Thomas Kimagut Sambu v National Land Commission & 2 others [2018] KEELC 3673 (KLR)
The bottom line
#A Kericho court faulted government agencies for taking land before paying compensation, ordering a valuation within 14 days or the landowner's own figures would apply.
What this practically means
#Executive summary
#Key legal issues
#Leave to further amend the plaint
Leave granted; the additional acquisition occurred during the pendency of the suit and relates to the same suit property
The facts giving rise to the amendments arose in February 2018 while the case was pending. Since the additional compensation sought relates to the suit property, fairness required allowing the plaintiff to plead his entire claim. The court invoked Order 8 Rule 5(1) and the overriding objective of the Civil Procedure Act.
Compliance with constitutional and statutory procedure in the third compulsory acquisition
The 1st and 2nd defendants did not comply; they took possession of developed land and demolished buildings before, and without, notice or prompt compensation
Gazette Notice No. 2029 of 2nd March 2018 issued after possession was taken on 28th February 2018. Taking developed land and demolishing houses violated section 120 of the Land Act, and failure to offer prompt compensation violated Article 40(3). The conduct also breached Article 10 national values of good governance, transparency and accountability.
Compensation at interlocutory stage
A prima facie case was established warranting relief, but instead of immediate payment the court directed the 1st defendant to conduct a valuation within 14 days, with further orders to follow
Ordering payment at the interlocutory stage would be akin to a mandatory injunction, grantable only in the clearest of cases. The plaintiff nonetheless established a prima facie case from affidavit evidence, showing the Commission acted inconsistently with the Constitution and Part VIII of the Land Act, justifying interim relief via a valuation timetable.
Legal principles established
#- Amendments to pleadings should be freely allowed before hearing if they can be made without injustice to the other party, to enable a party to plead the whole claim
- The Land Act procedure for compulsory acquisition must be strictly followed, and just compensation must be paid promptly before taking possession
- Courts may grant appropriate remedies, including mandatory injunctions, against government officers acting inconsistently with the Constitution
Court orders
#- 1.Leave granted to the plaintiff to further amend his Amended Plaint in terms of the annexed draft Further Amended Plaint, deemed filed and served upon payment of requisite court fees
- 2.The 1st defendant to conduct a valuation of the plaintiff's additional portions of land comprised in L.R No. KERICHO/KIPCHIMCHIM/656 and KERICHO/KIPCHIMCHIM/3027 compulsorily acquired pursuant to Kenya Gazette Notice No. 2029 dated 2nd March 2018, within 14 days, after which the court shall make further orders on compensation payable pending the hearing of the suit
- 3.If the 1st defendant fails to conduct the valuation within the prescribed time, the court to fix compensation based on the plaintiff's valuation report already filed in court
- 4.Case to be mentioned on 3rd May 2018 for further orders
- 5.Costs of the application shall be in the cause
- Jurisdiction invoked
- Articles 10, 35, 40(3) and Chapter Five of the Constitution of Kenya 2010; sections 107–133 of the Land Act No. 6 of 2012; Order 8 Rule 5(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Kimagut Sambu v National Land Commission & 2 others [2018] KEELC 3673 (KLR)", Case Analysis (2018). ELC Case Kericho (notice of motion dated 29th March 2018; amended plaint dated 3rd May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3673/eng@2018-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.