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ELCPartially Allowed· [2023] KEELC 609 (KLR)

Hiuhu v National Land Commission & another (Environment & Land Case E219 of 2021) [2023] KEELC 609 (KLR)

Environment and Land Court
31 January 2023
2,230 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner whose property was taken beyond the gazetted acquisition boundary won damages of KES 2 million, but full compensation must go through the Land Acquisition Tribunal.

What this practically means

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Executive summary

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The Plaintiff, owner of L.R No. Sigona/700 (approx. 0.08ha), sued the 1st and 2nd Defendants after Gazette Notice No. 2533 of 16 March 2018 declared the intention to compulsorily acquire part of his land for the James Gichuru–Rironi road expansion. He was paid Kshs. 41,166,700/- as compensation for 0.0223Ha, but surveyors placed beacons over 0.031Ha, encroaching on his block of flats and rendering it inhabitable. The Plaintiff sought a permanent injunction, declarations that the encroachment violated his right to property and was illegal, compensation per a valuation report valuing 0.031Ha at approximately Kshs. 77 million, damages and costs. The 1st Defendant filed no defence and called no witness; the 2nd Defendant filed a defence but called no witness. The court found the Plaintiff's ownership and the encroachment beyond the gazetted portion proved on uncontroverted evidence, holding his right to property violated. Relying on Article 40(3) and the Land Act, the court held that compensation disputes in compulsory acquisition must first go to the Land Acquisition Tribunal, and declined to award compensation per the private valuation report, the court not being informed whether the Tribunal had been constituted. However, it awarded general damages of Kshs. 2,000,000/=, guided by Muchene v Attorney General. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Plaintiff proved ownership of the suit property and the extent of the encroachment

Holding

The court found the Plaintiff is the owner of L.R No. Sigona/700 and that the Defendants encroached 0.031Ha instead of the gazetted 0.0223Ha, violating his right to property

Reasoning

The Plaintiff testified with a witness statement and documents; a surveyor (PW2) found the beacons encroached on the remainder; a valuer (PW3) valued the acquired portion and improvements. The 1st Defendant filed no defence and called no witness; the 2nd Defendant filed a defence but called no witness. The claim of encroachment beyond the gazette notice was therefore uncontroverted and proved to the required standard.

p. 4
02

Whether the court could order compensation per the Plaintiff's private valuation report

Holding

No - disputes relating to compulsory acquisition must, in the first instance, be referred to the Land Acquisition Tribunal under the Land Act, and the court could not grant that relief

Reasoning

Section 133C(6) of the Land Act requires matters relating to compulsory acquisition to be referred first to the Land Acquisition Tribunal, which may confirm, vary or quash NLC decisions, with appeal to the court on questions of law only. Since the court was not informed whether the Tribunal had been constituted, the compensation award per the valuation report could not be granted at that stage.

p. 4
03

Whether the Plaintiff was entitled to general damages

Holding

Yes - the court awarded Kshs. 2,000,000/= in general damages for the violation, being guided by Muchene v Attorney General

Reasoning

The Plaintiff's evidence that improvements (a block of flats) were rendered inhabitable by the 0.031Ha acquisition, and that the 1st Defendant had carried out demolitions, was uncontroverted. Guided by Muchene v Attorney General and the circumstances necessitating the suit, the court awarded general damages of Kshs. 2,000,000/=.

p. 5

Legal principles established

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  • Compensation for compulsorily acquired land must be prompt, in full and just, equating restitution
  • Uncontroverted evidence stands proved; a party that fails to file a defence or call witnesses cannot defeat a claim

Court orders

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  1. 1.A declaration that the Plaintiff's right to property has been violated by the Respondents' acts of encroachment, trespass, damage and expropriation of L.R No. Sigona/700
  2. 2.The 1st Respondent directed to conduct a survey, inspection and valuation in respect of LR No. Sigona/700 within 60 days
  3. 3.General damages awarded to the Plaintiff in the sum of Kshs. 2,000,000/=
  4. 4.Each party to bear own costs of the suit
  5. 5.Parties be at liberty to apply where appropriate

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(3)
  • Constitution of Kenya, 2010Article 67
  • Land Act (2012)Part VIII, Sections 107, 111(1), 127, 128, 133A, 133C, 133D, 148(5)
  • Land Value (Amendment) Act 2019Section 133A (as amendment establishing Land Acquisition Tribunal)
  • Civil Procedure ActSection 27

Cases cited (4)

  • Patrick Musimba v National Land Commission & 4 others
    [2016] eKLR
  • Horn v Sunderland Corporation
    [1941] 2 KB 26
  • Director of Buildings and Lands v Shun Fung Wouworks Ltd
    [1995] AC 111
  • Muchene (the sole Executrix of the Estate of George Muchene Kirumba) v Attorney General & 4 Others
    (Environment & Land Petition 14 of 2017) [2022] (Judgment)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; compensation for compulsory acquisition under Article 40(3) of the Constitution and the Land Act, Part VIII

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, "Hiuhu v National Land Commission & another (Environment & Land Case E219 of 2021) [2023] KEELC 609 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/609/eng@2023-01-31

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