IV.The law has been fully complied with in regard the process of compulsory acquisition and compensation.V.The Petitioners have not made out and proved a violation of their constitutional rights to the required standard. They are therefore not entitled to any of the reliefs sought.

Viva Voce Evidence 39. Following the court ordert to trasfer the file to the Tribunal, parties agreed to proceed by way of viva voce evidence and thereafter file submissions in support of their cases.

40. The hearing of this matter took place on 16th January 2025 and on 11th February 2025.

Petitioners’ Witnesses 41. The 1st Petitioner, Mr. Lawrence Muema Kiema, was called to testify. Upon being duly sworn, he confirmed that he had the requisite authority to give evidence on behalf of the 2nd Petitioner, Mr. Michael Musyoka Muema.

42. Mr. Kiema formally adopted his witness statement dated 4th March 2024, alongside the Petition, and urged the Court to grant the reliefs sought therein.

43. During cross-examination by counsel, Ms. Kwamboka, appearing for the 2nd Respondent, Mr. Kiema confirmed that he had participated in the inquiry proceedings.

44. Mr. Kiema further stated that he submitted written claims during the inquiry. However, he had not annexed these claims to the affidavit on record. It was his testimony that a valuation report had been prepared subsequent to the inquiry upon realising that the 2nd Respondent had failed to account for several improvements on the property, including a house, trees, and a borehole.

45. On cross-examination by Ms. Ayiabei, counsel for the 1st Respondent, Mr. Kiema testified that upon receiving the compensation award, he discovered that several improvements on the property had not been accounted for. This omission prompted him to engage a private valuer, a course of action he undertook following advice from an officer of the 2nd Respondent who had indicated that he was at liberty to do so should he be dissatisfied with the award.

46. Mr. Kiema expressed that he seeks a reassessment of his claims, asserting that the compensation offered was significantly lower, approximately less than half of what he had anticipated.

47. On re-examination, Mr. Kiema clarified that officials from the 1st Respondent advised the Petitioners to engage a private valuer. The resulting valuation report was submitted to officers of the Commission.

48. Mr. Kiema further clarified that the inquiry proceedings were conducted by the 2nd Respondent’s officers at the Chief’s office. He urged the Tribunal to order compensation based on the private valuation report, as well as full compensation for all developments on the land, including the house, trees, and sanitary facilities.

49. In closing his testimony, he reaffirmed his objection to the award currently on record, stating that while he accepted the award in regard to the portion of the land acquired, he contests the award to the extent that it fails to reflect the improvements thereon.

50. The Petitioners’ second witness, Ms. Naimisha Shah, a Senior Valuer and Director at Coral Property International Limited, took the stand on the second day of the hearing.

51. Ms. Shah testified that she had been engaged by the Petitioners to undertake a valuation of the subject property, alongside her colleague, Mr. Michael Murimi. She proceeded to adopt her witness statement dated 2nd November 2024 and produced the valuation report dated 3rd March 2020, which assessed the value of the property at Kenya Shillings 12. 7 million as part of her evidence in chief.

52. On cross-examination by Ms. Kwamboka, Ms. Shah acknowledged that the valuation report she produced was prepared after the inquiry proceedings on the suit property had already been concluded. She further conceded that the market value of the property may have fluctuated by the time she and her team conducted the valuation in 2020.

53. With no re-examination thereafter, the Petitioners' case was formally closed.

2nd Respondent’s Witness 54. Dr. Anthony Kusimba was called to the stand as a witness for the 2nd Respondent. He introduced himself as a surveyor at the Kenya National Highways Authority (KeNHA) and a member of the survey team involved in the present matter before the Tribunal.

55. He relied on his affidavit sworn on 8th June 2023, together with the annexed exhibits. In his examination-in-chief, Dr. Kusimba explained that the standard procedure involves receiving the road design and writing to the Cabinet Secretary for Lands, through the Cabinet Secretary for Transport, seeking approval. Once the necessary approvals are obtained, the documents are forwarded to the National Land Commission (NLC) for gazettement of the intention to acquire. He clarified that KeNHA’s role is primarily to facilitate the Commission in the acquisition process.

