Salim & 2 others v National Land Commission & another (Environment and Land Appeal 21 of 2021) [2022] KEELC 3185 (KLR)
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
#Key legal issues
#Whether the preliminary objection on non-compliance with section 67(1)(a) of the Roads Act was merited
It was merited; the appellants gave no notice to the Director-General before instituting proceedings
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.
Whether the compulsory acquisition process was lawful
It was lawful; all statutory notices were issued and the inquiry was held
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.
Whether the award of Kshs 29,275,130 was adequate just compensation
The award was just, prompt, adequate and fair and the court declined to disturb it
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).
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.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.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.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.