Republic v National Land Commission & another; Barua Estate Limited (Exparte); Chief Land Registrar & 2 others (Interested Parties) (Tribunal Case 1 of 2024) [2024] KELAT 508 (KLR) (22 February 2024) (Judgment)
Neutral citation:
[2024] KELAT 508 (KLR)
Republic of Kenya
Tribunal Case 1 of 2024
NM Orina, Chair & G Supeyo, Member
February 22, 2024
Between
Republic
Applicant
and
National Land Commission
1st Respondent
Athi Water Works Development Agency
2nd Respondent
and
Barua Estate Limited
Exparte
and
Chief Land registrar
Interested Party
County Land Registrar Kiambu
Interested Party
Director of Surveys
Interested Party
Judgment
1.This matter was transferred from the Environment and Land Court at Thika to the Tribunal on 16th October 2023. Although the Honourable Judge directed that the file be transferred to the Tribunal within 48 hours of the orders issued thereof, the file was received at the Tribunal secretariat on 11th January 2024, almost three (3) months later. Nevertheless, guided by the provisions of Section 133C, the matter was mentioned on 17th January 2024 and 22nd January 2024. The parties confirmed that the same was ready for judgement as all the pleadings had been confirmed to be in order and submissions had been filed. Judgement was reserved for today.
2.The dispute in issue relates to the compulsory acquisition of land for the construction of a water pipeline from Thika Dam to Kigoro Treatment Works to Gigiri Tanks. The Ex Parte Applicant’s (the Applicant) parcel of land known as L.R No. 81/1 was part of the parcels of land affected by the process of compulsory acquisition. The Applicant, being aggrieved by the process and the outcome sought leave of the court to file Judicial Review proceedings against the Respondents via pleadings dated 16th November 2022. Leave was granted on 24th November 2022 and the substantive Notice of Motion dated 5th November 2022 was thereafter filed. The Applicant amended its pleadings on 12th April 2023.
3.In response, the 1st Respondent filed a Replying Affidavit sworn by Christine Wangui dated 22nd February 2023. The 1st Respondent further filed their written submissions on 14th July 2023. The 2nd Respondent filed a Replying Affidavit sworn by ENG. Joseph Kamau on 16th February 2023. A further Affidavit in response to the Amended Application was sworn on 28th April 2023.
The Applicant’s Case.
4.The Applicant avers that on 10th November 2022, the National Land Commission (The 1st Respondent herein) served upon them a letter dated 7th November 2022 titled Notice of Taking possession and vesting of the parcel of Land known as L.R No. 81/1 located within Kiambu County. The applicant contends that the letter was to the effect that the National Land Commission had compulsorily acquired their land and the same would subsequently be vested on itself free of all encumbrances with effect from 21st November 2022.
5.The Applicant further contends that the letter directed the Chief Land Registrar and the County Land Registrar Kiambu to proceed with the lodging of caveats as well as rectification of titles so as to reflect the compulsory acquisition.
6.The Applicant avers that the 1st and 2nd Respondents begun excavation of the suit property along and adjacent to the intended path of the pipeline at the beginning of the month of April 2023 and the laying of concrete slabs on the excavated trenches thus causing damage to the suit property from the actual digging and the presence of heavy machinery on the property and destroying coffee bushes and other crops on the suit property as they undertook this exercise. Further, the Applicant claims that on 11th April 2023, the 1st and 2nd Respondents damaged irrigation infrastructure on the suit property without any care or concern to the Applicant hampering its ability to irrigate its farm and resulting in great losses.
7.It is the Applicant’s case that due process was not followed by the 1st and 2nd Respondents in acquiring the said property in clear violation of their rights as enshrined under Article 40 & 47 of the Constitution of Kenya 2010, Sections 107 and 107A of the Land Act, Regulation 22, 23,24,25 and 26 of the Land Regulations 2017 and Sections 4 and 5 of the Fair Administrative Actions Act.
