[2025] KELAT 170 (KLR)

Registered Trustees Jamie Masjid Ahle Sunait Wal Jamait v Nairobi City County Government & another (Tribunal Case E008 of 2025) [2025] KELAT 170 (KLR) (22 May 2025) (Judgment)

Neutral citation: [2025] KELAT 170 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E008 of 2025

NM Orina, Chair & G Supeyo, Member

May 22, 2025

Between

Registered Trustees Jamie Masjid Ahle Sunait Wal Jamait

Claimant

and

Nairobi City County Government

1st Respondent

National Land Commission

2nd Respondent

Judgment

A. Introduction 1. On 4th June 2021, the National Land Commission (“the 2nd Respondent/the Commission”) vide Gazette Notice No. 5402, published a Notice of Intention for compulsory acquisition of various parcels of land for the construction of the Globe Roundabout Public Transport Terminal (the Project). This was done on behalf of the now defunct Nairobi Metropolitan Services (NMS) and which properties included that of the Claimant.

2. Subsequently, vide Gazette Notice No. 10279 of 27th September 2021 the 2nd Respondent published a Notice of Inquiry hearings for project affected persons. However, before the above compulsory acquisition process was completed, the tenure of the NMS ended with the National Government handing back to Nairobi City County Government (“the 1st Respondent”) all previously transferred functions following a Deed of Transfer in 2020.

3. Consequently, the 1st Respondent, vide Letter Ref No. CECM/NLC/WG/1233/2022 dated 29th November 2022 wrote to the National Lands Commission requesting that a corrigendum be done to reflect the 1st Respondent as the acquiring authority with regards the aforementioned compulsory acquisition process.

4. On 20th January 2023, vide Gazette Notice No. 641, the 2nd Respondent published a Notice of Inquiry hearings for project affected persons over the subject compulsory acquisition process, and which Gazette Notice indicated the 1st Respondent as the acquiring entity.

B. The Claimant’s Case 5. The Claimant vide the Petition dated 6th January 2025 claims that it is the registered proprietor of all that property known as L.R. No. 209/136/259 (now Nairobi/Block 10/166) (“the suit property”).

6. The Claimant further claims that following the above-mentioned Gazette Notice No. 641 of 20th January 2023, the Claimant attended the inquiry hearing and accordingly submitted the requisite forms and registered its interests with the 2nd Respondent. However, since then, the Claimant has not received any communication from the Respondents over the compulsory acquisition process.

7. The Claimant contends that the uncertainty arising from the lack of communication from the Respondents over the compulsory acquisition has caused it loss of opportunity and therefore the Respondents’ actions constitute a breach of its rights to property. The Claimant, therefore, prays for the following orders:a.A declaration that the compulsory acquisition of the Complainant’s parcel of land known as LR No. 209/136/259 (New No. Title No. Nairobi/Block 10/166) comprising 2. 082 Hectares by the Respondents without adhering to strict and mandatory provisions of the Land Act, 2012, violates the Petitioner’s constitutional right to not be arbitrarily deprived of its property by the state, as guaranteed under Article 40 (3) (a) & (b) of the Constitution of Kenya, 2010. b.A declaration that the delay of over one and a half years for the Respondents to make an award for compensation and their dead silence in responding to the Complainants complaints are inimical to principles and objectives of compulsory acquisition and Claimants rights for prompt payment of just fair compensation based on market value and is also contrary to provisions of Article 47(1) of the Constitution of Kenya 2010. c.An order of mandatory injunction pursuant to Article 23 (3) do issue compelling the Respondents to make an award of the compensation payable to the complainant within thirty (30) days of orders from the Tribunal and to be payable within a period the tribunal may deem fit and just to grant.d.In the alternative an order for an award in the sum of Kshs. 3,926,568,896/- based on valuation by the complainant delivered to the 2nd Respondent on 3rd March, 2023 do issue in favor of the complainant.e.In the alternative an Order of judicial review do issue quashing the Gazette Notices Nos. 5402 and 10279 of 2021, 207 and 15995 of 2022 and 641 of 19/1/2023 due to continued infringement of complainant’s rights to property rights pursuant to Article 23 (3) (f) of the Constitution of Kenya.f.General damages for breach of the Complainant’s Constitutional and property rights.g.Costs of these proceedings be awarded to the Complainant.h.Interest at court rate.

