https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4648

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT KWALE** **ELC CASE NO. E132 OF 2025** **MDOE RUWA………………………………. PLAINTIFF/APPLICANT** * **VERSUS -** **THOMAS DENA MKALA…………………..……….1ST DEFENDANT** **PAULINE USHINDI MWANZARA………………….2ND DEFENDANT** **NYANJE MDOE NYANJE ………………………….3RD DEFENDANT** **MALU CHILUMO MAINGU…………………………4TH DEFENDANT** **NATIONAL LAND COMMISSION…………………5TH DEFENDANT** **RULING** 1. **Introduction** 2. The Ruling by this Honourable Court relates to the Notice of Motion application dated 10th December, 2025 by *Mdoe Ruwa,* the Plaintiff/Applicant herein. The application was premised under the provision of Section 3, 3A and 63 of the Civil Procedure Act, Cap. 21; Order 40 Rules 1 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010. 3. Upon service, the application was opposed through a Replying Affidavit dated 27th February, 2026 sworn by Mariko Kalimoi the Principal Valuation Officer of the 5th Defendant/Respondent the National Land Commission. 4. It is instructive to note that, an the initial stages, on 10th December, 2025, the Plaintiff/Applicant brought before court under certificate of urgency through the Law firm of Messrs. Barayan Associates for the Applicant whereby he sought and was granted the status quo orders were issued pending the determination of this ruling. 5. Therefore, its for the simple reason and having perused the contents of the instant application that the court will have very little/minor input on the orders sought for reasons that two of the orders have already been overtaken by events and the rest of the orders sought are a preserve of the Land Acquisition Tribunal. 6. **The case by the Plaintiff/Applicant** 7. The Plaintiff/Applicant sought for the following orders:- 8. ***Spent.*** 9. ***That an injunction be issued against the Defendants/Respondents their agents from actualising compensation regarding parcels KINANGO/BOFU/1622, 2816,2821, 2822, 2823 and 2824 or in any actions on selling, leasing or constructing under the suit property pending the hearing and determination of the case.*** 10. ***That in the alternative, have the Honourable Court to issue orders compelling the 5th Defendant/Respondent to deposit the awards/compensation regarding parcels KINANGO/BOFU/1622, 2816, 2821, 2822, 2823 and 2824 in court.*** 11. The application was premised on the grounds, testimonial facts and the averments made out under the 15 Paragraphed Supporting Affidavit sworn by MDOE RUWA dated 10th December, 2025 together with annextures marked as “MD – 1, 2 & 3” annexed thereto. He averred as follows that:- 12. He was the Plaintiff/Applicant herein and hence competent to swear this Affidavit 13. He was the beneficial and/or registered lawful owner of all that parcels of land known asparcels KINANGO/BOFU/1622, 2816, 2821, 2822, 2823 and 2824. 14. He was the sole owner of KINANGO/BOFU/2824 which was assigned to Mdoe Nyanje Mdoe (Deceased) in his place. 15. The said Mdoe Nyanje Mdoe (deceased) and his family acknowledged his ownership of the parcel of land on 18th January, 2023. 16. He was also the beneficial owner of parcels Numbers KINANGO/BOFU/1622, 2816, 2821, 2822 and 2823 being the property of his late father. 17. The 5th Defendant/Respondent even acknowledged his ownership through his deceased father of it by issuing an award in his name for other neighboring parcels KINANGO/BOFU/1615 and 2817. 18. The said parcels had been earmarked for compulsory acquisition by the Government of Kenya for public use under the Mwache Dam Project. 19. He was aware that the 5th Defendant/Respondent had commenced the process of compensation in respect of the said parcels of land. 20. He had leant that the 5th Defendant/Respondent intended to compensate the 1st to the 4th Defendants/Respondents as the alleged owners of the said parcels, to the exclusion of himself despite his lawful interest and ownership. 21. Unless the Honourable Court intervened, the 5th Defendant/Respondent would proceed to release and pay compensation to the 1st to 4th Defendant/Respondents thereby irreparably prejudicing his proprietary rights and interest over the suit properties. 22. He stood to suffer irreparable loss and damage which could not be adequately compensated by damages and him being rendered homeless and destitute. 23. He sought to be granted injunctive orders and/or in the alternative to have the 5th Defendant/Respondent deposit the compensation in Court pending the hearing and determination of the suit. 24. **The Responses by the 5th Defendant/Respondent** 25. While opposing the application, the 5th Defendant/Respondent through its 9 Paragraphed Replying Affidavit sworn by Mariko Kaliamoi. He averred as follows that:- 26. He was a male adult of sound mind, the Principal Valuation Officer in Valuation and Taxation Department at the National Land Commission, the 5th Defendant/Respondent herein. 27. He was well conservative with the facts of this matter and hence competent to swear this affidavit. 28. He had read and fully understood the application and the supporting affidavit by the Plaintiff/Applicant herein and the interim orders issued by this Court on 11th December, 2025. 29. The 5th Defendant/Respondent was determined and committed to ensure compensation for compulsory acquisition was paid to the rightful owners as per the law and would abide by the orders of this Court. 30. In response to the specific orders sought by the Plaintiff/Applicant, and pursuant to the Status Quo orders issued by this Court on 11th December, 2025, he wished to clarify the status of each parcel forming the subject matter of this suit as follows:- * 1. **Kinango/Bofu/1622:-** compensation for this parcel had not been processed or paid. The funds were still held by the National Land Commission. This was due to pending ownership disputes. 2. **Kinango/Bofu/2816:-** compensation already paid to the 2nd Respondent PAULINE USHINDI MWANZARA. 