[2025] KELAT 117 (KLR)

Mandev Limited v Kenya National Highways Authority & another (Land Acquisition Case E023 of 2024) [2025] KELAT 117 (KLR) (10 February 2025) (Judgment)

Neutral citation: [2025] KELAT 117 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Land Acquisition Case E023 of 2024

NM Orina, Chair & G Supeyo, Member

February 10, 2025

Between

Mandev Limited

Complainant

and

Kenya National Highways Authority

1st Respondent

National Land Commission

2nd Respondent

Judgment

Background 1. The dispute in this case relates to the compulsory acquisition of land along Mombasa road for the construction of the Nairobi Expressway. Vide Gazette Notice number 2161 of 12th March 2020 and number 6601 of 4th September 2020, the Chairperson of the 2nd Respondent informed the general public of its intention to acquire private land for the construction of the Nairobi Expressway Project. These notices included an intention to acquire part of LR No. 209/9724 measuring 0. 0504 hectares (hereinafter, "the suit property").

2. Subsequently, an inquiry was conducted on 29th to 30th September 2020 and 1st October 2020 which culminated in the issuance of an award for compensation to the Complainant for the sum of Kenya Shillings Thirty Million (Kshs. 30,000,000. 00) through an award dated 22nd January 2021. The Complainant remains uncompensated for the acquisition of the suit property. This situation gives rise to the present dispute.

The Complainant's Case 3. The Complainant is a limited liability company duly incorporated in Kenya under the Companies Act, 2015. The Complainant instituted the present suit through a Statement of Complaint and an affidavit in support of the Complaint sworn by Arvind Manekchand Narshi Shah both dated 31st May 2024. Central to its claim is that the 1st and 2nd Respondents, jointly and severally, infringed upon its fundamental rights as guaranteed under Articles 40(3), 47, and 35 of the Constitution of Kenya, 2010. This alleged violation arises from the Respondents' failure to compensate the Complainant the sum of Kenya Shillings 30,000,000. 00 despite compulsorily acquiring a portion of its property measuring 0. 0504 hectares.

4. The Complainant asserts rightful ownership of the suit property. It is contended that the suit property originates from alienated public land whose leasehold tenure was for 99 years, commencing on 1st November 1981. The suit property was initially allocated to Globalfreight Holdings Limited under Grant No. I.R. 39859 and was later transferred to the Complainant on 8th May 1991.

5. It is the Complainant’s case that the suit property was acquired as part of the Nairobi Expressway project. This was done vide Gazette Notices No. 2161 of 12th March 2020 and No. 6601 & 6602 of 4th September 2020. Due to the urgency of the project, it is contended that the 2nd Respondent wrote to the Complainant informing it that possession of the acquired parcel of land would be taken in 15 days. This was done on 17th September 2020.

6. Thereafter, the Complainant states that inquiries into issues of proprietorship and compensation claims were conducted between 29th September 2020 and 1st October 2020. After that, the Complainant filled in the requisite forms registering its interests with the 2nd Respondent and awaiting its award of compensation. An award dated 22nd January 2021 was issued for the sum of Kshs. 30,000,000. 00 for the acquisition of 0. 0504 hectares of the suit property. The Complainant accepted this award and completed the award acceptance form and submitted the necessary documents on 29th March 2021, after which, the Complainant contends, it was verbally assured of payment within two months.

7. Despite repeated follow-ups between 4th August 2021 and 20th April 2022, the Complainant has not received the compensation awarded. In correspondence attached to the Complainant’s claim, the 1st Respondent attributed the delay to the 2nd Respondent's failure to submit a compensation schedule, while the 2nd Respondent claimed it had not received the requisite funds. The Complainant notes that the Nairobi Expressway Project was completed and launched on 31st July 2022, while it is yet to receive compensation for its aqcuired property.

