[2025] KELAT 163 (KLR)

Okeyo & 26 others v National Land Commission & another (Tribunal Case E052 of 2024) [2025] KELAT 163 (KLR) (10 April 2025) (Judgment)

Neutral citation: [2025] KELAT 163 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E052 of 2024

NM Orina, Chair & G Supeyo, Member

April 10, 2025

Between

Kennedy Oyugi Okeyo & 26 others & 26 others

Applicant

and

National Land Commission

1st Respondent

National Water Harvesting and Storage Authority

2nd Respondent

Judgment

A. Introduction 1. On 28th July 2020, the National Land Commission (“the 1st Respondent/the Commission”) vide Gazette Notice No. 5273, published a Notice of Intention for Compulsory Acquisition of various parcels of land for the construction of the Soin-Koru Multipurpose Dam in Kericho and Kisumu counties. This was done on behalf of the National Water Harvesting and Storage Authority (“the 2nd Respondent”) and which properties included those of the Applicants.

2. Subsequently, vide Gazette Notices No. 2222 of 12th February 2021, No. 5404 of 4th June 2022 and No. 6989 of 17th June 2022, the 1st Respondent published Notices of Inquiry hearings for the project affected persons which culminated in the 1st Respondent issuing the Applicants with letters of award for compensation, which awards are the subject of the instant suit.

B. The Applicants’ Case 3. The Applicants’ case is that despite having been issued with awards by the 1st Respondent, and the 2nd Respondent having since taken possession of the property and started works on the project, the Applicants are yet to receive compensation for their parcels of land.

4. As a result of the delay in getting their due compensation, the Applicants contend that they have suffered various inconveniences including dispossession of the value of their land, food insecurity and poverty. These issues, the Applicants assert, have been compounded by the placing of caveats on the suit properties with the effect that the same cannot be leased or cannot be developed; the deaths of several beneficiaries since the awards were issued; and the perception that the affected parcels of land are free for all which has led to conflicts over grazing and farmland with neighbouring communities.

5. It is the Applicants’ case, therefore, that the actions of the Respondents have resulted in the violation of their rights and majorly their rights under Article 40(3)(b) of the Constitution of Kenya, 2010.

6. The Applicants pray for Respondents to be compelled to compensate them without any further delay and an order restraining the Respondents from commencing, resuming or continuing to conduct project development in the project affected areas.

C. The Respondents The 1st Respondent’s Case 7. The 1st Respondent acknowledges that it commenced the compulsory acquisition process of the Applicants’ properties on behalf of the 2nd Respondent and accordingly issued the subject awards to the Applicants. The total compensation assessed by the 1st Respondent for the entire project was Kshs. 2,209,068,620. 00.

8. The 1st Respondent, however, avers that the 2nd Respondent has only deposited with it part of the funds required to compensate the project affected persons amounting to Kshs. 501,763,713. 00. These sums, it is contended, have since been utilized to make payments to other project affected persons.

9. The 1st Respondent therefore avers that it has been unable to pay the outstanding compensation sums due to the Applicants and other project affected persons due to the failure by the 2nd Respondent to remit the necessary funds for compensation.

The 2nd Respondent's Case 10. The 2nd Respondent similarly acknowledges that compulsory acquisition was undertaken in relation to the Applicants’ properties.

11. The 2nd Respondent, however, contends that the compensation of the project was divided into two phases; Phase 1 that involves compensation of project affected persons within the Embankment area where commencement of the dam construction would begin and which constituted approximately 60% of the entire works; and Phase 2 that involves the compensation of project affected persons within the reservoir which accounts for the remaining 40% of the works.

12. The 2nd Respondent avers that similarly, compensation for the acquired properties was divided into two based on the phased plan. Therefore, the 2nd Respondent’s case is that given that the Applicants’ properties fall within the reservoir area, compensation would be handled as the project progressed.

13. The 2nd Respondent further admits that the sums due for compensation to the Applicants and other project affected persons whose properties fall within the reservoir area are yet to be deposited with the 1st Respondent. The 2nd Respondent contends that such failure is due to the fact that there was no budgetary allocation for the same in both the financial years 2023/2024 and 2024/2025.

14. The 2nd Respondent therefore asserts that once allocation is made for the same, the Applicants will be duly compensated.

D. Analysis and Determination 15. The factual basis of the acquisition of the Applicants’ properties and the ownership thereof is not in contention. The issue in contention in this case is the non-payment of the compensation after the compulsory acquisition was completed.

16. It is a mandatory Constitutional preserve of the Right to Property that compensation be done promptly upon compulsory acquisition. Article 40 (3) (b) (i) provides as follows: -(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 )...(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)...