8.Specifically, the Applicant alleges that it was never consulted on the 1st Respondent’s intention to acquire any portion of its land and no proper service of notices was done identifying the portion of its land to be acquired. Furthermore, the Applicant alleges that it is only upon filing this suit that it became aware that the 1st Respondent had issued an award dated 16th November 2022 as compensation for its land which had been compulsorily acquired.
9.The Applicant therefore seeks the following orders:i.An order of Certiorari to remove into this court for purposes of being quashed the decision by the National Land Commission vide its Notice dated 7th November 2022 compulsorily acquiring, taking possession of and vesting of the piece of land known as L.R No. 81/1 located within Kiambu County.ii.An order of prohibition to prohibit the National Land Commission and the Athi Water Works Development Agency, Chief Land Registrar, County Land Registrar Kiambu County and the Director of surveys from acquiring, taking possession of or vesting land known as L.R No. 81/1 located within Kiambu County.iii.An order of prohibition to prohibit the chief land registrar Kiambu county and the Director of surveys from lodging any caveats, placing any restrictions or undertaking any acts for the purpose of acquiring taking possession of or vesting the piece of land known as L.R No. 81/1 located within Kiambu County to the detriment of the Applicantiv.An order of Mandamus to compel the National Land Commission to comply with the provisions of section 107 and 107A of the land Act and Regulations 22, 23, 24, 24, 25 and 26 of the land Regulations 2017 and thereby proceed to identify the portion of land to be acquired within the land known as L.R No. 81/1 located within Kiambu County and subsequently pay the assessed compensation.v.An order of prohibition restricting the 1st and 2nd Respondents whether by themselves, agents employees or servants from continuing any further acts of trespass, destruction, construction works including but not limited to excavation and removal of murram installation of pipes and pouring of concrete on dug up trenches on the piece of land known as LR No. 81/1 located within Kiambu County to the detriment of the Applicant.vi.An order of certiorari to remove into court for purposes of being quashed the decision and subsequent award dated 16th November 2022 made by the 1st Respondent as compensation for the illegal acquisition of the Applicant’s piece of land known as LR No. 81/1 located within Kiambu County.vii.An order for restoration be issued against the 1st and 2nd Respondents for the restoration of the Applicant’s land and in particular all areas where illegal excavation has occurred and crops destroyed to the state in which it was prior to the destruction occasioned by the Respondentsviii.An order that the 1st Respondent award the Applicant 105, 915, 000.00 as full and just compensation for the compulsory acquisition of the land measuring 0.634 Hectares in the piece of land known as LR No. 81/1 located within Kiambu County; or as the court may decide.ix.The cost of the suitx.Any other further and consequential orders and/or directions.
1st Respondent’s Case
10.The 1st Respondent states that the Athi Water Works Development Agency (the 2nd Respondent) approached it to assist as per Part VIII of the Land Act 2012 to acquire properties for the purpose of the construction of a water pipeline from Thika Dam to Kigoro Treatment works to Gigiri Tanks. Consequently, having approved the request for acquisition, a portion of the parcel of land which is now the subject of the suit, namely Land Reference number 81/1 was gazetted as part of the parcels that would be compulsorily acquired for the said project.
11.The 1st Respondent avers that once an acquiring body identifies the parcel of land it needs to acquire it approaches the 1st Respondent to assist in the process wherein the 1st Respondent is required to publish a notice of intention to acquire the said parcels. Thereafter, the acquiring body together with the 1st Respondent inspect the affected properties for valuation purposes. Then another notice is published of an inquiry hearing where all the potential project affected persons and other parties who may have an interest in the land are required to appear before the 1st Respondent to furnish it with all the necessary documentation in support of their claims. Thereafter, the 1st Respondent prepares awards for compensation to the Project Affected Persons.
12.Accordingly, therefore, the 1st Respondent avers that it complied with all the necessary steps under Chapter VIII of the Land Act, 2012, and specifically, it caused to be published a notice of intention to acquire Number 3123 of 17th April 2020 as well as an addendum No. 3946 dated 12th June 2020 which contained the Applicant’s property for the construction of Water Pipeline from Thika Dam Kigoro Treatment Works to Gigiri Tanks. That a further notice of inquiry was published on 2nd October 2020 being Gazette No. 7660 of 2nd October 2020.
