[2025] KELAT 129 (KLR)

Mwendandu alias Antony Mutisya Mwendandu v National Land Commission (Tribunal Case E011 of 2024) [2025] KELAT 129 (KLR) (20 February 2025) (Judgment)

Neutral citation: [2025] KELAT 129 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E011 of 2024

NM Orina, Chair & G Supeyo, Member

February 20, 2025

Between

anthony Mutisya Mwendandu alias Antony Mutisya Mwendandu

Appellant

and

National Land Commission

Respondent

Judgment

Background 1. Pursuant to leave granted by this Tribunal on 2nd December 2024, the Appellant herein, Anthony Mutisya Mwendandu Alias Antony Mutisya Mwendandu, filed a Memorandum of Appeal dated 3rd December 2024 accompanied by a supporting affidavit sworn on even date.

2. The appeal which is brought under Section 133 C (1) & (2) of the Land Act, 2012 impugns the decision of the Respondent contained in a revised award dated 25th June 2021 which revised the sum of compensation due to the Appellant from the initial award of Kshs. 92,933,322/= as confirmed by a letter dated 29th February 2019, to a sum of Kshs. 37,425,383/= contained in the said revised award.

3. The Appellant is the registered owner of the property known as Athi River/athi River Block 1/33 which was subject of compulsory acquisition for the purposes of construction of the second carriageway of Athi River – Machakos turnoff Road project through gazette notice no. 9536 of 29th September 2017 (hereinafter, the suit property). A copy of the notice was provided in evidence through the Supporting Affidavit of Antony Mutisya Mwendandu as Exhibit number “AMM-2”).

4. It is also alleged that the Respondent carried out an inquiry and issued an award for the sum of Kshs. 92,933,322/= in favour of the Appellant. The Appellant has annexed a letter from the Respondent dated 29th February 2019 marked as Exhibit number “AMM-3” which alludes to receipt of KShs. 92. 933. 322/= from the Kenya National Highways Authority (“KeNHA”) for an award dated 13th November 2017.

5. It is the Appellant’s case that through its own valuation conducted on 14th December 2017, the suit property was valued at Kshs. 77,540,190/=. This valuation is marked as Exhibit “AMM-6” in the Appellant’s Supporting Affidavit.

6. In a nutshell, the Appellant argues that the suit property was grossly undervalued by the Respondent in the revised valuation dated 25th June 2021. The Appellant, therefore, urges the Tribunal to uphold the award of Kshs. 92,933,322/= contained in the award dated 13th November 2017 and to order the Respondent to pay the Appellant the balance of Kshs. 56,933,322/= being the balance of compensation from the initial award. The Appellant has also asked for interest and costs of this suit.

7. The Respondent has not filed any response to the Appeal and as such the same remains unopposed.

Analysis And Determination 8. Even though this Appeal is uncontested, it is our duty to evaluate the evidence presented and to be satisfied that the same meets the standard for the grant of the prayers sought. We must also express our disappointment at the failure by the Respondent to file a response in such a matter which involves substantial amounts of tax payers’ money. Is there a “conspiracy of silence”? One must necessarily wonder.

9. The process of compulsory acquisition of land is laid down in an elaborate manner in the Land Act. The same has been reiterated in the locus classicus case of Patrick Musimba vs. National Land Commission & 4 others [2016] eKLR and several decisions of this tribunal. We see no reason to rehash it save to note that relevant to this case is the issuance of an award and payment thereof, being the final stages of that process. As we observed in Registered Trustees of Ruiru Sports Club v Kenya National Highways Authority & another [2023] KELAT 1373 (KLR):“…Section 113 (2) provides, “Subject to Article 40(2) (sic) of the Constitution and Section 122 and 128 of this Act, an award – (a) shall be final and conclusive evidence of – ... (ii) The value, in the opinion of the commission, of the land…” The plain interpretation of this provision is that the award once issued by the 2nd Respondent is final and can only be subjected to review as per the provisions of Article 40 (2) (sic) of the Constitution and Section 122 and 128 of the Land Act.”

