[2023] KEELC 21856 (KLR)

Musau & 2 others v National Land Commission (Environment & Land Petition E009 of 2021) [2023] KEELC 21856 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEELC 21856 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Petition E009 of 2021

CA Ochieng, J

November 30, 2023

IN THE MATTER OF ARTICLES 1(1), 2(1), 10,19(2), 19(3), 21(1),21(2), 22(2), 23(1), 40(1), 40(3), 47((1), 64, 67 AND 162(2)(B) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTIONS 113, 115, 125 & 128 OF THE LAND ACT, 2012 AND IN THE MATTER OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER COMPULSORY ACQUISITION OF LAND FOR THE CONSTRUCTION OF THE SECOND CARRIAGEWAY OF ATHI RIVER-MACHAKOS TURN OFF (A109) ROAD PROJECT

Between

Christopher Musyoka Musau

1st Petitioner

Roosevelt Nzomo Nguku

2nd Petitioner

Antony Mutisya Mwendandu

3rd Petitioner

and

National Land Commission

Respondent

Judgment

1. Through a Petition dated the 12th July 2021 and amended on 15th June 2022, the Petitioners’ sought for the following orders against the Respondent:1. A declaration do issue that the Respondent has violated Articles 10, 21, 22, 23, 40, 47, 64 and 67 (3) as read together with section 125 of the Land Act and Article 248 (1) and (2)(b) as read together with Articles 249(2)(b) of the Constitution.2. A declaration do issue that the awards issued by the Respondent to the Petitioners are conclusive and final as provided under Article 40(3) of the Constitution as read together with Section 113(2) of the Land Act.3. An order do issue compelling the Respondents to pay the Petitioners a total of Six Hundred and Fifty Three Million, Four Hundred and Fifty Two Thousand, Eight Hundred and Fifty Seven (Kshs. 653,452,857/=) apportioned as follows;a.1st Petitioner Kenya Shillings Five Hundred and Forty-Nine Million, Three Hundred and Two Thousand, Three Hundred and Twelve (Kshs. 549,302,312/=).b.2nd Petitioner Kenya Shillings Forty-Seven Million, Two Hundred and Seventeen Thousand, Two Hundred and Twenty-Three (Kshs.47,217,223/=)c.3rd Petitioner Kenya Shillings Fifty-Six Million, Nine Hundred and Thirty-Three Thousand, Three Hundred and Twenty-Two (Kshs.56,933,322/=).4. Interest to be awarded to the Petitioners at the commercial rate of 14% from the date of the award, January 2018 till payment in full.4A.A declaration do issue that the purported new awards are illegal, unlawful and unconstitutional thus null and void and the same be and is hereby quashed.4B.A declaration do issue that the Respondent being an independent commission cannot take directions and be controlled by the Ethics and Anti-Corruption Commission over the issuance of Awards and payment of the compensation thereof.5. Costs of the Petition be awarded to the Petitioners; and6. Any other relief this Honourable Court deems fit to grant in the circumstances.

2. The Respondent opposed the Petition by filing a replying affidavit sworn by one Fidelis K. Mburu, its acting Director Valuation & Taxation where he confirms that the suit properties were compulsorily acquired for the construction of the second carriage-way of Athi River/Machakos turn off section, off Mombasa road. He explains that before they could process and release the compensation, they received communication from the Ethics and Anti-Corruption Commission (EACC) which indicated that the EACC was carrying out an inquiry into alleged cases of fraud emanating from the said process of compensation including compulsory acquisition, and they recommended that any further payments for compensation be stopped until the project was verified as well as re-valuation of the properties conducted. He avers that KeNHA had also informed the National Land Commission (NLC) vide a letter dated the 30th July 2019 that it had revised the road designs including omission of service lanes, with minimal land acquisition. Further, that KeNHA had equally reviewed the land acquisition requirement at Daystar University interchange to leave out some land. He contends that the letters from the EACC and KeNHA had informed NLC’s decision for re-valuation of the suit properties intended for acquisition to ensure that proper acquisition was done and that public funds were not misappropriated. He avers that the project affected person, including the Petitioners, were duly notified of these developments through various meeting with officials of the NLC, KeNHA and representatives from the provincial administration. He reiterates that the project affected persons were notified of the intended re-valuation and that a consultative meeting was held on 29th June 2021 at Chumvi interchange to further discuss the issue, of which the said project affected persons confirmed they would attend the meeting vide a letter dated the 29th June 2021. He highlights the revised Awards and insists that the suit properties had been grossly over-valued and that paying the initial Award would amount to misuse of public funds. He argues that in making the Award, they had taken into consideration the valuation report presented by the Petitioners’ and Part VIII of the Land Act and that the discrepancy in the acreage compulsorily acquired is so huge hence the difference in the values as returned by the Petitioners and the Respondent. He states that the compensation funds have since been deposited with the Respondent and the Petitioners are welcomed to collect their Awards as well as funds subject to their acceptance including availing of all supporting documents as required by the law. He further argues that if a party is dissatisfied with the award from the National Land Commission, their only recourse is to lodge an Appeal in the Environment and Land Court but not to resort to negotiations or file a Petition. He reaffirms that the Petition raises no constitutional issue and that this is purely a claim for money which ought to have been filed as a civil suit and not a Petition.

