Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (amended memorandum of appeal filed July 7, 2021)· [2022] KEELC 3185 (KLR)

Salim & 2 others v National Land Commission & another (Environment and Land Appeal 21 of 2021) [2022] KEELC 3185 (KLR)

Environment and Land Court
9 May 2022
7,644 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

#

Landowners lost a bid to double their compensation because they never gave KeNHA 30 days' written notice before suing, and skipped presenting their valuation at the inquiry.

What this practically means

#

Executive summary

#
The appellants, registered owners of land parcel MN/VI/1803, appealed to the Environment and Land Court at Mombasa against an award of Kshs 29,275,130 made by the National Land Commission on May 29, 2019 as compensation for the compulsory acquisition of the parcel for the dualling of the Magongo Road/Airport Access Road by KeNHA. They sought enhancement to Kshs 62,000,000 based on a private valuation by Musyoki & Associates, contending that the award ignored developments on the land and that due process in valuation was not followed. KeNHA raised a preliminary objection that the appeal was fatally defective for non-compliance with section 67(1)(a) of the Roads Act, 2007, which requires at least thirty days' written notice to the Director-General before suing the Authority. The court framed four issues. It upheld the objection, holding that the notice requirement is couched in mandatory terms and had not been declared unconstitutional, and that the appellants gave no such notice. Nonetheless, the court went on to consider the merits: the acquisition process was lawful, with proper gazette notices and an inquiry held on November 15, 2018; the appellants did not present their private valuation at the statutory inquiry under section 112 of the Land Act; and the NLC award, which included land value, improvements and a 15% disturbance allowance, was final and conclusive under section 113(2) and conformed to the constitutional principle of prompt, full and just compensation under article 40(3). The amended memorandum of appeal was dismissed with costs to the 2nd respondent.

Key legal issues

#
01

Whether the preliminary objection on non-compliance with section 67(1)(a) of the Roads Act was merited

Holding

It was merited; the appellants gave no notice to the Director-General before instituting proceedings

Reasoning

The court adopted the Mukisa Biscuits test that a preliminary objection raises a pure point of law. Section 67(1)(a) of the Roads Act requires at least one month's written notice before commencing proceedings against KeNHA. The word 'shall' makes it mandatory. The appellant did not comply, and the provision had not been declared unconstitutional, so the appeal had to fail.

p. 6
02

Whether the compulsory acquisition process was lawful

Holding

It was lawful; all statutory notices were issued and the inquiry was held

Reasoning

The gazette notices of intention to acquire and of inquiry were published and served; the inquiry was held on November 15, 2018 at Changamwe Deputy County Commissioner's offices. The appellants did not allege breach of any specific provision of Part VIII of the Land Act, and their awareness and involvement in the process was confirmed by the exhibits.

p. 13
03

Whether the award of Kshs 29,275,130 was adequate just compensation

Holding

The award was just, prompt, adequate and fair and the court declined to disturb it

Reasoning

Compensation is governed by article 40(3) of the Constitution and the principle of equivalence. The private valuation of Kshs 62,000,000 by Musyoki & Associates was never presented at the statutory inquiry under section 112 of the Land Act, where it belonged, and may have been tailored to support the claim. The NLC award, based on land value, improvements and 15% disturbance allowance, was final under section 113(2).

p. 13

Legal principles established

#
  • Proceedings against the Kenya National Highways Authority cannot be commenced without at least one month's written notice to the Director-General under section 67(1)(a) of the Roads Act
  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • An NLC compensation award following a duly-concluded inquiry is final and conclusive under section 113(2) of the Land Act
  • Just compensation for compulsory acquisition is based on the principle of equivalence - the owner neither enriched nor impoverished

Court orders

#
  1. 1.That the process and the actual compulsory acquisition of the parcel of land belonging to the appellant was lawful, procedural and the award offered was just, prompt, adequate and fair compensation
  2. 2.That the preliminary objection dated November 5, 2021 raised by the 2nd respondent is meritorious and succeeds on grounds that it raises pure issues of law
  3. 3.That the amended memorandum of appeal dated June 30, 2021 be and is hereby dismissed with costs to the 2nd respondent
Jurisdiction invoked
Sections 113 and 128 of the Land Act, No. 6 of 2012 (reference/appeal against compensation award)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salim & 2 others v National Land Commission & another (Environment and Land Appeal 21 of 2021) [2022] KEELC 3185 (KLR)", Case Analysis (2022). Not stated in judgment (amended memorandum of appeal filed July 7, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3185/eng@2022-05-09

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