56. He outlined two principal stages in the process: the Notice of Intention to Acquire and the Gazette Notice for Inquiries. Once the Notice of Intention is published, officers from KeNHA accompany the Commission to the site to identify and verify affected properties for valuation purposes.

57. Dr. Kusimba emphasized that KeNHA’s role is limited to facilitation, this includes providing transportation, allowances, and guiding the Commission through the road corridor and identifying affected parcels of land.

58. In the present case, he confirmed that 0. 913 hectares of the suit property were acquired through a Gazette Notice dated 28th August 2020.

59. He further stated that the valuation was conducted jointly by officers from both the 1st and 2nd Respondents, following which the Petitioners were issued with compensation awards.

60. On cross-examination by Mr. Mwalimu, counsel for the Petitioners, Dr. Kusimba confirmed that he was present during the valuation exercise. When asked to define what the valuation took into account, he responded that, to his understanding, it primarily considered the size of the land. He noted that he was not privy to what other factors may have been considered, but confirmed that he personally witnessed the measurement of the portion of the land acquired.

61. Dr. Kusimba further stated under cross-examination that although he was aware of the case, he could not recall the specific developments present on the land. He mentioned that the Petitioners raised their claims after the inquiries had been conducted. He added that where a Project Affected Person (PAP) identifies an issue with the valuation, the onus is on that PAP to point out what aspects were affected. When asked whether he was aware of a report lodged at the Chief’s office, he responded in the affirmative.

62. He elaborated that after the initial inspection, the 2nd Respondent published a notice for inquiries, this is the stage at which PAPs are typically asked whether anything has been omitted from the valuation. In cases of omission, there was a stand-by car to take a valuer back to the site. However, he clarified that he was not aware that the Petitioners had been advised to engage a private valuer. He added that while the Authority (KeNHA) has its own valuers, the responsibility of conducting inspections lies with the Commission.

63. On re-examination, Dr. Kusimba reaffirmed that the mandate to conduct compulsory acquisition lies solely with the Commission. Any complaints or omissions raised by PAPs are handled at the inquiry stage, where PAPs are invited to submit their own valuation reports.

64. This marked the close of the 2nd Respondent’s case and the end of the trial as the 1st Respondent did not present any witness.

Analysis and Determination 65. The Petitioners, 1st, and 2nd Respondents filed submissions as directed by the tribunal. The overarching issue in the submissions filed is whether the Respondents complied with the Constitution and the Land Act in the impugned compulsory acquisition and in effect whether the Petitioners are entitled to the orders sought. The main dispute advanced through the Petitioners’ case is whether the awarded sum of compensation complied with the Constitutional and statutory criteria of just compensation.

66. Despite impugning the process of compulsory acquisition, the Petitioners did not lead evidence to challenge the various stages of the process but rather focused the case on the awarded sum.

67. The requirement for just compensation is rooted in Article 40(3) of the Constitution of Kenya, 2010 which provides as follows:40. Protection of right to property(3)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; or (b) 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

68. Similarly, the provisions of the Land Act, 2012 under Section 125(1) of thereof requires the National Land Commission to pay full and just compensation to all persons interested in the land. The operative word under Article 40(3) and Section 125(1) of the Land Act is “just compensation” which has been clarified further under the Land (Assessment of Just Compensation) Rules, 2017 as follows:3. The Commission shall consider the following factors when assessing compensation:a.the market value of the land;b.damage sustained or likely to be sustained by persons interested at the time of the Commission's taking possession of the land by reason of severing the land from his or her other land;c.damage sustained or likely to be sustained by persons interested at the time of the Commission's taking possession of the land by reason of the acquisition injuriously affecting his or her other property, whether moveable or immovable , in any other manner or his or her actual earnings;d.reasonable expenses incidental to the relocation any of the persons interested or who will be compelled to change residence or place of business as a consequence of the acquisition; ande.damage genuinely resulting from diminution of the profits of the land between the date of publication in the Gazette of the notice of intention to acquire the land and the date the Commission takes possession of the land.”

