[2025] KELAT 164 (KLR)

Patel v Coast Water Works Development Agency & 3 others (Tribunal Case E036 of 2024) [2025] KELAT 164 (KLR) (14 April 2025) (Judgment)

Neutral citation: [2025] KELAT 164 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E036 of 2024

NM Orina, Chair & G Supeyo, Member

April 14, 2025

Between

Megji Nanji Patel

Petitioner

and

Coast Water Works Development Agency

1st Respondent

National Land Commission

2nd Respondent

Cabinet Secretary, Ministry of Water, Sanitation & Irrigation

3rd Respondent

The Attorney General

4th Respondent

Judgment

A. The Petitioner’s Case 1. The Petitioner, through an amended petition dated 18th December 2024, avers that he is the registered proprietor of land reference no. MN/VI/913, hereinafter, the suit property. He contends that on or about October 2014, 0. 397 acres of the suit property was compulsorily acquired by the 1st Respondent for the purpose establishing and expanding the Marereni Water Pipeline Project (the project).

2. The Petitioner contends that he was not duly served with a notice of intention to compulsorily acquire a portion of the suit property, thereby precluding his participation in the public consultation process undertaken by the 1st Respondent.

3. It is the Petitioner’s case that he was entirely excluded from the acquisition proceedings, and that the Respondents failed to furnish a comprehensive justification for the valuation of the portion of land in question.

4. Despite numerous attempts to engage the Respondents on the matter, the Petitioner avers that he has neither received a fair award nor been provided with the requisite valuation and compensation for the compulsorily acquired property.

5. Consequently, the Petitioner has instituted the present petition, asserting that the Respondents have acted with impunity and in disregard of the statutory and constitutional procedures governing compulsory acquisition, by violating his rights under Article 27, 35, 40, 47, 48, 50, 60(1)(b), 64, 232 and 249 of the Constitution of Kenya, 2010.

6. With regard to the alleged statutory violations, the Petitioner avers that the Respondents failed to comply with the mandatory provisions of Section 144 of the Land Act, 2012, which requires the 1st Respondent to serve notice upon both the registered proprietor of the land and the relevant County Government prior to the creation of a proposed wayleave over the suit property.

7. It is the Petitioner’s case that the Respondents acted in contravention of Section 146 of the Land Act by neglecting to obtain the requisite consents from both the County Government and the Cabinet Secretary prior to the creation of the wayleave.

8. Additionally, the Petitioner contends that the Respondents failed to publish a notice in the Kenya Gazette in relation to the creation of a wayleave for the Marere Water Supply Line, in contravention of the mandatory requirements set out under Section 146(6) of the Land Act. This omission, it is argued, renders the entire acquisition process procedurally defective and legally unsustainable.

9. The Petitioner, therefore, prays for the following orders:a.A Declaration that the acquisition and improvement done by the 1st, 2nd and 3rd Respondents in relation to the portion of land MN/VI/913 measuring 0. 397 acres was carried out ultra vires the Constitution and Statutory Law thus infringing the Petitioners right to property;b.That the 2nd Respondent be directed to compensate the Petitioner the sum of Kshs. 8,808,000. 00 being just compensation owed to the Petitioner;c.An order of prohibition be issued prohibiting the 2nd Respondent, their servants, agents in any many (sic) whatsoever from vesting the right of way (wayleave) in favour of the 1st Respondent unless due process is followed and prompt payment of just compensation being Kshs. 8,808,000. 00 is made to the Petitioner;d.Costs of the Petition;e.An order directing the 2nd Respondent to pay interest on the compensation sum of Kshs. 8,808,000. 00 at Central Bank Rate from the date of acquisition;f.Any other relief that the court may deem fit to grant for a just determination of the issues raised herein.

10. The Petition is supported by the supporting affidavit of Megji Nanji Patel, the Petitioner sworn on 18th December 2024.

11. In his Supporting Affidavit, Mr. Patel reiterates the assertions made in the Petition and contends that, notwithstanding the completion of the project, he has not received just compensation for the portion of the suit property that was acquired. To substantiate his claim, he has annexed a survey plan and a valuation report marked as annexures “B” and “C” respectively, to illustrate the extent of the pipeline’s encroachment on his land and the corresponding value of the affected portion.

B. The 1st Respondent’s Case 12. In a Replying Affidavit sworn on 22nd Septemmber 2024, by Ms. Mary Okioma, the Deptuty Director for Legal Services at the 1st Respondent, the 1st Respondent denies all the issues as raised in the Petition.