13.The 1st Respondent further alleges that the statutory service of the notices and communication to the project affected persons was done with the assistance of the local administration where majority of the affected persons including the neighboring parcels attended the meeting for the inquiries. The Applicant, allegedly, did not appear nor submit any written representation as per the requirement of the Notices.
2nd Respondent’s case
14.The 2nd Respondent avers that it is undertaking construction of pipeline works - Construction of Raw and Treated Water Gravity Mains from Thika Dam to Kigoro Treatment Plant to Gigiri Tanks to enable the transfer of additional 150,000m3/d of potable water to Nairobi City residents in line with its mandate geared towards safeguarding the citizens’ constitutional right to clean and safe water in adequate quantities and to reasonable standards of sanitation.
15.The 2nd Respondent further avers that prior to the issuance of a letter and Notice from the NLC dated 7th November 2022, the first formal communication from the 1st Respondent and 2nd Respondent regarding intention to Acquire the land known as L.R. No. 81/1 was published vide Gazette Notice No. 3125 dated 15th March 2020, and additionally an addendum Gazette Notice No. 3946 dated 12th June 2020 of Intention to acquire land for purposes of construction of the pipeline works.
16.Further the 2nd Respondent states that the addendum Gazette Notice listed a portion of Applicant’s parcel No. L.R 81/1 measuring 0.634 Ha, as among the parcels of land to be acquired for purposes of construction of this project and therefore the Applicant was well informed of the portion intended to be acquired.
17.The 2nd Respondent further avers that through the local area administration, there was a meeting called where Gazette Notices of Inquiry were issued to the project affected persons for the inquiries that were held on 26th October 2020. However, it is the 2nd Respondent’s assertion that the Applicant failed and/or neglected to attend the meeting and therefore it is misleading for the Applicant to aver that there was no attempt to serve them.
18.The 2nd Respondent further states that even though the Applicant failed to attend to the inquiry meeting, the 1st Respondent went ahead and inspected the land, valued it and issued an award in accordance with the law. Furthermore, it is contended that a further meeting was held on 30th November 2020 for purposes of disclosure and award issuance by the 1st Respondent, but the Applicant still failed to attend the meeting. Nevertheless, it is contended that the Applicant, through one of its Directors, Anthony Githegi, collected the Award on 16th December 2022.
19.It is, therefore, the 2nd Respondent’s case that together with the 1st Respondent, they followed the law as prescribed in the Land Act, 2012 and it is in fact the Applicant who failed or neglected to attend the afore-mentioned meetings.
Analysis and Determination
20.Parties herein have addressed a number of contested questions that go into the process of compulsory acquisition – from the beginning to the end. To us, therefore, the question whether the process of compulsory acquisition as enshrined in the Constitution and detailed in the Land Act, 2012 (together with the regulations therein) was complied with will substantially dispose of this matter. Upon such a resolution, the Tribunal will then assess what remedies are available, if any.
21.The exercise of eminent domain by the state encompasses the taking of private land by the state without the consent of the affected persons. Such persons, however, are entitled to certain protections in the law as recognized in the Constitution and under the Land Act, 2012.
22.Compulsory acquisition under the Land Act follows a detailed procedure which has been outlined in many cases before the superior courts and most prominently in the now locus classicus case of Patrick Musimba v National Land Commission and 4 others [2016] eKLR. As elucidated in the Patrick Musimba case, the process entails five main stages as detailed below.
23.The process starts with a checkpoint under Article 40(3) whereby the National Land Commission has to satisfy itself that the intended acquisition meets the constitutional threshold. The Commission is prompted by an acquiring body (which is a county or national government) requesting it to acquire land on its behalf. At this stage, the Commission must satisfy itself that the acquisition meets the constitutional threshold – that the land sought to be acquired will serve a public purpose or is in the public interest.
