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ELCPartially AllowedNot stated in the judgment as provided· [2020] KEELC 2015 (KLR)

Dominic Mbugua Wainaina & 3 others v National Land Commission & 2 others [2020] KEELC 2015 (KLR)

Environment and Land Court
15 June 2020
3,280 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered the National Land Commission to pay Kshs 26 million to landowners whose property was taken for a road without compensation.

What this practically means

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Executive summary

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By a Plaint dated 21st March 2018, three Plaintiffs, registered proprietors of parcels Muguga/Gitaru/1745, 143 and 2108 bordering link road E1507 in Kiambu County, sued the National Land Commission (1st Defendant) and Kenya Rural Roads Authority (2nd Defendant) seeking a declaration of entitlement to just compensation, Kshs. 26,048,525/=, and interest. They alleged their developments were demolished and land taken for the road without compensation, after the 1st Defendant's 4th August 2016 ruling finding encroachment had been quashed in Judicial Review No. 4 of 2017 on 27th October 2017 as ultra vires. The 1st Defendant did not enter appearance; the 2nd Defendant denied liability, contending the titles within the road reserve were revoked, the Plaintiffs encroached on the reserve, and it had relinquished the road's mandate to the Kiambu County Government. The Court found the issues were whether the land was compulsorily acquired, the compensation payable, who should pay, entitlement to the orders sought, and costs. Holding the Plaintiffs' titles indefeasible under Section 26(1) of the Land Registration Act, and that the State forcefully took the land without consent or the Land Act process, the Court found compulsory acquisition and, on uncontroverted valuation reports, awarded Kshs. 26,042,525/= with interest, holding the 1st Defendant obligated to pay since the 2nd Defendant had relinquished its mandate in 2016. Judgment was entered against the 1st Defendant on prayers (a), (b) and (c), with costs to the Plaintiffs. The relief granted is against the 1st Defendant only.

Key legal issues

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01

Whether the Plaintiffs' parcels of land were compulsorily acquired

Holding

Yes. The Plaintiffs held indefeasible titles under Section 26(1) of the Land Registration Act; the only determination finding encroachment (the 1st Defendant's ruling of 4th August 2016) had been quashed on 27th October 2017 as ultra vires, the Land Registrar never re-established the boundaries, and the State nonetheless forcefully took the land without consent or the Land Act process, amounting to compulsory acquisition.

Reasoning

The Court held the Plaintiffs' titles protected under Section 26(1) of the Land Registration Act since no competent body's finding of encroachment stood after judicial review quashed the National Land Commission's decision. The Land Act's elaborate compulsory acquisition process was not followed. Notwithstanding the illegality, the forceful, non-consensual Government take-over of the land for a public road met the definition of compulsory acquisition.

p. 6
02

Whether the Plaintiffs are entitled to compensation and at how much

Holding

Yes, in the sum of Kshs. 26,042,525/=, based on uncontroverted valuation reports produced by PW2 and the pleaded, particularized claim.

Reasoning

Compensation follows automatically from the finding of compulsory acquisition under Section 111(1) of the Land Act and Article 40(3) of the Constitution. PW2, a qualified valuer, produced valuation reports particularizing each Plaintiff's loss, which were uncontroverted by the Defence. The Court therefore awarded the pleaded and proved figure.

p. 7
03

Who should pay the compensation

Holding

The 1st Defendant (National Land Commission), which under Sections 111 and 115 of the Land Act is tasked with ensuring compensation of persons with interests in compulsorily acquired land.

Reasoning

The 2nd Defendant had relinquished its mandate over the link road and transferred all documents to the Kiambu County Government in 2016, before the demolitions in 2017, so it was not responsible. Under the Land Act the National Land Commission is tasked with compensating interested persons, and the actions of its Director General bear on the Plaintiffs' compensation; hence the 1st Defendant bears the obligation.

p. 8
04

Whether the Plaintiffs are entitled to the orders sought and who bears costs

Holding

Yes; the Plaintiffs proved their case on a balance of probabilities and were entitled to prayers (a), (b) and (c), with costs following the event.

Reasoning

Having found compulsory acquisition and an entitlement to compensation, the Court held the Plaintiffs entitled to the declarations, compensation and interest sought. On costs, Section 27 of the Civil Procedure Act confers discretion, but costs ordinarily follow the event; the Plaintiffs as successful parties were entitled to costs.

p. 9

Legal principles established

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  • The registered owner of property is prima facie the absolute and indefeasible owner under Section 26(1) of the Land Registration Act.
  • A forceful and illegal take-over of private land by the State constitutes compulsory acquisition and does not defeat the owner's right to just compensation under the Land Act, 2012.
  • Where land is compulsorily acquired, just compensation must be paid promptly and in full to all persons whose interests in the land have been determined (Section 111(1) of the Land Act).

Court orders

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  1. 1.Declaration that the Plaintiffs are entitled to just and fair compensation for their parcels of land compulsorily acquired (prayer (a))
  2. 2.Compensation to the Plaintiffs in the sum of Kshs. 26,042,525/= as pleaded and particularized in paragraph 16 of the Plaint and proved in Court (prayer (b))
  3. 3.Interest on the compensation at court rates from the date of filing suit (prayer (c))
  4. 4.Judgment entered for the Plaintiffs against the 1st Defendant as pleaded in prayers (a), (b) and (c) of the Plaint
  5. 5.Costs of the suit awarded to the Plaintiffs

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land ActSection 111(1)
  • Land ActSection 115(1)
  • Civil Procedure ActSection 27
  • Constitution of KenyaArticle 40(3)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Arnacherry Limited Vs Attorney General
    (2014) eKLR
  • Isaiah Otiato & 6 others v County Government of Vihiga
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over claims relating to compulsory acquisition of and compensation for land (Land Act, 2012; Land Registration Act, Section 26(1))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Dominic Mbugua Wainaina & 3 others v National Land Commission & 2 others [2020] KEELC 2015 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2015/eng@2020-06-15

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