[2025] KELAT 157 (KLR)

Njuguna v National Land Commission & 2 others (Land Acquisition Case E027 of 2024) [2025] KELAT 157 (KLR) (27 February 2025) (Judgment)

Neutral citation: [2025] KELAT 157 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Land Acquisition Case E027 of 2024

NM Orina, Chair & G Supeyo, Member

February 27, 2025

Between

Judy Wairumu Njuguna

Petitioner

and

National Land Commission

1st Respondent

Kenya National Road Highway Authority (KENHA)

2nd Respondent

Attorney General

3rd Respondent

Judgment

Background 1. This dispute concerns the compulsory acquisition of a portion of land known as L.R Muguga/Gitaru/1144 (herein “the suit property”). The Petitioner, who is the registered proprietor of the suit property has approached the tribunal, through a Petition dated 11th June 2024, claiming unlawful dispossession without due process or just compensation, thus violating her constitutional rights to property.

2. The Petitioner alleges that the impugned acquisition breached the procedural safeguards of the Land Act 2012, citing lack of statutory notice and denial of participation in the inquiry proceedings under sections 112 and 113. Further, she contends that the Respondents took possession and demolished parts of the property, causing her irreparable loss.

3. The Respondents have averred that the acquisition was lawful, citing Gazette Notice No. 10919, which designated only 0. 0039 hectares for acquisition comprising of 5% for which an award of Ksh. 664,950/= was issued as just compensation for the suit property. They claim that the Petitioner rejected the compensation award hence the funds could not be remitted.

The Petitioner’s Case 4. In her Verifying Affidavit sworn on 11th June 2024, the Petitioner avers that she engaged in negotiations with the Respondents regarding the compulsory acquisition of the suit property, which houses a school. These negotiations, she asserts, bore no fruits as the Respondents soon moved into her property.

5. She recounts that she received distressing calls from teachers at the school, which was on the suit property, informing her that a group of unidentified individuals had stormed the premises and begun demolishing structures. She was later informed by the area chief that the demolitions were intended to clear the way for a road.

6. The Petitioner asserts that it had been agreed between her and the Respondents that compensation would be paid before possession was taken. Given the existence of substantial structures on the property, the Petitioner avers, any demolition without prior compensation would leave her destitute. She further states that during the demolitions, items valued at over Ksh. 100,000,000 were removed from a three-story building.

7. In a Further Affidavit sworn on 26th July 2024, the Petitioner asserts that the Respondents, while assessing compensation, failed to account for the actual valuation of properties in the area. It is her case that the Respondents failed to consider both the appreciation of the property’s value and the commercial investments therein. Had these factors been accounted for, the suit property would have been valued at Ksh. 151,033,174/= and totaled to Ksh. 161,842,990/= inclusive of damages on the property. She relies on a valuation report by Silver Street valuers dated 15th March 2024.

8. She further contends that the Respondents’ did not serve her with the requisite notice as required under Sections 108 and 109 of the Land Act, compelling her to seek judicial intervention to obtain fair compensation.

9. The Petition seeks the following reliefs:i.General damages for unlawful entry onto the Petitioner’s land and the resulting damage to property.ii.A declaration that the Respondents’ forcible entry into the suit property was unlawful.iii.An order prohibiting the Respondents from entering the suit property until full compensation has been paid.iv.An order compelling the Respondents to compensate the Petitioner for the material damage caused to the suit property.v.Any further orders and directions that this Honourable Tribunal deems fit and just.vi.Costs of this Petition, with interest at court rates.

1st Respondent’s Case 10. The 1st Respondent opposed this suit through a Replying Affidavit sworn on 20th December 2024 by Brian Ikol. This response provides a detailed account of the events leading to the dispute.

11. Mr. Ikol states that the portion of the suit property, Muguga/Gitaru/1144, acquired for the project measured 0. 0039 hectares, constituting only 5% of the total land, leaving the remaining 95% unaffected.

12. He further avers that on 22nd December 2020, the 1st Respondent published Gazette Notice No. 10919, notifying all persons with an interest in the affected properties of an inquiry for the hearing of claims and determination of compensation, in accordance with Section 112 of the Land Act.

