[2025] KELAT 159 (KLR)

Manjewa Station Limited v Kenya Railways Limited & another (Land Acquisition Case E048 of 2024) [2025] KELAT 159 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KELAT 159 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Land Acquisition Case E048 of 2024

NM Orina, Chair & G Supeyo, Member

March 27, 2025

Between

Manjewa Station Limited

Complainant

and

Kenya Railways Limited

1st Respondent

National Land Commission

2nd Respondent

Judgment

1. At the core of this dispute is a compensation claim concerning the parcel of land known as Kwale/Mwavumbo/176 (hereinafter, “the suit property”), located in Kwale County. The Complainant asserts that they are the rightful registered owner of the suit property and contends that they have not been compensated for the acquisition of 8. 901 acres (3. 60023 hectares) of the land, which was utilized for the construction of the Mwembeni SGR Substation.

2. Conversely, the 1st Respondent’s dispute the Complainant’s claim of ownership, asserting that the Complainant was neither the registered proprietor of the suit property at the material time nor at any other relevant period, asserting that the land was lawfully acquired in 2014 through Gazette Notice No. 7400 and that compensation of Kshs. 27,886,639 was duly paid to the rightful owners, Tom Mwachiti Mwero and Johnson Mkala Mwero.

3. The 1st Respondent further contends that the land in question pertains to the Manjewa SGR Station, not the Mwembeni Substation.

The Complainant's Case 4. The Complainant is a limited liability company duly registered in Kenya and conducting business in Mombasa. It asserts that, at all material times, it has been the registered owner of Plot No. Kwale/Mwavumbo/176, as delineated on Government Map Sheet No. 197/IV & 198/3, within the Mwavumbo Adjudication Section, Kwale District (Maji ya Chumvi Area – Mariakani Township) (hereinafter referred to as the “suit property”).

5. The Complainant instituted these proceedings by filing a Statement of Complaint accompanied by a Witness Statement sworn by Tom Mwachiti Mwero, both dated 11th October 2024.

6. In its Statement of Claim, the Complainant avers that around July 2016, the 1st Respondent constructed the Mwembeni Standard Gauge Railway (SGR) Substation at Samburu Township, Samburu Division, Kinango Sub-County, Kwale County. This construction resulted in the occupation of 8. 901 acres (3. 60023 hectares) of the suit property.

7. The Complainant contends that the 1st Respondent unlawfully entered the suit property without obtaining the necessary authorizations, permits, or licenses.

8. Furthermore, the Complainant asserts that the 2nd Respondent failed to adhere to its mandate by failing to issue a notice of an award or provide any compensation for the loss of land and damages suffered during the survey and implementation of the project.

9. It is the Complainant’s contention that it has been denied peaceful and quiet possession of its property and has continued to suffer irreparable loss and damage as a result of the Respondents’ failure to compensate it.

10. In his witness statement, Mr. Mwero asserts that, following a valuation of the portion of land occupied by the Respondents, the Complainant now seeks compensation in the sum of Kenya Shillings Two Hundred and Four Million, Seven Hundred Thousand (KES 204,700,000), representing the assessed value of the land alongside damages.

11. The Complainant therefore prays from this Tribunal, orders that:a.A declaration that the Complainant’s rights as enshrined under Articles 10, 27, 28, 29, 40, and 47 of the Constitution of Kenya have been violated by the Respondents, jointly and severally, in the manner pleaded in this Complaint.b.A declaration that the Complainant is entitled to prompt, just, and adequate compensation with interest thereon effective from 6th September 2024. c.General damages for trespass and wrongful occupation of land.d.General damages for loss of use and economic gain.e.Any other order that the Honourable Tribunal may deem just and expedient in the circumstances of the case.f.Costs of the suit and interest.

The 1st Respondent’s Case 12. The 1st Respondent, in its Response to the Statement of Claim dated 23rd December 2024, categorically denies all allegations made by the Complainant.

13. In a sworn witness statement, Nathaniel Ochieng, Senior Land Surveyor at Kenya Railways Corporation, affirms that the parcel of land known as Kwale/Mwavumbo/176 in Maji ya Chumvi, Kwale County, was lawfully acquired in 2014. Gazette Notice No. 7400, published on 17th October 2014, formally notified the public of the government’s intention to acquire 7. 053 hectares for the Mombasa-Nairobi Standard Gauge Railway (SGR), specifically the Manjewa Station.

14. Mr. Ochieng asserts that the rightful owners were duly compensated. The 2nd Respondent paid them for both the land and any developments thereon, awarding Kshs. 27,886,639. 00 under Schedule 9 of the SGR Phase 1 compensation scheme. He affirms that this amount corresponded to the 7. 053 hectares acquired and was paid to Tom Mwachiti Mwero and Johnson Mkala Mwero.

