[2025] KELAT 22 (KLR)

Wanjohi v National Land Commission & 2 others (Tribunal Case TRLAP/E034 of 2024) [2025] KELAT 22 (KLR) (13 January 2025) (Judgment)

Neutral citation: [2025] KELAT 22 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case TRLAP/E034 of 2024

NM Orina, Chair & G Supeyo, Member

January 13, 2025

Between

Eng Isaac G Wanjohi

Complainant

and

The National Land Commission

1st Respondent

Kenya Railways Corporation

2nd Respondent

The Attorney General

3rd Respondent

Judgment

Background 1. The Complainant is the registered proprietor of land reference number Kajiado/Kitengela/10767 (Kajiado County) measuring approximately 6. 30 hectares, herein referred to as the suit property. This is confirmed by a copy of the title of the suit property attached as Exhibit “EW1” in the Complainant’s Affidavit in support of the complaint dated 25th July 2024.

2. The suit property was the subject of compulsory acquisition by the 1st Respondent through a notice in the Kenya Gazette of 22nd December 2017 (no. 12526) expressing an intention to acquire the suit property, among others, for purposes of construction of the Standard Gauge Railway Phase 2A.

3. The Kenya Gazette Notice, which is annexed as “EIW2” to the Complainant’s affidavit dated 25th July 2024 indicated that the property subject of compulsory acquisition was land reference number Kajiado/Kitengela/3127 which is the original land reference number before the parcel of land was sub-divided to create, among others, the suit property.

4. The issue of the correct land reference number for the suit property was brought to the attention of the 1st Respondent by the Complainant vide letter dated 10th January 2018 which is annexed to the Complainant’s affidavit of 25th July 2024 and marked as exhibit “EIW3”.

5. Following this clarification, the 1st Respondent issued the Complainant with an award dated 3rd May 2018 for a sum of Kshs. 65,081,220 for the acquisition of part of the suit property. This award was accepted by the Complainant.

The Complainant’s Case 6. It is the Complainant’s case that the award issued on 3rd May 2018 has not been paid to date. This is despite many reminders and demands directed to the 1st Respondent. The Complainant has attached a bundle of letters marked as exhibits “EIW6” and “EIW7” to that effect.

7. The Complainant contends that the 1st Respondent had held on to the payments because the suit property was the subject of a court case in ELC 217 of 2012 (Machakos) consolidated with ELC Civil Suit No. 189 of 2017 (Kajiado).

8. The Complainant further asserts that he promptly informed the 1st Respondent when the disputes in regard to the suit property were resolved in his favour. This was done through a letter dated 19th June 2023 addressed to the Chairperson of the 1st Respondent. The letter together with the said judgement are annexed to the Complainant’s documents and marked “EIW8” and “EIW9”, respectively.

9. Despite being informed that the dispute in respect of the suit property had been resolved, the 1st Respondent has not paid the compensation amount to the Complainant.

10. It is the Complainant’s contention, therefore, that the Respondents have violated his Constitutional rights, in particular, Articles 23, 40 and 47 of the Constitution of Kenya (2010). The Complainant further alleges that the Respondents are in breach of Section 4(1) of the Fair Administrative Action Act, 2015, and Section 111 of the Land Act.

11. The Complainant, therefore, prays for the following orders:a.A declaration that the Complainant’s rights as enshrined in Article 23,40 and 47 of the constitution of Kenya 2010 have been violated by the Respondents jointly and severally in the manner pleaded in the Complaint.b.A declaration that the Complainant is entitled to prompt, just and adequate compensation in full within the meaning and tenor of Article 40(3) (b) (i) being the sum of Kshs. 65,081,220/= for the compulsory acquisition of his proprietary interests in property Land Reference number Kajiado/Kitengela/10767 in Kajiado County.c.An order directing the 1st Respondent to make immediate payment of the Award sum to the Complainant plus interest at the rate of 17% in accordance with Section 117 of the Land Act, 2012. d.Any other order that the tribunal may deem just and expedient in the circumstances of the case.e.Costs of the complaint.

Responses 12. The 1st Respondent did not file any response to the Complaint despite taking part in the proceedings.

13. On its part, the 2nd Respondent responded to the Complaint through a Replying Affidavit sworn on 25th October 2024 by Nathaniel Ochieng, its Senior lands Surveyor.