24.Upon being satisfied that the request from an acquiring body meets the constitutional requirement, the Commission is enjoined to cause to be published a notice in the Kenya Gazette of an intention to acquire. This notice will ordinarily identify the parcel or portion of land sought to be acquired and the ownership details. This notice gives an opportunity to the acquiring body and the project affected persons to engage meaningfully on issues of concern. As has been observed by this Tribunal in James Finlays (Kenya) Ltd vs. National Land Commission and County Government of Kericho [2024] Tribunal 79 (KLR):
25.Such a notice is a mandatory procedure as reiterated in Ravaspaul Kyalo Mutisya vs. National Land Commission [2022] eKLR where it was observed as follows:
26.It, therefore, goes without saying that the notice so published must be brought to the attention of the project affected persons. The clear language of the Land Act and the regulations therein, especially Regulation 23(1) of the Land Regulations, 2017 is that the notice must be issued at least thirty days before an intended acquisition can take place. The deliberate moratorium period between the issuance of the notice and the acquisition process is intended to provide an opportunity for the project affected persons to be duly notified of the intended acquisition and to be engaged in the process. The project affected persons, even though seen allegorically as “distant bystanders,” have substantial interests,2 that must be protected. Hence the strict requirement that they must be notified of such an intended acquisition.
27.The contention in this case is that despite the notice under Section 107(5) having been published in the Kenya Gazette as required, the same was not served upon the Applicant. It is argued by the Applicant that the notice was not served upon them. In this regard, the Applicant places reliance on Section 131(1)(d) of the Land Act which provides as follows:1.A notice which may be given under this Part may be served on a person –…………(d)if the person is a body corporate, society or other association of persons, by serving it personally on a secretary, director or other officer thereof or on a person concerned or acting in the management thereof, or by leaving it or sending it by registered post addressed to the body corporate, society, or, if there is no registered office, at any place where it carries on business, or, if there is none, by leaving it with the occupier of the land concerned, or, if there is no occupier, by affixing it upon some prominent part of the land;
28.It is the Applicant’s submission that the notice of intention to acquire so published by the 1st Respondent was not served upon itself as required under the law. The Applicant argues that the notices published on 12th June 2020 (Gazette Notice no. 3946) and on 2nd October 2020 (Gazette Notice no. 7660) did not identify the owner of the property and merely indicated “TBD” (To Be Determined) hence the 1st Respondent had no knowledge of the registered proprietor of the suit property. In rebuttal, the 1st Respondent submits that the service of the notices was done with the assistance of the local administration “where majority of the affected persons including the neighbouring parcels attended the meeting for the issuance of the notices as well as inquiries.” The 2nd Respondent adopts this position as well.
29.We are not convinced that the 1st Respondent discharged its statutory obligation in this regard. There is no evidence tendered by the Respondents that the notices were actually served upon the Applicant. Service of the notices, as detailed in Section 131(1)(d) of the Land Act, is personal on each project affected persons. Indeed, the assistance of local administration is key in identifying the project affected persons but there must be evidence of service on each project affected person. Further, as admitted by the 2nd Respondent, it is only through an addendum contained in Gazette Notice No. 3946 of 12th June 2020 that the Ex Parte Applicant was identified as the proprietor of the suit property. It is therefore not plausible that the 1st Respondent served a notice of intention to acquire on the Ex Parte Applicant, whom it had not identified at this time. We also note that Gazette Notice no 7660 of 2nd October 2020 was a notice of inquiry, where the proprietor of the suit property had not been identified. We will come back to this point later on in the analysis.
30.We are cognizant of the fact that the 1st Respondent may not have verified the proprietor details of the suit property at the time of issuing a notice of intention to acquire but that does not stop the 1st Respondent from making all possible efforts to comply with Section 131(1)(d). Even where the ownership of the property is yet to be ascertained, the 1st Respondent may affix the notice upon some prominent part of the land if the land is not in occupation. The Respondents have also not offered an explanation why the verification of the proprietorship of the suit property had not been done by the time the second notice was issued in October 2020, having issued the first notice in June. Verification of proprietorship of land sought to be compulsorily acquired is a high priority matter in order to afford such project affected persons a chance to take part in the process. We reiterate our findings in James Finlays (Kenya) Ltd (supra) on the importance of this notification being served on the project affected persons as follows:
31.Even though we find that the 1st Respondent failed to adhere to the statutory requirements for service of the notice of intention to acquire, we take note of the Applicant’s submissions that the 2nd Respondent took steps to point out to the Applicant the portion of land sought to be acquired and shared a copy of the map detailing the path which the intended pipeline would pass before possession was taken by the 2nd Respondent. This was done on 3rd February 2023, after this suit had been filed.