69. The rules have provided for further guidance on what amounts to market value under Rule 2 thereof as “the value of the land at the date of publication in the Gazette of the notice of intention to acquire the land.” A project affected person is also entitled to an additional disturbance allowance to be assessed at 15% of the value of the land and improvements thereon, in accordance with Rule 6.

70. The elaborate provisions flowing from Article 40(3) of the Constitution are meant to ensure that a project affected person is put as close as possible to the position they were in before their land is taken compulsorily. This position was underscored by the High Court in the locus classicus case of Patrick Musimba v National Land Commission & 4 others [2016] eKLR where it was held as follows:As was stated by Scott L.J, in relation to compulsory acquisition, in the case of Horn-v- Sunderland Corporation [1941] 2 KB 26,40: “The word “compensation” almost of itself carries 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 equaled his pecuniary detriment, the compensation would not be equivalent to the compulsory sacrifice”. Effectively Lord Scott’s statement gave rise to the unabated proposition that the compensation of compulsorily acquired property be quantified in accordance with the principle of equivalence. A person is entitled to compensation for losses fairly attributed to the taking of his land but not to any greater amount as “fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority”: see Director of Buildings and Lands –v- Shun Fung Wouworks Ltd [1995] AC 111,125. We see no reason why the same approach should not be adopted locally. The Constitution decrees “just compensation” which must be paid promptly and in full. The Constitution dictates that the compensation be equitable and lawful when the word “just” is applied as according to Black’s Law Dictionary 9th Ed page 881 the word “just” means “legally right; lawful; equitable”. In our view, the only equitable compensation for compulsory acquisition of land should be one which equates restitution. Once the property is acquired and there is direct loss by reason of the acquisition the owner is entitled to be paid the equivalent. One must receive a price equal to his pecuniary detriment; he is not to receive less or more. This can be achieved to the satisfaction of the owner of land by Appeal to the market value of the land.’

71. The Petitioners are aggrieved by the 1st Respondent’s valuation of the suit property as well as the improvements thereon. It is the Petitioners’ case that the total valuation for both the land and the improvements thereon should have been the sum of Kshs. 12,700,000/=. This sum is broken down to Kshs. 2,000,000/= as the value of land and Kshs. 9,000,000/= as the value of improvements thereon plus a 15% disturbance allowance which comes to the sum of Kshs. 1,700,000/=. In support of this, the Petitioners rely on the valuation report prepared by Ms. Naimisha Shah and Mr. Michael Murimi dated 3rd November 2020.

72. On its part, the 1st Respondent places the value of the land at Kshs. 745,040/= and improvements thereon at Kshs. 1,841,452/= bringing the total to Kshs. 2,974,470/= for the 1st petitioner after adding a 15% disturbance allowance. For the 2nd Petitioner, the 1st Respondent assessed the compensation for improvements at Kshs. 1,158,244/= bringing it to a total of Kshs. 1,331,980/= after adding a 15% disturbance allowance. The 1st Respondent relied on a valuation report prepared by Austine Odhiambo and dated 15th December 2020.

73. In this case we are faced with two different values for the same parcel of land and improvements thereon. Before we come to the specific items in contention, it is important to note that even though two valuers are unlikely to return the same valuation for the same parcel of land, the valuation that should carry the day is the one that is able to demonstrate how its methodology complies with the law. In order to obtain a valuation which reflects the market value as required under the law, it is advised as follows:a valuer determines the Market value of a property by comparing it with other similar properties that have been sold in the recent past and situated in the same locality. This approach is based on the principle of substitution that states that when similar or commensurate commodities, goods or services are available the one with lowest price attracts the greatest demand and widest distribution. This follows that; a buyer will not pay more for one property than for another that is equally desirable. The above principle was an extension by the revealed preference theory which states that one can merely observe empirically the actual behaviour of consumers to demonstrate the general properties of demand curves.11Kimutai Barnabas Jones, ‘An Analysis of the Causes for Variation in Valuation for Land Compensation’ (Unpublished Thesis) 1995.

