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Court of AppealDismissedSecond Appeal from ELCA No. 45 of 2019

Pentagon Communications Ltd v National Land Commission (Civil Appeal E035 of 2022) [2025] KECA 1304 (KLR)

Court of Appeal of Kenya
18 July 2025
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
3,273 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an appeal against a National Land Commission compensation award filed late without leave is a nullity that courts cannot entertain.

What this practically means

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Executive summary

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Pentagon Communications Limited's land in Miritini, Mombasa (0.3325 hectares) was compulsorily acquired in 2014 for the Mombasa Port Area Road Development Project, with the National Land Commission ultimately paying Kshs.2,829,000 in compensation. Dissatisfied with the amount, the company filed a Memorandum of Appeal before the Environment and Land Court at Mombasa (ELCA No. 45 of 2019) seeking substituted compensation of Kshs.24,000,000 with interest. The National Land Commission raised a preliminary objection that the appeal, filed almost a year after the award, contravened section 16A of the Environment and Land Court Act. Matheka, J. upheld the objection and dismissed the appeal with costs on 23rd February 2022. On second appeal, the Court of Appeal (Murgor, Laibuta and Ngenye-Macharia, JJ.A.) framed two issues: whether the ELC proceedings were an appeal or a section 128 reference, and whether the Judge erred in upholding the preliminary objection. The Court held that, the award having emanated from a hearing of an inquiry, the proper route was an appeal against a quasi-judicial tribunal decision, attracting section 16A; a party cannot file a memorandum of appeal then recharacterise it as a reference with no limitation period. The award was made on 5th September 2018, the appeal filed on 1st October 2019 without leave, rendering it a nullity and leaving the ELC without jurisdiction. The second appeal was dismissed, the ELC judgment affirmed, with no order as to costs given the respondent's non-participation.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the proceedings before the Environment and Land Court were an appeal or a reference
  2. 2.Whether the learned Judge erred in upholding the respondent's Preliminary Objection thereby dismissing the appellant's appeal on the basis that it was time barred

Key legal issues

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01

Whether the filing in the ELC was an appeal or a section 128 reference

Holding

It was an appeal against a quasi-judicial tribunal decision, so section 16A applied; the appellant cannot recharacterise a memorandum of appeal as a reference.

Reasoning

The Court noted the appellant filed a document styled Memorandum of Appeal, serialised as an appeal/reference from the NLC award, and that the NLC award emanated from a hearing of an inquiry. Given its form and the quasi-judicial character of the NLC process, the proper route was an appeal, attracting section 16A of the Environment and Land Court Act. A reference under section 128 has a totally different form and format, and the appellant cannot have its cake and eat it.

p. 5
02

Whether the preliminary objection on limitation was merited

Holding

Yes. The appeal to the ELC was filed out of time without leave, was a nullity, and the ELC lacked jurisdiction to entertain it.

Reasoning

The NLC award was made on 5th September 2018 and the appeal was filed on 1st October 2019, almost a year later. Section 16A(1) requires appeals within 30 days, and section 16A(2) permits out-of-time admission only on good and sufficient cause. The appellant never sought extension of time, so the filing was incompetent and the Judge correctly downed her tools for want of jurisdiction.

p. 6
03

Whether the appellant was notified of and participated in the compulsory acquisition process

Holding

The appellant's claim that it learned of the acquisition from third parties was untrue; it was notified by gazette notices and invited to a hearing of inquiry.

Reasoning

The Court observed that gazette notices Nos. 405 and 1796 notified the appellant of the intended acquisition, and a letter dated 27th July 2015 invited it to a hearing scheduled for 5th August 2015, which led to the award. It cited KRA v Murgani for the proposition that fairness does not always require an oral hearing, though it noted the appellant did communicate dissatisfaction with the award.

p. 3

Legal principles established

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  • A challenge to an NLC compensation award arising from a hearing of an inquiry must be brought as an appeal against a quasi-judicial tribunal decision, and section 16A of the Environment and Land Court Act applies to it; a party who files a memorandum of appeal cannot resile and claim it was a section 128 reference.
  • An appeal filed out of time without prior leave is a nullity; the court before which such an appeal is filed has no jurisdiction to entertain it.
  • A jurisdictional objection that an appeal is statute barred must be determined in limine by the superior court.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Judgment of the Environment and Land Court (Matheka, J.) delivered on 23rd February 2022 is upheld
  3. 3.No order as to costs, the respondent having not participated in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AM
majority
KL
majority
GN
majority
On appeal from
Environment and Land Court at Mombasa
ELCA No. 45 of 2019
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate framework; the appeal confines itself to matters of law only, the ELC having exercised jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act

Relief refused

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Allowing the second appeal and setting aside the judgment of the ELC

The appeal before the ELC was filed out of time without leave under section 16A(2) of the Environment and Land Court Act, rendering it incompetent and statute barred

p. 6

Costs

We make no order as to costs as the respondent did not participate in this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the foregoing, we find and hold that this appeal is unmeritorious and is hereby dismissed. Accordingly, we uphold the Judgment of the Environment and Land Court (Matheka, J.) delivered on 23rd February 2022. We make no order as to costs as the respondent did not participate in this appeal.
p. 7Final orders - dismissal and affirmation
No appeal should have been filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence.
p. 6Nullity of out-of-time appeals filed without leave
The appellant cannot have his cake and eat it. Thus, the submission and ground of appeal that it was section 128 of the Land Act that was applicable as opposed to section 16A of the Environment and Land Court Act does not hold.
p. 5Appeal vs reference under section 128 of the Land Act
the preliminary objection was jurisdictional in nature and, being jurisdictional, the learned Judge was obligated to determine it in limine as she could not confer upon herself powers that she did not legally have.
p. 6Jurisdictional preliminary objections

Issues in the judgment

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minor

The judgment refers to the ELC case as both ELCA No. 45 of 2019 and ELCA No. 45 of 2021, an internal inconsistency in the case number

minor

The judgment variously refers to section 16A of the 'Environment and Land Act' and of the 'Environment and Land Court Act', which is the same provision but inconsistently named

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Pentagon Communications Ltd v National Land Commission (Civil Appeal E035 of 2022) [2025] KECA 1304 (KLR)", Case Analysis (2025). Second Appeal from ELCA No. 45 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1304/eng@2025-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.