13. Ms. Okioma avers that the ownership of Plot No. MN/VI/913 is the subject of an ongoing dispute, with claims being advanced by one Hamisi Yongo Maricheni together with ninety-two (92) others, who assert ancestral rights over the said parcel. Mr. Maricheni and the others contend that their forefathers were born, raised, and interred on the land in question. Furthermore, Ms. Okioma asserts that there is pending litigation in the Kwale Court, being O.S. No. E006 of 2021 Japhet Malau Munga and Ninety-Two Others v. Megji Nanji Patel and Five Others wherein the issue of ownership remains unresolved and is currently sub judice.

14. Ms. Okioma further avers that Plot No. MN/VI/913 was transferred to the Petitioner on 1st November 2016. However, she contends that the Marere Water Pipeline has existed on the subject parcel since as early as 1916, during the colonial times. In support of this assertion, she refers to Topographical Map Sheet No. 1/200 published by the Survey of Kenya in 1991, which she has annexed to her affidavit and marked “MO 5”.

15. She further states that the Petitioner and other affected persons were in fact invited to participate in a public consultation forum convened for the purpose of discussing the acquisition of land for the Marere Pipeline Project but failed to attend or make any representations during the said forum. These forums were held on Wednesday 31st August 2011, at 10. 00 am at Lutsangani and at Miritini, Mombasa County on 1st September 2011.

16. Ms. Okioma avers that the said invitation was published in the Daily Nation newspaper on Thursday, 11th September 2011. The advertisement expressly invited members of the public to seek additional information regarding the project from the Coast Water Services Board or the contracted consultants Gauff Ingenieure GmbH & Co. KG - JBG. The notice also contained the contractors’ telephone contacts and email addresses for ease of communication and public engagement.

17. In response to the Petition, the 1st Respondent maintains that it adhered to all legal and procedural requirements in the acquisition of land for the expansion and rehabilitation of the Marere Water Supply System under Contract No. CWSB/CS/MSA-WaSSIP/AFD II/2/2009.

18. The 1st Respondent denies subjecting the Petitioner to any form of indignity, discrimination, or hardship. Ms. Okioma asserts that the acquisition process was transparent, participatory, and open to all, and that those members of the public who presented themselves for compensation were duly compensated.

19. Ms. Okioma attributes the Petitioner’s lack of compensation to their own failure to engage and cooperate during the resettlement process, thereby necessitating the continuation of the project without their participation.

20. Ms. Okioma further denies any allegation of constitutional violations and contends that the valuation of the affected land was conducted in accordance with internationally accepted standards. These included consideration of the length and width of the wayleave, depth of the pipeline, value and nature of interest in the land (including any depreciation or appreciation), and the prevailing fair market value. In support thereof, Ms. Okiomahas annexed a copy of the Resettlement Action Plan marked“MO 6”.

21. In response to the allegation concerning the Cabinet Secretary approvals, the 1st Respondent avers that the expansion of the Marere Water Supply System was planned and provided for in the Water Master Plan for the period 2010–2020, which had been approved by the Cabinet Secretary, Ministry of Water, Sanitation and Irrigation.

22. Ms. Okioma further avers that the 1st Respondent undertook the construction of the new pipeline parallel to the existing one, within the boundaries of the wayleave previously demarcated for the Marere Pipeline during its improvement in 1930. Accordingly, she contends that there was no legal obligation to issue a fresh notice to either the County Government of Kwale or that of Mombasa, as the works were confined to an already established utility corridor.

23. Ms. Okioma goes on to contest jurisdiction of this Honourable Tribunal, asserting that Clause 3. 13 of the Marere Water Pipeline Resettlement Action Plan provides for a specific dispute resolution mechanism, which is arbitration to be conducted by an arbitrator appointed by the Kenya Dispute Resolution Centre. It is the 1st Respondent’s position that the present dispute has not been submitted to arbitration in accordance with the prescribed procedure and is therefore premature.

24. Additionally, Ms. Okioma challenges the Tribunal’s jurisdiction on the further ground that the matter has not been heard or determined by the National Land Commission. It is contended that this Tribunal is statutorily mandated to only hear appeals arising from decisions of the Commission and, as such, the Petition is not properly before the Tribunal and is premature.

25. The 1st Respondent further avers that the Marere Pipeline Project has since exhausted its allocated funds, and consequently, any prior offer for compensation extended to the Petitioner has lapsed.

C. Analysis & Determination 26. The Petitioner filed its written submissions dated 14th February 2025 in support of the Amended Petition. In summary, the Petitioner contends that the compensation process was undertaken in a manner that was grossly unprocedural and in contravention of the Constitution of Kenya, 2010 and the relevant statutory provisions under the Land Act, 2012. The Petitioner urges this Tribunal to adopt its valuation report, noting the absence of a corresponding valuation report from the Respondents.

