[2024] KELAT 515 (KLR)

Mwero (Suing as a Representative of the Estate of Fredrick Johnson Mwachiti - Deceased) v Kenya Railways Corporation & another; Public Trustee (Interested Party) (Tribunal Case E001 of 2023) [2024] KELAT 515 (KLR) (4 March 2024) (Judgment)

Neutral citation: [2024] KELAT 515 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E001 of 2023

NM Orina, Chair & G Supeyo, Member

March 4, 2024

Between

Tom Mwachiti Mwero (Suing as a Representative of the Estate of Fredrick Johnson Mwachiti - Deceased)

Complainant

and

Kenya Railways Corporation

1st Respondent

National Land Commission

2nd Respondent

and

Public Trustee

Interested Party

Judgment

The Claim and Responses Thereto 1. Through a Statement of Complaint dated 9th October 2023, the Complainant in this case, Mr. Tom Mwachiti Mwero (suing as a representative of the estate of Fredrick Johnson Mwachiti – deceased) approached the Tribunal on the allegation that the Respondents have illegally occupied land measuring 4. 135ha which is part of land known as Kwale/Mwavumbo/54 (the suit property).

2. It is the Complainant’s case that whereas a compulsory acquisition was done, and compensation paid in respect of a parcel of land measuring 2. 784ha which forms part of the suit property, the Respondents proceeded to take actual possession of land measuring 6. 88ha which was more than the land that was acquired through the process of compulsory acquisition, by 4. 135ha.

3. The Complainant’s case as set out in the Statement of Complaint is that vide Gazette Notice No. 4096 of 20th June 2014, the 2nd Respondent declared an intention to acquire part of its property for the construction of the Mombasa-Nairobi Standard Gauge Railway. Subsequently, via Gazette Notice No. 7400 of 17th October 2014, the 2nd Respondent published a notice of inquiry identifying the Claimant’s property measuring 2. 784ha for compulsory acquisition and inviting interested parties to submit claims.

4. Upon completion of the process of inquiry and on 8th January 2016, the 2nd Respondent issued an award for Eleven Million and Seven Thousand, Two Hundred and Forty-Nine Kenya shillings (Kshs. 11,007,249. 00) in favour of the Complainant for compensation of part of the suit property that had been compulsorily acquired.

5. The Complainant avers that, to his surprise, the 1st Respondent proceeded to take actual possession of 6. 88ha being part of the suit property rather than the 2. 784ha that was compulsorily acquired. It is alleged that the 1st Respondent constructed the Manjewa Railway Substation on this property.

6. The Complainant, therefore, seeks a declaration from this Tribunal that the alleged acquisition of the additional 4. 135ha was illegal, unlawful and/or unconstitutional. The Tribunal has been asked to award compensation for the said parcel of land, interest, damages, and costs of the suit.

7. On its part, the 1st Respondent has opposed the Claim through a Replying Affidavit dated 22nd November 2023 sworn by Nathaniel Ochieng, a Senior Land Surveyor of the 1st Respondent.

8. While the 1st Respondent acknowledges that the 2nd Respondent published in the Kenya Gazette an intention to acquire only 2. 784ha, the 1st Respondent states that indeed 6. 88ha was compulsorily acquired and the same was valued and fully compensated for through the award issued to the Complainant.

9. It is the 1st Respondent’s case that this was captured in the compensation schedule prepared by the 2nd Respondent which detailed the list of the affected properties (including their respective sizes). A copy of the said compensation schedule which is annexed to the affidavit of Nathaniel Ochieng and marked “NO1” shows at serial number 86, an entry capturing the suit property and with the acreage of 6. 88ha and a compensation amount of Kshs. 11,007,249. 00 payable to the Complainant.

10. The 2nd Respondent, on its part, opposes the Claim but takes a different position from that adopted by the 1st Respondent. As far as the 2nd Respondent is concerned, the property that was compulsorily acquired forming part of the suit property was 2. 784ha as captured in the Notice of Inquiry dated 17th October 2014. To its mind, this acquisition was procedural and the award was accepted by the Complainant.