32.In regard to the third step in the process of compulsory acquisition, the 1st Respondent is required to issue a notice in the Kenya Gazette for purposes of conducting an inquiry. The inquiry is a quasi-judicial process to determine the interests affected and to receive representations from project affected persons before making an award. It is therefore incumbent upon the Commission to ensure that each project affected person is served with the notice of inquiry in order to afford them an opportunity to participate in the inquiry. We note that the Respondents make similar averments in regard to the service of this notice on the Applicant to the effect that, just like the notice of intention to acquire, the same was allegedly served through the local administration. No evidence has been provided to back up this assertion and therefore our findings above to the effect that the notice of intention to acquire was not served upon the Applicant stand in regard to the notice of inquiry.
33.Upon the completion of the inquiry, the Commission is required to issue an award to each project affected person whose interests have been determined. The notice of award and offer of compensation is also to be served on each person whom the Commission has determined to be interested in the land (Section 114 (1), Land Act). Thereafter, the Commission is required to promptly pay compensation unless the person entitled to compensation does not consent to receive the amount awarded.
34.There is no contention that this award was served on the Applicant. The assertion by the 2nd Respondent that the Applicant’s director Mr. Anthony Githegi attended and signed the register for issuance of awards dated 16th December 2022 has not been controverted. The Applicant however submits that the 1st Respondent has violated its rights under the Constitution and the Land Act by its failure to pay the compensation promptly. We are unpersuaded that the 1st Respondent has violated the Applicant’s rights in this regard as there is no evidence that the award issued was accepted by the Applicant. Indeed, in this suit, the Applicant has sought to challenge the award issued.
35.The contention in this case is on whether the award issued reflected just compensation for the land acquired. According to the Applicant, the sum of compensation contained in the award dated 16th November 2022 is “a unilateral quantum not backed by any reasoned valuation.” The Applicant argues that the 1st Respondent did not comply with Article 40(3) of the Constitution and Sections 111, 113, 122 and 128 of the Land Act in regard to payment of just compensation. The Applicant therefore questions how the determination and assessment of just compensation was reached. To buttress its argument that the award did not contain just compensation, the Applicant relies on a valuation report prepared by the firm of Fidelity Valuers Limited which places the value of the suit property measuring 0.634ha at Kenya Shillings One Hundred and Five Million Nine Hundred and Fifteen Thousand (Kshs. 105,915,000.00). This report was annexed to the Applicant’s further Affidavit sworn on 12th April 2023 by Moses Githegi and marked “MG-4.”
36.On their part, the Respondents affirm that the valuation done by the 1st Respondent was guided by the market value and followed the principles of valuation set out in the Assessment of Just Compensation Rules, 2017. The Respondents did not produce a valuation report to back up this claim.
37.Valuation is a key part of the process of compulsory acquisition as it enables the Commission to award just compensation in compliance with the Constitution, the Land Act and the Assessment of Just Compensation Rules, 2017. A valuation report also justifies the award issued. In a case like the instant one where the Applicant questions whether the amount awarded was arrived at in compliance with the law, it is incumbent upon the Respondents to justify how the award was reached.
38.Would this Tribunal, in any case, be in a position to determine whether the amount awarded was “just compensation” within the meaning of Article 40(3) of the Constitution? Whereas the Applicant has come up with the figure of Kenya Shillings One Hundred and Five Million Nine Hundred and Fifteen Thousand (Kshs. 105,915,000.00). and a valuation report to support the same, the 1st Respondent did not file a valuation report even after the said valuation was impugned by the Applicant. This situation leaves the Tribunal without sufficient basis to determine whether the award issued was just compensation when assessed as against the Applicant’s privately acquired valuation.
