https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3885

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT VOI** **ELCLPET NO. E005 OF 2025** **(FORMERLY ELCPET MOMBASA NO. E006 OF 2017)** **LUCAS MKONJI SHAGWAMBO &** **31 OTHERS** **PETITIONERS/APPLICANTS** **VERSUS** **MWATATE CONSTITUENCY DEVELOPMENT FUND** **1ST RESPONDENT** **THE HON. ATTORNEY GENERAL** **2ND RESPONDENT** **RULING** 1. Before the Court is the Petitioners/Applicants’ Notice of Motion dated and supported by an affidavit sworn on 17th March 2026, expressed to be brought under Article 40 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 21 Rule 1 of the Civil Procedure Rules. In substance, the Applicants seek three orders: *first*, that the Court quantify and assess the compensation payable to them pursuant to the Decree issued on 25th July 2025; *secondly*, that the Court award a total sum of Kshs. 21,957,965.91 as the “liquidated amount” for “adequate compensation” in respect of 24.6691 acres said to have been acquired; and *thirdly*, the costs of the application. 2. The motion is supported by the affidavit of Lucas Mkonji Shagwambo, the 1st Petitioner, who deposes that he is the lead representative of the other Petitioners. Annexed to the supporting affidavit are the Decree of this Court (LMS–1) and the Report and Valuation prepared by Amazon Valuers Limited dated 5th February 2018 (LMS–2). 3. By its Judgment and the Decree extracted thereon dated 25th July 2025, this Court differently constituted determined the Petition in the Petitioners’ favour. The Decree, in summary: (i) declared that the Petitioners’ protected right to property had been violated by the Respondent’s acts of encroachment upon and trespass to their properties; (ii) declared the encroachment upon, trespass to and expropriation of the Petitioners’ property without consultation illegal and unconstitutional; (iii) ordered the Respondent to *adequately compensate* the Petitioners for compulsorily acquiring their parcels; and (iv) ordered that the costs of the Petition be borne by the Respondent. 4. Two features of the Decree are material to the present application. The *first* is that, while liability and the entitlement to compensation were conclusively determined, the Decree did *not* fix the quantum of the “adequate compensation” so ordered. It is that omission which the present application seeks to cure. The *second* is that the Decree records the matter as having come up for judgment “on 25th July 2023” while itself bearing the date 25th July 2025; nothing turns on what appears to be a typographical slip, and I proceed on the footing that the operative Judgment and Decree is that of 25th July 2025 as relied upon by all parties. 5. The Applicants’ case, drawn from the grounds on the face of the motion and the supporting affidavit, may be stated shortly. They contend that the Decree ordered “adequate compensation” but did not fix a specific sum, and that the Court should now do so. They rely on the 2018 Amazon Valuers Limited report as establishing both the value of the land (Kshs. 575,000 per acre, inclusive of a 15% statutory addition) and the total affected acreage of 24.6691 acres. 6. They urge that, the valuation having been undertaken in 2018, it requires adjustment for the passage of some eight years. To satisfy the constitutional requirement of “adequate” compensation under Article 40, they say, the award must reflect current market dynamics and cumulative inflation, which they put at approximately 54.8%. Applying that uplift, they arrive at an adjusted value of Kshs. 890,100 per acre and, multiplying that figure by 24.6691 acres, a total claim of Kshs. 21,957,965.91. 7. The Applicants further depose that their demand to the 1st Respondent to pay the sum claimed, or in the alternative to procure an independent valuation, has been ignored; that they continue to languish in poverty while a structure stands on their land; and that it is just and equitable that the compensation be liquidated so as to permit a final settlement of their claim and the realisation of the fruits of their judgment. 8. The Respondents did not file any response to the application despite service and having been granted time to do so. 9. Having considered the application, the supporting material and the record, the issues that fall for determination are: **(a)** whether the Court is seized of jurisdiction to assess and quantify the compensation ordered by the Decree, and whether the present application is a competent vehicle for that purpose; **(b)** whether, on the material placed before it, the Court ought to award the sum of Kshs. 21,957,965.91 as prayed; and **(c)** what orders, including as to costs, ought to issue. **Analysis and determination** ***(a) Jurisdiction and competence*** 10. It is a settled principle that a court which has finally determined a matter and issued its decree is generally *functus officio* and may not reopen or revisit its decision save in the limited circumstances permitted by law correction of clerical or arithmetical slips, review, or setting aside on recognised grounds (see, on the principle generally, **Telkom Kenya Limited v John Ochanda [2014] eKLR**). The Respondents may therefore ask: how can this Court, having delivered its Judgment, now proceed to fix a figure? 11. The answer lies in the terms of the Decree itself. The Court did not omit to deal with quantum by oversight; it deliberately left the compensation to be assessed, ordering that the Respondent “adequately compensate” the Petitioners. A decree in those terms is, without more, illiquid it declares an entitlement but does not yet speak a sum capable of execution. To ascertain and liquidate that sum is not to vary, reopen or sit on appeal from the Decree; it is to give effect to it. The Court retains jurisdiction to render its own decree effective and capable of enforcement, an authority reinforced by its inherent power under Section 3A of the Civil Procedure Act and consonant with the overriding objective in Sections 1A and 1B and with Article 159(2)(d) of the Constitution. To that limited extent the *functus officio* objection does not arise. 