[2025] KELAT 160 (KLR)

Mbugua v National Land Commission & another (Complaint E051 of 2024) [2025] KELAT 160 (KLR) (24 March 2025) (Judgment)

Neutral citation: [2025] KELAT 160 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Complaint E051 of 2024

NM Orina, Chair & G Supeyo, Member

March 24, 2025

Between

Samuel Ndimu Mbugua

Plaintiff

and

National Land Commission

1st Defendant

Kenya National Highways Authority

2nd Defendant

Judgment

A. Introduction 1. On 14th February 2020, the National Land Commission (“the 1st Defendant/the Commission”) vide Gazette Notice No. 1259, published a Notice of Intention for compulsory acquisition of various parcels of land for the construction of the Nairobi Western By-Pass Project. This was done on behalf of the Kenya National Highways Authority (“the 2nd Defendant”) and which properties included Property Title Nos. Kiambaa/Ruaka/T.560 and Kiambaa/Ruaka/T.561 (suit properties) registered in the name of the Plaintiff.

2. Subsequently, on 28th July 2020, the 1st Defendant vide Gazette Notice 5272, published a notice of inquiry hearings for the project affected persons which culminated in the 1st Defendant issuing awards of KShs. 43,008,593/- and KShs. 44,150,608/- for Property Title No. Kiambaa/Ruaka/T.560 and Property Title No. Kiambaa/Ruaka/T.561 respectively.

3. Thereafter, on 4th December 2020, the 1st Defendant vide Gazette Notice No.10258, issued a corrigendum with intent to acquire additional portions of land, and which corrigendum included the Plaintiff’s properties.

4. The aforementioned Gazette Notice No. 10258 further served as the Notice of Inquiry for the additional listed portions of land. Consequently, the awards issued to the Plaintiff were reviewed to KShs. 45,395,631/- and KShs. 60,731,998/- for Property Title No. Kiambaa/Ruaka/T.560 and Property Title No. Kiambaa/Ruaka/T.561 respectively, which awards are the subject of the instant complaint.

B. The Plaintiff’s Case 5. The substratum of the Plaintiff’s case is that despite having been issued with an award by the 1st Defendant and the project having since been completed, the Plaintiff is yet to receive the amounts particularized in the revised awards.

6. The Plaintiff further avers that he maintains apartments on his properties that, prior to the 2nd Defendant’s project, brought in an approximate monthly income of KShs. 400,000/-, however, due to the construction of the 2nd Defendant’s project, most of the tenants moved out causing a drastic loss of income.

7. Further to the above, the Plaintiff avers that upon the completion of the project, the 2nd Defendant failed to provide a service road for the tenants to have access to the apartments which has rendered the apartments inaccessible therefore leading to low occupancy.

8. The Plaintiff asserts that he is yet to surrender possession of his properties since he has not been compensated. Accordingly, he asserts that the issue of discharge of the properties does not affect the acquisition of his properties by the Defendants.

C. The Defendants’ Case a. The 1st Defendant’s Case 9. The 1st Defendant acknowledges that it commenced the compulsory acquisition process of the Plaintiff’s properties on behalf of the 2nd Defendant and accordingly issued the subject awards to the Plaintiff.

10. The 1st Defendant, however, avers that before the compulsory acquisition process was fully undertaken and the complainant’s properties handed over to the 2nd Defendant, the 1st Defendant wrote to the 2nd Defendant requesting them to deposit the compensation funds due to the project persons with the 1st Defendant to no avail.

11. The 1st Defendant avers that sometimes in November 2024, it eventually received some compensation sums from the 2nd Defendant but which sums were insufficient to pay in full all the project affected persons.

12. Consequently, the 1st Defendant only made part payment of the compensation funds to the project affected persons including the Plaintiff who was paid a sum of KShs. 3,000,000/- for Property Title No. Kiambaa/Ruaka/T.560 and Kshs. 3,455,992/- for Property Title No. Kiambaa/Ruaka/T.561

13. The 1st Defendant therefore avers that it has been unable to pay the outstanding compensation due to the Plaintiff due to the failure by the 2nd Defendant to remit the necessary funds for compensation.

b. The 2nd Defendant's Case 14. Taking a different position to the 1st Defendant’s, the 2nd Defendant through a statement of defence dated 10th February 2025 avers that the compulsory acquisition process over the Plaintiff’s properties was never completed and to date, neither a Notice of Formal Taking of Possession under Section 120 of the Land Act nor actual possession of the suit property has happened.

15. The 2nd Defendant asserts that the apartments constructed on the Complainant’s properties remain intact and have neither been demolished nor vested in the government to date.

16. The 2nd Defendant further denies causing any inconvenience to the Plaintiff’s alleged tenants or at all and that the construction of the 2nd Defendant’s project was restricted to the existing road reserve hence the road construction did not affect the Plaintiff’s property.

