Ndurya (Suing as a Legal Representative of the Estate of Alex Ndurya Boma (Deceased)) v Kenya Railways Corporation & 5 others (Land Acquisition Case E017, E018, E020, E021 & E024 of 2024 (Consolidated)) [2024] KELAT 1660 (KLR) (2 December 2024) (Judgment)
Neutral citation:
[2024] KELAT 1660 (KLR)
Republic of Kenya
Land Acquisition Case E017, E018, E020, E021 & E024 of 2024 (Consolidated)
NM Orina, Chair & G Supeyo, Member
December 2, 2024
Between
Mdoe Ndurya
Plaintiff
Suing as a Legal Representative of the Estate of Alex Ndurya Boma (Deceased)
and
Kenya Railways Corporation
1st Defendant
National Land Commission
2nd Defendant
Nahenza Nyanje
3rd Defendant
Chizi Nahenza
4th Defendant
Mgaza Nahenza
5th Defendant
Emmanuel Nyanje Nahenza
6th Defendant
Judgment
Background
1.This matter relates to five different suits that were consolidated by consent of the parties on 11th July 2024. The claims arise from the acquisition of various parcels of land which formed part of land known as Kwale/South Samburu/58 registered under the South Samburu Group Ranch. These parcels of land were acquired for the construction of the Mombasa – Nairobi Standard Gauge Railway on various dates in 2014 and 2015.1
2.The project affected persons for purposes of payment of compensation were indicated in a schedule sent to the 1st Defendant and together with their corresponding parcels of land and amount. These parcels of land were identified through serial numbers. Relevant to this matter, in a letter dated 5th August 2015, the 2nd Respondent forwarded a schedule to the 1st Defendant advising the first Defendant to make payments as follows:
3.Prior to this, the 2nd Defendant had written a letter to the 1st Defendant advising it to withhold payments in regard to parcels of land serialized as 318, 322, 329, 330, 332, 333, 334, and 335 because the initially identified payees had been disputed by other interested parties. This was through a letter dated 9th May 2015.
The Plaintiff’s Case
4.In suit no. TRLAP/E017/2024, the Plaintiff contends that his deceased father, Alex Ndurya Boma, was a member of the South Samburu Group Ranch and was the bonafide owner of all that parcel of land identified by serial numbers 332 measuring 1.315 Ha (suit property). It is the Plaintiff’s case that his late father learnt that another person had lodged a claim for compensation in regard to this property which prompted him to lodge a dispute with the 2nd Defendant through the area chief and the Assistant County Commissioner.
5.This complaint prompted the area chief and the Assistant County Commissioner to write to the 2nd Defendant on 15th April 2015 informing the 2nd Defendant that a dispute had been lodged by the deceased over a number of disputed parcels of land.
6.Consequently, the Plaintiff avers, the 2nd Defendant advised the 1st Defendant via a letter dated 9th May 2015 to withhold payments with respect to the suit property until the issue of ownership was resolved.
7.It is the Plaintiff’s contention that despite the 2nd Defendant advising the 1st Defendant that the dispute had been resolved in favour of the deceased and asking the 1st Defendant to make payments to the deceased accordingly, the said compensation has not been paid and the deceased or his estate has not been given reasons why.
8.The Plaintiff, therefore, seeks judgement for the sum of Kshs. 872,562.00 being the award given in regard to the parcel of land serialized as no. 332, special damages, interest and costs.
9.In suit no. TRLAP/E020/2024, the Plaintiff reiterates the background in suit no. TRLAP/E017/2024 and avers that the parcel of land serialized as no. 334 belonged to his deceased father and the same was a subject of a dispute which was resolved in favour of his father by the area chief and the Assistant County Commissioner. This was confirmed by the 2nd Defendant’s letter dated 5th August 2015 identifying the deceased as the correct payee and asking the 1st Defendant to make payment of Kshs. 153,651.00 to the deceased.
10.The Plaintiff therefore prays for a declaration that the estate of the deceased is entitled to compensation for the compulsory acquisition of parcel of land identified by serial no. 334 and measuring 0.232 Ha, judgement for the sum of Kshs. 153,651.00, special damages, interest and costs.
