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ELCPartially AllowedMakueni ELC, Notice of Motion dated 26th November, 2020 (ELC Suit re Mavindini/Mavindini/1238 & 1239)· [2021] KEELC 2141 (KLR)

Reuben Kioko Kakyema v Kioko Wambua Itinga & 2 others [2021] KEELC 2141 (KLR)

Environment and Land Court
2 September 2021
CMC. G. MBOGO
2,033 words in judgment
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The bottom line

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A Makueni court ordered Kenya's National Land Commission to pay a landowner Kshs. 3.27 million compensation for improvements, with 12% interest, before trial ends.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Makueni by Notice of Motion dated 26th November 2020 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking an order compelling the National Land Commission to pay him Kshs. 3,270,435 being assessed compensation for immovable assets and extensive developments on Mavindini/Mavindini/1238 and 1239, compulsorily acquired for the Thwake Multi-purpose dam project, pending hearing of the suit. He deponed that he purchased the suit properties from Nathan Kiio Itinga in 2002, that transfer was frustrated by the seller's death, and that although awards were made on 26th May 2016 naming him as payee, the money had not been disbursed. The 1st and 2nd Respondents, beneficiaries of the deceased's estate, opposed, alleging forgery of the sale agreement and collusion in obtaining a special limited grant, and relying on earlier succession proceedings in which compensation was ordered released to other family members; the Applicant's appeal thereon was summarily dismissed. They submitted on injunction principles under Giella v Cassman Brown. Justice C. G. Mbogo found that compensation was categorized into land and improvements, that the awards clearly directed payment of the improvements sum to the Applicant, that the Respondents raised no opposition to that head and had not filed a defence, and that ownership of the land would be determined at trial. The Court allowed the application, directed the NLC to pay the Applicant the Kshs. 3,270,435 with 12% interest, and awarded costs of the application against the Respondents jointly and severally.

Key legal issues

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01

Whether the compensation for improvements should be released to the Applicant pending trial

Holding

Yes; the NLC's awards expressly directed payment of Kshs. 3,270,435 for improvements to the Applicant, and the Respondents raised no opposition to that head of compensation, ownership of the land being a matter for full trial

Reasoning

The Court examined the exhibited Gazette Notice and award documents and found they clearly indicated the Applicant should be paid the amount for immovable assets and developments. The succession documents showed no opposition to compensation for improvements, the Respondents had not filed a defence, and ownership of the land would be determined at trial. It was therefore just to release that portion of the award to the Applicant pending determination, with interest.

p. 3
02

Whether the Respondents' opposition based on ownership of the land and alleged forgery justified withholding the award

Holding

No; ownership of the suit lands is reserved for determination after full trial and does not affect the separate award for improvements

Reasoning

The Court noted the ownership dispute, including the allegation that the deceased's signatures on the sale agreement were forged, but held that ownership of the suit lands would be determined after a full trial. Since the compensation was categorized into two - for the land and for the improvements - only the improvements portion was before the Court, and the Respondents' submissions on injunction were misplaced as no injunction was sought.

p. 3

Legal principles established

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  • Where an award of compensation expressly names the applicant as the payee and ownership of the land itself is to be determined at trial, the portion of the award attributable to improvements may be released to him pending determination
  • Compensation awards attract interest

Court orders

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  1. 1.An order directing the National Land Commission to pay the Plaintiff/Applicant Kshs. 3,270,435 being the assessed compensation for immovable assets and extensive developments on Mavindini/Mavindini/1238 and Mavindini/Mavindini/1239 pending the hearing and determination of the suit
  2. 2.Costs of the application to be borne by the Respondents jointly and severally
  3. 3.Interest on the award at 12%

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure Rules 2010Order 51 Rule (1)
  • Land ActSection 115

Cases cited (4)

  • Patrick Musimba -Vs- National Land Commission & 4 Others
    (2016) eKLR
  • Five Star Agencies Ltd -Vs- National Land Commission
    (2014) eKLR
  • National Land Commission -Vs- Afrison Export Import Limited & 10 Others
    (2019) eKLR
  • Giella -Vs- Cassman Brown & Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act, Order 51 Rule (1) of the Civil Procedure Rules 2010 and all other enabling provisions of the Law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Reuben Kioko Kakyema v Kioko Wambua Itinga & 2 others [2021] KEELC 2141 (KLR)", Case Analysis (2021). Makueni ELC, Notice of Motion dated 26th November, 2020 (ELC Suit re Mavindini/Mavindini/1238 & 1239). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2141/eng@2021-09-02

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