13. Following this inquiry, the Petitioner was awarded Ksh. 664,950/= as compensation for the acquired portion of the suit property, as reflected in the compensation schedule annexed to the 1st Respondent’s documents.

14. On 7th April 2024, the Petitioner was formally presented with the compensation award pursuant to Section 113 of the Land Act. The 1st Respondent maintains that this sum of Ksh. 664,950/= constituted fair and just compensation.

15. Mr. Ikol asserts that an inspection and subsequent inquiry were conducted to assess the compensation payable for improvements on the affected land. A sum of Ksh. 16,665,800/= was awarded for the developments on the property, with the designated recipient being Vantage Teacher Training College.

16. This award was accepted and the same was disbursed in two tranches: Ksh. 7,200,000/= on 10th June 2022, followed by the balance of Ksh. 9,465,800/=, which was fully settled on 8th December 2023.

17. Mr. Ikol avers that the Petitioner is being economical with the truth in claiming that she was neither notified nor invited under Sections 112 and 113 of the Land Act. He points out that she has, in fact, already furnished an Award Acknowledgment Statement Form from the 1st Respondent, which serves as evidence that due notice was provided.

18. He further contends that the proper legal recourse for rejecting the awarded sum of Ksh. 664,950/= which pertains to the land component, is clearly outlined under Section 128 of the Land Act.

19. The 1st Respondent maintains that the reliefs sought by the Petitioner are devoid of merit and substance. It reiterates that the property was lawfully vested in the 1st Respondent pursuant to the Notice of Taking Possession dated 13th May 2024, and, as such, any attempts to impose restraining orders against the Respondents lack a sound legal basis.

20. The 1st Respondent categorically denies any involvement in the demolition of the Petitioner’s property or any act of forcible entry onto the suit property. It asserts that no rights of the Petitioner have been violated, thereby rejecting any liability for the claims made.

2nd Respondent’s Case 21. In a Replying Affidavit and a Further Affidavit sworn by Dr. Anthony Kusimba on 22nd July 2024 and 6th September 2024, respectively, the 2nd Respondent formally opposes the Petition. Dr. Kusimba is a Senior Land Surveyor in the service of the 2nd Respondent.

22. Dr. Kusimba avers in his Further Affidavit that the portion of land compulsorily acquired for the project amounted to 0. 0039 hectares, rather than the entirety of the property designated as Muguga/Gitaru/1144, as evidenced in the survey report prepared by the 2nd Respondent.

23. He further clarifies that the acquired portion constitutes merely 5% of the total property, leaving the remaining 95% unaffected by the project. Consequently, the 1st Respondent determined that fair and just compensation for the acquired portion was Ksh 664,950/=.

24. The 2nd Respondent also refutes the Petitioner's assertion that no notice was served, emphasizing that an Award Acknowledgement Statement, duly executed by the Petitioner, is on record, contradicting her claim.

25. Dr. Kusimba further emphasizes that the acquisition of only 5% of the suit property does not, in any way, adversely impact the Petitioner's commercial investments.

26. He asserts that the 2nd Respondent has fully discharged its legal obligations, having provided fair and prompt compensation for the acquired portion of land. Accordingly, he urges this tribunal to affirm the same.

Analysis and Determination 27. The tribunal conducted a site visit on 26th September 2024 to ascertain the situation on the ground in the presence of the surveyors for the respective parties and counsel. Survey reports were thereafter filed by the Petitioner and the 2nd Respondent.

28. In its submissions dated 20th August 2024, the Petitioner did not explicitly outline the issues for determination. However, upon careful examination of the said submissions, it is evident that the Petitioner asserts that she was never served with a notice inviting her to the inquiry hearing, thereby challenging the procedural legality of the compulsory acquisition process.

29. Furthermore, the Petitioner has questioned the adequacy of the compensation, contending that the true valuation of the acquired property, inclusive of structures and consequential damages, amounts to Ksh 161,842,990/=.

