[2025] KELAT 162 (KLR)

Njoroge v National Land Commission & another (Tribunal Case E051 of 2024) [2025] KELAT 162 (KLR) (7 April 2025) (Judgment)

Neutral citation: [2025] KELAT 162 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E051 of 2024

NM Orina, Chair & G Supeyo, Member

April 7, 2025

Between

Rachael Waithira Njoroge

Complainant

and

National Land Commission

1st Respondent

Kenya Railways Corporation

2nd Respondent

Judgment

A. Introduction 1. This dispute relates to a compensation claim concerning Property Title No. Longonot/Kijabe Block 6/347 (“the suit property”), located in Nakuru County. The Complainant asserts that she is the rightful registered owner of the suit property and contends that she has not been compensated for the acquisition of the same. The Complainant further seeks to impugn the compulsory acquisition process undertaken in relation to a portion of the suit property. The facts surrounding the compulsory acquisition process in regard to the subject property emanate from Gazette Notice Nos. 8815 and 8816 published on 27th August 2021 by the National Land Commission (“the 1st Respondent/the Commission”).

2. The said notices were an addendum issuing a Notice of Intention for Compulsory Acquisition and a Notice of Inquiry, respectively, of various parcels of land for the construction of the Naivasha ICD-Longonot Station New Meter Gauge Railway Line Link – Proposed Passenger Railway Link in Nakuru County. This was done on behalf of the Kenya Railways Corporation (“the 2nd Respondent”). The affected properties included a portion of the suit property measuring 0. 601 hectares.

B. The Complainant’s Case 3. The Complainant’s case is that she is the registered proprietor of the suit property and despite the notice of intention and notice of inquiry being duly gazetted by the 1st Respondent, the 1st Respondent failed to serve the same upon her. Consequently, the Complainant avers that she remained unaware of the compulsory acquisition process being undertaken over her property and therefore could not participate in the process.

4. Further, the Complainant contends that the 1st Respondent only gazetted a portion of the suit property measuring 0. 601 out of 4. 06 hectares but ultimately took possession of the entirety of the suit property. The Complainant therefore impugns the whole compulsory acquisition process undertaken in relation to the suit property.

5. The Complainant also avers that in any event she has not been served with any notice of award and/or an offer of compensation for the suit property. Additionally, despite issuing demand on the 1st Respondent for the same, the 1st Respondent has either failed, ignored and/or neglected to respond to the same. Therefore, as it stands, the Complainant asserts that she is yet to receive any compensation for the suit property.

C. The Respondents’ Case a. The 1st Respondent 6. The 1st Respondent acknowledges that it commenced the compulsory acquisition process of the suit property on behalf of the 2nd Respondent and accordingly published a notice of intention to acquire and a notice of inquiry in relation to the suit property. The 1st Respondent, however, avers that there was no attendance on the part of the Complainant at the inquiry hearings.

7. The 1st Respondent further avers that compensation is yet to be issued over the suit property since it has been unable to ascertain proprietorship over the same. The 1st Respondent has provided two letters: one dated 5th June 2024 authored by the Chief Land Registrar and another dated 4th October 2024 which has been authored by the Land Registrar – Naivasha. These letters have been annexed to the Replying Affidavit sworn by one Jacob Kipaa, identified as the Chief Valuation and Taxation Officer of the 1st Respondent and marked as JK1.

8. The aforementioned letters are to the effect that the suit property is among a larger cluster of properties belonging to Longonot/Kijabe Block 6 that have been placed under restriction due to an ownership dispute. The 1st Respondent therefore contends that due to this restriction, it has been unable to ascertain proprietorship of the suit property.

b. The 2nd Respondent 9. The 2nd Respondent similarly contends that compensation for the suit property is yet to be undertaken with the existence of the restrictions on the suit property and the ownership dispute over the suit property.

10. The 2nd Respondent has further brought to the attention of this Tribunal that the Complainant relies on a Title Deed issued to her on 8th September 2022 whereas the Compulsory Acquisition of the suit property took place in the year 2021.

11. The 2nd Respondent has also contested the jurisdiction of the Tribunal to adjudicate over the Complaint and urges the same to be dismissed with costs.

D. Analysis and Determination 12. When this matter came up for mention on 20th January 2025 for directions, parties mutually agreed to have the same disposed of by way of documentary evidence and submissions. We have distilled the issues for our determination as follows:i.Jurisdiction;ii.Whether the Complainant is entitled to compensation for the suit property; andiii.Whether the 1st Respondent followed due process in the compulsory acquisition of the suit property.

