[2025] KELAT 171 (KLR)

Panga v National Land Commission & another; County Government of Mombasa & another (Interested Parties) (Tribunal Case E050 of 2024) [2025] KELAT 171 (KLR) (14 May 2025) (Judgment)

Neutral citation: [2025] KELAT 171 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E050 of 2024

NM Orina, Chair & G Supeyo, Member

May 14, 2025

Between

Salim Joha Panga

Claimant

and

National Land Commission

1st Respondent

Kenya Railways Corporation

2nd Respondent

and

County Government of Mombasa

Interested Party

The State Department of Lands and Physical Planning, Directorate of Adjudication and Settlement

Interested Party

Judgment

A. The Claimant’s Case 1. The Claimant approached this Honourable Tribunal vide the Statement of Claim/Complaint dated 16th October 2024. Filed alongside the Statement of Claim/Complaint were the Witness Statement of Salim Joha Panga and the Claimant’s List and Bundle of Documents all dated 16th October 2024.

2. The Claimant contends that he is the registered proprietor of all that property known as Land Title Number 883/VI/MN situated in Mombasa County, hereinafter referred to as “the suit property”.

3. It is the Claimant’s case that vide Gazette Notice No. 149 of 9th January 2015 (Vol. CXVII-No. 2), the 1st Respondent at the instance of the 2nd Respondent published a Notice of Intention to acquire the suit property within the provisions of Section 107 of the Land Act, Cap 280 of the Laws of Kenya. The Claimant avers that the said acquisition was proclaimed as being for the construction of the Mombasa-Nairobi Standard Gauge Railways Line Project.

4. Following the notice of intention to acquire the suit property, the 1st Respondent issued the Claimant with a letter of award dated 12th April, 2017 with respect to the suit property for compensation of the sum of Kshs. 160, 411, 100. 50.

5. The Claimant contends that he accepted the award on the same date.

6. The Claimant avers that since the said acquisition, the Respondents have failed to settle the award despite inquires and follow-ups made by the Claimant. The Claimant therefore prays for judgment against the Respondents jointly and severally for the following:i.A Declaration that the Claimant’s proprietary interests in Land Title Number 883/VI/MN were compulsorily acquired;ii.A Declaration that the Claimant herein is entitled to prompt, just and adequate compensation in full within the meaning and tenor of Article 40(3)(b)(i) in the sum of Kenya Shillings One Hundred and Sixty Million Four Hundred and Eleven Thousand One Hundred and Fifty Cents Shillings (Kshs. 160,411,100. 50) for the compulsory acquisition of his proprietary interests in Land Title Number 883/VI/MN;iii.An order directing the Respondents to forthwith pay the compensation award in the sum of One Hundred and Sixty Million Four Hundred and Eleven Thousand One Hundred and Fifty Cents Shillings (Kshs. 160,411,100. 50) together with the accrued interest at the then prevailing Central Bank base lending rate of 13. 00% from 12th April, 2017 until payment in full;iv.An award of loss of income in the sum of Kshs. 600,000/=;v.General damages for trespass and mesne profits;vi.Costs of the suit plus interest; andvii.Any other order as this Honourable Court may deem fit and appropriate to grant.

B. The 1st Respondent’s case 7. The 1st Respondent has responded to the Claim herein through a Replying Affidavit sworn on 22nd November 2024. The 1st Respondent challenges the Claimant’s ownership claims over the suit property and further asserts that it did not issue any compensation award to the Claimant and has categorically denied the authenticity of the award notice contained in the Claimant’s List and Bundle of Documents.

8. It has also been alleged by the 1st Respondent that upon being served with the Claimant’s complaint, it reached out to the Ministry of Lands, Public Works, Housing and Urban Development, hereinafter referred to as “the ministry” vide a letter dated 8th November 2024 seeking information about the suit property.

9. Based on the above inquiry, the 1st Respondent contends that through a letter dated 13th November 2023 (sic), the ministry confirmed that the suit property is within the Maganda Settlement Scheme which was initiated in 2006.

10. It is the 1st Respondent’s further case that no awards were issued, and no compensation was paid out for the suit property as the suit property had been declared an adjudication section by the ministry and that the only compensation that was paid was for individual structures on the land but not for the land.

11. The 1st Respondent denied ever issuing any compensation award to the Claimant and challenged the authenticity of the award notice contained in the Claimant’s List and Bundle of Documents.

12. The 1st Respondent therefore seeks the dismissal of the Claimant’s suit.

C. The 2nd Respondent’s case 13. The 2nd Respondent’s response to the claim herein is contained in the Replying Affidavit sworn on 6th December 2024 by Angela Njeri Chege – the General manager, Legal Services and Corporation Secretary of the 2nd Respondent.

14. It is admitted on behalf of the 2nd Respondent that the 2nd Respondent indeed had plans to compulsorily acquire several properties including the suit property for the purpose of constructing the Standard Gauge Railway. However, it is alleged that upon conducting due diligence, the 2nd Respondent discovered that there has been a long-standing dispute regarding the ownership of the suit property and that it was further established by the 2nd Respondent that the suit property is part of a settlement scheme known as Maganda Settlement Scheme.