14. The 2nd Respondent distances itself from the Complaint and affirms that it had no role in the delayed payment due to the Complainant. In any case, the 2nd Respondent asserts that any delay in the payment was occasioned by ongoing court cases between the owners of the respective properties.

Analysis and Determination 15. The Complaint presents two issues for resolution. The first issue is whether the Complainant’s Constitutional rights have been breached, and, two, what remedies are available, if any?

16. The process of compulsory acquisition of land is well detailed in the Land Act, 2012. We reiterate the summary laid down by the High Court in Patrick Musimba vs. National Land Commission & 4 Others (2016) eKLR as follows:“85. In summary, the process of compulsory acquisition now runs as follows: -86. Under Section 107 of the Land Act, the National Land Commission (the 1st Respondent herein) is ordinarily prompted by the National or County Government through the Cabinet Secretary or County Executive Member respectively. The land must be acquired for a public purpose or in the public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met; the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in those respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property.87. Under Sections 107 and 110 of the Land Act, the National Land Commission must then publish in the gazette a notice of the intention to acquire the land. The notice is also to be delivered to the Registrar as well as every person who appears to have an interest in the land.88. As part of the National Land Commission due diligence strategy, the National Land Commission must also ensure that the land to be acquired is authenticated by the survey department for the rather obvious reason that the owner be identified. In the course of such inquiries, the National Land Commission is also to inspect the land and do all things as may be necessary to ascertain whether the land is suitable for the intended purpose. See Section 108 of the Land Act.89. The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.90. The burden at this stage is then cast upon the National Land Commission and as can be apparent from a methodical reading of Sections 107 through 110 of the Land Act, the landowner’s role is limited to that of a distant bystander with substantial interest.91. Section 112 of the Land Act then involves the landowner directly for purposes of determining proprietary interest and compensation. The Section has an elaborate procedure with the National Land Commission enjoined to gazette an intended inquiry and the service of the notice of inquiry on every person attached. The inquiry hearing determines the person interested and who are to be compensated. The National Land Commission exercises quasi-judicial powers at this stage.92. On completion of the inquiry the National Land Commission makes a separate award of compensation for every person determined to be interested in the land and then offers compensation. The compensation may take either of the two forms prescribed. It could be a monetary award. It could also be land in lieu of the monetary award, if land of equivalent value, is available. Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into special compensation account held by the National Land Commission. See Sections 113-119 of the Land Act.93. The process is completed by the possession of the land in question being taken by the National Land Commission once payment is made even though the possession may actually be taken before all the procedures are followed through and no compensation has been made. The property is then deemed to have vested in the National or County Government as the case may be with both the proprietor and the Land Registrar being duly notified. See Sections 120-122 of the Land Act.94. If land is so acquired the just compensation is to be paid promptly in full to persons whose interests in land have been determined. See Section 111 of the Land Act. This is in line with the Constitutional requirement under Article 40(3) of the Constitution that no person shall be deprived of his property of any description unless the acquisition is for a public purpose and subjected to prompt payment in full of just compensation.”

17. The factual basis of the acquisition of the suit property and the ownership thereof is not in contention. The issue in contention in this case is the non-payment of the compensation after the compulsory acquisition was completed.

18. The suit property was acquired vide Kenya Gazette Notice no. 12526 of 22nd December 2017. Thereafter, the 1st Respondent issued the Complainant with an award dated 3rd May 2018 for a sum of Kshs. 65,081,220/= for the compulsory acquisition of approximately 1. 5137 hectares of the suit property.

19. It is also admitted that there was a dispute in respect of the suit property which was resolved on 30th May 2023 through a judgement that was delivered in the case of Shung’ea and another v. Mutonyi & 6 Others [2023] KEELC 17816 (KLR) where the Court made a finding that the Complainant was the bonafide owner of the suit property. This determination was communicated to the 1st Respondent.

20. It is a Constitutional imperative that payment must be made promptly upon compulsory acquisition. Article 40(3) (b) (i) states in this regard:(3)The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation –…(b)is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that –(i)requires prompt payment in full, or just compensation;

21. On the other hand, the Land Act, the legislation that outlines the process of compulsory acquisition provides in Section 111 as follows:(1)If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined.…..(1B) (a)….(b)monetary payment either in lump sum or instalments spread over a period of not more than one year;

22. The legislature was deliberate in ensuring that the Constitutional requirement of prompt payment of compensation is enacted into the relevant statute. Prompt payment of compensation is necessary to alleviate the disruption occasioned on project affected persons whose properties have been taken compulsorily.