8. The Complainant thus approached this Tribunal seeking:a.A declaration that the compulsory acquisition of the Complainant's suit property violates its constitutional right not to be arbitrarily deprived of its property by the state, as guaranteed under Article 40 (3) (a) & (b) of the Constitution of Kenya.b.A declaration that the failure by the Respondents to comply with the mandatory provisions of the Land Act 2012 violated the Complainant's right to fair administrative action pursuant to Article 47 (1) of the Constitution of Kenya.c.A declaration that the Complainant is entitled to immediate payment of Kenya Shillings 30,000,000. 00 by the Respondents as compensation for the compulsory acquisition of the suit property.d.Interest on the compensation amount based on commercial lending rates from 22nd January 2021. e.An order restraining the Respondents from acting in a manner prejudicial to payment of the Complainants compensation award.f.General damages for breach of the Complainant's fundamental rights.g.Costs of the suit.

1st Respondent's Case 9. The 1st Respondent has opposed this suit through a Replying Affidavit sworn on 17th July 2024 by Eluid Munene who is the 1st Respondent's Deputy Director, Survey Department in the Directorate of Highway Design and Safety.

10. Mr. Munene confirms the sequence of events in regard to the impugned acquisition as stated by the Complainant. He avers that the 2nd Respondent conducted an inspection and inquiry between 2019 and 2020, collecting details of project-affected persons. After this, the 2nd Respondent prepared an award and payment schedule detailing compensation amounts and timelines for these payments.

11. Mr. Munene avers that as part of the due process in compulsory acquisition, the acquiring entity ought to carry out proper due diligence to verify the sanctity of titles. It was during this due diligence procedure that historical information was retrieved showing that LR No. 209/9724, the subject matter in this suit, lies on a road reserve buffer zone.

12. Mr. Munene went on to state that historical records showcase that the area between Bellevue/Plains View Junction and Eastern Bypass Road Junction (City Cabanas) on the Mombasa Road highway was designed with an 88-meter reservation and a 30-meter buffer.

13. Mr. Munene further asserts that the portion measuring 0. 0504 hectares of LR No. 209/9724 lies within a designated road buffer zone, rendering it public land ineligible for private ownership or compensation under compulsory acquisition.

14. As a result, the 2nd Respondent excluded LR No. 209/9724 from the compensation schedules, which outline payment amounts and timelines. In the absence of the Complainant's inclusion in these schedules, no disbursement could be made.

2nd Respondent's Case 15. The 2nd Respondent put in a Replying Affidavit sworn on 4th July 2024, in which it also opposed the present suit. The said Replying Affidavit was sworn by Danson Njenga, a Senior Valuation & Taxation Officer at the 2nd Respondent.

16. Mr. Njenga highlights that the 2nd Respondent received a letter, ref: MOTIHUD/1/A35. 08Vol.1, dated 23rd August 2019, requesting the acquisition of parcels of land for the construction of the Nairobi Expressway Road Project. The 2nd Respondent, therefore, went on to gazette an Intention to Aquire vide Gazette Notice No. 2161 of 12th March 2020, then a Notice of Inquiry vide Gazette Notice No. 6601 and 6602 of 4th September 2020.

17. Mr. Njenga states that a valuation exercise was conducted by the Ministry of Lands and Physical Planning on behalf of the 2nd Respondent, following which the 1st Respondent, via letter ref: KeNHA/04. D/NBI/ExpresswayIV/Vol.215 dated 30th April 2021, identified several land parcels, including a 0. 0554 hectare portion of LR No. 209/9724 which makes up the suit property as having encroached upon an 88-meter road reserve and a 30-meter buffer zone. It is Mr. Njenga’s contention that some of these parcels were also listed in the Ndungu Report.

18. Consequently, Mr. Njenga avers, the 2nd Respondent could not authorize compensation for project-affected persons whose land fell within these designated public land reserves, as such property is ineligible for compensation.

19. Mr. Njenga avers that the 2nd Respondent's investigations relied on documents, including the Nairobi Town Planning Liaison Committee Report 1972 and the Sub-Committee Report on the Mombasa Road Buffer Zone. He notes that the buffer zone was planned on 16th April 1986, approved by the Director of Physical Planning on 7th May 1986, and sanctioned by the Commissioner of Lands on 20th June 1986. Consequently, any allocation of land within the buffer zone was unprocedural, unlawful, and irregular.

20. Mr. Njenga notes that the parcel of land LR No. 209/9724 making up the Complainant's suit property was transferred on 8th May 1991, long after the Mombasa road buffer strip had been planned and approved.

