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ELCDismissedConstitutional Petition E001 of 2021· [2023] KEELC 15999 (KLR)

Stephen Mbugua Gituthi & 37 others v National Land Commission & 2 others

Environment and Land Court
23 February 2023
16,359 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~65 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld the compulsory acquisition of land for a water pipeline, ruling the process followed the law and compensation was fair.

What this practically means

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Executive summary

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Thirty-eight petitioners, owners or occupiers of land in Murang'a and Kiambu Counties, challenged the compulsory acquisition of their properties and improvements for the Northern Collection Water Pipeline project via Gazette Notice No 8479 of October 16, 2020, seeking declarations that the acquisition was ultra vires, quashing of the notice, and special damages as just compensation with interest. The acquisition followed a 2019 judgment in Murang'a ELC Petition No 5 of 2018 which had declared the earlier wayleave process ultra vires and prohibited vesting of the wayleave unless due process was followed and prompt just compensation paid; the 2nd Respondent's CEO had been convicted of contempt. The Respondents contended the impugned notice was a corrigendum issued in compliance with that judgment, that inquiries and awards were lawfully conducted, and that the petition was res judicata and an abuse of process. The court framed five issues. It held the petition was not res judicata: the parties differed (the Attorney General was new), the cause of action concerned compulsory acquisition rather than wayleave creation, and the earlier conditional judgment contemplated a repeat of the process. It was also not an abuse of process, satisfying the Anarita Karimi Njeru precision test. On the merits, the court found the acquisition was for a public purpose, gazetted under Section 107 of the Land Act, with inquiries under Section 112 and awards under Section 113 issued within two months, constituting prompt and just compensation under Article 40(3); rejection of the awards did not illegitimatise the process. No trespass was established, possession being justified under Section 120(2). The petition was dismissed entirely with each party bearing its own costs as a public interest case.

Key legal issues

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01

Res judicata vis-à-vis Murang'a ELC Petition No 5 of 2018

Holding

The Petition is not res judicata; the cause of action (compulsory acquisition under Gazette Notice No 8479) differs from the earlier challenge to creation of a wayleave, and the earlier judgment contemplated a repeat of the process

Reasoning

Applying the John Florence Maritime elements, the court found the parties not identical (the Attorney General was new), the cause of action different (compulsory acquisition vs wayleave creation), and the earlier orders conditional, leaving the process to be repeated. Hence Section 7 of the Civil Procedure Act was not offended.

02

Abuse of court process and precision of pleadings

Holding

The Petition was not frivolous, vexatious or an abuse of process; it met the Anarita Karimi Njeru precision test

Reasoning

The Petitioners pleaded the factual background and identified with reasonable precision the Articles of the Constitution alleged to have been violated. Serious constitutional allegations required the Respondents to answer, and the burden lay on the Petitioners to prove the contraventions.

03

Whether the second-phase acquisition under Gazette Notice No 8479 conformed to the Constitution and the Land Act

Holding

It did conform: the acquisition was for a public purpose, gazetted under Section 107, inquiries were held under Section 112 and awards issued under Section 113

Reasoning

The court held the earlier gazette notices were not quashed, and Gazette Notice No 8479 was issued in compliance with the 2019 judgment which required due process and prompt just compensation. The laying of water pipes was a public interest purpose satisfying Article 40(3), and the statutory steps were followed.

04

Whether compensation was prompt and just

Holding

Awards made on December 15, 2020, within two months of the gazette notice, were prompt and just; no breach of constitutional right was proved

Reasoning

The Commission adhered to Sections 112(2) and 113(1) of the Land Act, considered the parties' materials including the Zam Consult valuation, and determined the awards. The court applied the principle of equivalence from Ketra James Issa and the public-treasury protection reasoning in Patrick Musimba.

05

Trespass despite prohibitory orders

Holding

No trespass was established; possession was taken under Section 120(2) of the Land Act given the urgent necessity of the time-bound project

Reasoning

The prohibition order only barred vesting of the wayleave unless due process was followed and compensation paid. Once the compulsory acquisition process commenced and the Commission allowed possession under Section 120(2), entry onto the land was lawful and the Petitioners knew pipelines were being laid.

