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ELCAllowedCivil Suit 50 of 2021· [2022] KEELC 13704 (KLR)

Waita v National Land Commission & another

Environment and Land Court
29 September 2022
LNL.L Naikuni
7,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ordered the National Land Commission to pay a businessman Kshs. 33.4 million for demolishing his club before compensating him.

What this practically means

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Executive summary

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The plaintiff, Stephen Mbaiki Waita, operated Magongo Day & Night Club on Plot No. MN/VI/2519, Mombasa, having taken over the business from his father in 1992. The National Land Commission compulsorily acquired the plot for construction of the Magongo and Oil Refinery Road and, following an inquiry, issued the plaintiff two awards dated April 15, 2019 totalling Kshs. 33,450,450 for structures and loss of business. Demolition proceeded without payment. KenHA remitted the compensation to NLC's account in October 2020, but NLC never paid the plaintiff nor explained the delay. The defendants did not participate; interlocutory judgment was entered against the 1st Defendant and the suit proceeded to formal proof on April 5, 2022. Framing three issues, the court traced the compulsory acquisition framework under Article 40(3) of the Constitution and Sections 107-133 of the Land Act, holding that just compensation must be prompt, full and paid before possession. It found the defendants' three-year non-payment callous, outrageous and insensitive, a violation of the plaintiff's constitutional property rights. Judgment was entered for the plaintiff in totality: declarations that the demolition without payment was unconstitutional and void, entitlement to the award sums payable within 30 days, a permanent injunction against demolition before payment, a mandatory order compelling NLC to pay, general and exemplary damages, interest at 14% court rate, and costs against both defendants jointly and severally.

Key legal issues

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01

Compliance of compulsory acquisition with constitutional and statutory requirements

Holding

The acquisition process was duly initiated and an award issued, but non-payment of the award for over three years violated Article 40(3) and the Land Act

Reasoning

The court traced the statutory framework under Sections 107-133 of the Land Act and Article 40(3) of the Constitution, finding the plaintiff was an interested person entitled to compensation for structures and loss of business. The NLC issued awards but failed to pay despite KenHA having remitted the funds to NLC's account, a dereliction of statutory duty.

p. 12
02

Entitlement to the reliefs sought

Holding

The plaintiff established his case on a preponderance of probability and was entitled to all reliefs sought

Reasoning

Both defendants admitted the plaintiff's entitlement to compensation; KenHA transferred the compensation to NLC's account in October 2020, yet NLC withheld payment without explanation. The court found the conduct callous, outrageous and insensitive, warranting declarations, a mandatory order, injunction, damages and interest.

p. 11
03

Costs

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful plaintiff is awarded costs against both defendants

Reasoning

The court applied the settled principle that costs are discretionary and follow the result of the action. Having succeeded in demonstrating entitlement to all reliefs, the plaintiff was granted costs against the 1st and 2nd Defendants.

p. 12

Legal principles established

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  • Just compensation for compulsory acquisition must be prompt, in full and paid before possession is taken
  • Courts must remain vigilant against abuse of statutory expropriation powers

Court orders

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  1. 1.Judgment entered against the 1st and 2nd Defendants jointly and severally with costs
  2. 2.Declaration that demolition of the plaintiff's structures and disruption of his business on Plot No. MN/VI/2519 without payment of the award sums (total Kshs. 33,450,450) is unconstitutional, contrary to the Land Act, No. 3 of 2012 and Article 40(1), (2) & (3) of the Constitution, null and void
  3. 3.Declaration that the plaintiff is entitled to payment of Kshs. 27,870,450 and Kshs. 5,580,000 (total Kshs. 33,450,450) per the awards dated 15th April 2019, payable within thirty (30) days
  4. 4.Permanent injunction restraining the 2nd Defendant from demolishing the plaintiff's business structures known as Magongo Day & Night Club on Plot No. MN/VI/2519 before payment of the awards
  5. 5.Mandatory order against the 1st Defendant to pay the plaintiff the award sums within thirty (30) days
  6. 6.General and exemplary damages granted to the plaintiff
  7. 7.Interest at 14% court rate on the award sum until payment in full
  8. 8.Costs of the suit awarded to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1), (2) and (3); Article 10; Article 159(1) and (2)
  • Land ActSections 107-133, 107(2), 107(3), 107(5), 107(8), 108, 110(1), 111, 112, 112(2), 112(5), 113, 114, 119, 120-122, 125, 142(2)
  • Land RegulationsPart V
  • Civil Procedure ActSection 27(1)
  • Civil Procedure Rules, 2010Order 10 Rule 4 and 10
  • Repealed Constitution of KenyaSection 75

Cases cited (6)

  • Viranda Ramji Gudka & 3 Others v The AG
    [2014] eKLR

    Framework governing compulsory acquisition of interests in land

  • Nas Auto Spares v Land Acquisition & Compensation Tribunal & 2 Others
    [2015] eKLR

    NLC's due diligence duty to verify suitability of land for the intended purpose

  • Patrick Musimbi v National Land Commission & 4 Others
    Petition No. 613 of 2014 [2014] eKLR

    Meaning of just compensation; courts must scrutinise expropriation carefully

  • Joseph Ihungo Mwaura & Others v The AG & Others
    [2012] eKLR (Nbi)

    Right to property not created by the Constitution; proprietary interest must be established

  • Horn v Sunderland Corporation
    [1941] 2 KB 264

    Compensation must fully make up the loss of the person whose land is taken

  • Thomas Kimagut Sambu v National Land Commission & 2 others
    Kericho ELC Case No. 5 of 2017

    NLC's conduct in compulsory acquisition condemned; compensation payable promptly before taking possession

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Constitution and the Land Act, 2012 (compulsory acquisition and compensation claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Waita v National Land Commission & another", Case Analysis (2022). Civil Suit 50 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13704/eng@2022-09-29

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