15. Refuting the Complainant’s claim of ownership, Mr. Ochieng states that the 2014 Gazette Notice listed the registered proprietors as Johnson Mwero and Trustees. The Complainant was not among the owners at the time of acquisition.

16. He further references documents in the Complainant’s bundle dated 16th October 2024, which include a title deed showing that the Complainant became the registered proprietor on 10th September 2019—over five years after the land was acquired. Historical satellite imagery from 2011–2012, he adds, shows no structures on the property at the time.

17. Addressing the Manjewa Station, Mr. Ochieng states that there was no Phase 2 of the Mombasa-Nairobi SGR project and that the entire station spans approximately 13. 9937 hectares (34. 63 acres). He refutes the Complainant’s coordinates purporting to define the station’s boundary.

18. He maintains that the acquisition of the 7. 053 hectares adhered strictly to land laws, specifically Part VIII of the Land Act.

19. Mr. Ochieng avers that the acquisition process entailed a formal request, mapping of the affected portion, valuation per the Land Act, and publication of a Gazette Notice on 17th October 2014. An inquiry hearing followed, during which the Complainant presented no proof of ownership. The 2nd Respondent determined that Tom Mwachiti Mwero and Johnson Mkala Mwero were the rightful owners, as recorded in the compensation schedule.

20. Mr. Ochieng insists that the Respondents neither trespassed on nor unlawfully took possession of the suit property.

21. He asserts that the 1st Respondent bears no liability, as compensation was duly paid to the rightful owners.

22. He concludes that the 1st Respondent fully remitted the necessary funds to the 2nd Respondent for compensation. Upon acquisition and payment, the 2nd Respondent became the lawful owner, rendering the Complainant’s claim unfounded.

The Complainant's Rebuttal 23. The Complainant asserts that its claim pertains to the Mwembeni Standard Gauge Railway (SGR) Substation in Samburu Township, Samburu Division, Kinango Sub-County, Kwale County, covering 3. 6023 hectares (8. 901 acres), and not the property at Manjewa Station.

24. It denies that the Respondents followed due process, maintaining that no compensation was received for the 3. 6023 hectares of Kwale/Mwavumbo/176, which was compulsorily acquired.

25. The Complainant states that a demand letter dated 10th November 2023 was served on and received by the Respondents on 14th November 2023.

26. It further contends that the Respondents failed to provide key documents, including the title deeds of compensated landowners, the survey report and government area map sheet, the valuation report, the compensation award letter, and bank details of payments made for the Mwembeni SGR Substation in Samburu Township, Kwale.

Joint Survey 27. On 22nd January 2025 the Tribunal ordered the parties to undertake a joint survey and file a comprehensive report within twenty-one (21) days. The primary objective of the survey was to ascertain the precise acreage of the land parcel known as Kwale/Mwavumbo/176, which was allegedly acquired for the construction of the Mombasa-Nairobi Standard Gauge Railway (SGR) Project.

28. In compliance with the Tribunal’s directive, the parties conducted the survey and subsequently filed the joint survey report on 18th February 2025.

29. The report indicates that during the site visit, the Complainant was requested to delineate the boundaries of the disputed property. Initially, the Complainant identified a water pipeline breather as a boundary marker; however, upon further inspection, it was established that the feature was situated within Kwale/Mwavumbo/47, a separate parcel of land.

30. In a subsequent attempt to establish the boundaries, the Complainant pointed to a bridge over the SGR line at Julaani Primary School, asserting that it marked one end of the property. However, further verification confirmed that the bridge was located within Kwale/Mwavumbo/1, another distinct parcel.

31. Conversely, the survey data collected along the SGR fence, including the station corners, was found to be consistent with the approved SGR acquisition design and records.

32. Moreover, the survey report highlighted that the Complainant had previously lodged a separate claim before the Tribunal - LAT Case No. 1 of 2023, Tom Mwachiti Mwero v. KRC & NLC, relating to the adjacent parcel, Kwale/Mwavumbo/54. This effectively indicates that the Complainant is asserting an interest in both Kwale/Mwavumbo/54 and Kwale/Mwavumbo/176.

33. Significantly, the survey findings established that only 4. 74 hectares of the suit property was affected by the SGR project.

34. The survey report concluded and recommended that:i.The actual area acquired for and occupied by the SGR Mombasa-Nairobi project for parcel Kwale/Mwavumbo/176 was found to be approximately 4. 76 hectares.ii.The area in Schedule 9 was recorded in acres instead of hectares. The 7. 053 hectares (as gazetted) is exactly equal to 17. 43 acres.iii.The Commission should gazette the difference in area through a corrigendum and provide a valuation thereafter.iv.The Commission should recover the erroneous payment mentioned in (iii) above as provided for in the Land Act, 2012. v.Cumulatively, the total actual acreage for the two adjacent properties, Kwale/Mwavumbo/54 and Kwale/Mwavumbo/176, is 9. 0 hectares, whereas the gazetted and paid acreage is 9. 837 hectares.