11. Through an affidavit of the 2nd Respondent’s Director of Legal Affairs and Dispute Resolution, Mr. Brian Ikol, sworn on 27th November 2023, it is contended that the alleged additional 4. 135ha were not compulsorily acquired by the 2nd Respondent and thus would not be subject to compensation. Mr. Ikol avers that without evidence that any additional land was compulsorily acquired, the Complainant’s claim should fail.

12. Mr. Ikol further contends that having been brought almost Eight (8) years since the project was completed, the Claimant’s Claim is an afterthought that has no basis and the same should be dismissed.

13. This matter came up before the Tribunal on many occasions to confirm compliance with directions issued for filing of responses and for pre-trial conferencing. During such mentions, it became apparent that the Tribunal needed additional documents in order to properly dispose of the matter. On 16th November 2023, the Complainant’s counsel requested for an order to access the suit property for purposes of conducting a survey. The Tribunal granted the order for access and survey but the Complainant has not filed any survey report to date.

14. Further on 30th November 2023 when this matter came up for a mention, the Tribunal directed the 2nd Respondent to file, within seven days, a copy of the valuation report in regard to the part of the suit property that was compulsorily acquired. The 2nd respondent did not avail such a report before the Tribunal and when the matter was mentioned on 7th December 2023, the 2nd Respondent’s counsel informed the Tribunal that they were unable to trace the valuation report and the counsel urged the Tribunal to order for a survey of the suit property.

15. On 7th December 2023, the parties also informed the Tribunal that they had attempted to resolve the dispute through negotiations, but they were unable to progress further due to lack of a survey report and a valuation report.

16. On the same day, the Tribunal determined that sufficient cause had been shown to extend the timelines under Section 133C (4) by an additional forty-five (45) days in order to give parties time to obtain crucial documents that would assist the Tribunal to reach a just determination.

17. When the matter was mentioned on 9th January 2024, the parties having not filed any new documents, agreed that the matter could be disposed of on the basis of what they had earlier filed and submissions. Parties were directed to file submissions by 12th January 2024 and judgement was reserved for 17th January 2024.

18. The parties herein (the Complainant and the 1st Respondent) filed their rival submissions as directed by the Tribunal. The 2nd Respondent did not file any submissions.

19. Despite scheduling the matter for judgement on 17th January 2024, the Tribunal was unable to reach a final determination. Our deliberations remained inconclusive without a survey report and a valuation of the said parcel of land. We were unable to reach a determination whether indeed 6. 88ha was acquired, as claimed by the Claimant and rather than 2. 784ha which was the gazetted acreage.

20. On 17th January 2024 we again adjourned the matter and extended the time under Section 133C (4) of the Land Act by another forty-five (45) days to enable us to make other orders that would facilitate the resolution of the case with finality.

21. We made the following orders:a.The Director Survey, Ministry of Lands and Urban Planning to, within fourteen (14) days of this Order, conduct a joint survey with the 2nd Respondent on the suit property otherwise known as Kwale/Mwavumbo/54 to ascertain the acreage affected as a result of compulsory acquisition.b.The Director Valuation, Ministry of Lands and Urban Planning to, within fourteen (14) days of this Order, conduct a joint valuation with the 2nd Respondent to ascertain the value of the land in (a) above as at 20th June 2014 when the process of compulsory acquisition was commenced.c.The Managing Director and/or officers of the 1st Respondent to facilitate the exercise.d.The Claimant is at liberty to file their own survey and valuation reports pursuant to orders earlier issued.e.The Reports in (a) and (b) above to be filed by the 2nd Respondent within three weeks of these Orders.f.Mention on 12th February 2024 to confirm compliance and to issue a judgement date.