11.In suit nos. TRLAP/E018/2024, TRLAP/E021/2024 and TRLAP/E021/2024 the Plaintiff reiterates the background in suit no. TRLAP/E017/2024 but avers that in regard to parcels of land serialized as 333, 335 and 330 which measured 0.905 Ha, 1.295 Ha, and 1.344 Ha, respectively, the 2nd Defendant failed to communicate the resolution of the disputes in regard to these parcels of land by the area chief and the Assistant County Commissioner in its advise to the 1st Defendant to make payments. It is contended that in the letter dated 5th August 2015, the 2nd Defendant omitted to include the resolution of the disputes in regard to parcel nos. 333, 335 and 330 when advising the 1st Defendant to make payments.
12.The Plaintiff, therefore, seeks a declaration that the Plaintiff is the rightful payee of Kshs. 587,176.00, Kshs. 835,436.00, and Kshs 883,016 which were the determined values of land parcel nos. 333, 335, and 330, respectively, special damages, interest, and costs.
The 1st Defendant’s Response
13.The 1st Defendant responded to the Plaint via a statement of Defence dated 14th June 2024. The 1st Defendant describes the process of compulsory acquisition that was followed in this case that largely agrees with the assertions of the Plaintiff but denies liability and instead states that compensation is within the 2nd Defendant’s mandate. The 1st Defendant avers that pursuant to a Parliamentary directive, the 1st Defendant submitted all funds for compensation to the 2nd Defendant and all the payments were henceforth done by the 2nd Defendant.
14.The 1st Defendant, however, avers that the Plaintiff has not presented the requisite documents to the 2nd Defendant for purposes of compensation. It is, further, the 1st Defendant’s case that there has been no evidence that has been adduced to demonstrate ownership of the suit property.
The 2nd, 3rd, 4th, 5th, and 6th Response
15.The 2nd Defendant participated in these proceedings but did not file a response despite being granted additional time to do so. The 4th – 6th Defendants did not take part in these proceedings despite being served.
Viva Voce Evidence
16.At the hearing conducted on 11th August 2024, the Plaintiff presented one witness, PW1. PW1 was Mr. Suleiman Mundu, the area Chief, Samburu Location. Mr. Mundu adopted his witness statement dated 25th May 2024 and sought to rely on it as his evidence in chief.
17.Mr. Mundu’s stated in his testimony that he knew the complainant and his late father Mr. Alex Ndurya Boma.
18.In regard to the matters in issue, Mr. Mundu stated that he was the guide in 2015 when the 2nd Defendant sought to acquire land on behalf of the 1st Defendant. During the survey, Mr. Mundu testified, there was a suggestion that payments be made to the Ranch which was the title holder but this suggestion was rejected by the owners of the parcels of land. It was at this poit that the 2nd Defendant embarked on an exercise to identify the individual owners of the affected parcels of land.
19.During this exercise, Mr. Mundu testified, it was discovered that some third parties had laid claim to parcels of land that did not belong to them. The late Alex Ndurya Boma lodged a complaint before his office concerning other parties who had laid claim to his parcels of land.
20.Mr. Mundu testified that upon receipt of these complaints, he wrote to the 2nd Defendant to stop payments to four other parties who had laid claim to the disputed parcels of land pending the resolution of the dispute. He later called the parties to his office and the dispute was subjected to the elders who had information about the areas in dispute. Mr. Mundu’s testimony was to the effect that the dispute resolution exercise found in favour of Mr. Alex Ndurya Boma.
21.Upon the completion of this exercise, Mr. Mundu wrote a letter dated 28th July 2015 to the 2nd Defendant which he relied on in his evidence in chief.
22.On cross-examination by Ms. Muriranja for the 1st Defendant, Mr. Mundu stated that in the dispute resolution exercise he called both parties who had an interest in the disputed parcels of land together with witnesses. It was also his testimony that there were community boundaries within the ranch identifying different parcels of land.
