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ELCPartially AllowedELC Appeal No. E004 of 2021· [2022] KEELC 881 (KLR)

Ravaspaul Kyalo Mutisya v National Land Commission [2022] KEELC 881 (KLR)

Environment and Land Court
8 March 2022
LKL. G. Kimani
6,038 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court nearly doubled a landowner's compulsory acquisition compensation after finding the National Land Commission failed to give notice or reasons.

What this practically means

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Executive summary

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The appellant, registered proprietor of L.R. No. Kisasi/Nguuni/1462 in Kitui County, appealed against an award of Ksh.1,168,380 made by the National Land Commission on 4th March 2021 for the compulsory acquisition of a portion of his land for the Kibwezi-Mutomo-Kitui-Kabati-Migwani Road (A9/B64). He claimed the acquisition was done without notice, that 0.056 Ha rather than the gazetted 0.035 Ha was taken, and that the award was a gross undervaluation, seeking Kshs.5,024,561.60. The court compressed fifteen grounds into four issues. First, it held that the notice of intention to acquire under Section 107(5) of the Land Act is mandatory, and since the appellant's parcel was not listed in Gazette Notice 1640 of 22nd February 2019, the acquisition was unlawful. Second, it held that the claimed 0.056 Ha could not stand because the Radian Surveys report post-dated the compensation inquiry and was never before the Commission, and declined the prayer under Section 122(3). Third, the court found the appellant was heard at the inquiry, but the Commission breached Article 47(2) by failing to give written reasons or disclose the assessment criteria, rendering the award arbitrary and unjust. The court also confirmed its jurisdiction as the Land Acquisition Tribunal was not yet operational. Applying the principle of equivalence and disregarding the increase in land value occasioned by the road itself, the court set aside the award and substituted Kshs. 2,097,983.95 (land Kshs. 800,000; improvements Kshs. 931,653; 15% disturbance allowance; valuation costs Kshs. 106,583), with interest at the CBK base lending rate from 4th March 2021, directed disclosure of survey, inspection and valuation reports and the gazette notice, and awarded costs to the appellant. Professional fees were declined for want of receipts.

Key legal issues

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01

Whether notice of intention to compulsorily acquire was a mandatory requirement

Holding

The failure to issue a notice of intention to acquire under Section 107(5) of the Land Act rendered the acquisition of the Appellant's property unlawful

Reasoning

Section 107(5) requires the Commission to publish a notice in the Gazette and deliver a copy to the Registrar and every person appearing interested in the land. As registered proprietor, the Appellant was entitled to service. His parcel was not included in Gazette Notice 1640 of 22nd February 2019, a fact not denied. Section 120(2) permitting taking of possession in urgent circumstances had no application where the property was not in the notice.

p. 5
02

Whether the Appellant was given an opportunity to be heard

Holding

The Appellant was heard at the inquiry and presented his claim and valuation, but the Commission breached Article 47(2) by failing to give written reasons for the award

Reasoning

The Appellant saw the notice of inquiry in Gazette No. 6380, engaged a private valuer and presented the valuation and claim forms at the inquiry, so he had an opportunity to be heard. However, despite repeated requests, the Commission never gave reasons or disclosed the criteria used for the award or supplied supporting documents, violating the right to written reasons for administrative action.

p. 5
03

Whether the award of Ksh.1,168,380 was just compensation

Holding

The award was arbitrary and did not amount to just compensation under Article 40(3)(b)(i) and was set aside and substituted with an award of Kshs. 2,097,983.95

Reasoning

The Commission failed to give reasons or show the assessment criteria despite the elaborate provisions of the Land Act and the Land (Assessment of Just Compensation) Rules, 2017. Compensation must follow the principle of equivalence, placing the owner in the same position, and the increase in land value occasioned by the road's construction had to be disregarded. The court substituted land value of Kshs. 800,000 and improvements of Kshs. 931,653, with 15% disturbance allowance, valuation costs and interest.

p. 7
04

Whether the area acquired was 0.056 Ha as the Appellant claimed

Holding

The claim that 0.056 Ha was acquired was rejected because the survey post-dated the inquiry and was never before the Commission