22. On 12th February 2024, however, the 2nd Respondent informed us that it had been unable to comply with the orders issued by the Tribunal due to lack of funds to facilitate the exercise. The Tribunal clarified that the exercise required the facilitation of the 1st Respondent who would work jointly with the 2nd Respondent. The Claimant had also not filed any report, a situation that set back the proceedings back to 17th January 2024 when the orders had been issued.

23. When the parties appeared before us this morning, it was again apparent that none of the orders issued on 17th January 2024 had been complied with. This unfortunate situation leaves us with no choice than to proceed and make final orders on the basis of what is before us.

Analysis and Determination 24. We have considered the filed pleadings with the accompanying documents as well as the submissions and wish to pronounce ourselves as follows. This Claim rests on two related questions: did the Respondents compulsorily acquire 2. 784ha or 6. 88ha of the suit property? If the answer to the first question is the latter, as alleged by the Complainant and conceded by the 1st Respondent, was the compensation paid for the compulsory acquisition commensurate to the acquired property?

25. On the first question, the 1st Respondent asserts that 6. 88ha was compulsorily acquired being part of the suit property. This is a significant position considering the process of compulsory acquisition and the role played by the acquiring body which ordinarily presents a request to the 2nd Respondent for acquisition stating the public purpose and how much land is required. This is followed by the publication in the gazette by the 2nd Respondent of the notice of intention to acquire. To this end then, the Respondents, and especially the 1st Respondent has not explained how the publication of the 2. 784ha which it intended to acquire changed to 6. 88ha which was purportedly later acquired.

26. To our mind, if the 1st Respondent later realized that it needed more land than was initially requested for, it would have prompted the 2nd Respondent to publish in the gazette a notice to acquire additional land forming part of the suit property for purposes of the 1st Respondent’s project. Alternatively, the 2nd Respondent would have caused to be published a corrigendum reflecting the new size of land required by the 1st Respondent, if that were the case. There has to be documentation to this effect.

27. Unfortunately, despite asserting that 6. 88ha was acquired, the 1st Respondent has not shown how the same was done knowing well that only 2. 78ha was published in the gazette for acquisition. It may well be the case that the 1st Respondent is in actual occupation of 6. 88ha belonging to the Complainant but we are unable to make such a finding absent a survey report that confirms the same. On the other hand, even if we were to find that indeed the 1st Respondent is in occupation of 6. 88ha of the suit property, unprocedurally, we would be unable to make a finding on whether the compensation paid was in regard to the 2. 784ha which was gazetted for acquisition or the 6. 88ha as alleged by the Claimant.

28. The Claimant, as a general rule, bears the burden of proof on the alleged violations. It is trite law that whoever alleges must prove as captured in Section 107(1) of the Evidence Act which provides as follows, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist…”

29. Mativo, J (as he then was) in Charles Muturi Macharia v Standard Group & 4 others [2017] eKLR held as follows:whoever desires any court to give judgement as to any legal right or liability, dependant on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

30. Even though the Claimant alleges that the 2nd Respondent did not comply with its statutory obligations under the Land Act, such allegations remain unproven without a survey report and a valuation to show that the 2nd Respondent acquired more land than was published in the gazette notice no. 4096 of 20th June 2014 and Gazette Notice no. 7400 of 17th October 2014. We are not convinced that the entry in a compensation schedule from the 2nd Respondent to the 1st Respondent indicating the acquired acreage as 6. 88ha is sufficient proof that indeed the acquired land measured 6. 88ha rather than 2. 784ha.

31. We are unable to rely on the 1st Respondent’s apparent admission that the acquired acreage was 6. 88ha without any further documentation on how this changed from the initially gazetted 2. 784ha. As an acquiring entity, the 1st Respondent would ordinarily be in possession of documentation to show how much land was requested for and if there was an additional request that would have necessitated a fresh notice of intention to acquire or a corrigendum of gazette notice no. 4096 of 20th June 2014. As a Tribunal, we are also enjoined to ensure that the process of compulsory acquisition is above board and public funds are only expended towards just compensation of the land acquired. The evidence presented by the 1st Respondent of a payment schedule is not sufficient evidence that the 2nd Respondent acquired 6. 88ha rather than 2. 784ha.