23.He further testified, on cross-examination by Ms. Muriranja, that the whole parcel in dispute belonged to Mr. Boma although the same had been identified in smaller portions by serial numbers during the acquisition.
24.The witness was further cross-examined by Mr. Mbuthia on behalf of the 2nd Defendant. The witness testified that the dispute had been brought to his office in the year 2015 and it was to the effect that Mr. Boma’s parcel of land which had been acquired had been apportioned to other parties for compensation. The dispute pitted two families being the Nahenza family and the Boma family. In his testimony, the witness stated that the Nahenza family was tilling the parcel of land in dispute but did not own it.
25.Mr. Mundu further stated, under cross-examination by Mr. Mbuthia, that before the SGR project, people were living communally in the ranch. Although Mr. Boma was not related to Nahenza, the latter’s family was tilling the parcel of land which was affected by the acquisition. The Nahenza family had, however, not built any structures on the parcel of land in dispute.
26.On further cross-examination, Mr. Mundu stated that he did not have the proceedings for the meeting called to resolve the dispute. He also could not recall the names of the witnesses who appeared but confirmed that the village elder was present. He further testified that all the parties had come from the same village and he had used the village elder to summon them. In this meeting, Mr. Mundu testified, the ranch officials being - the Vice Chair, Secretary and other members were present.
27.Questioned on how he resolved the dispute, Mr Mundu testified that neighbours to both parties who appeared as witnesses provided significant evidence to determine who owned the parcels of land. Further, Mr. Mundu testified that any party who was dissatisfied with his determination was advised to escalate the dispute to other forums. In this case, Mr. Mundu testified, upon resolution of the dispute, the Nahenza family voluntarily moved from the disputed parcels of land. He also testified that the Nahenza family who were also members of the ranch owned a parcel of land a few plots away from the parcel in dispute.
28.On re-examination by Mr. Maitha for the Plaintiff, Mr. Mundu stated that the serial numbers used for identification of the parcels of land were not plot numbers but rather serial numbers for identification.
29.On the question of the parcel of land in dispute, Mr. Mundu clarified that it is common for the Durumas to allow other people to till their land but the same does not confer ownership or any other rights over it.
30.Finally, Mr. Mundu testified that he conveyed the resolution of the dispute to the 2nd Defendant who acted on it by instructing the 1st Defendant to make payments to the late Mr. Boma.
31.PW2 was the Plaintiff, Mdoe Ndurya. His testimony was taken on 19th August 2024. Mr. Ndurya adopted his witness statement dated 29th May 2024 and sought to rely on it as his evidence in chief.
32.On cross-examination by Ms. Muriranja, Mr. Ndurya stated that his late father did not have ownership documents in regard to the parcels of land in question. He also testified that no award had been issued in regard to the said parcels of land.
33.On re-examination, Mr. Ndurya clarified that they had been given a letter to show that they were supposed to be paid. This is the letter dated 5th August 2024.
34.This marked the end of the Plaintiff’s case.
35.The 1st Defendant presented Mr. Nathaniel Ochieng, a Senior Land Surveyor working for the 1st Defendant, as its witness. Mr. Ochieng adopted his statement dated 25th July 2024 and also relied on the 1st Defendant’s list of documents of the same date. In his witness statement, Mr. Ochieng reiterates the defence and asserts that the 1st Defendant is not responsible for effecting compensation as per the law and the Parliamentary directive in the year 2016. Mr. Ochieng nevertheless notes that the Plaintiff has never presented any ownership documents to support his claim for compensation.
36.On cross-examination by Mr. Maitha, counsel for the Plaintiff, Mr. Ochieng confirmed that he had testified in another case before the tribunal being – Said Mwero and another vs. Kenya Railways Corporation and National Land Commission. Mr. Ochieng was directed to read page 18 of the proceedings in that case in regard to his testimony. Mr. Ochieng confirmed that he had indicated in his previous testimony that the 1st Defendant was not responsible with resolving ownership disputes as that lied with the 2nd Defendant or the Ministry of Lands.