3. The claim against the 2nd Respondent was withdrawn by consent on the 24th November 2021.

4. Further, Judgement was entered by consent in respect to the 1st Petitioner on 4th November 2022.

5. The 2nd and 3rd Petitioners filed submissions in support of their case.

Submissions by the 2nd and 3rd Petitioners 6. The 2nd and 3rd Petitioners’ reiterated their averments as per the Petition They argued that they should be paid the outstanding compensation together with interest at commercial rates from the date of issuance of the Award until payment in full. It was their submission that the suit lands are zoned as commercial and industrial and they were carrying out commercial activities thereon before the Respondent took possession thereof. Further, that interest on the principal sum ought to be paid since they have not been given any reasonable explanation for the delay in paying the balance of the awarded amount. They insisted that the Respondent had no locus to purport to issue a new Award and that the EACC had no mandate to audit an independent commission. They sought for costs. To support their averments, they relied on the following decisions: Patrick Musimba v National Lands Commission & 4 Others [2016] eKLR; Reference No.2 of 2014 -In the matter of the National Lands Commission [2015] eKLR and In the matter of the Interim Independent Electoral Commission [2011] eKLR

Analysis and Determination 7. I have considered the Petition, respective affidavits, annexures and submissions, noting that the 1st Petitioner’s claim was settled through a consent judgement dated the 2nd November, 2022, hence the following are the only issues for determination: Whether the 2nd and 3rd Petitioners’ should be compensated as per the terms contained in the initial Award and the said monies to attract 14% interest.

Whether the Petition is merited.

Who will bear costs of the Petition.

8. It is not in dispute that the 2nd and 3rd Petitioners are the registered proprietors of LR. No. Athi River/Athi River Block 1/5089; Athi River/Athi River Block 1/40 and Athi River/Athi River Block 1/33 (suit lands). It is further not in dispute that the Respondent sought to compulsorily acquire a portion of the suit lands for construction of the second carriage-way of Athi River/Machakos turn off section off Mombasa road of the Athi River carriageway. The 2nd and 3rd Petitioners’ claim is premised on the argument that their constitutional rights have been violated as the Respondent has not compensated them, for the compulsorily acquired land. The Respondent has confirmed that it is ready to release the compensation amount subject to the acceptance of the revised Awards by the 2nd and 3rd Petitioners.

9. From a cursory glance at the documents presented by the parties herein, I note the original Award as issued to the 2nd Petitioner was Kshs. 160,167,973 whereas the 3rd Petitioner was awarded Kshs. 92,933,322 respectively, for their respective parcels of land but the said Awards were revised downwards.

10. The Respondent in its replying affidavit presented documents confirming that KeNHA had revised the road design and hence there was a revised schedule of land acquisition in July, 2019. Further, that the EACC had also requested for re evaluation of the suit properties.

11. I have highlighted herebelow certain legal provisions governing compulsory acquisition of land.

12. Article 40(3) of the Constitution provides that:"(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; and(ii)allows any person who has an interest in, or right over, that property a right of access to a court of law.”

13. While Section 113 of the Land Act provides that: -"(1)Upon the conclusion of the inquiry, the Commission shall prepare a written award, in which the Commission shall make a separate award of compensation for every person whom the Commission has determined to have an interest in the land. (2) Subject to Article 40(2) of the Constitution and Section 122 and 128 of this Act, an award—(a)shall be final and conclusive evidence of—i.the size of the land to be acquired;ii.the value, in the opinion of the Commission, of the land;iii.the amount of the compensation payable, whether the persons interested in the land have or have not appeared at the inquiry; and(b)shall not be invalidated by reason only of a discrepancy which may thereafter be found to exist between the area specified in the award and the actual area of the land.(3)If an interest in land is held by two or more persons as co-tenants, the award shall state — (a) the amount of compensation awarded in respect of that interest; and (b) the shares in which it is payable to those persons.(4)Every award shall be filed in the office of the Commission.”

14. Further, Section 119 of the Land Act (Amended) provides condition for payment of compensation and stipulates thus:"Payment of compensation shall be made only upon the exercise of due diligence which shall include final survey and the determination of the acreage, boundaries, ownership and value."

