Bidding and Lots Investment Limited v National Land Commission & 2 others; Republic (Exparte) (Judicial Review Miscellaneous Application E005 of 2021) [2022] KEELC 2182 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the National Land Commission's downward revision of the initial compensation awards was lawful and procedurally fair
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.
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.
Whether the 1st Respondent was functus officio after issuing the initial awards
No; the Commission is not a court of competent jurisdiction and was not functus officio when it revised the awards following the EACC recommendation.
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.
Whether judicial review is the appropriate forum to challenge the quantum of the revised awards
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.
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.
Whether the 2nd Respondent (KeNHA) bore any liability for the revaluation
No; KeNHA was an implementing agency and the determination and variation of compensation awards is the mandate of the 1st Respondent.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 29th March, 2021 is found unmerited and is struck out
- 2.Each party will bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Paul Njoroge Waweru v National Land Commission & 3 Others[2024] KEELC 6913 (KLR)16 Oct 2024
Cite this brief
#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.