Legal principles established

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  • A judgment that leaves the acquisition process to be repeated upon compliance with due process does not conclude the issue of acquisition, so a later challenge to the fresh process is not res judicata
  • Rejection of compensation awards by affected persons does not illegitimatise a compulsory acquisition process otherwise conducted in accordance with the law
  • Compulsory acquisition satisfies Article 40(3) where it is for a public purpose and conducted in accordance with the Constitution and the Land Act, including gazettement, inquiries and awards

Court orders

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  1. 1.The Petition is disallowed and dismissed entirely
  2. 2.Each of the parties shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3)(e), 27, 35, 40, 47, 48, 50(1), 60(1)(b), 65, 67, 232, 249, 259
  • Land Act, No 6 of 2012Sections 107, 107A, 110, 112, 112(2), 113, 113(2), 120(1), 120(2), 121, 126, 143, 144, 149, 162(2), Part VIII
  • Civil Procedure ActSection 7
  • National Land Commission Act, No 5 of 2012general
  • Land Registration Act, No 3 of 2012Section 28(e)
  • Land Value (Amendment) Act, 2019Section 107A(1)
  • Public Finance Management Actgeneral
  • Land Acquisition Act (repealed), Chapter 295 Laws of KenyaSection 113
  • Land (Assessment of Just Compensation) Rules, 2017general

Cases cited (13)

  • John Florence Maritime Services Ltd & Another vs Cabinet Secretary Transport & Infrastructure & 3 Others
    Pet No 17 of 2015 (2021) KESC 39 (KLR)

    Elements of res judicata that must be demonstrated before the doctrine is invoked

  • Anarita Karimi Njeru vs Republic
    (1979) eKLR

    Precision required in pleading constitutional violations

  • Patrick Musimba vs National Land Commission & 4 others
    (2016) eKLR

    Procedure of compulsory acquisition; parameters of just compensation; taking of possession

  • Machareus Obaga Anunda vs Kenya Electricity Transmission Co. Ltd
    (2015) eKLR

    Prompt payment of just compensation is a constitutional imperative before entry onto land

  • Ngugi Mbugua vs Chairman of National Land Commission & 3 others
    (2021) eKLR

    Failure to produce counter valuation renders award unverifiable and not just

  • Gami Properties Ltd vs National Land Commission
    (2017) eKLR

    Right to written reasons for administrative action affecting property under Article 47(2)

  • Omar R. Yakin & Another vs the AG
    (2021) eKLR

    Disregard of court order and demolition of structures was unlawful

  • Dominic Mbugua Wainaina & another vs National Land Commission & 2 others
    (2019) eKLR

    Damages for trespass and aggravated damages

  • Veronicah Waithira; Trustee of Inter Christian Churches and 3 Others vs Kenya National Highway Authority
    (2014) eKLR

    State's power of eminent domain; compulsory acquisition as overriding interest

  • Stanley Munga Githunguri vs National Land Commission
    ELC Appeal No 70 of 2015

    Section 113 award as conclusive evidence of size, value and compensation payable

  • Ketra James Issa vs AG & 3 others
    (2018) eKLR

    Compensation quantified on the principle of equivalence

  • John Peter Mwangi Kagira vs National Land Commission & Another
    (2021) eKLR

    Compliance with court orders in repeating acquisition process despite explained delay

  • Muchanga Investment Ltd vs Safaris Unlimited (Africa) Ltd & 2 Others
    Civil Appeal No 25 of 2002; [2009] KLR 229

    Meaning of abuse of court process

Jurisdiction invoked
Articles 23, 40, 47, 50 and 258 of the Constitution (constitutional petition for violation of fundamental rights); Land Act, 2012

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, "Stephen Mbugua Gituthi & 37 others v National Land Commission & 2 others", Case Analysis (2023). Constitutional Petition E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15999/eng@2023-02-23

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