30. In further submissions dated 4th October 2024, the Petitioner argues that the actual portion of land acquired by the Respondents exceeds 50% of the total property, contrary to their assertion that only 5% was taken.

31. On its part, the 1st Respondent and 2nd Respondent identify three similar issues for determination as follows:i.Whether the compulsory acquisition of the portion of the suit property was lawfully and procedurally conducted.ii.Whether the Applicant was duly notified and fairly compensated in accordance with the Constitution and the Land Act, 2012. iii.Whether the Applicant is entitled to the reliefs sought, including the restraining orders and declaratory orders.

32. This case impugns the process of compulsory acquisition as well as the award given. We shall therefore systematically assess the two limbs before coming to the reliefs sought and if the same are merited. The process of compulsory acquisition of land is stipulated under Part VIII of the Land Act, 2012. The comprehensive procedure therein gives effect to the Constitutional imperative under Article 40(3) of the Constitution of Kenya 2010.

33. Article 40(3) of the Constitution provides that, “The State shall not deprive a person of property of any description…unless the deprivation – (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 - …”

34. On its part, 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.”

35. Through the Petitioner’s own admission, she was aware of the process of compulsory acquisition in respect to the suit property and in fact she has asserted that she was in negotiations with the Respondents. We do not find merit in her argument, though, that the alleged refusal to “meet and agree” on the mode of compensation amounted to a violation of her rights under the constitution. The 1st Respondent’s role only extends to notifying all project affected persons of an intended acquisition, inviting them for an inquiry to determine interests and compensation payable and thereafter issuing them with awards.

36. Upon the making of separate awards, the project affected persons are required to either accept or reject the award made. If an award is rejected, then such a project affected person has a right to seek recourse before the tribunal. This process is followed by the taking of possession of the land but as observed in Patrick Musimba, such taking of possession may happen earlier, for instance, in the case of issuance of a notice of taking possession under Section 120(2) of the Land Act.

37. In this case, the Petitioner’s grievance rests on the award of compensation. It is her argument that part of the suit property was compulsorily taken without the payment of compensation. However, this argument is without merit as evidence is uncontroverted that an award was issued which was rejected by the Petitioner. Our understanding of the grievance, is therefore, that the award of compensation issued to the Petitioner is insufficient and indeed that is the argument advanced by the Petitioner by submitting an independent valuation for the suit property.

38. We must observe that the Petitioner’s pleadings in this regard lack the clarity and precision that is required of a constitutional Petition. However, in regard to the complaint on the amount of compensation awarded, it can be discerned that the Petitioner’s complaint contains two limbs: the acreage acquired and the value of the land as well as improvements thereon.

39. On the question of acreage, the survey reports relied on by the Petitioner as well as the 2nd Respondent show that only a small portion of the suit property was acquired. The Petitioner’s survey report dated September 2024 observes in the relevant part as follows:“From the field data and analysis of the survey results obtained, the following observations/ conclusions were made; The total area acquired by KENHA as per Kenya Gazette was 0. 0039 Ha equivalent to 0. 0096 Acres.

The total tarmacked area by KENHA as per ground picking found to be 0. 0125 Ha equivalent to 0. 0308 Acres.

There is no drainage and foot path at the section covering the subject property and if they will be done there will be a further acquisition in the property.

The total area of the property was 0. 100 Ha equivalent to 0. 25 Acres.

The building on the subject property was found partly demolished and can only be fully demolished it cannot be used as it is or renovated.

KENHA to mark the acquired part as per they (sic) current design.”

40. On its part, the 2nd Respondent’s survey report observed as follows:“From our on-site survey and subsequent analysis of the ground survey data and land acquisition drawing, the following were our findings:a.The boundary measurements had discrepancies within the allowable tolerances, i.e., gazette area 0. 0039 Ha (extracted from the georeferenced land acquisition drawing) and onsite survey acquired area 0. 005 Ha, considering that the parcel is under the general boundaries survey system.b.Only the gazette area will be used during road construction (interchange). Additionally, issues about the boundary will be addressed during the final survey according to Land Act 2012. ”

41. From the two survey reports, there is not much disagreement on the actual area acquired. It is also observed by the 2nd Respondent’s surveyor that the final area acquired is subject to the final survey to be conducted by the 1st Respondent. Whether or not the Respondents will acquire more land for purposes of a foot path and drainage as suggested by the Petitioner’s surveyor is a matter for the Respondents and the tribunal would be engaged in a speculative exercise were it to take that suggestion.

