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ELCDismissedNot stated in the judgment· [2022] KEELC 1320 (KLR)

Pentagon Communication Ltd v National Land Commission [2022] KEELC 1320 (KLR)

Environment and Land Court
23 February 2022
NMN.A. Matheka
1,915 words in judgment
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The bottom line

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A landowner lost its Kshs 24 million compensation claim because it appealed the National Land Commission's award almost a year late, with no extension of time.

What this practically means

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Executive summary

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The Appellant, the registered proprietor of part of LR MN/VI/3638 in Miritini, Mombasa, appealed to the High Court (Environment and Land Court) against an award of the National Land Commission of Kshs. 2,829,000 for the compulsory acquisition of 0.3325 hectares of its land for the Mombasa Port Area Road Development Project. The Appellant contended the award was erroneously low, ignored the industrial user of the land, omitted the 15% disturbance allowance and ex-gratia payments, and was made by a valuer of the Ministry of Lands rather than the Commission; it sought compensation of Kshs. 24,000,000 based on a Dunhill Africa Valuers report, plus interest at 12% from 8th May 2015. The Respondent filed a preliminary objection on 11th November 2021 contending the appeal offended Section 16A of the Environment and Land Court Act as it was filed out of time. Relying on the Mukisa Biscuit and Oraro vs Mbajja definitions of a preliminary objection, Matheka J found the timeliness issue a pure point of law. Applying Section 16A(1), the 30-day window from the award (of which the Appellant became aware on 30th October 2018) had long expired when the appeal was filed on 2nd October 2019. Section 16A(2) permits out-of-time admission only on good and sufficient cause, and the Appellant never sought extension of time. The court therefore upheld the objection, declined to consider the merits, and dismissed the appeal with costs.

Key legal issues

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01

Whether the appeal was filed out of time

Holding

The appeal was filed out of time; the award was made around 30th October 2018 and the appeal filed on 2nd October 2019, well beyond the 30-day period in Section 16A(1), and no extension was sought

Reasoning

The court first resolved the preliminary objection, finding it a pure point of law. Section 16A(1) requires appeals from tribunals within 30 days. The appellant admitted awareness of the award on 30th October 2018 but filed on 2nd October 2019. Section 16A(2) permits late admission only on good and sufficient cause, which was never sought or shown. The objection therefore succeeded and the merits were not considered.

p. 3

Legal principles established

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  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised
  • An appeal from a tribunal under Section 16A of the Environment and Land Court Act must be filed within 30 days, and may be admitted out of time only on good and sufficient cause shown

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40(3), 40(3)(b)(ii), 67
  • Land Act No. 6 of 2012Sections 111, 113(1), 114, 117, 128, Part VIII
  • National Land Commission Act No. 5 of 2012Not specified
  • Environment and Land Court Act, 2011Sections 16A(1), 16A(2)

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    (2005) eKLR
On appeal from
National Land Commission
Award in respect of compulsory acquisition of part of LR MN/VI/3638
Jurisdiction invoked
Article 40(3)(b)(ii) of the Constitution of Kenya and Section 128 of the Land Act No. 6 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Pentagon Communication Ltd v National Land Commission [2022] KEELC 1320 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1320/eng@2022-02-23

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