D. Analysis and Determination 17. In supplementary submissions dated 18th February 2025, the Plaintiff identified the following issues for determination before this Tribunal:i.Whether the suit properties were compulsorily acquired; andii.Whether the awards issued have since lapsed and therefore the suit is time barred.

18. The 2nd Defendant through submissions dated 24th February 2025 similarly identified the following issues for resolution:i.Whether compulsory acquisition of the properties lapsed; andii.Whether the plaintiff is entitled to the reliefs sought.

19. The main questions for resolution are inter-related. There is a question whether the Plaintiff’s suit properties were compulsorily acquired, at all, and whether the process of compulsory acquisition lapsed, in the alternative. The question of available remedies will hinge on the resolution of these two primary issues. We shall therefore systematically assess the compulsory acquisition process undertaken before coming to the reliefs sought and if the same are merited.

20. The process of compulsory acquisition of land is stipulated under Part VIII of the Land Act, Cap 280 Laws of Kenya. The Land Act outlines a step by step process for compulsory acquisition which has been summarized by the High Court in 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.”

21. It is not in contention that a compulsory acquisition process was initiated by the 1st Defendant on behalf of the 2nd Defendant in relation to various parcels of property, including the suit properties for purposes of construction of the Nairobi Western By-Pass Project. This is evidenced by the Notice of Intention to Acquire vide Gazette Notice No. 1259 of 14th February 2020; the Notice of Inquiry vide Gazette Notice No. 5272 of 28th July 2020; as well as the corrigendum and Notice of Inquiry for Additional Portions of Land vide Gazette Notice No. 10258 of 4th December 2020

22. What is contested, by the 2nd Defendant who is the acquiring authority in this case, is whether the compulsory acquisition in relation to the suit properties - title Nos. Kiambaa/Ruaka/T.560 and Kiambaa/Ruaka/T.561 was carried out to completion in line with the provisions of the Land Act.

23. It is the 2nd Defendant’s contention that the subject acquisition lapsed and hence the Plaintiff is not entitled to compensation. The 2nd Defendant places reliance on Section 111 (1B) of the Land Act which is to the effect that, “where an acquisition process is not completed within twenty-four months from the date of publication of the notice of intention to acquire the land, the acquisition shall lapse.”

24. It is the 2nd Defendant’s argument that by failing to stake his claim for compensation within the twenty-four month period, the Plaintiff’s claim is rendered “sterile and dissipates by effluxion of time.” The 2nd Defendant relies on the case of Kariku Kimani (suing Thro’ James Thuo Kariuki) Power of Attorney Number 45330/1 v. The Commissioner of Lands and Another [2010] KEHC 1132(KLR) where the Court found that although the suit property had been vested in the government, an inquiry had not been conducted within the prescribed 30 days from the date of publication. The Court in this case considered Section 9(4A) of the repealed Land Acquisition Act which contained similar provisions to Section 111 (1B) of the Land Act.

25. Reliance was also placed on Harp Investco Limited v. National Social Security Fund Board of Trustees, Commissioner of Lands, Registrar of Titles, Kenya National Highways Authority & National Land Commission (ELC Case 2 of 2021) [2022] KEELC 2024 (KLR) (20 January 2022) (Judgment) where the Court held thus:“107. In accordance with Section 111 (1B) of the Land Act, the acquisition process of LR No. 11895/24 published in the gazette notice number 6600 dated 19th August, 2016 was not concluded within 24 months of 19th August 2016 lapsed.”

26. Had the acquisition in this case, therefore, lapsed? It is uncontroverted in evidence that the process of compulsory acquisition of the suit properties was carried out to the point of issuance of awards. This was done within the twenty-four months period of the notice of intention to acquire. It is also undisputed in evidence that the awards issued to the Plaintiff have been partly satisfied through the payment of Kshs. 6,455,992/= to the Plaintiff on 13th November 2024.

27. The Land Act is provides a detailed procedure on what needs to be done at the various stages of acquisition of land. The detailed procedure is to ensure scrupulousness in the acquisition of interests in land and especially to protect the project affected persons. The overbearing principle is that persons who are deprived of their private land through the process of compulsory acquisition of land receive their just compensation promptly.

28. As we reiterated in Bombu Welfare Group v National Land Commission & another [2024] KELAT 509 (KLR):“23. It is evident that the legislature made a deliberate effort to ensure compliance with the constitutional dictates of ensuring prompt payment for persons who have been deprived of land through compulsory acquisition. We, therefore, have no doubt in our minds that the framers of our Constitution intended for the payment to be made without any delay to a person who has been deprived of their land through the process of compulsory acquisition. The reasoning behind this is a no brainer, in our view. The exercise of eminent domain has a disruptive effect on persons who are affected (Project Affected Persons – PAPs) and it is important to put them back as close as possible to the condition they were in before the compulsory acquisition, without delay.”