42. The main point of contention is, therefore, whether the whole parcel of land should have been acquired. The Petitioner has alleged, without much evidence, that a substantial part of the suit property has been acquired. On their part, the Respondents assert that only 5% of the suit property has been affected. In the submissions, the Petitioner argues that up to 50% of the property was taken by the Respondents. Again, there is no precision in terms of what the complaint is. The pleadings are like a moving target. Nevertheless, it is upon the complainant to demonstrate with cogent evidence before the tribunal how economically unviable the remaining parcel of land would be after an acquisition to warrant an intervention from the tribunal directing the respondents to acquire the remaining part. In this case the Petitioner has failed to discharge that burden.

43. Even though this suit has been filed as a Petition, it is apparent that the Petitioner disputes the awarded value for part of the suit property that has been acquired. The correct approach when dissatisfied with a decision of the 1st Respondent is to file an appeal pursuant to Section 133C (2) of the Land Act, 2012. Nevertheless, in the interests of justice we shall assess the Petitioner’s complaint in regard to the value of the suit property as the same may be interpreted as an issue affecting the Petitioner’s rights under Article 40(3) of the Constitution.

44. It is the Petitioner’s argument that the 1st Respondent did not award her the correct compensation for the suit property. The Petitioner has provided a private valuation from Silver Street Valuers which provides the value of the suit property which measures 0. 1 Ha to be Kshs. 20,000,000/= as at 20th May 2024. This translates to a value of Kshs. 780,000/= for the portion of the suit property that was acquired. The 1st Respondent on its part placed the value of the portion of the suit property that was acquired at Kshs. 664,950/= (inclusive of the 15% disturbance allowance).

45. To provide clarity on the amount of compensation due to a project affected person, the National Land Commission issued the Land (Assessment of Just Compensation) Rules, 2017. In the said rules, “The Commission shall consider the following factors when assessing compensation:a.the market value of the land;b.damage sustained or likely to be sustained by persons interested at the time of the Commission's taking possession of the land by reason of severing the land from his or her other land;c.damage sustained or likely to be sustained by persons interested at the time of the Commission's taking possession of the land by reason of the acquisition injuriously affecting his or her other property, whether moveable or immovable , in any other manner or his or her actual earnings;d.reasonable expenses incidental to the relocation any of the persons interested or who will be compelled to change residence or place of business as a consequence of the acquisition; ande.damage genuinely resulting from diminution of the profits of the land between the date of publication in the Gazette of the notice of intention to acquire the land and the date the Commission takes possession of the land.”11Rule 3, Land (Assessment of Just Compensation) Rules, 2017. Emphasis added

46. The rules have also provided further clarity on what amounts to market value in Rule 2 as “the value of the land at the date of publication in the Gazette of the notice of intention to acquire the land.”

47. We find that the 1st Respondent’s valuation of the suit property was correct as it was done at the time of acquisition as compared with the Petitioner’s own private valuation which was done three years later. Furthermore, the 1st Respondent’s valuation is supported by methodological clarity of the comparables relied on. The Petitioner’s valuation has not provided evidence of the comparables relied on. For those reasons, we have no reason to disturb the 1st Respondent’s valuation of the portion of the suit property that was acquired.

48. In regard to the improvements on the suit property, the Petitioner has urged us to find that the building on the suit property has been destroyed to the extent that the same is unusable. When the tribunal visited the site, we were able to observe that a part of the building that fell on the portion of the suit property had been severed. It was also apparent that the severance had affected the structural integrity of the whole building as there were visible cracks. The Petitioner has also submitted uncontroverted evidence that the building has been condemned by the County Government of Kiambu who have now required that the same be demolished. In the circumstances, the Petitioner is entitled to be compensated for the whole building and not just the severed portion that fell on the land that was acquired.

