[2017] KEHC 1258 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 189 OF 2012

THE REGISTERED TRUSTEES OF

PREMIER CLUB........................................1ST APPELLANT

THE REGISTERED TRUSTEES OF

PREMIER ACADEMY...............................2ND APPELLANT

THE REGISTERED TRUSTEES OF

SIMBA UNION CLUB..............................3RD APPELLANT

- V E R S U S -

THE COMMISSIONER OF LANDS..............RESPONDENT

(Being an appeal from the decision of the Land Acquisition Compensation

Appeals Tribunal dated 20th March, 2012 in Land Acquisition Compensation

Appeals Number 24 of 2009, 28 of 2009 and 33 of 2009 (consolidated)

JUDGEMENT

1. On 20th March 2012, the Land Acquisition Compensation Appeals Tribunal dismissed consolidated appeals nos. 24, 28 and 33 all of 2009. The aforesaid appeals were filed by the Registered Trustees of Premier Club, The Registered Trustees of Premier Academy and the Registered Trustees of Simba Union Club, the 1st, 2nd and 3rd appellants respectively. Being dissatisfied by the decision of the Land Acquisition Compensation Appeals Tribunal, the appellants preferred this appeal and put forward the following grounds:

1. THAT the Land Acquisition Compensation Appeals Tribunal (The Tribunal) erred in law in erroneously invoking the provisions of Rule 10 of the First Schedule of the Land Acquisition Act despite the aforesaid rule not being applicable in the circumstances of this matter.

2. THAT the Tribunal erred in holding that sufficient Notices of Surrender as required and specified in the individual titles (of the appellants) had been contained in the Land Acquisition Gazzette Notice Number 6034 of 11th July, 2008 when in fact no Notices had been issued as required by the mandatory provisions of the law and of the Special Conditions or Clauses contained in the titles relating to the three suit properties.

3. THAT the said Gazette Notice Number 6034 of 11th July, 2008 related only to the mandatory requirements of Land Acquisition Act Chapter 295 Laws of Kenya under which compensation is mandatory contemplated and consequently the tribunal erred by not awarding the same.

4. THAT the Tribunal erred when it failed to address the issue of law raised by the appellants, in particular that in the absence of Notices of Surrender being served on the appellants, the respondent needed to compensate the appellants for their interest in the parcels of land known as:-

a) Land Reference Number 209/6559/2 – Trustees of Premier Club – land acquired amounted to 0. 371ha.

b) Land Reference Number 209/11591/2 – Trustees of Premier Academy – land acquired amounted to 0. 267ha.

c) Land Reference Number 209/6559/3 –Trustees of Simba Union – land acquired amounted to 0. 4489 ha.

5. THAT the Tribunal erred in failing to hold that the respondent having acquired the land under the mandatory provisions of the land Acquisition Act, Cap 295 Laws of Kenya, the appellants were entitled to compensation for the land as contemplated under the Act and the Constitution of Kenya.

6. THAT the Tribunal erred in not holding that the appellants had not been issued with the six months notices of surrender mandatorily contemplated by the special conditions contained in the various documents of title for the appellants’ properties.

7. THAT the Tribunal erred when it failed to anlayse the matters of law and the authorities cited by the appellant at all which led the tribunal to reach an erroneous decision aforesaid.

8. THAT the Tribunal erred in law and in fact in failing to hold that the appellants were entitled in law to full compensation for the land acquired by the respondent as provided under Section 8 of the land Acquisition Act Cap. 295 Laws of Kenya.

9. The decision of the Tribunal was contrary to law and failed to determine the material issue of law in regard to the application before it.

2) When the appeal came up for hearing, this court gave directions to have the appeal disposed by written submissions as proposed by the appellant’s advocate. The appellants were the only parties who had filed their submissions at the time of writing this judgment. There is no explanation as to why The Commissioner of Lands, the respondent herein failed to file its submissions. The appellants have indicated that since the nine grounds of appeal are interrelated the same may be determined together. It is the argument of the appellants that the tribunal erred in failing to hold that the respondent having acquired the land under the provisions of the Land Acquisition Act (Cap 295 Laws of Kenya), the appellants were entitled to compensation for the land as contemplated under the aforesaid Act and the Constitution of Kenya. The appellants argued that Commissioner of lands had flatly refused to compensate the appellants for their respective parcels land on account that the appellants had surrendered the parcels of land to the respondent pursuant to the special conditions set out in their respective Grants and Leases. It was the contention of the appellants before the tribunal that they were entitled to full compensation not only for the buildings and other improvements and developments on the land but for the land itself too. It was the case for the respondent that the appellant should be deemed to have surrendered the aforesaid parcels pursuant to the various clauses of special conditions set out in the respective leases.