15. The Petitioners have not expressly disputed that the road design was revised by KeNHA. I note as per the letter dated the 30th July, 2019, which KeNHA sent to the Respondent, the Director General stated thus:"….we have revised road designs at Athi River for immediate implementation, including omission of service roads and review of the main road alignment with minimal land acquisition. We have also reviewed land acquisition requirements at Daystar interchange to leave out some land earlier proposed for acquisition…………..we forward a revised schedule and acquisition plans for the project covering Athi River and Daystar interchanges. Please revise Gazette Notice Nos. 9536 of 2017, 11424 of 2017, 11104 of 2018 and 1693 of 2019; and furnish us with a revised schedule of compensation"

16. From a reading of this excerpt which emanated from KENHA, it emerges that the road design was indeed revised and portions of land earlier acquired left out. Insofar as the 2nd and 3rd Petitioners insists on being paid compensation with the initial Award, this Court takes judicial notice of the fact that once a portion of land which was initially acquired is left out, it indeed impacts on the amount of compensation to be paid. It is my considered view that since the revised road design with the fresh area to be acquired was gazetted, the Respondent indeed adhered to the legal process as indicated in the Land Act. Further, I note vide their letter dated the 29th June, 2021, the 2nd and 3rd Petitioners were indeed aware of the revised Award, but rejected it, claiming that the amount presented was below the market value. Further, they admit that they held a meeting with the Respondent’s valuer a Mr. Jacob on 29th June, 2019. The 2nd and 3rd Petitioners have further insisted that that the Respondent being an independent commission cannot take directions and be controlled by the EACC over the issuance of Awards and payment. However, this Court also takes judicial notice of the fact that EACC is indeed mandated to conduct investigations on matters touching on use and mis-use of public funds. Further, the Respondent tabled the reasons as given by the EACC as to why the re-valuation was necessary and these included allegations of fraud, over-valuations and influence. I opine that since the funds used for compensation are drawn from public coffers, the EACC was proper in its intervention which culminated in the re-valuation of the said properties.

17. In the case of Patrick Musimba v National Land Commission & 4 others [2016] eKLR Learned Judges held that:"In our view, a closer reading of Article 40(3) of the Constitution would reveal that the Constitution did not only intend to have the land owner who is divested of his property compensated or restituted for the loss of his property but sought to ensure that the public treasury from which compensation money is drawn is protected against improvidence. Just as the owner must be compensated so too must the public coffers not be looted. It is that line of thought that , under Article 40(3), forms the basis for “prompt payment in full, of just compensation to the person” deprived of his property though compulsory acquisition. 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."

18. Whereas the 2nd and 3rd Petitioners’ demand to be paid compensation as per the initial Awards, they have failed to demonstrate how the revised Award was erroneous or how their properties were under-valued as no fresh valuation reports have been tendered in Court. I note as per the Order of this Court issued on 26th July, 2022, the parties herein were supposed to undertake a joint valuation exercise and present the report in court, which they did not. The Respondent on its part outlined the reasons for the re-valuation and confirm it issued the requisite notice to the Petitioners before carrying out the re-valuation and inviting them for a meeting over the issue. It is my considered view that just compensation as envisaged in Article 40 of the Constitution to project affected persons assumes the said compensation can only accrue to the portion of land acquired. Further, where there is reduction in the land acquired, a project affected person cannot be compensated for more land and where there is a dispute, fresh valuations have to be undertaken. However, the issue of conducting valuations is not the mandate of this court. I hence find that the 2nd and 3rd Petitioners’ rights as envisaged under Article 40 of the Constitution was not violated.

19. I note as per the provisions of the Land Value Amendment Act 2019, the Land Acquisition Tribunal was established. Section 133A of the said Act provides inter alia:"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.”

20. Further, Section 133C (6) of the said Land Value Amendment Act 2019 provides that:-"Despite the provisions of, Sections 127, 128 and 14 (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.”

21. From a reading of the above quoted legal provisions, it is clear that disputes emanating from compulsory acquisition should in the first instance be referred to the Land Acquisition Tribunal which has power to confirm, vary or quash the decision of the National Land Commission. Further, the Act stipulates that in the event that a party is dissatisfied with the Tribunal’s decision, they can lodge an Appeal to ELC on a question of law. This Court takes judicial notice that the Land Acquisition Tribunal has since been established and is now fully operational and even though the same was not operational at the time the Petition was instituted, I opine that the 2nd and 3rd Petitioners’ still have a recourse to seek redress therefrom in order for the proper amount of compensation accruing to them to be assessed.

22. I further find that the issue of assessing the correct amount of compensation accruing to the Petitioners’ should have been instituted by way of a civil suit and not a Petition. I still insist that the burden of proof was upon the 2nd and 3rd Petitioners’ to present a current valuation report indicating the value of the land acquired but they only annexed a copy of the 18th December, 2017 Valuation Report which is not sufficient.

23. In the circumstances, I direct that the 2nd and 3rd Petitioners’ to lodge an Appeal at the Land Acquisition Tribunal to enable it assess the correct compensation due to them and will grant them leave of thirty (30) days from the date hereof, to do so.

24. It is against the foregoing that I find this Petition unmerited and will proceed to strike it out.

25. I will not make any order as to costs.

DATED SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 30TH DAY OF NOVEMBER, 2023CHRISTINE OCHIENGJUDGE