74. Further, as we held in Nguku Product Twenty Ten Limited v National Land Commission [2024] KELAT 892 (KLR):27. Going by this methodology, one would be able to approximate the value of a property going by how much adjacent properties, or properties within the same locality have been sold for in the recent past. If two independent valuers were to follow this approach then it is expected that with well explained adjustments, their figures shouldn’t be too far from each other…

75. As a preliminary point, we must address the failure of the 1st Respondent to call a witness in this matter. Despite being present when the date for the further hearing was taken, the 1st Respondent neither appeared nor presented a witness to rebut the evidence of the Petitioners. The effect of this failure is that the evidence presented by the 1st Respondent is disregarded. In the case of Ethics and Anti-Corruption Commission v. Joseph Muindi Tevulo and Others (Anti-Corruption Suit No. E026 of 2018), N. Sifuna, J held as follows:12. Where a Defendant who has filed a Defence fails to attend Court and to testify on it, or elects not to testify or call any evidence, his filed Defence is to be disregarded and count for nothing; and all the statements in it shall be of no evidentiary value for inter alia, the lack of the opportunity to test those statements and documents by cross-examination. In such a circumstance, as held by Sewe J. in National Bank of Kenya Ltd v. Elijah K Arap Chepkwony 92017) eKLR, there will have been no evidence in rebuttal of the Plaintiff’s evidence or to substantiate the Defendant’s allegations.

76. Notwithstanding the above, it is incumbent upon a party who presents a case to call evidence in support thereof. This is the requirement under Section 107(1) of the Evidence Act. We are also guided by the case of Trust Bank Limited vs. Paramount Universal bank Limited & 2 Others NBI HCCC No. 1243 of 2001 where it was held, “it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings.”

77. The first item in contention is the value of the portion of land acquired. The Petitioners and the Respondents do not dispute the area acquired which is 0. 9313 hectares (approximately 2. 3012 acres). The 1st Respondent valued the portion acquired at kshs. 745,040/=. However, the Petitioners have arrived at a value of Kshs. 2,000,000/= for this portion of the suit property. On the methodology employed to reach the different valuations, the 1st Respondent has provided comparable figures relied upon in its valuation. The 1st Respondent notes that a higher rate of Kshs. 80 per square metre was employed despite the properties in the area averaging between Kshs. 15 to Kshs. 68 per square metre. This is due to the fact that the suit property is a frontage property on the Kitui – Mutomo Road.

78. Even though the 1st Respondent’s evidence in this regard was not tested through cross-examination, the Petitioners have not made out a case for setting aside the valuation of the land for two reasons. First, the Petitioners did not provide the comparables relied upon in reaching the value of Kshs. 2,000,000/= and, second, during the hearing of the suit, the 1st Petitioner who testified indicated that he had no problem with the valuation of the land. The Petitioners have, therefore, failed to provide evidence to warrant the setting aside of the said valuation.

79. In regard to the improvements thereon, the Petitioners contend that the 1st Respondent did not provide any basis for valuation of the improvements and consequent compensation. The Petitioner have valued the improvements on the suit property at a sum of Kshs. 9,000,000/=. The valuation report relied on does not provide a breakdown of the improvements and how this figure was arrived at. On this basis, the Petitioners have not made out a case to upset the 1st Respondent’s valuation. It was incumbent upon the Petitioners to detail the value of each and every item that ought to have been valued and to provide a contrary figure. Despite indicating that the value of the improvements is Kshs. 9,000,000/= the Petitioners did not show how they arrive at this figure. On this limb, as well, we find no reason to disturb the valuation of the 1st Respondent.

80. The upshot of our analysis is, therefore, that the Petitioners have not proved that the impugned compulsory acquisition process in respect of the suit property violated the Constitution and statutory law. The same is not merited and is hereby dismissed. Parties shall bear their own costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF MAY 2025. ……………………… …………………………DR. NABIL M. ORINA, - CHAIRPERSONPHD MR. GEORGE SUPEYO MEMBERBefore: -Mr. Mwalimu for the PetitionersMs. Mwanyika h/b for Ms. Aiyabei for the 1st RespondentMs. Kwamboka for the 2nd RespondentIsaac – Court Assistant