3) I have re-evaluated the arguments on appeal presented before the tribunal. I have also taken into account the written submissions filed before this court. It is apparent from the grants or lease of Premier Club it was for a term of 40 years from 19th July 1987 at an annual rent of ksh.153,000 (revisable) while the lease or grant of Simba Union was for a period of 25 years from 19th July 1984 at an annual rent of ksh.5,400/= (revisable). I have perused special condition no. IV in both leases and they provide as follows:

“IV Any undeveloped land required by the government or the council for any public purpose may be resumed upon due notice being served at any time during the term of the lease without compensation. Compensation will be paid for any improvements and developed land which may be required.”

4) The lease or grant to the parcel of Premier Academy Charitable Trust is for a period of 99 years from 1st December 1991. The annual rent payable is for ksh.320,000/= (revisable). In this lease, the special condition no. 11 states as follows:

“Notwithstanding anything to the contrary contained herein or implied by the said Government Lands Act (Cap. 280) the grantee shall on receipt of six months notice in writing in that behalf surrender all or any part of the land required for public purposes without payment of compensation save in respect of such of the approved buildings as may have to be evacuated or demolished. No compensation shall be payable in respect of surrender or part of the land by reason of such surrender.”

5) It is clear from the decision of the Land Acquisition Compensation Appeals Tribunal and that of the respondent, that abovestated special conditions were cited to deny the appellants any awards of compensation for land. It is also apparent from the respondent’s decision that the appellants were awarded compensation for the development and improvements on the land.

6) The appellants are of the argument that the gazette notices issued by the respondent to compulsorily acquire the appellants’ parcels of land under the Land Acquisition Act is not the surrender notice contemplated under the special conditions of the grants/leases. The appellants pointed out that under Sections 6, 8 and 9 of the Land Acquisition Act it was incumbent upon the respondent to ensure that adequate compensation must be paid for both the land and the improvements thereon.

7) The appellants argued that the Tribunal’s reasoning was a clear misconception of the law and was therefore made in error since there was no evidence given to show that the respondent had asked the appellants to surrender their properties pursuant to special condition in the grant/lease. It is also argued that the appellants were not given 6 months notice as required. The appellants beseeched this court to find that the properties in question having been acquired under the provisions of the Land Acquisition Act, that the appellants were entitled to full and adequate compensation as required under Section 8 of the aforesaid Act. This court was also been asked to hold that the special conditions in the Titles were not available for the respondent to invoke as it happened in this case. It was further argued that under the provisions of Section 75 of the Old Constitution of Kenya which was applicable to this process and identical to Article 40 of the Constitution of Kenya, 2010 the respondent could not acquire land unless it paid adequate compensation promptly.

8) Having re-evaluated the arguments made before the Land Acquisition Compensation Tribunal and the submissions presented before this court, it is apparent that the appellants were before the Tribunal and are now before this court seeking to be compensated for the interest in land with respect to plots nos. L.R no. 209/6559/2 measuring 0. 371Ha, LR no. 209/11591/2 measuring 5. 256Ha and LR No. 209/6559/3. I have already outlined the arguments of both sides made before the Tribunal. There is no doubt that the respondent failed to value the land element on the basis that condition no. IV in the title exempted payment on such acquisition. It has also been the submission of the respondent that compensation for the land could not be made because of the gazette notice no. 6034 dated 11th July 2008, which was served upon the appellants constituting a six months notice. The Tribunal agreed with the arguments of the respondent and proceeded to dismiss the appeal. On my part and after a careful consideration of the submissions, I am convinced that the respondent adhered to the guidelines set out under Section 2 of the Land Acquisition Act (Cap 295 Laws of Kenya). I am also satisfied that the respondent, in carrying out the valuation, followed the rules particularly rule 10 of the First Schedule of the Land Acquisition Act hence the appellants were not entitled to claim any compensation for the interest in the land. I am also satisfied that the appellants were given sufficient notice vide gazette notice no. 6034 dated 11. 7.2008 as envisaged under the special conditions. With regards to L.R. no. 209/11591/2 special condition no. 11 applied while in respect of L.R no. 209/6559/2 and LR. No. 209/6559/3 special condition no. IV in both parcels applied.

9) Having come to the above conclusions, I am satisfied that this appeal lacks merit. It is dismissed in its entirety with costs being awarded to the respondent.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

....................................... for the Appellant

.................................. for the Respondent