C. The Respondents’ Case a. The 1st Respondent’s Case 8. The 1st Respondent contends that the request done by the NMS to the 2nd Respondent to acquire the properties of the subject compulsory acquisition process was ultra vires.

9. The 1st Respondent specifically contends that the request to the 2nd Respondent was irregularly done since the said request did not originate from the County Executive Committee Member (CECM) – Nairobi City County Government responsible for Lands as required by law, and further that their consent or approval was not sought.

10. Consequently, without proper authorization and request from the 1st Respondent, the 2nd Respondent acted on an invalid request. It is therefore the 1st Respondent’s position that it has never expressed any intention and does not have any intention of acquiring the suit property.

b. The 2nd Respondent's Case 11. The 2nd Respondent avers that it is yet to acquire the Claimant’s property and notes that the Claimant admits that to date, it remains in actual quiet and uninterrupted possession of the suit property. It is the 2nd Respondent’s case that the Claimant’s property has not been compulsorily acquired to justify any payment.

12. The 2nd Respondent argues that gazettement of the suit property with an intention to acquire does not amount to compulsory acquisition and does not bar the Claimant from utilizing its land. It is the 2nd Respondent’s case that given that an award is yet to be issued to the Claimant, the instant Claim is merely speculative, premature and not founded in law

D. Analysis and Determination 13. When this matter came up for mention on 6th March 2025 for directions, parties agreed to have the same disposed of by way of documentary evidence and submissions. All parties have filed submissions identifying issues the Tribunal should pronounce itself on.

14. Having read and taken into account parties’ submissions and the evidence on record, we have identified the following issues for our determination: -i.Whether the suit property was properly the subject of compulsory acquisition;ii.Whether compulsory acquisition over the suit property was completed; andiii.Whether the Claimant is entitled to the reliefs sought.

15. The issues for determination are inter-related. First, was the 2nd Respondent properly instructed to undertake the process of compulsory acquisition? If so, did the 2nd Respondent complete the process of compulsory acquisition over the suit property? The question of remedies available hinges on the resolution of the first two issues. We shall therefore interrogate the process of compulsory acquisition undertaken before determining the issue of reliefs available to the Claimant.

16. Pursuant to the provisions of Section 107 (1) of the Land Act, 2012, the National Land Commission is the body mandated to undertake the compulsory acquisition process on behalf of an acquiring authority that wishes to acquire land for a public purpose. Consequently, the 2nd Respondent shall only undertake a compulsory acquisition process based on a valid request from an acquiring authority.

17. This process commences with a request from the county or national government to the National Land Commission for an acquisition to be undertaken. Section 107 (1) of the Land Act stipulates as follows in this regard:Whenever the national or county government is satisfied that it may be necessary to acquire some particular land under Section 110, the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for acquisition of land to the Commission to acquire the land on its behalf. Emphasis added.

18. It is unambiguous under Section 107(1) that such a request must be submitted by the respective Cabinet Secretary of County Executive Committee Member. Any other request from unauthorised entities for compulsory acquisition of land is null and void and cannot form a valid basis for compulsory acquisition by the National Land Commission.

19. In this case, initially, the 2nd Respondent commenced the compulsory acquisition process following a request from the NMS. Consequently, the 2nd Respondent published Gazette Notice Nos. 5402 of 4th June 2021 being a Notice of Intention and Gazette Notice No. 10279 of 27th September 2021 being a Notice of Inquiry, which Gazette Notices indicated the NMS as the acquiring entity. These actions were unprocedural as the said entity did not have any power to request for compulsory acquisition of land. As an entity which was established to run transferred functions on behalf of the national government, the NMS could only make a request for acquisition of land through the relevant Cabinet Secretary.

