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ELCDismissedConstitutional Petition dated 25th July 2019· [2021] KEELC 3065 (KLR)

Jedidah Wanjiru Kangethe v National Land Commission & 4 others [2021] KEELC 3065 (KLR)

Environment and Land Court
4 June 2021
LGL. GACHERU
2,864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A landowner's challenge to a road-project land acquisition failed because she rejected the compensation award privately instead of raising her objection directly with the National Land Commission.

What this practically means

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Executive summary

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The Petitioner, registered owner of Dagoretti/Kinoo/1787, petitioned the Environment and Land Court at Thika challenging the compulsory acquisition of approximately 0.0202 Ha of her land for the James Gichuru Junction-Rironi Junction (A104/B3) road project, notified through five Gazette Notices between 2016 and 2019. She had constructed a double storey building of 30 shops on the property. The National Land Commission awarded her Kshs. 7,657,800, which she contended was far below market value, producing a private valuation by Dantu Valuers Ltd of Kshs. 21,117,000. She sought declarations that the project breached her rights, preservation of the land, or alternatively compensation at current market value and a joint court-ordered valuation. The 2nd to 4th Respondents filed grounds of opposition invoking eminent domain, while the 5th Respondent denied any cause of action against it. The 1st Respondent did not participate. The court, applying Article 40(3) of the Constitution and the Patrick Musimba framework on compulsory acquisition, held that due process was followed: the acquisition was for a public purpose, gazetted, the owner identified, and an award made which the NLC was willing to pay. Possession may lawfully be taken even before compensation is fully paid. The court further held that a landowner dissatisfied with an award must take her reservation to the NLC rather than commission private valuations, and that a joint valuation was impractical given the changed topography. The Petition was dismissed entirely with each party bearing its own costs.

Key legal issues

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01

Whether the compulsory acquisition of the Petitioner's land followed due process

Holding

Yes - the acquisition was for a public purpose, published in the Gazette, the owner identified, and the NLC made an award it was ready to pay.

Reasoning

Applying Article 40(3) and the Patrick Musimba framework, the court found the pre-inquiry stage satisfied: the land was for public use, the intention to acquire was gazetted, and the owner identified. The NLC issued an award of Kshs. 7,657,800 and was willing to pay, so possession could validly follow even before payment.

p. 4
02

Whether just compensation was paid and whether a joint valuation should be ordered

Holding

No basis for the orders; the Petitioner produced no evidence of rejecting the award or raising her reservation with the NLC.

Reasoning

The Petitioner's private valuation by Dantu Valuers did not displace the statutory award process. The court noted the property's topography had already changed, making a joint valuation impractical, and found no proof she declined the award or approached the NLC with her objection before turning to court.

p. 4

Legal principles established

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  • Compulsory acquisition carried out per due process with prompt just compensation is not a violation of the right to property.
  • A landowner dissatisfied with an NLC award should approach the Commission with their reservation rather than commission a private valuation and claim on it.

Court orders

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  1. 1.The Petition dated 25th July 2019 is dismissed entirely
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(3)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 26
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 24
  • Land ActSections 107, 108, 110, 111, 112, 113-119, 120-122
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (1)

  • Patrick Musimba Vs National Land Commission & 4 Others
    (2016) eKLR
Jurisdiction invoked
Article 40(3) of the Constitution; Chapter Five of the Constitution and the Land Act (compulsory acquisition)

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, "Jedidah Wanjiru Kangethe v National Land Commission & 4 others [2021] KEELC 3065 (KLR)", Case Analysis (2021). Constitutional Petition dated 25th July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3065/eng@2021-06-04

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