3. **Kinango/Bofu/2821:-** compensation for this parcel had not been processed or paid. The funds were still held by the National Land Commission. This was due to pending ownership disputes. 4. **Kinango/Bofu/2822:-** compensation for this parcel had not been processed or paid. The funds were still held by the National Land Commission. This was due to pending ownership disputes. 5. **Kinango/Bofu/2823:-** Compensation already paid to the 4th Respondent MALU CHILUMO KAINGU 6. **Kinango/Bofu/2824:-** compensation for this parcel had not been processed or paid. The funds were still held by the National Land Commission. 31. In light of the above, the substratum of the Plaintiff/Applicant application regarding parcel numbers 2816 and 2823 had already been overtaken by events as the compensation funds were lawfully disbursed to the 2nd and 4th Defendants/Respondents prior to filing of this suit and prior to the issuance of the orders of the Status Quo. 32. Regarding the parcels numbers 1622, 2821, 2822 and 2824, the 5th Defendant/Respondent confirmed that it would strictly abide by the Status Quo orders issued on 11th December, 2025. They shall not release compensation for these three (3) parcels pending the hearing and determination of this suit. 33. The 5th Defendant/Respondent was a neutral arbiter and repository of public funds in relation to compensation for compulsory acquisition. 34. It would be unjust to compel the National Land Commission to deposit the entire sum for the six ( 6 ) parcels of land in Court especially where payments for parcels numbers 2816 and 2823 had already lawfully been made to third. 35. **Submissions** 36. On 12th March, 2026, while the parties were in Court I directed them to have the application dispensed by way of written submissions. Nonetheless, in the given circumstances, I have found no need to summarise the same in the interest of saving precious judicial time. Firstly, for good order, and as matter of sustaining consistency as provided for under the provision of Article 165 ( 6 ) of the Constitution of Kenya, 2010, this Honourable Court bearing the supervisory role over other ***Quasi Judicial*** bodies, will trend carefully in order to avoid causing any confusion, conflicts of interest and maintaining ***the Doctrine of Exhaustion”***. 37. Indeed, the**Land Value Amendment Act 2019**which made amendments to the**Land Act (2012)** established the “***Land Acquisition Tribunal*** “ under the provision of Section 133A for purposes of dealing with issues of a similar nature. Section 133C of the Act provides that:- **“The Tribunal has jurisdiction to hear and determine appeals from the decision of, the Commission in matters relating to the process of compulsory acquisition of land.** **(2) A person dissatisfied with the decision of the Commission. may, within thirty days, apply to the Tribunal in the prescribed manner.** **(3) Within sixty days after the, filing of an application under this Part, the Tribunal shall hear and determine the application.”** 1. Secondly, the Honourable Court takes judicial notice that one of the application had partly been overtaken by events. Indeed, the compensation had already been accomplished by the 5th Defendant/Respondent making the whole exercise more an academic exercise. It is therefore, ***‘Fait accompli”*** case – its done and done. 2. **Determination** 3. Unquestionably, the Land Acquisition Tribunal has the mandate to hear and determine appeals from the decision of the National Land Commission, in matters relating to the process of Compulsory Acquisition of Land. The Complaint has to first be lodged before the National Land Commission. This Court therefore lacks the jurisdiction to entertain the Plaintiff’s suit before it at the first instance but would be preferably the Plaintiffs resort at appeal. The Plaintiff has not exhausted the dispute resolution mechanism provide under the Statute. 4. The court duly takes cognisance of the contents of paragraph 7 of the affidavit in response to the application where the deponent on behalf of the 5th Defendant/Respondent stated that it shall strictly abide by the status quo orders issued on 11th December, 2025 and shall not release compensation for the three remaining parcels pending the hearing and determination of the suit. The Honourable Court takes that undertaking extremely serious. I cannot agree with the 5th Defendant/Respondent holding that to have the colossal sum meant for compensation being deposited in Court would be unfair, unreasonable and unjust. 5. Bearing the above in mind, I direct as follows:- 6. **THAT the Status Quo orders issued on 11th December, 2025 shall remain in place in the meantime as the Plaintiff follows up on the compensation issue with the Land Acquisition Tribunal which is the right legal forum for such.** 7. **THAT in the interest of justice stay in the instant proceedings the status quo orders be and are hereby granted as that is what will regulate the whole compensation process to ensure that none of the parties suffers any injustice and/or prejudice whatsoever.** 8. **THAT for expeditious sake, the matter of the compensation afflicting the Projected Affected Persons for the Mwache Dam Project to have been finalised resolved by the Tribunal WITHIN THE NEXT ONE HUNDRED & EIGHTY (180) DAYS from the date of the delivery of this Ruling.** 9. **THAT any parties be at liberty to formally move this Honourable Court in the event that they feel aggrieved and/or not agreeable to the findings that would have been made by the Land Acquisition Tribunal.** 10. **THAT there be a mention of this matter on 11TH February, 2027 to ascertain progress made and further direction whatsoever.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ……. ………1ST …. DAY OF …JULY …….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Mummin Advocate holding brief for Mr. Kamanza Advocate for the 1st, 2nd, 3rd & 4th Defendants/Respondent. 3. M/. Magdalene Advocate for the 5th Defendant. 4. No appearance for the Plaintiff.