32. In support of its case, the Claimant also filed a valuation report on 5th January 2024. This valuation report dated 16th August 2019 is in respect of the whole of the Claimant’s land measuring 202. 35ha. We are unable to rely on this report in our determination for it relates to the value of the land as at the year 2019 rather than 2014 when the compulsory acquisition was done. Furthermore, the report relates generally to the value of the whole parcel of land and not specifically to the acquired portion of land. It does not speak to what portion of land was acquired and its value.

33. Even though the Claimant has not proved the alleged violations to the required standard, we find that sufficient doubt has been raised on whether the 2nd Respondent complied with the law and the Constitution in the acquisition of the Claimant’s land. The 2nd Respondent was called upon to clear these doubts but blatantly failed to obey this Tribunal’s orders. We have deliberated over this unfortunate situation and reached the conclusion that in order to meet the ends of justice, we must exercise our judicial authority to compel the 2nd Respondent to comply with its mandate. The existing doubt which has been brought about by the inconsistency in the 2nd Respondent’s own documents has not been explained.

34. While the 2nd Respondent avers that it only acquired 2. 784ha on behalf of the 1st Respondent, an assertion supported by the notice of intention to acquire contained in Gazette Notice no. 4096 of 20th June 2014, a notice of inquiry contained in Gazette Notice no. 7400 of 17th October 2014, and the award dated 8th January 2016, the 2nd Respondent’s own document, to wit: a compensation schedule forwarded via letter dated 11th January 2016 by the 2nd Respondent’s Chairperson and annexed to the affidavit of Mr. Brian Ikol as “NLC4” shows at serial number 86 that the acquired land in respect of the suit property is 6. 88ha. This internal contradiction on the part of the 2nd Respondent is sufficient in itself to put doubt in our minds as to whether the process of compulsory acquisition was complied with as dictated by the Constitution, the Land Act, and the regulations therein. We therefore find that with these doubts, the 2nd Respondent’s actions cannot be allowed to stand.

35. We also note with deep concern that the 2nd Respondent has blatantly ignored this Tribunal’s directions and orders. This is a most unfortunate situation considering the importance of its mandate when juxtaposed against a history of compulsory acquisition in Kenya which was replete with arbitrariness and impunity. We are, however, not deterred by the 2nd Respondent’s actions and we must call upon it to perform its mandate. That is the expectation upon those who have answered a higher call of public service. Nevertheless, there are avenues to enforce compliance with court orders which the Claimant can resort to if our dispositive orders below are not complied with.

36. For the above reasons, we hereby make the following final orders:a.The 1st and 2nd Respondents are hereby directed to conduct a joint survey on the suit property otherwise known as Kwale/Mwavumbo/54 to ascertain the acreage affected as a result of compulsory acquisition for the construction of the Mombasa-Nairobi Standard Gauge Railway.b.The 1st and 2nd Respondents are hereby directed to conduct a joint valuation with the 1st Respondent to ascertain the value of the land in (a) above as at 20th June 2014 when the process of compulsory acquisition was commenced.c.The 2nd Respondent is hereby directed to cause to be published a corrigendum of gazette notice no. 4096 of 20th June 2014 upon completion of the survey process above, if the determined land compulsorily acquired exceeds 2. 784ha;d.The 2nd Respondent is hereby directed to issue a fresh award for compensation following the outcome of (b) and (d) above;e.The 2nd Respondent is directed to pay the Claimant any balance of the award following (a), (b), (d), and (e), above;f.The above orders shall be implemented within forty-five (45) days hereof;g.Each party shall bear its own costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF MARCH 2024. ……………………… …………………………DR. NABIL M. ORINA - CHAIRPERSONMR. GEORGE SUPEYO - MEMBERBefore: -Maitha h/b for Ms. KimathiMuisyo for the 1st RespondentOsoro h/b for Mr. Ikol the 2nd Respondent