29. We are, however, cognisant of the fact that a compulsory acquisition process may fall by the wayside for various reasons which may include change of acquisition plan or project design. In case the acquiring authority does not wish to go ahead with an acquisition, then that authority can inform the Commission to withdraw. Such withdrawal may be done before possession is taken. Section 123 of the Land Act provides as follows in this regard:At any time before possession is taken of any land acquired under this Act, the Commission may, revoke a direction to acquire the land, and, shall determine and pay compensation for all damage suffered and all costs and expenses reasonably incurred by persons interested in the land by reason of or in consequence of the proceedings for acquiring the land.

30. In this case, however, the 2nd Defendant has not presented any evidence to demonstrate that a request has been made to the 1st Defendant to withdraw the acquisition. Reference to Section 123 of the Land Act is important in our assessment because even though the Land Act does not stipulate when land is deemed to have been acquired, or put differently – the completion of the acquisition process, Section 123 refers to land already acquired but whose possession has not been taken.

31. Again, back to the question we started with – had the acquisition in this case lapsed? We do not think so. In a situation where the Commission issued a notice of intention to acquire parcels of land which included the suit properties; conducted an inquiry to determine proprietary interests and values for purposes of compensation, and proceeded to issue awards for compensation; the process of compulsory acquisition had been completed. The failure to pay compensation within the stipulated period of one year does not invalidate an acquisition. Similarly, taking of possession of land which has been acquired is dependent on the immediate needs of the acquiring authority.

32. Furthermore, in this case, there is evidence that the Plaintiff has already been paid part of the compensation for the acquisition of the suit properties. The 2nd Defendant has not addressed this uncontroverted fact and the implication of the suggestion that the acquisition has lapsed which has the effect of loss of public funds.

33. If we were to entertain the 2nd Defendant’s position that the acquisition had lapsed it would mean that an acquiring entity will be using the provisions of Section 111 (1B) of the Land Act as a shield to avoid paying compensation to a project affected person whose property has been acquired but compensation has not been paid within the twenty-four-month period. Such an interpretation would be antithetical to the Constitutional safeguards under Article 40(3) and Part VIII of the Land Act as a whole.

34. It cannot be gainsaid that the provisions of Part VIII of the Land Act should not be read in isolation. Within the same Section 111 of the Land Act, it is provided as follows:(1)If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined.(1a)The acquiring authority shall deposit with the Commission the compensation funds in addition to survey fees, registration fees, and any other costs before the acquisition is undertaken.

35. Section 111 (1B) (1) requires that compensation be paid promptly. This is reinforced by the requirement under sub-section (1A) that the acquiring authority deposit with the Commission the compensation funds before the acquisition is undertaken. An acquiring authority which has failed to deposit compensation funds before an acquisition is undertaken can’t be seen to argue that an acquisition has lapsed because the compensation has not been paid. That line of argument perpetuates an absurd outcome which we are not ready to accept. We are also not convinced that the legislature envisaged such an outcome.

36. Further, in Thuo & 151 others v National Land Commission & 5 others [2024] KELAT 1142 (KLR) we had an opportunity to address the importance of ensuring that compensation funds are available before an acquisition is undertaken as follows:69. The legislature was deliberate in requiring the existence of funds to be ascertained before an acquisition is undertaken. This is the necessary balance that the legislature struck to ensure that a person dispossessed of his or her property does not suffer double despondency.

37. Having exhaustively addressed the twin issues of whether the suit properties were compulsorily acquired or in the alternative whether the process of compulsory acquisition lapsed, it is now prudent to consider the reliefs available to the Plaintiff.

38. The law requires that any person whose property has been taken through the process of compulsory acquisition ought to be paid promptly. This has not been the case. The Defendants have thus violated the Plaintiff’s rights under Article 40(3) and Article 47(1) of the Constitution of Kenya, 2010. The appropriate relief in these circumstances would be an order for the immediate payment of compensation due and owing to the Plaintiff.

E. Final Orders 39. The upshot of our analysis and findings above is that the Plaintiff’s case is merited and the same is allowed as follows:a.A declaration be and is hereby issued that the Plaintiff’s rights under Article 40(3) and Article 47 (1) of the Constitution of Kenya, 2010 have been infringed by the Defendants;b.An order be and is hereby issued directing the Defendants to pay the Plaintiff, within 45 days hereof, the balance of the compensation awarded to the Plaintiff being the sum of Kenya Shillings Ninety-Nine Million, Six hundred and Seventy-One Thousand and Six Hundred and Thirty Seven (Kshs. 99,671,637. 00) for the compulsory acquisition of his parcels of land known as Title Nos. Kiambaa/Ruaka/T.560 and Kiambaa/Ruaka/T.561. c.Interest on (b) above shall be paid at court rates from the date of this judgement until payment in full;d.The defendants shall jointly bear the costs of this suit.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF MARCH 2025Dr. Nabil M. Orina - ChairpersonGeorge Supeyo - MemberIn the presence of:Mr. Osoro for the 1st DefendantMr. Ochieng h/b For Prof Mumma SC for the 2nd defendantN/A for the Plaintiff