37.Mr. Ochieng further testified under cross-examination that the 1st Defendant could not challenge a finding of a resolution of a dispute and that the 2nd Defendant is the determinant of the correct payee.
38.Mr. Ochieng further testified that via a Parliamentary directive, funds for compensation were released by the 1st Defendant to the 2nd Defendant. He, however, could not point to any document that had been filed to confirm this.
39.On re-examination, Mr. Ochieng clarified that the role of the 1st Defendant was to inform the Cabinet Secretary on the need for an acquisition and to also provide funds. In this case, the funds had been sent to the 2nd Defendant. He also stated that he was not aware if there are any outstanding payments that should be submitted to the 2nd Defendant.
Analysis and Determination
40.The Plaintiff and the 1st Defendant have filed submissions where they invite us to determine whether the Plaintiff is entitled to the orders sought. The 1st Defendant has also asked us to determine whether the suit is time barred. It is that issue that necessitates our attention, preliminarily.
41.It is the 1st Defendant’s argument that the suit offends the provisions of Section 87(b) of the Kenya Railways Corporation Act (Cap 397) which is to the effect that, “… legal proceedings shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of…”
42.In response, the Plaintiff submits that the objection is untenable because the suit before the tribunal is for the violation of the Land Act and Article 40 of the Constitution. Consequently, the Plaintiff submits, the issue does not in any way concern the rights under the Kenya Railways Corporation Act.
43.We note that the Plaintiff’s claim is entirely against the 2nd Defendant on the subject matter of compensation. Although the 1st Defendant has been joined in these proceedings, the orders sought do not affect them directly. We place reliance on the Environment and Land Court (L.L. Naikuni, J.) decision in Geyser International Assets Limited vs. Attorney General & 3 Others [2021] eKLR where the court held as follows:…the law does impose the full responsibility on payment to the National Land Commission and nobody else. Where the National Land Commission fails to do so and land is possessed by the acquiring authority before payment is made the obligations to ensure payment is made falls squarely on the commission…In this case the 2nd and 4th Respondents notwithstanding being the acquiring body is immaterial they cannot be liable and hence the law does not impose any responsibility on them.
44.Although we do not feel that it is necessary to engage with the objection raised by the 1st Defendant due to clear cut mandate of the 2nd Defendant, we find that there was necessity of the 1st Defendant’s inclusion in this lawsuit for the reason that at the time the subject acquisition happened, some of the payments were made directly by the 1st Defendant. For that reason, we find that the objection raised pursuant to the provisions of Section 87(b) of the Kenya Railways Corporation Act (Cap 397) cannot defeat the Plaintiff’s claim which stems from the rights under Article 40 of the Constitution and the Land Act.
45.On the question whether the Plaintiff is entitled to the orders sought, both parties agree on the background facts underpinning this case. The question whether the Plaintiff is entitled to compensation in the manner pleaded necessitates the reiteration of the process of compulsory acquisition. This process has been summarized by the High Court in the now locus classicus case of Patrick Musimba vs. National Land Commission & 4 others [2016] eKLR:Process of compulsory acquisition85.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 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 these 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’s 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 persons 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 a 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.
46.It is not in contention that the 2nd Defendant acting on behalf of the 1st Defendant acquired, among others, several parcels of land forming part of the South Samburu Group Ranch for purposes of the construction of the Mombasa-Nairobi Standard Gauge Railway. It is also not in contention that at the time of this acquisition, the land known as Kwale/South Samburu/58 had not been subdivided.
47.The evidence also shows that the 2nd Defendant embarked on identifying the owners of the specific parcels of land which had been earmarked for acquisition. These parcels of land were identified by serial numbers for purposes of ascribing the specific owners to them. The evidence also demonstrates that the 2nd Defendant sent schedules to the 1st Defendant identifying persons who were to be compensated in regard to the specific parcels of land which had been identified by serial numbers.