20. However, upon the end of the tenure of the NMS on 30th September 2022, and the handing back of the transferred functions to the 1st Respondent, the Acting County Executive Committee Member – Nairobi County Government for Lands wrote to the Chairman of the 2nd Respondent requesting that a corrigendum be published reflecting the 1st Respondent as the acquiring authority over the subject compulsory acquisition process. This was done through a letter dated 29th November 2022. Subsequently, the Chief Officer, Lands of the 1st Respondent submitted a Project Plan to the 1st Respondent through a letter dated 30th November 2022. This was followed by another letter dated 12th January 2023 from the County Executive Committee Member – Built Environment and Urban Planning of the 1st Respondent identifying the affected land parcels. These correspondences are contained in a Supplementary Affidavit sworn by one Said Abdalla on 19th March 2025.

21. It is the 1st Respondent’s case, though, that the officers who authored these letters did not have any authority to do so. Through an affidavit sworn by one Patrick Mbogo – the County Executive Committee member in charge of Built Environment and Urban Planning of the 1st Respondent, the 1st Respondent avers that there was no resolution of the County Executive Committee authorising the impugned compulsory acquisition. Mr. Mbogo avers, therefore, that the acting County Executive Committee member was not authorised to request for the compulsory acquisition.

22. Without any further evidence, these averments must be taken for what they are: clutching at straws. As a government, the 1st Respondent is certainly aware that there exists a legal presumption of regularity for actions done by its officers. Under this presumption, we must presume that duties done in official capacity were properly discharged and all procedures duly followed until the challenger presents clear evidence to the contrary. This position was reiterated in the case of Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] KECA 875 (KLR).

23. The 1st Respondent’s position is, therefore, untenable. In order to convince this tribunal otherwise, the 1st Respondent ought to have presented evidence to show that the Acting County Executive Committee member did not have authorisation in requesting for the amendment of the name of the acquiring authority from the Nairobi Metropolitan Services to the 1st Respondent upon the handing back of transferred functions by NMS. Such evidence would have entailed retraction letters, minutes of the County Executive Committee or even administrative proceedings against the said officer for acting without authority. No single piece of evidence was presented.

24. Our conclusion on whether the process of compulsory acquisition was properly commenced, therefore, is that the subsequent request by the 1st Respondent to the 2nd Respondent complied with the law.

25. On the strength of the new request by the 1st Respondent, the 2nd Respondent published a Notice of Inquiry hearings for project affected persons over the subject Compulsory Acquisition process, and which Gazette Notice indicated the 1st Respondent as the acquiring authority. This notice was contained in Gazette Notice No. 641 of 20th January 2023. This then takes us to the question whether the process of compulsory acquisition was completed.

26. Evidence is uncontroverted that the Claimant attended the said hearing and produced the requisite forms and registered its interests with the 2nd Respondent. It is, however, the 2nd Respondent’s case that while it indeed commenced the compulsory acquisition process over the Claimant’s property, the same is yet to be completed. To this end, the 2nd Respondent submits that an award is yet to be issued over the Claimant’s property to entitle it to compensation.

27. Section 123 of the Land Act provides a glimmer of light in regard to completion of the process of compulsory acquisition. Even though the Land Act does not stipulate when land is deemed to have been acquired, or put differently – the completion of the acquisition process, Section 123 on withdrawal of acquisition provides as follows:1. At any time before possession is taken of any land acquired under this Act, the Commission may, revoke a direction to acquire the land, and, shall determine and pay compensation for all damage suffered and all costs and expenses reasonably incurred by persons interested in the land by reason of or in consequence of the proceedings for acquiring the land.