10. The question before us involves the issuance of an award for the sum of Kshs. 92,933,322/= and the revision of the same to the sum of Kshs. 37,425,383/=. The Appellant has asked the tribunal to uphold the award of Kshs. 92,933,322/= which was the initial award issued by the Respondent. Whereas we have not had the benefit of assessing the Respondent’s reasons for such a revision, we reiterate our findings in Ruiru Sports Club in regard to the power of the Respondent to revise an earlier award issued to a project affected person as follows: 45. The plain reading of the relevant statute, being the Land Act, leads to the inevitable conclusion that a decision made by the 2nd Respondent in issuing an award for compensation remains good in law unless and until declared otherwise by a court of competent jurisdiction. We now turn to consider whether there are other circumstances outside the legislative framework that would entitle the 2nd Respondent to review its own decisions. We appreciate that there is considerable tension between the need for finality and flexibility to correct perceived errors or fraud as alleged by the 2nd Respondent. 46. The 2nd Respondent alludes to “good faith to safeguard public interest” as the motivation behind its decision to revoke the award issued in favour of the Complainant. Indeed, good governance requires public bodies to issues sound and fair decisions. We are of the view that even in the absence of a clear statutory provision that allows the 2nd Respondent to review its own decisions, there may be limited circumstances where an award issued by the 2nd Respondent may be reviewed. We hold that the only window open to such a review would be to correct an error on the face of the record or where the said decision was obtained fraudulently. We believe that the exercise of limited review in these two situations would give effect to good governance and avoid a situation where the impugned decision has to be unnecessarily subjected to review by a court of law. Furthermore, a decision obtained fraudulently would amount to no decision at all and the same can be revoked by the body making it.

11. In the instant case, evidence on the record shows that through a letter dated 3rd April 2019, the Respondent revised the award of Kshs. 92,933,322/= to Kshs. 90,728,208/= on the basis that there was an error on the area to be acquired which was 0. 7982 hectares contrary to the earlier indicated area of 0. 8176 hectares. This is the only communication that has been presented on the record in regard to the revision to the awarded sum. Further, there is no indication if this new award was accepted by the Appellant.

12. However, the Appellant received a further revised award for the sum of Kshs. 37,425,383/= dated 25th June 2021. A copy of this award has been annexed to the Appellant’s affidavit and marked “AMM5”. No explanation was offered for this further revision. We, therefore, find the same to be arbitrary and a violation of Article 47(1) of the Constitution of Kenya 2010.

13. Having made that determination, it is now imperative upon us to consider the appropriate remedy. The Appellant has urged us to uphold the initial award of Kshs. 92,933,322/=. The Appellant has also submitted in evidence a valuation report for the suit property for the sum of Kshs. 77,540,190/=. It is noteworthy that this valuation was conducted on 14th December 2017, just a month after the initial award of Kshs. 92,933,322/= was purportedly issued. It is also noteworthy that the Appellant has not produced this purported award despite producing the letter dated 29th February 2019 which makes reference to the award.

14. The sum of the evidence on the record does not assist the Tribunal to reach a finding on what the appropriate sum of compensation the Appellant was entitled to. The law requires that the compensation due to a project affected person is a sum equivalent to the market value of the property that has been acquired. In interpreting the constitutional imperative of just compensation, the High Court in Patrick Musimba v National Land Commission & 4 others [2016] eKLR held as follows:“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.’

15. Before us are four figures which are all related to the suit property: the “initial award” of Kshs. 92,933,322/=, the revised award of Kshs. 90,728,208/=, the further revised award of Kshs. 37,425,383/= and the Appellant’s own valuation of Kshs. 77,540,190/=. It is clear to us that the Respondent’s initial award cannot be upheld for the reason that the same was later revised due to an error on the acreage of the suit property acquired. The Appellant has not challenged this revision. Furthermore, it is curious that the initial award and the subsequent award of Kshs. 90,728,208/= is significantly more than what the Appellant himself valued his property and requested to be considered in compensating him. It is important that the Respondent safeguards public coffers at all times when determining compensation for compulsorily acquired land. These figures, which seem to have been “plucked from the air” coupled with the “conspiracy of silence” we alluded to earlier lead us to the conclusion that the same cannot be relied upon to make a determination on what the Appellant is entitled to.

16. For the above reasons, we reach the conclusion that the tail end of the process of compulsory acquisition in respect of the suit property was so irregular to the extent that it is impossible for the tribunal to make a determination of what the Appellant is truly entitled to. The failure to enter appearance and file a response in the matter has only made the situation worse. It is a classical case of dereliction of duty. In the circumstances, it behooves us to require the Respondent to undertake the valuation of the suit property afresh and to issue an award thereto in compliance with the law. We hereby make the following orders:a.That the awards of Kshs. 92,933,322/=, Kshs. 90,728,208/=, and Kshs. 37,425,383/= in respect of the compulsory acquisition of LR. No. Athi River/Athi River Block 1/33 are hereby set aside;b.That the Respondent is hereby directed to conduct a valuation of the suit property, jointly with valuers from the Ministry of Lands, Housing and Urban Settlement and to issue an award within 45 days of the date hereof;c.The award so issued shall be filed before this tribunal together with the valuation report relied on;d.That this tribunal shall issue final orders upon the filing of the award and valuation report above.

17. Orders accordingly.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF FEBRUARY 2025DR. NABIL M. ORINA - CHAIRPERSONMR. GEORGE SUPEYO -MEMBERBefore: -Ms. Thiong’o For The AppellantEverlyne – C/A