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ELCDismissednull (not stated in the judgment provided)· [2022] KEELC 2182 (KLR)

Bidding and Lots Investment Limited v National Land Commission & 2 others; Republic (Exparte) (Judicial Review Miscellaneous Application E005 of 2021) [2022] KEELC 2182 (KLR)

Environment and Land Court
5 May 2022
3,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's bid to overturn reduced road compensation failed because he used the wrong court process, though he may still sue for more money.

What this practically means

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Executive summary

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The ex parte Applicant moved the Environment and Land Court at Machakos by Notice of Motion dated 29th March 2021 under Order 53 Rules 3 and 4 of the Civil Procedure Rules, seeking declarations that its property and fair administrative action rights under Articles 40 and 47 of the Constitution were contravened, orders quashing revised compensation awards of 8th January 2021 (Kshs. 1,855,029.00 for Athi River/Athi River Block 6/564 and Kshs. 743,376.00 for Block 6/565), compensation, and exemplary damages. The suit properties had been compulsorily acquired for the second carriageway of the Athi River-Machakos Turnoff (A109) Road Project, initially awarded higher sums in January/February 2019, then revised downwards after the Ethics and Anti-Corruption Commission recommended re-valuation. The 1st Respondent (National Land Commission) did not respond. The 2nd Respondent (KeNHA) denied any role in fixing or varying awards, while the 3rd Respondent justified the revision. The court applied the judicial review standards of illegality, irrationality and procedural impropriety and held that the Commission adhered to the lawful compulsory acquisition process; the downward revision followed a lawful EACC recommendation and the Commission was not functus officio. The Applicant was held to have used a wrong forum, having had recourse under section 128 of the Land Act or a civil claim on quantum. The application was found unmerited and struck out, with each party bearing its own costs.

Key legal issues

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01

Whether the National Land Commission's downward revision of the initial compensation awards was lawful and procedurally fair

Holding

The revision was lawful: the Commission followed the statutory compulsory acquisition process, and the revision followed an EACC recommendation under section 23 of the Anti-Corruption and Economic Crimes Act, 2003.

Reasoning

The court found the 1st Respondent adhered to the process of compulsory acquisition by gazettement, inquiry, valuation and presentation of awards. The EACC, mandated to investigate, recommended re-valuation and review of compensation, and the Commission acted on that recommendation. No procedural impropriety, irrationality or illegality was demonstrated; the revised awards were based on valuations which the Applicant declined.

p. 6
02

Whether the 1st Respondent was functus officio after issuing the initial awards

Holding

No; the Commission is not a court of competent jurisdiction and was not functus officio when it revised the awards following the EACC recommendation.

Reasoning

The Applicant argued the Commission could not reopen its own determination and sat on its own appeal. The court rejected this, holding the Commission is not a court of competent jurisdiction and that the revision arose from a lawful investigative mandate exercised by the EACC, so no illegality or lack of jurisdiction was established.

p. 6
03

Whether judicial review is the appropriate forum to challenge the quantum of the revised awards

Holding

It is not; the Applicant should have filed a reference under section 128 of the Land Act or a civil claim with viva voce evidence on compensation quantum.

Reasoning

Judicial review concerns the decision-making process, not the merits or quantum of compensation. The Applicant had recourse under section 128 of the Land Act to file a reference to the Environment and Land Court challenging the revised awards but instead opted for judicial review. The court noted the Applicant may still file a civil claim and present viva voce evidence for a proper determination of compensation.

p. 7
04

Whether the 2nd Respondent (KeNHA) bore any liability for the revaluation

Holding

No; KeNHA was an implementing agency and the determination and variation of compensation awards is the mandate of the 1st Respondent.

Reasoning

The court concurred with the 2nd Respondent that as an implementing agency, not the acquiring entity, it had no role in determining or varying compensation awards. The dispute properly lay between the ex parte Applicant and the 1st Respondent under the valuation principles in the Land Act (Assessment of Just Compensation) Rules, 2017.

p. 7

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision or private rights.
  • The grounds of judicial review are illegality, irrationality and procedural impropriety per Lord Diplock in Council for Civil Service Unions v Minister for Civil Service.
  • Under Article 40(3)(b) the State may compulsorily acquire land for a public purpose provided there is payment in full of just compensation; the right to property is not absolute.
  • Disputes arising out of the Land Act may be referred to the Land and Environment Court under section 128 of the Land Act.
  • The National Land Commission is not functus officio upon issuing initial awards where a competent investigative body such as the EACC recommends re-valuation; the Commission is not a court of competent jurisdiction.

Court orders

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  1. 1.The Notice of Motion dated 29th March, 2021 is found unmerited and is struck out
  2. 2.Each party will bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 3 and 4
  • Constitution of Kenya, 2010Articles 40(1), 40(2)(a), 40(3)(b)(i), 47(1), 47(2), 47(3), 23, 50
  • Land Act, 2012Section 128
  • Fair Administrative Actions ActSection 7
  • Anti-Corruption and Economics Crimes Act, 2003Section 23
  • Kenya Roads ActSection 67(a)
  • Land Act (Assessment of Just Compensation Rules) 2017, Legal Notice No. 283Principles of valuation

Cases cited (15)

  • Council for Civil Service Unions v Minister for Civil Service
    [1985] AC 374
  • Benson Ruivi Njane v Kenya Rural Roads Authority & 36 others
    (2016) eKLR
  • Pastoli v Kabale District Local Government Council & others
    (2008) EA 300
  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission and 3 others
    (2013) eKLR
  • Republic v National Land Commission & 2 others ex parte Archdiocese of Nairobi Kenya Registered Trustees (St Joseph Mukasa Catholic Church Kahawa West)
    (2018) eKLR
  • Republic vs Attorney General & another ex parte Waswa & 2 others
    (2005) 1 KLR 280
  • R v Devon County Council ex parte P Baker
    (1955) 1 All ER
  • Kingdom Kenya 01 Limited v the District Land Registrar, Narok & Fifteen (15) others
    [2018] eKLR
  • Commissioner of Lands v Hotel Kunste
    [1997] eKLR
  • David Mugo t/a Manyatta Auctioneers v Republic – Civil Appeal No 265 of 1997 (UR)
  • Zakayo Michubu Kibwange v Lydia Kagina Japheth and 2 others
    [2014] eKLR
  • Nightshade Properties Ltd vs National Land Commission & 3 others
    (2021) eKLR
  • Republic v National Land Commission & 2 others ex parte Samuel M N Mweru & 5 others
    (2018) eKLR
  • Stanley Munga Githunguri vs National Land Commission
    (2016) eKLR
  • Dupoto Farms Limited v Kenya Electricity Transmission Company Limited & 121 others
    [2021] eKLR
Jurisdiction invoked
Order 53 Rules 3 and 4 of the Civil Procedure Rules (judicial review jurisdiction); Articles 40, 47 and 23 of the Constitution of Kenya, 2010 invoked in the reliefs sought

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Bidding and Lots Investment Limited v National Land Commission & 2 others; Republic (Exparte) (Judicial Review Miscellaneous Application E005 of 2021) [2022] KEELC 2182 (KLR)", Case Analysis (2022). null (not stated in the judgment provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2182/eng@2022-05-05

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