Reasoning

The Radian Surveys Ltd report confirming 0.056 Ha was carried out on 14th July 2021 while the compensation inquiry took place on 15th October 2020. The issue was not placed before the Commission and did not form part of its decision. The award was premised on 0.035 Ha. The Appellant also never claimed during the inquiry that the residual land was inadequate for his intended use.

p. 5
05

Whether the court had jurisdiction given the establishment of the Land Acquisition Tribunal

Holding

The dispute was properly before the court since the Tribunal is not operational and the right of access to court is constitutional

Reasoning

Section 133C of the Land Act as amended designates the Land Acquisition Tribunal as the first dispute-resolution forum, with appeals to the court on questions of law only. However, the Tribunal is yet to be established and operational. Article 40(3)(ii) guarantees access to a court, and Section 128 of the Land Act permits disputes to be referred to the Land and Environment Court.

p. 4

Legal principles established

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  • The preliminary notice of intention to acquire land under Section 107(5) of the Land Act is a mandatory requirement and must be served on every person who appears to be interested in the land, including the registered proprietor
  • Possession of land before payment of compensation is only permitted under Section 120(2) of the Land Act upon fifteen days' notice of intention to acquire, and that provision does not apply where the property was not in the notice of intention to acquire
  • The National Land Commission is constitutionally and statutorily obliged to give written reasons and show the criteria used in arriving at a compensation award; a failure to do so renders the award arbitrary
  • In an increase in value caused by the intended use of the acquired land (e.g. the road for which it is being acquired) must be disregarded in assessing compensation
  • The unavailability of the Land Acquisition Tribunal does not limit a party's constitutional right of access to the courts

Court orders

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  1. 1.The disputed award of Ksh.1,168,380 be and is hereby set aside
  2. 2.The Respondent to pay to the Appellant the sum of Kshs. 2,097,983.95 as just compensation
  3. 3.Interest on the award to accrue at the base lending rate set by the Central Bank of Kenya and prevailing from 4th March 2021, the date of the award, until the time of payment
  4. 4.The Respondent to provide to the Appellant the reports on Survey, Inspection and Valuation on the Appellant's land before acquisition
  5. 5.The Respondent to provide to the Appellant the Gazette Notice for Intention to acquire the Appellant's land
  6. 6.The costs of this Appeal be awarded to the Appellant

Authorities

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Legislation

  • Constitution of KenyaArticle 40 (including 40(3)); Article 47 (including 47(2)); Article 67; Chapter Five; Article 65; Article 27(4)
  • Land ActSections 2, 107 (including 107(4), 107(5), 107A(1)), 111(1), 112, 120(2), 122(3), 128, 133A, 133C (including 133C(6)), 133D
  • Land Value (Amendment) Act 2019Section 107A(1); establishment of Land Acquisition Tribunal at Section 133A
  • Land Rules (2017) (Assessment and Just Compensation)
  • Land (Assessment of Just Compensation) Rules, 2017

Cases cited (7)

  • Stanley Munga Githunguri v National Land Commission & Another
    (2015) eKLR
  • Sceneries Limited vs National Land Commission
    (2017) eKLR
  • African Gas and Oil Company Limited v Attorney General & 3 others
    [2016] eKLR
  • Katra Jama Issa v Attorney General & 3 others
    [2018] eKLR
  • Patrick Musimba v National Land Commission & 4 others
    [2016] eKLR
  • Horn v Sunderland Corporation
    [1941] 2 KB 26, 40
  • Director of Buildings and Lands v Shun Fung Wouworks Ltd
    [1995] AC 111, 125
On appeal from
National Land Commission (Award of Isabel Njeru, Director of Valuation and Taxation, for the Chairman)
Award dated 4th March 2021 and Gazette Notice 6378 of 28th August 2021
Jurisdiction invoked
Article 40(3)(ii) of the Constitution (right of access to a court of law) and Section 128 of the Land Act (2012), the Land Acquisition Tribunal under Section 133C of the Land Act (as amended by the Land Value (Amendment) Act 2019) not yet operational

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Ravaspaul Kyalo Mutisya v National Land Commission [2022] KEELC 881 (KLR)", Case Analysis (2022). ELC Appeal No. E004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/881/eng@2022-03-08

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