28. In Mbuguav National Land Commission & another (Complaint E051 of 2024) [2025] KELAT 160 (KLR) we held as follows,“31. ... In a situation where the Commission issued a notice of intention to acquire parcels of land which included the suit properties; conducted an inquiry to determine proprietary interests and values for purposes of compensation, and proceeded to issue awards for compensation; the process of compulsory acquisition had been completed. The failure to pay compensation within the stipulated period of one year does not invalidate an acquisition. Similarly, taking of possession of land which has been acquired is dependent on the immediate needs of the acquiring authority.”

29. The final step in the acquisition process is the taking of possession and vesting of the acquired land. However, the fact that possession has not been taken does not invalidate an acquisition unless the 2nd Respondent revokes the acquisition. In this case, it is not in contention that a notice of intention to acquire the subject property had been issued, and that the Claimant attended the inquiry hearing. However, there is no evidence of an award for compensation being issued. We, therefore, find that the compulsory acquisition process over the Claimant’s property is yet to be completed to warrant the claim for compensation in this regard.

30. Furthermore, we note that the 1st Respondent is adamant in its position that it is not interested – or is no longer interested – in acquiring the suit property. Be that as it may, the Claimant cannot be condemned to the current limbo resulting from the same. Compulsory acquisition has a disruptive effect on the proprietor of the property. As we observed in Thuo & 151 others v National Land Commission & 5 others [2024] KELAT 1142 (KLR), it is for this reason that there is an expectation that the State shall take all measures to ensure that such a disruption is minimal.

31. As we noted in Mbugua v National Land Commission & another (supra) the Land Act contemplates instances where the compulsory acquisition process may fall by the wayside for various reasons which may include change of acquisition plan or project design. In case the acquiring authority does not wish to go ahead with an acquisition, then that authority can inform the Commission to withdraw.

32. To this end, Section 123 of the Land Act provides for revocation of a direction to acquire land at any time before possession is taken, and due to this disruptive effect, compensation is due to the project affected person for the costs and expenses reasonably incurred by reason or in consequence of the compulsory acquisition process. In this case, although the Claimant has indicated that the existence of the Gazette Notices for acquisition of the suit property prevented it from developing or leasing the suit property, the Claimant has not particularised the loss suffered to assist the tribunal fashion an appropriate remedy.

33. We see no reason why the Respondents have not taken the necessary steps to free the suit property from the intended compulsory acquisition. The 1st Respondent is no longer interested in the acquisition and instead of trading blame, it should have instructed the 2nd Respondent to withdraw the compulsory acquisition. On the other hand, it is the duty of the 2nd Respondent to manage the process of compulsory acquisition. That duty entails taking active steps to revoke intended acquisitions which are no longer needed or which fail to comply with the law. The limbo the Claimant finds itself in was never contemplated in the law.

34. The sum of our analysis, therefore, is that even though this process was not completed, the same was mismanaged to the detriment of the Claimant. The intended acquisition has been hanging on the head of the Claimant with the consequence that the Claimant couldn’t enjoy to the full the use of its land. To that extent, the 2nd Respondent violated the Claimant’s rights under Article 40(3) to the use and enjoyment of its property.

E. Conclusion 35. In conclusion, it is our finding that the Claim partly succeeds and is allowed in the following terms:a.A declaration be and is hereby issued that through their actions and omissions, the Respondents have violated the Claimant’s rights under Article 40(3) of the Constitution of Kenya 2010;b.An order be and is hereby issued quashing Gazette Notices No. 5402 and 10279 of 2021, 207 and 15995 of 2022 and 641 of 2023 to the extent that they purported to compulsorily acquire land known as L.R. No 209/136/259 (New No. Title No. Nairobi/Block 10/166);c.Parties shall bear their own costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF MAY 2025. .....................................DR. NABIL M. ORINA GEORGE SUPEYOCHAIRPERSON MEMBERIn the presence of:Mr. Okoth for the ClaimantMs. Ireri for the 1st RespondentBuluma – Court Assistant