21. Mr. Njenga further states that any alleged allocation of LR No. 209/9724 to the Complainant must be substantiated by an approved Part Development Plan (PDP) reflecting a Change of User from Buffer Zone to Commercial Use, along with a Survey Plan endorsed by the Director of Physical Planning. Without such evidence, the suit property remains classified as public land, rendering the Complainant's claims untenable and an attempt to appropriate public property unjustly.

The Complainant's Rebuttal 22. In a further affidavit sworn on 9th August 2024 by Hema Niraj Shah, a Director at the Complainant Company, the Complainant addressed some of the issues that had been raised in the responses by the Respondents.

23. Ms. Shah contends that following the property's acquisition for the Nairobi Expressway Project, Accurate Geosystems Limited conducted a survey, compiling a report dated 23rd June 2023. The surveyors retrieved data from Survey Plan Folio No. 161 Register No. 49 (F/R No. 161/49).

24. Ms. Shah asserts that the survey data in F/R No. 161/49, conducted by the government and registered on 16th March 1982, establishes the following:i.The suit property, LR No. 209/9724, measures approximately 0. 7520 hectares.ii.The property and adjacent parcels border a 60-metre-wide road reserve.iii.The Complainant's land is demarcated by four beacons bordering the reserve: J20, J21, J22, and J23.

25. Ms. Shah contends that this data aligns with the Complainant's Title Deed, and official records from the Survey of Kenya therefore disputing any claims of the existence of an 88-metre road reserve and a 30-metre buffer zone.

26. Ms. Shah further asserts that Survey Plan F/R No. 161/49 remains valid, as no subsequent plan has been registered to nullify it. She contends that the 1st and 2nd Respondent’s claims rely solely on the Nairobi Town Planning Liaison Committee report, which has never been implemented. Moreover, she highlights their selective application of compensation policies, citing that parcels such as LR 209/11880, LR 209/11802, LR 209/11803/2, and LR 209/16585, also classified within the buffer zone, were included in compensation schedules.

27. She reiterates that the compulsory acquisition of 0. 00504 of LR No. 209/9724 from the Complainant without just compensation is illegal and unconstitutional.

Viva Voce Evidence 28. Oral evidence in this matter was received on 12th September 2024, 20th September 2024 and 27th September 2024.

Complainant’s Witnesses 29. Ms. Hema Niraj Shah, a Director at the Complainant’s Company, took to the stand as a witness and adopted her witness statement and attached documents, which she relied on as exhibits in this case. She was thereafter cross-examined by the Respondents’ counsel.

30. During cross-examination by Ms. Ochako, counsel for the 1st Respondent, Ms. Shah affirmed that due diligence was conducted before purchasing the property from Globalfreight Holdings Limited. She testified that while no initial survey was conducted at the time of purchase, the Title Deed was obtained and remains valid. The Complainant was unaware of any claims that the suit property lay within a road reserve or buffer zone, even at the time of valuation, as referenced in exhibit AMNS-03. She further stated that the most recent survey report, dated 23rd June 2023 (HNS-02), confirms that the suit property is not within a buffer zone.

31. Under cross-examination by Mr. Osoro, counsel for the 2nd Respondent, Ms. Shah confirmed her authority to act on behalf of the Complainant, citing exhibit HNS-01 (a CR12 document bearing her name). She affirmed that consent was secured from both the Town Council of Nairobi and the Commissioner of Lands at the time of purchase. Additionally, she testified that the 2nd Respondent was asked regarding the non-payment of compensation, but no response was received. These letters are dated 24th March 2022 and 20th April 2022, annexed under exhibit AMNS-17.

32. On re-examination by Ms. Dave, counsel for the Complainant, Ms. Shah reiterated that no evidence substantiates the existence of a buffer zone and that it was not the Complainant's duty to establish such. Furthermore, she confirmed that LR No. 209/9724 was never alleged to have been illegally acquired, nor has any case been instituted challenging its ownership. She also highlighted that an award for Kshs. 30,000,000. 00 was issued on 22nd January 2021 and although the same had not been paid, it underscored the Complainant's ownership. Notably, Ms. Shah asserted, the award was never revoked.