23. The Complainant was given an award on 3rd May 2018. He was later informed that the payment could not be made because of the pending disputes over ownership. After the disputes were resolved, the 1st Respondent has not provided any explanation why the payment has not been made.

24. Subsistence of a dispute over ownership is a valid ground to withhold payment in order to ensure that public funds are not wasted by paying the wrong party. However, the 1st Respondent is obligated to make the payment as soon as such disputes have been resolved. It has been more than 7 years since the Complainant’s land was compulsorily acquired without compensation. It was expected that the 1st Respondent would expedite the payments as soon as the pending dispute had been resolved. That was not the case.

25. Article 47(1) of the Constitution of Kenya provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. This Constitutional provision binds the 1st Respondent in discharging its mandate in the process of compulsory acquisition of land. In the instant case, the Complainant asserts that the 1st Respondent has violated its rights under Article 40(3) and Article 47(1) of the Constitution. We agree with the Complainant.

26. The 1st Respondent has not provided any explanation to the Complainant which would justify its failure to comply with Article 40(3) of the Constitution and Section 111(1B) (b) of the Land Act. The Complainant has written numerous letters to the Respondents seeking payment but there has been no clear response why the same has not been effected.

27. We, however, find no fault on the part of the 2nd Respondent in this case. The 1st Respondent is the entity mandated under the law to acquire land compulsorily on behalf of acquiring entities and to compensate project affected persons.

Reliefs 28. It is our finding, therefore, that the Complainant is entitled to the immediate payment of the sum of Kshs. 65,081,220/= being the amount of the award issued in respect of the compulsory acquisition of the suit property. Further, the Complainant has prayed for interest on the awarded sum at the rate of 17% from the time of award until payment in full. Section 117 (1) of the Land Act provides as follows:If the amount of any compensation awarded is not paid, the Commission shall on or before the taking of possession of the land, open a special account into which the Commission shall pay interest on the amount awarded at the base lending rate set by the Central Bank of Kenya and prevailing at that time from the time of taking possession until the time of payment.

29. The withholding of compensation on the grounds of existence of a dispute is one of the circumstances contemplated under Section 117(1) of the Land Act. The amount so deposited then earns interest which is to be paid to a project affected person. This prayer is, therefore, merited and the same is allowed. However, the Complainant has not provided evidence to warrant the award of interest at the rate of 17%.

30. What then should be the rate of interest payable? Section 117(1) of the Land Act refers to the base lending rate set by the Central bank of Kenya. Section 36(4) of the Central Bank Act provides that, “The Bank shall publish the lowest rate of interest it charges on loans to banks and microfinance banks, and that rate shall be known as the central bank rate.” This, we believe, is the base lending rate referred to in Section 117(1) of the Land Act.

31. It is noteworthy that the base lending rate set by the Central Bank of Kenya is periodically reviewed and may have changed many times since the award was issued in May 2018. The best approach then would be for payable interest to be calculated on the basis of the base lending rates that were set over the period.

Final Orders 32. The upshot of our analysis and findings above is that the Complainant’s case is merited and is hereby allowed. We make the following orders:a.A declaration be and is hereby issued that the Complainant’s rights as enshrined in Articles 40 and 47 of the constitution of Kenya 2010 have been violated by the 1st Respondent;b.An order be and is hereby issued directing the 1st Respondent to pay the Complainant, within 45 days hereof, the full compensation awarded to the Complainant being the sum of Kshs. 65,081,280/= for the compulsory acquisition of its proprietary interests in property known as Land Reference number Kajiado/Kitengela/10767 in Kajiado County.c.An order be and is hereby issued directing the 1st Respondent to pay the Complainant the interest earned on (b) above at the base lending rates set by the Central Bank of Kenya with effect from 3rd May 2018, the date of the award, until payment in full;d.Costs shall be borne by the 1st Respondent.e.Interest on (e) above shall accrue at court rate from the date of this judgement until payment in full.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF JANUARY 2025. Dr. Nabil M. Orina - ChairpersonGeorge Supeyo - MemberIn the presence of:Njoroge h/b for Mr. Mutei for the 2nd RespondentMr. Osoro for the 1st RespondentMs. Everlyne Kenyando - Court Assistant