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ELCPartially AllowedPetition No. 8 of 2018· [2019] KEELC 2031 (KLR)

Stephen Mbugua Gituthi & 2 others v National Land Commission & another [2019] KEELC 2031 (KLR)

Environment and Land Court
31 July 2019
GKG Kemei
10,602 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's land court ruled the water pipeline wayleave was never legally created because authorities skipped mandatory steps, so landowners keep their rights until due process and fair compensation are met.

What this practically means

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Executive summary

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The three Petitioners, registered or beneficial owners of land in Kiambu and Murang'a Counties, together with other affected landowners, petitioned against the compulsory acquisition of their land for creation of a water pipeline wayleave from Thika Dam to Gigiri tanks by the National Land Commission (1st Respondent) on behalf of Athi Water Services Board (2nd Respondent). They alleged violations of rights to access to information, property, prompt just compensation, fair administrative action, access to justice and fair hearing; non-compliance with the wayleave procedure under sections 143-149 of the Land Act; failure to give reasons for inordinately low awards; and lack of public participation. They sought declarations, certiorari to quash the gazette notices and awards, fresh inquiries, a joint valuation, prohibition, injunction and damages. The court held that while the State's exercise of eminent domain was constitutional, the Respondents proceeded under the compulsory acquisition provisions (ss 107-112) rather than the wayleave provisions (ss 143-149), and produced no evidence of a Cabinet Secretary's order creating the wayleave; hence no wayleave was lawfully created and any obligation to pay compensation never arose. However, the court found the Petitioners were served with notices, had access to the project plans and data collection sheets, and did not submit claims, challenge the awards or prove harassment. The petition was partially allowed: a declaration that the acquisition was ultra vires and an order of prohibition against vesting the wayleave unless due process is followed and just compensation paid; all other prayers were declined with costs of the petition awarded against the Respondents jointly.

Key legal issues

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01

Whether the wayleave was validly created

Holding

No wayleave was created; the Respondents used the compulsory acquisition provisions (ss 107-112) instead of the wayleave procedure (ss 143-149) and never produced evidence of a Cabinet Secretary's order creating the wayleave

Reasoning

The court set out the mandatory statutory steps: service of notice on occupiers and the County Government, consideration of representations, recommendation to the Cabinet Secretary, a Cabinet Secretary order creating the wayleave and its publication. Counsel for the 1st Respondent admitted reliance on the wrong provisions after the repeal of the Wayleaves Act. No evidence of the Cabinet Secretary's order or its publication was produced, so no wayleave came into existence.

p. 10
02

Whether the Petitioners were served and given access to information

Holding

Service was effected and information was accessible; no violation of rights to information, fair administrative action, fair hearing or access to justice proved

Reasoning

From the PAPs sensitization records, 24 of the 51 Petitioners signed notices of inquiry, others were reached through agents, and the Petitioners did not challenge those documents. Plans could be inspected at disclosed venues, and data collection sheets signed by the Petitioners formed the basis of valuation. The Petitioners also never submitted written claims nor challenged or appealed the awards.

p. 11
03

Whether a joint valuation should be ordered

Holding

Joint valuation declined as the awards were not challenged and quantum was not in issue

Reasoning

The Petitioners did not challenge or appeal the awards; a joint valuation would serve no purpose since they were attacking the acquisition process, not the compensation amounts, which they had declined to accept without placing claim figures before the inquiry.

p. 12

Legal principles established

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  • Creation of a wayleave must strictly follow sections 143-149 of the Land Act, including service of notice, consideration of representations, a Cabinet Secretary decision and its publication; without these no wayleave is created
  • The obligation to pay compensation for a wayleave arises only upon creation of the right of way by the Cabinet Secretary

Court orders

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  1. 1.A declaration that the acquisition of the Suit Properties and Improvements undertaken by the Respondents was carried ultra vires the Constitution and statutory law, infringing and violating the Petitioners' rights to property
  2. 2.An order of Prohibition prohibiting the Respondents from vesting the right of way (wayleave) in favour of the 2nd Respondent unless due process is followed and prompt payment of just compensation is made to the Petitioners
  3. 3.Costs of the Petition to be met by the Respondents jointly

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 249, 35, 40, 47, 48, 50, 67(1), Chapter 5, Chapter 15
  • Land Act, No. 6 of 2012Sections 107-133, 112, 115, 117(1), 120, 131, 143-149, 144(1), 144(4), 146, 147(1), 148(1), 148(4), 148(5), 151, 162
  • Land (Assessment of Just Compensation) Rules, 2017Legal Notice No. 283
  • Access to Information Act, 2016Sections 4(1), 8
  • Water Act, 2002Section 51
  • Forest Act, 2005Legal Notice No 21 of 26/2/16 (crop rates)
  • National Land Commission Act, No. 5 of 2012Mandate of the Commission
  • Wayleaves Act (repealed)
  • Land Acquisition Act (repealed)

Cases cited (3)

  • Timothy Njoya vs. Attorney General & Another
    [2017] eKLR
  • Veronicah Waithira Trusteee of Inter-Christian Churches & 3 others vs. Kenya National Highways Authority
    [2014] eKLR
  • Patrick Musimba Vs National Land Commission & 4 others
    (2016) EKLR
Jurisdiction invoked
Article 40(3) and Article 165 of the Constitution (petition for enforcement of fundamental rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Stephen Mbugua Gituthi & 2 others v National Land Commission & another [2019] KEELC 2031 (KLR)", Case Analysis (2019). Petition No. 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2031/eng@2019-07-31

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