17. The Land Act emphasizes this Constitutional imperative and provides as follows in Section 111:(1)If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined.…..(1B)(a)….(b)monetary payment either in lump sum or instalments spread over a period of not more than one year;

18. As we held in Wanjohi v National Land Commission & 2 others (Tribunal Case TRLAP/E034 of 2024) [2025] KELAT 22 (KLR), the legislature was deliberate in ensuring that the Constitutional requirement of prompt payment of compensation is enacted into the relevant statute. Prompt payment of compensation is necessary to alleviate the disruption occasioned on project affected persons whose properties have been taken compulsorily.

19. Flowing from the above, Section 111(1A) of the Land Act provides that “the acquiring authority shall deposit with the Commission the compensation funds…before the acquisition is undertaken” (emphasis added).

20. Accordingly, the 1st Respondent as the body mandated to acquire land on behalf of the State is under a legal obligation to ensure that the 2nd Respondent, which is in this case the acquiring authority, has set aside funds for the acquisition. This requirement is necessary to ensure that the intended use of the land by the acquiring authority is not “fanciful” but has been budgeted for and funds have been allocated for the project.

21. As we noted in Thuo & 151 others v National Land Commission & 5 others [2024] KELAT 1142 (KLR),69. A failure to deposit funds with the commission before an acquisition is undertaken in a case where the acquisition is likely to heavily disrupt the project affected persons means such persons may end up being displaced without the necessary means to settle elsewhere. The legislature was deliberate in requiring the existence of funds to be ascertained before an acquisition is undertaken. This is the necessary balance that the legislature struck to ensure that a person dispossessed of his or her property does not suffer double despondency.

22. In the instant case, by the 2nd Respondent’s own admission, the funds for compensation have not been entirely remitted to the Commission. The 2nd Respondent further admits that it does not know when such funds will be availed. The 2nd Respondent explained that there has not been any budgetary allocation towards the compensation funds in both the financial years 2023/2024 and 2024/2025.

23. It is clear to us that the State was not ready to undertake this acquisition for the failure to provide the necessary funds that would compensate the Applicants and other project affected persons not before the tribunal who are part of Phase 2 of the 2nd Respondent’s project.

24. Whereas government projects are subject to planning and budgeting, the failure to set aside funds for the 2nd Respondent’s project speaks to its lack of prioritization, and calls into question the legitimacy and legal propriety of the process of compulsory acquisition in its entirety.

E. Reliefs 25. It is our finding, therefore, that the delay or failure to pay compensation to the Applicants is detrimental to their rights under Article 40(3) of the Constitution of Kenya, 2010. The Applicants are, therefore, entitled to the immediate payment of compensation following the compulsory acquisition of their properties for the construction of the 2nd Respondent’s project.

26. The Applicants have prayed for compensation on the basis of the current value of the property. Section 107A (13) of the Land Act provides that, “value” in relation to land means the value of the land … at the date of publication in the Gazette of the notice of intention to acquire the land.” Accordingly, the value of the Applicants’ properties for purposes of compensation is the value of their properties as at the time of compulsory acquisition in 2022. In any event, the Applicants rely on Letters of Award dated 31st January 2022 in their claim for compensation. This is the date when the compensation sums became due and owing to the Applicants.

27. We, however, note that the Respondents have not made any commitment towards compensating the Applicants. As we have observed, an acquiring authority needs to prioritise availability of funds for compensation before it embarks on a project. A failure to do this necessitates the need for us to strike a balance between the rights of the project affected persons to be compensated, on the one hand, and the need for the impugned project, on the other hand. To our minds, whereas the legality of the project has not been challenged by the Applicants, the same cannot be viable before compensation has been paid to the project affected persons who have been displaced or are at the risk of displacement.

F. Orders 28. The upshot of our analysis and findings above is that the Applicants’ case is merited and is hereby allowed. We make the following orders:a.An order be and is hereby issued directing the Respondents to pay the Applicants, within 90 days hereof, the full compensation awarded to them for the compulsory acquisition of their properties for the construction of the Soin-Koru Multipurpose Dam in Kericho and Kisumu countiesb.An order be and is hereby issued directing the Respondents to pay the Applicants the interest earned on (b) above at the base lending rates set by the Central bank of Kenya with effect from 31st January 2022, the date of the awards, until payment in full.c.That in default of compliance with the orders issued in (a) and (b) above, an order of injunction shall issue upon the expiry of 90 days restraining the Respondents whether jointly or severally by themselves, their servants, agents, contractors or however from remaining, entering upon or remaining on the suit properties or in any way interfering with the peaceful quiet possession and enjoyment of the properties by the Applicants.d.Costs shall be borne by the 2nd Respondent.

29. Orders accordingly.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF APRIL 2025DR. NABIL M. ORINA - CHAIRPERSONGEORGE SUPEYO - MEMBERIn the presence of:Ms. Musambaki h/b for Dr. Miyawa for the ApplicantsMs. Muronji h/b for Ms. Obonyo for the 2nd RespondentN/A for the 1st RespondentBuluma – Court Assistant