27. The 1st, 3rd, and 4th Respondents jointly filed their written submissions dated 11th March 2025. The primary issues framed for determination therein are:a.Whether the process of compulsory acquisition was undertaken in accordance with the law;b.Whether the Petitioner is entitled to compensation.

28. In addressing these issues, the 1st, 3rd, and 4th Respondents contend that the acquisition process was conducted lawfully and equitably, and assert that the Petitioner is not entitled to any compensation. Consequently, they urge this Tribunal to dismiss the Petition in its entirety.

29. The issue of our jurisdiction necessitates our attention before we delve into the merit of the Petition. On the first issue raised by the 1st and 3rd Respondent, we are guided by the provisions of Section 6(1) of the Arbitration Act which provides as follows:A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when the party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds –i.That the arbitration agreement is null and void, inoperative or incapable of being performed; or;ii.That there is not in fact any dispute between the parties with regard to the matters to be referred to arbitration.1. In these proceedings, the 1st and 3rd Respondents have only raised the issue of an arbitration clause in their response to the Petition contrary to the mandatory prescription of Section 6(1) above that such an application, to stay the proceedings, ought to be brought “not later than the time when the party enters appearance or otherwise acknowledges the claim”. In Eunice Soko Mlagui versus Suresh Parmar& 4 others [2017] eKLR. The Court of Appeal stated as follows in this regard:Section 6 of the Arbitration Act is a specific provision of a statute that provides for stay of proceedings and referral of a dispute to arbitration where parties to the dispute have entered into an arbitration agreement. The conditions under which the court can stay proceedings and refer a dispute to arbitration are prescribed by section 6 and in our view, the purpose of that provision is to regulate and facilitate the realization of the constitutional objective of promoting alternative dispute resolution. We do not therefore find anything in the provision that can be described as derogating or subverting the constitutional edict as regards alternative dispute resolution. The provision, for example, of section 6 which require parties to make an application for referral of a dispute to arbitration at the earliest opportunity and before taking any other action, or those that require the court not to refer a dispute to arbitration if the arbitration agreement is null and void, or is incapable of being performed, or if there is no dispute capable of being referred to arbitration, cannot be described as inconsistent with the constitutional principle of promoting alternative dispute resolution because the court is also obliged to take into account the equally important constitutional principle that justice shall not be delayed, by for example sending to arbitration a non- existent dispute, or allowing a party who has otherwise elected to pursue proceedings in the court, to belatedly purport to opt for arbitration.

31. It is, therefore, our finding that this objection is without merit and the same must fail. Besides, the parties herein did not have a valid arbitration clause that would lead to such an application. The Resettlement Action Plan that the 1st and 3rd Respondents refer to is not an agreement between the parties that would oust a court’s jurisdiction.

32. Similarly, it is our finding that other internal dispute resolution mechanisms established by the 1st Respondent do not oust a party’s right to litigate alleged violation of constitutional rights. The Petition before us alleges the violation of the Petitioner’s rights under Article 40(3) among others. Finally, the tribunal’s jurisdiction under Sections 133C (6) and (8) extends to any matter relating to compulsory acquisition of land which means that its jurisdiction is not restricted to appeals from the decisions of the National land Commission. This limb fails as well.

33. Turning to the main issue in the Petition being whether the Petition is merited, the evidence presented by the Petitioner is that he acquired the suit property in the year 2016. On the other hand, the impugned project was commenced in the year 2011. It is, therefore, clear that the Petitioner did not have any proprietary interests on the suit property at the time the rehabilitation and expansion project was to be undertaken. In other words, at the time the suit property was transferred to the Petitioner, he is deemed to have been aware of any encumbrances thereon, including wayleaves. Section 29 of the Land Registration Act is relevant in this regard. Furthermore, Section 28 of the Land Registration Act recognizes that registered land is subject to overriding interests which include wayleaves for pipelines.

34. Was he entitled to compensation for a wayleave which, from the evidence was created in the 1930s and rehabilitated and expanded in 2011 before the suit property was transferred to him? The answer is an emphatic no! The Petitioner cannot retroactively challenge the creation of a wayleave on the suit property when the same happened before he became the registered proprietor. He was not a project affected person who was entitled to be informed of the project and to be compensated. As we stated 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.

35. Having found that the Petitioner had no proprietary interests at the time the impugned project was undertaken on the suit property and therefore lacks standing to impugn the alleged creation of a wayleave on the suit property before it was transferred to him, we see no reason in interrogating the specific complaints any further. The claim fails and is hereby dismissed with costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF APRIL 2025………………………………… ……………………………NABIL M. ORINA- CHAIRPERSONPHD GEORGE SUPEYO- MEMBERIn the Presence of:Ms. Okioma for the 1st, 3rd and 4th RespondentsN/A for the PetitionerBuluma – Court Assistant