12. The Applicants’ reliance on Order 21 Rule 1 of the Civil Procedure Rules is, with respect, misconceived; that rule concerns the pronouncement of judgment, not the assessment of a decretal sum. Mindful, however, of Article 159(2)(d) and Section 3A, I decline to defeat a substantive application on a slip in citation. I treat the motion for what it is in substance: an application for the assessment and liquidation of the compensation decreed, and for directions to that end. The application is, so understood, competent. ***(b) Whether the sum of Kshs. 21,957,965.91 ought to be awarded*** 13. Jurisdiction to assess is one thing; the sufficiency of the material on which the assessment is sought is quite another. Compensation, like special damages, is a matter of proof. A court does not adopt a party’s arithmetic merely because it is asserted on affidavit; the quantum must be established by evidence (see **Hahn v Singh [1985] KLR 716,** on the requirement that such claims be specifically pleaded and strictly proved). The compensation contemplated by Article 40(3) of the Constitution and the Land Act, 2012 must be not only “adequate” but “just”, and a just figure can rest only on a sound valuation properly grounded in fact (see, on the principles governing compensation for the taking of land, **Patrick Musimba v National Land Commission & 4 others [2016] eKLR**). 14. Tested against that standard, the material relied upon cannot support the order sought, for three connected reasons. 15. First, and most fundamentally, the affected acreage is unproven. The 2018 valuation does not establish that 24.6691 acres were taken. On its own terms, the report assessed only the average value of “an acre” in the general area, “being part of the larger parcel of land”. The valuer expressly stated that he “could not ascertain the extent in which the various portions were affected or were to be affected” and recommended that “a surveyor be called upon to ascertain the portion of each land holding that was affected to enable a conclusive valuation of each portion.” That recommendation was, on the record, never acted upon. The figure of 24.6691 acres derives from the “List of Fragments”, which records the *total* holdings of the 32 listed owners not the portion of each holding actually encroached upon by the 1st Respondent’s project (the technical training institute and its access road). To multiply the entire acreage of all the holdings by an average per-acre value, and to present the product as the sum due, assumes the very fact that the valuer declined to find: that the whole of every Petitioner’s land was taken. That assumption is neither supported by the record nor inherently probable. 16. Secondly, the valuation is stale. It was prepared in February 2018 and speaks to values then prevailing; it does not purport to state the current market value. A valuation more than eight years old cannot, without more, found an award of “adequate” compensation as at today. 17. Thirdly, the proposed “inflation adjustment” of some 54.8% is the Applicants’ own computation. It is not supported by any expert evidence, by official consumer price index data, or by a fresh valuation. The recognised judicial mechanism for addressing the time-value of a decretal sum is an award of interest at court rates, not an arithmetical inflation uplift of a stale valuation supplied by the very party seeking to benefit from it; and to award both an inflation-uplifted principal and interest would risk double compensation. Where a valuation has gone stale, the proper course is a current valuation by a competent and disinterested valuer, not judicial indexation on a party’s say-so. 18. For these reasons the Court cannot, on the present material, grant prayer 2. To order the immediate payment of a substantial sum of public funds upon an unascertained affected acreage and a stale, expressly qualified valuation would be to award a figure that is neither demonstrably “adequate” nor “just”, and would do a disservice to both the Petitioners and the public interest. ***(c) The appropriate relief*** 19. That conclusion does not leave the Petitioners remediless, nor should it. They hold a decree in their favour and are entitled to have it rendered effective and capable of execution; they ought not to be left indefinitely with an illiquid judgment. Justice requires that a proper assessment now be undertaken on a sound evidential footing which is precisely the course the 2018 valuer himself recommended. The just and equitable disposition, in my view, is therefore not to dismiss the application but to allow it to the limited extent of directing the assessment to be done properly, so that the Court may thereafter quantify the compensation on reliable evidence and enter a liquidated decree. **Disposition and orders** 20. In the result, and for the reasons given, I make the following orders: 1. **The application is allowed to the limited extent set out below; prayer 2, for the immediate award of Kshs. 21,957,965.91, is declined as framed.** 2. **The Court assumes jurisdiction to assess and liquidate the compensation ordered by the Decree dated 25th July 2025, that exercise being one of giving effect to the Decree and not of varying it.** 3. **Within sixty (60) days of the date hereof, a registered land surveyor in default of agreement, the County Surveyor, Taita Taveta shall ascertain and demarcate the actual extent and portion of each Petitioner’s holding that was encroached upon and/or taken by the 1st Respondent’s project together with any consequential affected area, and shall file a report in Court.** 4. **Upon such ascertainment, a registered and practising valuer in default of agreement, the Chief Government Valuer shall assess the current market value of the ascertained affected portions for compensation purposes, applying the statutory addition as may be applicable, and shall file the valuation report in Court.** 5. **The costs of this application shall abide the outcome of the assessment.** 6. **There shall be liberty to apply.** **Orders accordingly.** **RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI** **THIS 29TH DAY OF JUNE 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **N/A for the Petitioners/Applicants** **Mr. Mwasea h/b for Mr. Otieno for the Respondents.** **Court Assistant; Joseph Letisia.**