Analysis and Determination 35. In its submissions dated 25th February 2025, the 1st Respondent highlights the following issues for determination:i.What acreage of the suit property did the Respondents compulsorily acquire?ii.Whether the Complainant was the registered owner of the suit property as of 2014, when the Respondents compulsorily acquired the suit property?iii.Whether the Complainant is entitled to compensation for the compulsory acquisition of the suit property?iv.Whether, in any event, the 1st Respondent has a legal duty to pay the Complainant compensation as sought under prayer (b) of the Statement of Claim?v.Whether the 1st Respondent violated the rights of the Complainant under Articles 10, 27, 28, 29, 40, and 47 of the Constitution, or at all?vi.Whether the Complainant is entitled to payment of general damages as sought under prayers (c), (d), and (e)?vii.Whether the Complainant is entitled to costs of the suit as sought under prayer (g)?

36. The Complainant did not file their submissions. Nevertheless, the Tribunal shall take into consideration the pleadings on record, together with the accompanying documents and submissions to render its determination.

37. The evidence on record clearly establishes that the suit property - Kwale/Mwavumbo/176 was earmarked for acquisition through Gazette Notice No. 7400, published on 17th October 2014. The notice of intention to acquire identified the area of acquisition as 7. 053 hectares. This notice further named the registered proprietors at the material time as Johnson Mwero and Trustees.

38. Subsequently, it is also established in evidence that an award for compensation dated 8th January 2016 was issued to Tom Mwachiti Mwero and Johnson Mkala Mwero for Kshs. 27,886,639 for the compulsory acquisition of 7. 053 hectares of the suit property. This factual matrix is critical in determining the validity of the Complainant’s claim.

39. On the other hand, the Complainant’s evidence indicates that it holds a title deed to the suit property which was acquired through a transfer on 10th September 2019. It is, therefore, not in dispute that the Complainant was not the registered owner of the suit property at the time of acquisition in the year 2014. At the material time of acquisition in 2014, the land was lawfully owned by Mr. Johnson Mwachiti and Trustees. On what basis, then, is the Complainant seeking compensation for the suit property?

40. The process of compulsory acquisition of land begins with the issuance of a notice of intention to acquire which identifies the parcels of land sought to be acquired and the persons with proprietary interests. It is these persons who have a right to be compensated for their proprietary interests.

41. A person who subsequently acquires proprietary interests in a parcel of land that has been acquired is not a project affected person for purposes of seeking compensation. it is indeed curious how the Complainant was able to register the whole suit property in its name even after a portion of it had been compulsorily acquired. Indeed, Section 120(4) of the Land Act is unequivocal that upon acquisition, the land shall vest in the national or county government free from any encumbrance.

42. The dispute before us is not in regard to the acquisition of the suit property in 2014 which was registered in the name of Johnson Mwachiti and Trustees. Instead, the dispute by the Complainant, who became the registered proprietor of the suit property in 2019, is that the acquisition happened in 2016 without its involvement. The Claimant whose director is presumably the same person who was named as the registered proprietor of the suit property together with trustees in 2014 has deliberately withheld information, which was within its knowledge, that a portion of the suit property was already acquired in 2014 and an award of compensation issued. To our minds, this is an attempt at unjust enrichment.

43. Finally, the joint survey report dated 18th February 2025 which was conducted with the involvement and participation of all parties in this suit, conclusively establishes that the actual area acquired by the Respondents from the suit property was 4. 74 hectares, rather than the 7. 053 hectares that was gazetted in 2014. This material finding suggests that, first, an overpayment of compensation was made to the registered proprietors at the time of acquisition and, second, there is no additional acquisition in respect of the suit property which happened since the 2014 acquisition.

44. The inevitable conclusion from our analysis is that this suit is devoid of merit. The same is an ill-fated attempt for unjust enrichment by the Complainant. It must suffer the fate of dismissal with costs to the Respondents.

45. We also direct that this judgement be placed before the 2nd Respondent who shall conduct the necessary investigations to establish if there was overpayment of compensation in respect of the suit property and to take the appropriate action pursuant to Section 116 of the Land Act.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH MARCH, 2025……………………………………………………………DR. NABIL M. ORINA GEORGE SUPEYOCHAIRPERSON MEMBERBefore:Ms. Okumu for the ComplainantKongere h/b for Mr. Karina for the 1st RespondentBuluma – C/A