15. The 2nd Respondent also denied ever authorizing the 1st Respondent to proceed with the acquisition of the suit property and that consequently, the award notice issued to the Claimant was either erroneously issued or issued without the express authority of the 2nd Respondent which was the designated acquiring body.

16. The 2nd Respondent avers that the suit property is currently inhabited by beneficiaries of the Maganda Settlement Scheme in its entirety.

D. The 1st Interested Party’s Case 17. The 1st Interested Party opposes the claim through the Replying Affidavit sworn on 13th January 2025 by Jimmy Waliaula – the County Attorney of the Interested Party.

18. The 1st Interested Party has challenged the claimant’s ownership claim over the suit property and alleged that the suit property is part of the Maganda Settlement Scheme.

19. It has been pleaded by the 1st Interested Party that through a letter dated 7th April, 2015, it formally objected to the compensation of any private entity laying clam in the suit property as the same belonged to Maganda Settlement Scheme.

20. Based on the foregoing, the 1st Interested Party has urged this Tribunal to dismiss the claim herein.

E. Analysis and determination 21. The main issue that is up for determination is whether the suit property was compulsorily acquired.

22. The Tribunal draws its jurisdiction from Section 133C of the Land Act, Cap 280 of the Laws of Kenya. While the Tribunal acknowledges that the suit herein has brought forth issues relating to ownership of the suit property, it can only address itself on matters of compulsory acquisition of land and leave the issue on land ownership to be canvassed through another forum with competent jurisdiction on that question.

23. The Claimant claims that the suit property was compulsorily acquired by the 1st Respondent for the benefit of the 2nd Respondent, an allegation which has been denied by the 1st and 2nd Respondents and the 1st Interested Party. The Claimant has adduced evidence of ownership through a copy of title in his name and a certificate of postal search dated 4th March 2024. The certificate of title shows that the suit property was transferred to the Claimant on 29th March 1990. The Claimant has further submitted in evidence copies of award and acceptance of award both dated 12th April, 2017. The award has been challenged by the Respondents and the 1st Interested Party.

24. While the 1st Respondent has admitted that it had intention to acquire the suit property, the said intentions were shelved following the letter from the 1st Interested Party dated 7th April, 2015, formally objecting to the compensation of any private entity laying claim in the suit property on the ground that the suit property belonged to Maganda Settlement Scheme.

25. Further to the above, it has been averred in the Replying Affidavit of Angela Njeri Chege on behalf of the 2nd Respondent that the suit property is currently inhabited by beneficiaries of the Maganda Settlement Scheme in its entirety.

26. Upon consideration of the Claim and the responses that had been filed, the Tribunal found it necessary to order for a survey report which was aimed to shed light on the apparent overlap between the suit property and the Maganda Settlement Scheme. The Tribunal, therefore, ordered for a joint survey to determine the boundaries of Maganda Settlement Scheme and parcel known as 883/VI/MN – the suit property. In its findings, the joint survey report dated 10th April 2025 noted as follows:1. Land Reference L.R. No. 883/VI/MN was partially affected by the construction of Mombasa – Nairobi Standard Gauige Railway Project and not L.R. No. MN/VI/883/R2. Land Reference 883/VI/MN was acquired fully by the Government thus remains public land. (See Gazette Notice No. 737 & 738)3. Maganda Settelemt Scheme falls within the armpit of Land Reference no. 883/VI/MN.

27. The phenomenon of multiple claims or titles to the same property in land disputes in Kenya is not new. This unfortunate state leaves more questions than answers. For instance, we are unable to ascertain how the Claimant possesses title to a property which is alleged to be a settlement scheme. Although no evidence has been led to explain how the Maganda Settlement Scheme was created on the suit property which is claimed by the Claimant, the survey report confirms that the suit property was acquired through the process of compulsory acquisition in the year 1976. Gazette Notice No. 737 of 12th March 1976 indicates that 306. 66 acres of the suit property was acquired by the government through the Commissioner of Lands for, “industrial area, medium and low cost housing and site and service scheme…”

28. Subsequently, an inquiry was conducted at Lands Office, Treasury Square, Mombasa on the 20th April 1976. The Notice of Inquiry was published in Gazette Notice No. 738 of the same day.

29. It is, therefore, clear to us that indeed the suit property was public land at the time it was purportedly acquired. The Claimant’s claim to the property is a matter within the jurisdiction of the Environment and Land Court. In conclusion, we find that the suit property could not be compulsorily acquired having been originally acquired in 1976. The Claimant’s case is hereby dismissed with no orders as to costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY 2025DR. NABIL M. ORINA - CHAIRPERSONGEORGE SUPEYO - MEMBERIn the presence of:Mr. Oloo for the ClaimantMs. Magdalene for the 1st RespondentMr. Samini for the 2nd RespondentMs. Masibo for the 1st Interested PartyEverlyne – Court Assistant