Nancy Muthoni Wairagu v National Land Commission & another [2022] KEELC 1534 (KLR)
The bottom line
#A Kenyan court threw out a Kshs 55 million land compensation award because the landowner was never properly notified of the inquiry, ordering a fresh inquiry instead.
What this practically means
#Executive summary
#Key legal issues
#Preliminary objection based on failure to give 30 days' notice under Section 67 of the Roads Act
The objection was dismissed; the 2nd Respondent was enjoined by consent on the court's own motion and showed no prejudice, so upholding the objection would serve no purpose.
The court applied the Mukisa Biscuit test that a preliminary objection must be a pure point of law. Although Section 67 of the Roads Act is mandatory, the 2nd Respondent was joined by consent at the 1st Respondent's request when the suit was already in court, and it fully participated in the pleadings without showing hardship or seeking time to settle out of court.
Whether the compulsory acquisition process complied with the law
The process was flawed: the NLC did not personally serve the Appellant (or the chargee bank) with the notice of inquiry as required by Section 112(1)(b) of the Land Act, denying natural justice.
Article 40(3) of the Constitution and Sections 107–133 of the Land Act require notification and service of inquiry notices on interested persons. The NLC produced no evidence of service beyond gazettement, and no minutes of the inquiry. The chargee bank was also an interested party entitled to service. Citing Sceneries Limited, failure to give proper notice is a denial of natural justice.
Validity of the award of Kshs. 55,451,200/-
The award was set aside as it was arrived at through a flawed process; the court declined to substitute its own valuation and remitted the matter for a fresh inquiry.
Because the acquisition process was procedurally tainted by lack of notice and hearing, the court would not inquire into the quantum of the award. Instead it set the award aside and directed the NLC to conduct a fresh inquiry within 60 days, preserving the NLC's statutory mandate.
Legal principles established
#- Personal service of the notice of inquiry on the landowner under Section 112(1)(b) of the Land Act is mandatory and publication in the Kenya Gazette alone is not adequate notice.
- Failure to give proper notice of inquiry is a denial of natural justice and fairness, tainting the resulting award of compensation.
- A party enjoined to a suit by consent midway through proceedings cannot rely on non-compliance with a pre-action notice requirement to defeat the suit where no prejudice is shown.
Court orders
#- 1.The Preliminary Objection fails and is dismissed with costs.
- 2.The appeal is partially allowed.
- 3.The award of compensation in the sum of Kshs. 55 million be and is hereby set aside.
- 4.The 1st Respondent be and is hereby ordered to conduct a fresh inquiry in respect to the suit land belonging to the Appellant within 60 days from the date hereof.
- 5.The 1st Respondent to pay the costs of the appeal.
- 6.Parties be at liberty to apply where appropriate.
- Jurisdiction invoked
- Section 128 of the Land Act, No. 6 of 2012 (disputes referred to the Land and Environment Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Muthoni Wairagu v National Land Commission & another [2022] KEELC 1534 (KLR)", Case Analysis (2022). ELCA No. 34B of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1534/eng@2022-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.