33. The Complainant's Second Witness was Mr. James Mwangi, a registered surveyor who took the stand on 20th September 2024. Mr. Mwangi stated in his exam-in-chief that he prepared the survey report annexed as exhibit HNS-02. He went on to testify that a 60-meter road reserve bordered the suit property, as per a plan registered at the Land Registry in 1982. He declared that no modifications or buffer zones had been introduced, emphasizing that if such changes were made, the same would have required a formal plan and a gazettement and additionally would have been brought to the attention of the public.

34. Citing the Part Development Plan (PDP) and location plan (exhibit no. 7) in the 2nd Respondent's Replying Affidavit dated 4th July 2024, Mr. Mwangi asserted that the suit property was not among the designated parcels falling within the buffer zone. While a buffer zone existed along Mombasa Road, registered as FR/318/109, he clarified that it did not extend into the suit property. He further cited a street map from the Complainant's documents showing the buffer zone spanning from Kapiti Road to Likoni Road.

35. Mr. Mwangi further stated that according to the PDP, the buffer zone was positioned on the left side of Likoni Road near the interchange, whereas the Complainant's land was on the right and absent from the annexed PDP.

36. Mr. Mwangi’s qualifications and competence to testify were challenged on cross-examination by Ms. Ochako and Mr. Osoro. Mr. Mwangi confirmed that he was registered surveyor but was not licensed.

37. On further cross-examination by Mr. Osoro, Mr. Mwangi confirmed that the Survey Plan annexed in the Complainant's further documents as HNS-05 was sourced from Survey of Kenya, accompanied by an official receipt and certified by the Director of Surveys in HNS-04 and HNS-05, respectively. Mr. Mwangi affirmed its originality, noting that certification is available upon request.

38. When questioned on whether he could identify the beacons in the survey plan, Mr. Mwangi admitted that the beacons were mathematically derived, as he could not physically locate them. He identified the survey points as F/R No. 470/136 and F/R No. 144/22, and reaffirmed that no buffer zone was indicated in the 1982 registered survey plan, asserting that his report was based on a thorough historical analysis of the parcel and relevant records. However, he conceded that he had not visited the Town Planning Office.

39. When asked why the land was registered in 1981 before the 1982 survey report, he attributed it to procedural factors, suggesting a prior survey plan might have existed before the deed plans and registration. Mr. Osoro further challenged the document's authenticity, noting it was a scanned copy. In response, Mr. Mwangi stated that the Director of Survey authenticated it in 1989. The cross-examination then concluded.

40. On re-examination by Ms. Dave, Mr. Mwangi testified that registered surveyors could subdivide land and prepare reports to inform clients. He also went on to reaffirm his good standing certification. He stated that Survey Plan No. F/R 161/49 was intended to establish beacons and noted that, unlike the survey report presented before the Tribunal, the Respondents had not produced any countering survey plan. He clarified that a survey map is superseded only when a new plan is registered and the previous one is cancelled, which had not occurred in the instant case. He further confirmed that no encumbrances existed on the Title. This marked the conclusion of the Complainant's case.

1st Respondent Witnesses 41. Eluid Munene, the Deputy Director in charge of surveys at KeNHA, took the stand and went on to confirm KeNHA's mandate of managing and developing national road networks.

42. He testified that KeNHA had been involved in acquiring parcels of land for the Nairobi Expressway Project. Gazette notices were published, and once the affected parcels were identified, compensation schedules were prepared, this is marked as exhibit EMI-23. However, LR No. 209/9724 was excluded from this list as the 2nd Respondent, upon conducting due diligence, determined that it comprised public land as it fell within a buffer zone and was therefore ineligible for compensation. This conclusion was reached upon reviewing the Nairobi Town Planning Liaison Committee Report. He further asserted that compensation without a valid payment schedule would be unlawful.

43. Mr. Munene elaborated on the importance of road reserves and buffer zones, stating that they function as transit corridors, enhancing both road aesthetics and safety. He informed the Tribunal that he was a licensed surveyor and emphasized that survey reports must be prepared by licensed professionals. He further stated that any allocation of government land must be based on a Part Development Plan. Concluding his examination-in-chief, he reiterated that the law prohibits compensation for public land.

