Trans County Developers Limited v National Land Commission & another; Rotich (Applicant) (Environment & Land Case 118 of 2020) [2022] KEELC 3449 (KLR)

Environment and Land Court

11 May 2022

EOE. Obaga

1,442 words in judgment

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The bottom line

Kenya's Environment and Land Court threw out a consent order designed to move Kshs 32.5 million in disputed road compensation, ruling private agreements cannot override the Land Act.

What this practically means

Executive summary

This ruling determined a Notice of Motion dated June 29, 2021 by the 1st defendant (the land-acquiring authority) seeking to stay and lift warrants of arrest issued against its Chief Executive Officer and to set aside a consent order. The underlying suit concerns compensation monies for land compulsorily acquired for the Eldoret Bypass. Although the advertised award was Kshs 32,574,044, the amount remitted and later confirmed was Kshs 2,792,154, and ownership of the acquired portion was disputed between the plaintiff and the 2nd defendant (with Eldoret Hospital also claiming). On February 3, 2021, the plaintiff and 2nd defendant recorded a consent compelling the applicant to deposit Kshs 32,574,044 into a joint advocates' account. On non-compliance, contempt proceedings were allowed and warrants of arrest issued on June 21, 2021. The applicant argued it was never served, that the consent contravened the Land Act and was the product of collusion. The court, applying Flora N. Wasike v Destimo Wamboko, framed two issues: whether the consent should be set aside and whether the warrants should be vacated. Finding collusion in the recording of the consent, and that section 115 of the Land Act required disputed compensation monies to be held in a special compensation account, the court set aside the consent order of February 3, 2021 and vacated the warrants of arrest, with costs of the application to abide the outcome of the main suit.

Key legal issues

Whether the consent order of February 3, 2021 should be set aside

Holding

Yes - it was vitiated by collusion and was contrary to the Land Act.

Reasoning

The court found that the plaintiff and 2nd defendant, disputing ownership of the acquired land, recorded a consent directing deposit of the original award of Kshs 32,574,044 despite the award having been varied to Kshs 2,792,154. The original inflated award suggested an arrangement meant to fleece public funds. The parties could not by consent contract around the clear statutory procedure under section 115 of the Land Act requiring unknown-owner compensation monies to be held in a special compensation account.

p. 3

Whether the warrant of arrest against the applicant's CEO should be vacated

Holding

Yes - the warrants automatically fell with the consent order on which they were founded.

Reasoning

The contempt proceedings rested on the applicant's non-compliance with the consent order of February 3, 2021. Having set aside the consent order as vitiated by collusion and contrary to the Land Act, the basis for the warrants of arrest issued on June 21, 2021 disappeared, and the court vacated them.

p. 4

Legal principles established

A consent order can only be set aside if obtained by fraud or collusion, material non-disclosure, against the policy of the court, or on grounds which would vitiate a contract.
Under section 115 of the Land Act, where the true owner of compulsorily acquired land is unknown, the acquiring authority must keep compensation monies in a special compensation account, and parties cannot by consent defeat that statutory scheme.

Court orders

1.Set aside the consent order made on February 3, 2021 (erroneously stated as February 23, 2021)
2.Vacated the warrant of arrest against the Chief Executive Officer of the applicant issued on June 21, 2021
3.Costs of the application to abide the outcome of the main case

Authorities

Legislation

Land ActSection 115

Cases cited (1)

Flora N. Wasike -vs- Destimo Wamboko
(1988) Eklr

Jurisdiction invoked: Not expressly stated; the court exercised its inherent and statutory jurisdiction over consent orders, execution and contempt within the pending suit

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Trans County Developers Limited v National Land Commission & another; Rotich (Applicant) (Environment & Land Case 118 of 2020) [2022] KEELC 3449 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3449/eng@2022-05-11

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