48.The five lawsuits consolidated herein arise from the acquisition of parcels of land forming part of Kwale/South Samburu/58 and identified by serial nos. 330, 332, 333, 334, and 335. These parcels of land formed part of the parcels of land whose ownership had been disputed after the 2nd Defendant had identified the owners. Consequently, the 2nd Defendant through a letter dated 9th May 2015 advised the 1st Defendant to withhold any payments in regard to these parcels of land until the disputes concerning ownership had been resolved.
49.The evidence is also uncontroverted that the local administration comprising of the area Chief who appeared as PW1 – Mr. Suleiman Mundu and the Assistant County Commissioner facilitated the resolution of disputes in regard to these parcels of land by the deployment of traditional dispute resolution mechanisms which involved the use of elders, calling of witnesses from the neighboring parcels of land and the officials of the South Samburu Ranch. Upon subjecting the dispute over ownership of these parcels of land to the local administration for resolution, it was also demonstrated in evidence that the dispute was resolved and the determination communicated by the Chief through letters dated 28th July 2015 and 4th August 2015. This resolution was confirmed by the 2nd Defendant who advised the 1st Defendant through the letter dated 5th August 2015 to make payments to one Alex Ndurya Boma in regard to parcel nos. 332 and 334. The letter, however, does not indicate the fate of parcel nos. 330, 333 and 335.
50.The 2nd Defendant does not indicate why the resolution of the dispute in regard to these three parcels of land was not communicated to the 1st Defendant. In our analysis of evidence, we are satisfied that the determination of the dispute by the Chief in regard to all the five parcels of land was satisfactory. There is no material that has been placed before us to show that the dispute was escalated any further. The Defendants against whom this determination was made were joined in these proceedings but did not file any document.
51.The instant suits are similar to another suit that was determined by this tribunal on 27th May 2024. In that matter - Gunda (Suing as a legal representative of the Estate of Banzi Gunda Banzi (Deceased) v Kenya Railways Corporation & another [2024] KELAT 677 (KLR), we stated as follows in regard to the process undertaken by the 2nd Defendant after the publication of a notice of intention to acquire and before making an award:
52.We also reiterate our findings in Gunda in regard to the manner of resolving ownership disputes in this acquisition as follows:
53.We are at a loss why the 2nd Defendant has not effected compensation on the estate of the late Alex Ndurya Boma despite having acquired his land ten years ago. The situation of unadjudicated land is not unique and it should not be an excuse for the 2nd Defendant not to perform its duties. Indeed, the law contemplates a situation where interests to land can be ascertained even in the absence of registration. For instance, Section 107A (12) of the Land Act 2012 provides as follows:
54.Further, as we held in Gunda, the law does not discriminate against unregistered land:
55.We must again deprecate the double standards employed by the 2nd Defendant as we did in Gunda as follows:
56.Our analysis leads to the inevitable conclusion that the late Alex Ndurya Boma was the bonafide owner of parcels of land identified by serial nos. 330, 332, 333, 334, and 335 and was entitled to compensation following their acquisition for the benefit of the 1st Defendant. The estate of the late Alex Ndurya Boma is, therefore, entitled to be paid such compensation together with interest accrued over the years since the acquisition.
57.For the above reasons, we find that the Plaintiff’s case is merited and the same is allowed as follows:a.An order is hereby issued directing the 2nd Defendant to pay the Plaintiff the sum of Kshs. 3,331,841.00 being compensation for acquisition of land referenced by serial numbers 330, 332, 333, 334, and 335 which acquisition was effected through Gazette Notice No. 724 of 7th February 2014 and Gazette Notice No. 4096 of 20th June 2014;b.Interest on (a) at court rates from 20th June 2014 until payment in full;c.Special damages of Kshs. 75,000.00;d.Costs to be borne by the 2nd Defendant;e.Interest on (c) and (d) at court rates from the date of this judgement until payment in full;
DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF DECEMBER 2024.DR. NABIL M. ORINA - CHAIRPERSONGEORGE SUPEYO - MEMBERBefore: -Maitha for PlaintiffMs. Muriranja for the 1st DefendantN/A for The 2nd DefendantWycliffe – C/A