44. On cross- exam by Mr. Osoro, Mr. Munene stated that as part of procedure at KeNHA, they are mandated to prepare the plans and the seek approval from the Cabinet Secreatry before requesting the 2nd Respondent to undertake the acquisition. This land acquisition plan marked as exhibit EM5-6 was forwarded to the 2nd Respondent.

45. Mr. Munene confirmed that while LR No. 209/9724 was among the acquired parcels, no compensation was issued due to concerns arising during due diligence, specifically its encroachment on the buffer zone. He stated that the Liaison Committee Report, a road map, and several Part Development Plans (PDPs), exhibited as EM4 and EM5, were reviewed.

46. He testified that LR No. 209/9724 had direct access from Mombasa Road and that buffer zones designated by physical planners were documented by the Director of Physical Planning. These zones could be positioned on either side of the road, and in this case, they were placed on the left. Public land allocation, he explained, typically follows a structured process—beginning with a Part Development Plan (PDP), followed by public consultation, a survey, and title issuance. He emphasized that a PDP, which reserves land for future use, takes precedence over a survey, as surveys are derived from PDPs.

47. Mr. Munene further testified that exhibit HNS-05 which was sourced from the Director of Surveys required certification to enable its official use. He noted that, under Cap 299 of the Laws of Kenya, survey documents must be prepared by a licensed surveyor, though an approved assistant may conduct the work in their absence.

48. During cross-examination by Mr. Zakayo, counsel for the Complainant, Mr. Munene was questioned about his professional certifications, as none had been submitted in evidence. When questioned about the investigations, he stated that due diligence may be conducted at any stage, commencing upon the identification of land parcels. He confirmed that the assessment carried out relied on land acquisition maps from the Survey of Kenya, as well as the Town Planning Liaison Committee Report and the PDP.

49. When questioned on encroachment, Mr. Munene pointed to page 29 of the Replying Affidavit, which contained a map prepared by government consultant John Burrow & Partners. The map, though not approved, showed a 60-metre road reserve, with the suit property positioned as the second parcel from the top.

50. He clarified that the 1st Respondent's concern was not the entire acreage of the property but only the portion encroaching on the road reserve. He further asserted that it was the 2nd Respondent's duty to inform the Complainants why compensation was withheld. Additionally, he stated that determinations on whether land falls within a buffer zone are made administratively rather than by the board.

51. On further cross-examination, Mr. Zakayo questioned Mr. Munene on inconsistencies in compensation, referring to pages 12 and 21 of his affidavit. Specifically, he inquired why LR No. 209/11880, despite being within the buffer zone, had been compensated. Mr. Munene confirmed the parcel was compensated but cited page 9 of his affidavit, explaining that some compensation was awarded for improvements on the land, not for the land itself. He emphasized that such determinations were made solely by the 2nd Respondent. He stated that the 1st Respondent often would grant approvals for improvements on road reserves like bill boards and bus parks, though he could not confirm if approval had been issued in this instance. He added that any complaints from project-affected persons were referred to the 2nd Respondent, as indicated on page 36 of his affidavit.

52. He further testified under cross-examination by Mr. Zakayo that a deed plan was obtained from the Survey of Kenya and identified exhibit AMNS-02 as a Title. He noted that the deed plan number on exhibit HNS-05 was faint and illegible. However, they had relied on the 1982 survey plan map produced by the Complainant despite it not being authenticated.

53. Mr. Munene reiterated that the 1st Respondent had not received a report from the 2nd Respondent regarding the Complainant's suit property and was still awaiting a compensation schedule. He stated that he was not in a position to question the Title's ownership, as the 1st Respondent dealt solely with boundary matters. He further clarified that he was unaware of any award granted to the Complainant for the suit property and had no knowledge of exhibit AMNS-09, emphasizing that their role was limited to handling compensation schedules. He further confirmed that the 1st Respondent had originally raised the buffer zone concern following the issuance of gazette notices leading to the investigations.