39.Furthermore, we find that the award issued by the 1st Respondent is untenable for violating the provisions of Article 47(2) of the Constitution of Kenya for failing to provide reasons. We are, therefore, unable to make a determination on whether the said award complies with Article 40(3) of the Constitution. We agree with the Applicant that the award issued on 16th November 2022 is arbitrary and without basis. The same is antithetical to the national values and principles of governance to wit:- transparency and accountability - as enshrined in Article 10(2) of the Constitution of Kenya.
40.Lastly, the final step in the acquisition process involves the taking of possession of the compulsorily acquired land. Section 120(1) of the Land Act provides as follows:
41.It is the Applicant’s contention that the 1st Respondent served them with a, “Notice of Taking Possession and Vesting” dated 7th November 2022. This notice was to the effect that the suit property which had been compulsorily acquired was to vest in the 2nd Respondent with effect from 21st November 2022. We find that this notice did not violate the Applicant’s rights as the vesting and taking possession was procedural as the next step after the award had been issued. Even though we have determined, as we have done above that the 1st Respondent did not comply with certain procedural steps, we are unable to find that such violations would invalidate the whole exercise. Indeed, as shall be addressed below, there are legal remedies available to redress the Applicant’s rights.
Disposition
42.The Applicant has sought orders in the nature of judicial review. Although this suit was initially filed before the Environment and Land Court, this Tribunal may, pursuant to the Fair Administrative Action Act, and in appropriate cases, issue orders in the nature of judicial review.
43.The sum of our analysis is that the 1st Respondent violated the Applicant’s rights under Article 40(3) of the Constitution of Kenya and the statutory requirements under Section 107(5) of the Land Act for failing to serve upon the Applicant a notice of intention to acquire its property. Similarly, we find that the 1st Respondent violated the Applicant’s rights under Article 40(3) and the statutory requirements under Section 112(1)(b) for failing to serve upon the Applicant a notice of inquiry and thereby denying the Applicant a chance to participate in the inquiry that was conducted on 4th November 2020.
44.It is also our finding that the 1st Respondent violated the Applicant’s rights under Article 40(3) and Article 47(2) of the Constitution of Kenya for failing to issue just compensation to the Applicant for the suit property. The 1st Respondent also violated the Applicant’s rights under Article 47(2) of the Constitution for failing to provide reasons for the decision contained in the award dated 16th November 2022.
45.For the above reasons we hereby make the following orders:a.An Order of Certiorari is hereby issued removing to this Court for purposes of quashing the 1st Respondent’s decision dated 16th November 2022 awarding the Applicant the sum of Kshs. 74,433,129.00 as compensation for acquisition of L.R. No. 81/1 located within Kiambu county;b.An Order of Mandamus is hereby issued directing the 1st Respondent and the 2nd Respondent to jointly conduct a valuation of the portion of land forming part of L.R. No. 81/1 which was compulsorily acquired. For clarity, the valuation will be as at 12th June 2020;c.An Order of Mandamus is hereby issued directing the 1st Respondent to supply the Applicant with a valuation report pursuant to the valuation conducted in (b) above;d.An Order of Mandamus is hereby issued directing the 1st Respondent to publish a fresh notice of inquiry in the Kenya Gazette and to serve the said notice upon the Applicant, in person;e.An Order of Mandamus is hereby issued directing the 1st Respondent to issue to the Applicant a fresh award of compensation upon conducting an inquiry;f.The above is to be done within sixty (60) days hereof;g.The Applicant’s costs shall be borne by the 1st Respondent.It is so ordered.
DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF FEBRUARY 2024.........................................DR. NABIL M. ORINA - CHAIRPERSONMR. GEORGE SUPEYO - MEMBERIn the Presence of:Mr. Rao h/b for Mrs Opiyo for the Ex Parte ApplicantMr. Osoro h/b for Ms. Kisengese for the 1st respondentC/A – Everlyne KenyandoNo Appearance for the 2nd Respondent and Interested Parties