Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (appeal from the Land Acquisition Compensation Tribunal)· [2014] KEELC 508 (KLR)

John Kariuki Macharia v Commissioner Of Lands [2014] KEELC 508 (KLR)

Environment and Land Court
14 January 2014
4,973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner whose property was compulsorily acquired won increased compensation of Kshs 18.2 million, with disability rights factored into the value.

What this practically means

#

Executive summary

#
This first-instance appeal from the Land Acquisition Compensation Tribunal concerned the adequacy of compensation for the compulsory acquisition of land parcel No. Ruiru/Mugutha Block1/T.555 (approx. 0.1008 Ha) fronting the Nairobi–Thika Highway, gazetted for acquisition on 28/5/2010 under the repealed Land Acquisition Act. The Government Valuers proposed Kshs 11,846,810/-; the Appellant's valuer valued the property at up to Kshs 68,962,000/-. The Tribunal having been abolished upon enactment of the Land Act No. 6 of 2012, the dispute moved to the Environment and Land Court. The sole issue was the adequacy of the proposed compensation, the regularity of the acquisition being undisputed. The court, P. Nyamweya J, held that market value meant the unimproved site value plus developments at the date of gazettement, excluding sub-division values under paragraph 3 of the Schedule. Using comparables, it fixed the unimproved site value at Kshs 6,000,000/-, enhanced to reflect the Appellant's accessibility rights as a person with disability under Article 54(1)(c) of the Constitution and Section 21 of the Persons with Disabilities Act. Developments were valued at the average of the parties' valuations (Kshs 7,213,200/-), with a 15% statutory addition of Kshs 2,186,280/-. Loss of 'actual earnings' was construed as net profits compensable for a transitional year, awarding Kshs 512,000/-, plus Kshs 950,000/- for relocation expenses. The claim for 20 years' lost profits and diminution damages was refused. The appeal was allowed and Kshs 18,223,480/- awarded with interest at court rates from judgment until possession.

Key legal issues

#
01

Market value of the suit property at the date of gazettement

Holding

Unimproved site value assessed at approximately Kshs 3,500,000/-, enhanced to Kshs 6,000,000/- to factor in the Appellant's accessibility rights as a person with disability, plus developments valued at Kshs 7,213,200/- (average of the parties' valuations)

Reasoning

The court defined market value as the unimproved site value plus developments at the date of gazettement (28/5/2010), since no comparables with similar developments were provided. It used the Respondent's comparable parcels of 0.45 ha sold for Kshs 2.5M each in a superior, accessible location, scaled up for size and weighted by the Appellant's constitutional and statutory rights of accessibility as a person with disability under Article 54(1)(c) and Section 21 of the Persons with Disabilities Act.

p. 7
02

Relevance of the Appellant's disability to compensation

Holding

Disability is relevant; compensation must facilitate acquisition of accessible property to qualify as just and full compensation

Reasoning

The court held that Section 21 of the Persons with Disabilities Act (Chapter 133) entitles the Appellant to a barrier-free and disability-friendly environment, and Article 54(1)(c) of the Constitution guarantees reasonable access to places and public transport. The Respondent, as a state organ, must observe, respect, protect, promote and fulfil these rights, so just compensation must enable the Appellant to acquire reasonably accessible replacement property.

p. 7
03

Loss of actual earnings/business income

Holding

Awarded at Kshs 512,000/- for one year (Respondent's Kshs 350,000/- valuation plus uncontested farming income of Kshs 162,000/-)

Reasoning

Paragraph 2(c) of the Schedule compensates loss of income during the transitional period of acquisition and resettlement, a reasonable period being one year. 'Actual earnings' bears its plain meaning of net profits, not gross profits or projected 20-year earnings. The audited accounts showed net profit of Kshs 273,000/-, the Respondent's valuation of Kshs 350,000/- was fair, and the uncontested farming income of Kshs 162,000/- was added.

p. 7
04

Sub-division potential as a comparable

Holding

Disallowed under paragraph 3 of the Schedule

Reasoning

The court noted that the entire parcel was being acquired and that the Schedule mandatorily limits the matters for compensation. Paragraph 3 disapplies increases in value likely to accrue from the use to which the land will be put when acquired, and the Appellant was forbidden from using sub-division values of other plots as comparables since that value had not yet accrued to his land.

p. 6
05

Expenses incidental to change of residence/place of business

Holding

Respondent's uncontested valuation of Kshs 950,000/- awarded

Reasoning

The costs of alternative accommodation and relocation valued at Kshs 950,000/- by the Respondent were not contested by the Appellant and were therefore adopted in full under paragraph 2(d) of the Schedule to the repealed Land Acquisition Act, which mandates payment of reasonable expenses incidental to change of residence or place of business.

p. 8

Legal principles established

#
  • The market value of compulsorily acquired land is the price a willing seller might be expected to obtain from a willing purchaser, determined with reference to comparable sales and awards
  • 'Actual earnings' under paragraph 2(c) of the Schedule to the repealed Land Acquisition Act means net profits, compensable for a reasonable transitional period of one year
  • The rights of a person with disability under Article 54(1)(c) of the Constitution and the Persons with Disabilities Act are relevant to assessing just and full compensation on compulsory acquisition
  • Where parties rely on the same construction cost basis but reach divergent valuations, a court may fairly adopt the average of the two valuations

Court orders

#
  1. 1.The Appellant's appeal is allowed and the sum of Kshs 18,223,480/- is awarded as compensation for the compulsory acquisition of land parcel No. Ruiru/Mugutha Block1/T.555
  2. 2.The said sum of Kshs 18,223,480/- shall be paid to the Appellant by the Respondent with interest at court rates from the date of the judgment until the date of possession by the Respondent of the suit property

Authorities

#

Legislation

  • Land Acquisition Act (repealed), Cap 295Sections 8, 9(3); Schedule paragraphs 1, 2, 3 (incl. 2(c), 2(d), 3(1))
  • Constitution of Kenya 2010Article 40(3); Article 54(1)(c); Chapter Five
  • Constitution of Kenya (repealed)Section 75
  • Land Act, No. 6 of 2012Section 111
  • Persons with Disabilities Act (Chapter 133 of the Laws of Kenya) / Persons with Disabilities Act No. 14 of 2003Section 21

Cases cited (2)

  • Kanini Farm Ltd v Commissioner of Lands
    (1986) KLR 310
  • Limo v Commissioner of Lands
    KLR (E&L) 175
On appeal from
Land Acquisition Compensation Tribunal
Not stated
Jurisdiction invoked
Jurisdiction of the Environment and Land Court to hear and determine all disputes relating to title to, occupation and use of land and the environment, following repeal of the Land Acquisition Act by the Land Act No. 6 of 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Kariuki Macharia v Commissioner Of Lands [2014] KEELC 508 (KLR)", Case Analysis (2014). Not stated in judgment (appeal from the Land Acquisition Compensation Tribunal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/508/eng@2014-01-14

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