54. Concluding the cross-examination, Mr. Zakayo questioned Mr. Munene on the process of acquiring land for a reserve or buffer zone. Mr. Munene outlined the procedure as follows: gazettement, inspection, inquiries, awards, preparation of a compensation schedule, vesting, and final survey. He also noted that the Town Planning Report should have been incorporated into the survey plan.

55. During re-examination by Ms. Ochako, Mr. Munene affirmed that he was a registered surveyor and the originator of the maps presented as evidence in his capacity as such. He further stated that he served as the project surveyor for the Nairobi Expressway Project. Emphasizing the details of EM-5, he clarified that the pink line represented the 30-meter buffer zone, while the shaded area indicated the affected portions, including part of the Complainant's suit property. He maintained that payments could not be issued without compensation schedules from the 2nd Respondent, and in this instance, no funds had been remitted for disbursement concerning any parcels within the buffer zone. This concluded the 1st Respondent's case.

56. The 2nd Respondent did not call any witness. Consequently, all parties were directed to file their closing submissions for consideration before judgement could be rendered.

Analysis and Determination 57. After conclusion of the trial, the 1st Respondent raised a Preliminary Objection impugning the Tribunal’s jurisdiction to handle the complaint. This objection, dated 18th November 2024, along with written submissions of the same date, challenged the Tribunal’s jurisdiction on the grounds that the matter fell outside its purview. The 1st Respondent contended that the dispute was, at its core, a boundary matter, which, in accordance with legal procedure, ought to be adjudicated by the Land Registrar. Furthermore, the 1st Respondent argued that the parties had not exhausted all available remedies before resorting to the Tribunal. Parties were directed to file additional submissions in support or in opposition to the preliminary objection. A ruling on the preliminary objection was reserved to be delivered together with the judgement.

58. In Submissions dated 4th November 2024, the Complainant adopted the following issues for resolution by the Tribunal;a.Whether the Complainant has a valid title over LR No. 209/9724;b.Whether LR No. 209/9724 encroaches an existing road reserve and/ or buffer zone;c.Whether the Complainant is entitled to compensation for the compulsory acquisition of 0. 0504 hectares of LR No. 209/9724;d.Whether the Complainant’s Constitutional rights have been infringed ande.What remedies are available to the Complainant.

59. The 1st Respondent through submissions dated 3rd December 2024 identified the issues for resolution as follows:a.Whether the tribunal has jurisdiction to determine the validity of title and survey disputes;b.Whether one can be compensated for land within buffer zones or road reserves;c.Whether the Tribunal can grant the reliefs sought.

60. Similarly, the 2nd Respondent identifies the question of our jurisdiction as the first issue for determination. On this limb, the 2nd Respondent supports the 1st Respondent’s preliminary objection. Through submissions dated 11th December 2024, the 2nd Respondent also asks the tribunal to make a determination whether some of the documents that were relied upon by the Complainant offended the provisions of Sections 68(2)(c) and 80 of the Evidence Act, and, whether the registration of the suit land in the Complainant’s name was legally done.

61. Jurisdiction is a fundamental aspect to the work of any adjudicatory body. The matters raised in the Complaint and the responses thereto underscore the need for us to define with clarity the extent of our jurisdiction and if such matters can then be properly addressed before us.

62. Jurisdiction of this tribunal is set out in Section 133C of the Land Act which states as follows:Jurisdiction of the Tribunal1. 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 in the prescribed manner.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 form 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 provisions 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 the Fair Administrative Act or any other law. Emphasis added.

63. The parties are on the same page in regard to the provisions of Section 133C but they adopt different interpretations on whether the questions before us are indeed covered under Section 133C. We think it is really a question of how the issue or issues are framed but nevertheless, we appreciate the submissions by the parties and agree that it is important to address the scope of our jurisdiction.

64. Whereas the Complainant has asked us to determine the validity of the title in respect of the suit property, the Respondents argue that we lack jurisdiction to do so. The 2nd Respondent submits that the provisions of Article 162(2)(b) of the Constitution of Kenya 2010 and Section 127(1) (a) of the Land Act oust this tribunal’s jurisdiction to determine validity of titles and disputes over ownership of land. Further, the 2nd Respondent submits that creation of a buffer zone results in alteration and/or establishment of land boundaries, issues which are governed by Sections 18 and 19 of the Land Registration Act which gives the Land Registrar primary powers to hear and determine any disputes arising therefrom.