13. Whenever jurisdiction is challenged or a court of law, on its own motion, considers it necessary to determine if it has jurisdiction, it is trite law that the same must as of necessity be addressed first before any other issues.

14. In this case, the 2nd Respondent has challenged the Tribunal’s jurisdiction on the grounds that the Complaint is time barred by dint of section 87 of the Kenya Railways Corporation Act, Cap 397, Laws of Kenya which is to the effect that, “…legal proceedings shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of…”

15. We note that the Complainant’s claim is entirely against the 1st Respondent on the subject matter of compensation. Although the 2nd Respondent has been joined in these proceedings, the orders sought do not affect them directly. We place reliance on the Environment and Land Court (L.L. Naikuni, J.) decision in Geyser International Assets Limited vs. Attorney General & 3 Others [2021] eKLR where the court held as follows:…the law does impose the full responsibility on payment to the National Land Commission and nobody else. Where the National Land Commission fails to do so and land is possessed by the acquiring authority before payment is made the obligations to ensure payment is made falls squarely on the commission…”

16. However, we find that the objection raised pursuant to the provisions of Section 87(b) of the Kenya Railways Corporation Act (Cap 397) cannot defeat the Complainant’s claim which stems from the rights under Article 40 of the Constitution and the Land Act.

17. The second issue of whether or not the Complainant is entitled to compensation following the compulsory acquisition of the suit property necessitates the establishment of the ownership of the suit property or the proprietary interest alleged to be owned by the Complainant.

18. Evidence on the record indicates that the Complainant holds a title deed to the suit property which was issued to her on 8th September 2022. This is also supported by an official search accompanying the valuation report annexed to the Complainant’s supporting affidavit sworn on 4th October 2024.

19. It is, therefore, uncontended that at the time the acquisition process kicked off, the Complainant was not the registered proprietor of the suit property. In other words, the Complainant was not a project affected person for purposes of the process that includes the service of the necessary notices for acquisition and inquiry. As we held in Manjewa Station Limited v Kenya Railways Limited & another [2025] KELAT 159 (KLR):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.

20. The dispute by the Complainant, who became the registered proprietor of the suit property in 2022, is that the acquisition happened in 2021 without her involvement. The Complainant, clearly, was not the registered owner of the suit property at the time of acquisition in the year 2021.

21. The question of whether the Complainant had any proprietary interests in the suit property at the time of acquisition that would have entitled her to compensation is a matter within the mandate of the 1st Respondent. It may be the case that the Complainant had acquired the suit property as at the time the same was earmarked for acquisition but had not been issued with a title deed. This is a possibility because the subject acquisition happened in 2021 and the Complainant’s title deed was issued in 2022. This, however, is a question for resolution by the 1st Respondent.

22. The question of ownership is also compounded by the existence of restrictions on the parcels of land forming Longonot/Kijabe Block 6. We note from the evidence presented that these restrictions were placed on 5th June 2024 on the strength of a complaint which had been sent to the Cabinet Secretary by the Member of Parliament for Naivasha Constituency – Hon. Jane Kihara on behalf of Nyakinyua Women Group who had alleged that their parcels of land were being sold to unsuspecting buyers by certain fraudsters. This is certainly a matter of concern and one that requires further steps to verify ownership of the parcels of land forming the block. It is also alluded to in the letter from the Chief Land registrar that the restrictions would be in place until a suit over ownership would be determined.

23. We have no evidence of the existing suit over the suit property but we must note that the Chief Land Registrar has not been included in these proceedings. While the purpose of restrictions on dealings on land are only temporary until resolution of any issues that led to such restrictions, our hands are tied at this point. It is upon the Claimant to pursue the lifting of the restrictions on the suit property in order to afford the 1st Respondent a chance to make a determination if she had proprietary interests at the time of acquisition of the suit property.

24. At this point, though, and in response to the last issue identified for resolution, we are unable to make a determination whether the Claimant’s rights under Article 40(3) of the Constitution and Part VIII of the Land Act have been violated. Such a determination is predicated on the determination of the Claimant’s proprietary interests at the time of acquisition which we are unable to make.

25. The suit is hereby dismissed with no orders as to costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF APRIL 2025DR. NABIL M. ORINA - CHAIRPERSONGEORGE SUPEYO - MEMBER