49. There is no evidence on whether the Petitioner was given an award in regard to the building itself. The 1st Respondent has submitted an award for the sum of Kshs. 16,665,800/= which was issued to Vantage Teachers Training College. Even though the Petitioner had a chance to clarify the relationship between herself and this entity, this was not done. We note that the issue was scantily addressed through the Petitioner’s skeleton submissions dated 23rd January 2025. This is evidence from the bar which cannot be taken into consideration.

50. On their part, the Respondents have asserted that the Petitioner was duly compensated for the improvements on the suit property. We are not convinced that the Petitioner’s interests vis a vis those of other project affected persons on the suit property were determined especially in regard to the building which we have determined above ought to have been compensated for in full. However, this is not an exercise that the tribunal can do without the benefit of evidence from the parties, especially the Petitioner. Again, this matter rests on the impreciseness of the pleadings.

51. The Petitioner has also urged the Tribunal to find that she was entitled to compensation for loss of business and assets. In support of her claim, the Petitioner has tabulated the alleged losses and the corresponding compensation sought. We note that the tabulation includes the number of teachers who were being trained at the college previously housed on the suit property and various items that were in use by the college. What is lacking in evidence, though, is anything to support this claim, but importantly, the Petitioner fails to make a connection between herself and the said college. The Petition leaves more questions than answers. For instance, was the Petitioner the proprietor of the college or was she the landlady? The answer to this is key in understanding what entitlement the petitioner was entitled to, if any, upon the compulsory acquisition of part of the suit property and the loss of business that was carried on in the suit property.

52. The 1st Respondent’s documents provide a glimmer of light in regard to this. An award dated 7th April 2021 in the name of Vantage Teachers Training College (the college) has been submitted in evidence where the college was awarded a sum of Kshs. 16,665,800/= for “improvements” on the suit property. The Petitioner is aware of the existence of this award which was part of the documents filed by the 1st Respondent but has not addressed us on its import or why there should be separate compensation for the same business to the Petitioner. It is also not clear why the Petitioner is seeking compensation for assets which may be assumed to have belonged to the college.

53. Left with no clarity or evidence to inform a finding in favour of the Petitioner, it may be inferred that since the college has been given a separate award for the business that was carried out on the suit property, the Petitioner was a landlady and not the college business owner. The Petitioner would then have had to establish the loss of business – in this case rental business by demonstrating the rental income she was receiving from the college. The 1st Respondent would have had to assess whether the Petitioner was entitled to be cushioned for the loss of business through an award pursuant to Rule 3(e) of the Land (Assessment of Just Compensation) Rules, 2017. However, this is at best speculative and since the law of evidence makes no room for speculation, we will make no findings on this aspect but to state that the Petitioner’s claim for loss of business and assets is unmerited and the same fails.

54. For the reasons outlined above, we reach the conclusion that the Petition is largely unmerited but it succeeds on a limited aspect that touches on the determination of interests in regard to the improvements on the suit property and payment thereof. The 1st Respondent has not acquitted itself that it determined the Petitioner’s interests in this respect and made the appropriate award. We hereby make the following orders:a.An order be and is hereby issued directing the 1st Respondent to conduct a fresh inquiry in regard to the proprietary interests appertaining to the improvements on L.R. No. Muguga/Gitaru/1144 and specifically the building thereon;b.An order be and is hereby issued directing the 1st Respondent to value the whole building which is erected on L.R. No. Muguga/Gitaru/1144 for purposes of issuing an award pursuant to the interests determined in (a) above;c.An order be and is hereby issued directing the 1st Respondent to complete the above process and to pay the award so issued in (b) above within 45 days of the date of this judgement.d.All other prayers are hereby declined.e.Parties shall bear their own costs.

55. Orders accordingly.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY 2025. DR. NABIL M. ORINA - CHAIRPERSONGEORGE SUPEYO - MEMBERBefore: -Ms. Cherop h/b for Mr. Osoro for the PetitionerMs. Makana for the 1st RespondentMs. Maina for the 2nd RespondentMs. Njuguna for the 3rd RespondentBuluma – C/A