65. On its part, the 1st Respondent also frames the issue in contention as a boundary dispute which is beyond the jurisdiction of the tribunal. In this regard, the 1st Respondent relies on Azzuri Limited v. Pink Properties Limited [2018] eKLR and Ndegwa & Another v. Gichuki [2024] eKLR.

66. Even though the issue of jurisdiction has been raised as a preliminary issue by the 1st Respondent, the same does not meet the test of a preliminary objection as it requires the interrogation of facts for its resolution. Whereas the 1st and 2nd Respondents have invited us to determine this issue summarily, the same requires interrogation of facts in order to ascertain the issues for our determination. Such an interrogation will bring to light the question whether the issues before us are within our jurisdiction or not.

67. As stated by the Supreme Court in Aviation & Allied Workers Union Kenya - Versus - Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR:Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.

68. As we stated in the beginning, the issue touching on our jurisdiction cannot be divorced from the framing of the issues herein. For that reason, we shall determine the question of our jurisdiction with reference to the facts as presented by the parties.

69. It is the Complainant’s case that it is the registered owner of the suit property which was the subject of a compulsory acquisition exercise undertaken by the 2nd Respondent on behalf of the 1st Respondent. On their part, the Respondents contend that part of the suit property was public land by virtue of it being part of a road reserve or buffer zone hence the Complainant couldn’t be compensated for the same. To our minds, then, the issue for determination before us is whether the contested portion of the suit property was indeed a road reserve or had been acquired as such. If we find in the positive then the Complainant’s case collapses. However, if we find in the negative, then we can assess the attendant issues framed by the Complainant.

70. The resolution of the issue above does not involve a determination of the validity of the Complainant’s title. Indeed, as correctly observed by the 2nd Respondent, this tribunal lacks the jurisdiction to make that determination by virtue of Section 127(1)(a) of the Land Act. We also do not find that the issues before us involve a dispute over boundaries as framed by the Respondents. Article 133C (8) of the Land Act gives this tribunal the jurisdiction to determine matters relating to the process of compulsory acquisition of land. To that extent, a question whether a portion of the suit property belonging to the Complainant ought to have been acquired is a question on a matter relating to compulsory acquisition of land.

71. The scope of the task before us, therefore, is to determine if a portion of the suit property that was acquired for purposes of the Nairobi Expressway project belongs to the Complainant. To make that determination, our role is limited to assessing the evidence presented to determine; (i) if the Complainant has proven to the required standard that it is the registered proprietor of the suit property, and (ii) if there are any overriding interests on the said property. In this case, the overriding interests as has been argued by the Respondents is the alleged existence of a road reserve/buffer zone on the suit property that would impede any compensation for that portion of the suit property to the Complainant.

72. The case before us does not seek a determination of the validity of the title held by the Complainant. There are established legal avenues of challenging the extent of the Complainant’s ownership of the suit property in case the relevant parties - the Respondents in this case - wished to challenge it. Absent any such legally recognized processes to impugn the Complainant’s interests in the suit property, the law behooves us to recognize such interests and to enforce them. We are guided by the provisions of Sections 24, 25 and 26 of the Land Registration Act which provide as follows:24. Interests conferred by registrationSubject to this Act -a.the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; andb.the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.25. Rights of a proprietor(1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever…26. Certificate of title to be held as conclusive evidence of ownership(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

73. The suit property originates from alienated public land. It was initially allocated to Globalfreight Holdings Limited under Grant No. I.R. 39859 for a period of 99 years commencing on 1st November 1981. The proprietory interests were later transferred to the Complainant for the remainder of the lease period on 8th May 1991. The Respondents have not challenged the Complainant’s interests upon the suit property in the forum recognized under the law. The Complainant’s interests on the suit property can only be defeated as provided for under Section 26(1) of the Land Registration Act. We agree with the Respondents, though, that it is not upon us to make such a determination and that is not the issue before us.

74. Furthermore, it is upon the Respondents who have spiritedly argued that the portion of the suit property that was acquired fell within a road reserve or a buffer zone to prove the same. A road reserve or a buffer zone can be established either through designating a part of public land as such or acquiring private land for such a project. Beyond extensive references to Nairobi Town Planning Liaison Committee report on Mombasa Road Buffer Zone of 1995, none of the Respondents have outlined how the said road reserve or buffer zone was created on the suit property. This report and indeed any others outside the judicial process have no effect on impeding the Complainant’s proprietary interests on the suit property. As noted by Majanja, J in Shalein Masood Mughal v. Attorney General & 5 Others [2014] eKLR:“…the Constitution requires that a finding of “unlawful acquisition” be done through a process established by law for that purpose and not by committee or the Commission of inquiry. These bodies do not have the power or authority to make a determination regarding the legality of the Petitioner’s title.”

75. Absent a judicial process invalidating the Complainant’s proprietary interests on the suit property, the only other way the buffer zone would have been created was through the process of compulsory acquisition of land. No such evidence has been produced by the Respondents. As noted by the Supreme Court in Attorney General v. Zinj Limited (Petition 1 of 2020) [2021]:The only way the Government could lawfully deprive the respondent of part or all of its property, was through a compulsory acquisition, in conformity with the provisions of article 40(3) of the Constitution, and the procedure stipulated in the Land Acquisition Act (now repealed) which was the applicable law at the time. Towards this end, can it be said that the Government acquired the portion of the suit property compulsorily? The facts on record do not that way point. Being the custodian of the Land Register, and the guarantor of titles emanating there-from, the Government was acutely aware that the suit property was privately owned by the respondent.11Para. 27.

76. Having found that the Complainant’s proprietary interests in the suit property had not been defeated at the time the acquisition happened, it follows then that we can proceed to make a determination on the main outstanding issue being whether the Complainant is entitled to the prayers sought. It goes without saying that compulsory acquisition of land must entail compensation. In this case, the 2nd Respondent issued an award to the Complainant but the same has not been paid to date. This action in itself is a violation of the Complainant’s rights under Article 40 (3) of the Constitution of Kenya 2010. Furthermore, the Respondents have violated the Complainant’s rights under Article 47(1) of the Constitution of Kenya 2010 in that regard.

Reliefs 77. A finding of a violation of the Complainant’s rights entails the issuance of appropriate remedies. The Supreme Court in Attorney General v. Zinj Limited (supra) held as follows:Under article 22(1) of the Constitution, every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or is threatened. Among the reliefs that a court may grant upon proof of violation of a fundamental right, is an order for compensation (article 23 (3)(e)). The quantum of damages to be awarded, depends on the nature of the right that is proven to have been violated, the extent of the violation, and the gravity of the injury caused.

78. In this case where the process of compulsory acquisition had been completed save for the payment of the award, the appropriate remedy will be to order for the immediate payment of such award. The Complainant is also entitled to interest from the date of the award until payment in full. This is necessary to cushion the Complainant from the effects of the failure to pay promptly as required by law.

79. For the reasons outlined above, we hereby make the following final orders:a.A declaration be and is hereby issued that the Respondents violated the rights of the Complainant under articles 40(3) and 47(1) of the Constitution of Kenya 2010 by failing to pay compensation for the compulsory acquisition of part of L.R. No. 209/9724;b.An order be and is hereby issued directing the Respondents to pay the Complainant, within 45 days hereof, the sum of Kshs. 30,000,000. 00 being the award for the compulsory acquisition of part of L.R. No. 209/9724 measuring 0. 0504 hectares;c.An order be and is hereby issued directing the Respondents to pay interest on (b) above at the base lending rate set by the Central Bank of Kenya from 22nd January 2021 until payment in full;d.Costs shall be borne by the Respondents, jointly.

80. Orders accordingly.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF FEBRUARY 2025. …………………………………DR. NABIL M. ORINA - CHAIRPERSON……………………………GEORGE SUPEYO - MEMBERBefore: -Mr. Zakayo for the ComplainantMs. Ochako for the 1st RespondentMr. Osoro for the 2nd RespondentBuluma – Court Assistant