Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironmental and Land Originating Summons 152 of 2018· [2023] KEELC 17273 (KLR)

Barclays Bank of Kenya Limited v National Land Commission & another

Environment and Land Court
10 May 2023
SKS M Kibunja
3,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Barclays Bank lost its bid for higher compensation for land taken for a highway because its own valuation evidence was outdated, inaccurate and unreliable.

What this practically means

#

Executive summary

#
Barclays Bank of Kenya sued the National Land Commission and KeNHA by originating summons under section 128 of the Land Act, seeking to set aside an award of Kshs 68,541,182 made on June 4, 2018 for the compulsory acquisition of 0.0937 hectares of its Changamwe branch property for the Mombasa/Nairobi highway dual carriageway, and claiming Kshs 132,050,000 with interest at 14%. The bank argued it was never personally notified of the February 6, 2018 public inquiry as required by section 112(1)(b), and that the award was a global figure that failed to particularise land value, improvements and the 15% disturbance allowance. Both defendants maintained the acquisition followed Part VIII of the Land Act, that the acreage error in the first gazette notice was corrected, and that the award was based on a proper valuation. The court found the bank had notice of the acquisition and, through its own correspondence, of the corrected gazette notice and inquiry. The bank's Tysons Limited valuation was found unreliable: it was dated March 10, 2015, predated the acquisition notices and any beacons, used the wrong acreage of 0.0969 hectares, and included a warehouse outside the acquired portion. The court held the NLC was wrong not to give reasons for its award but that this alone did not justify disturbing a reasonable award. The suit was dismissed with costs to the defendants.

Key legal issues

#
01

Compliance with the Land Act in compulsory acquisition

Holding

The defendants substantially complied; the plaintiff had notice of the intention to acquire and of the public inquiry through Gazette Notice No 176 of January 12, 2018 and its own correspondence

Reasoning

The plaintiff admitted knowledge of the first gazette notice and had engaged the NLC on acreage. Its own email of February 27, 2018 referenced the corrected gazette notice and awaited the award, contradicting its claim of non-notification of the inquiry.

02

Whether the award should be set aside as inadequate

Holding

No; the plaintiff's rival valuation was unreliable - prepared in 2015 before the acquisition process, on the wrong acreage (0.0969 instead of 0.0937 hectares) and including a warehouse outside the acquired portion

Reasoning

The Tysons report predated the gazette notices and any beacons on the ground. Its land value implied Kshs 146,000,000 per acre against a local market of about Kshs 70,000,000. The NLC valuation of Kshs 68,541,182 was nearer a defensible quarter-acre value.

03

Failure to give reasons for the award

Holding

The NLC was wrong not to provide reasons for the award, but this alone did not justify interfering with a reasonable award

Reasoning

The court found, following Ravaspaul Kyalo Mutisya v National Land Commission, that the omission was an error, but since the NLC valuation report was before the court and appeared reasonable, the failure was not independently fatal to the award.

Legal principles established

#
  • Failure by the National Land Commission to give reasons for its award is not on its own sufficient ground to interfere with an otherwise reasonable award
  • A claimant seeking to displace a statutory compensation award must prove its counter-valuation to the balance of probabilities

Court orders

#
  1. 1.The plaintiff has failed to prove its case against the defendants to the standard required of balance of probabilities and the suit is hereby dismissed
  2. 2.The plaintiff to pay the defendants costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 40
  • Land Actsections 111(1), 112(1) to (6), 113(2)(a), 128, Part VIII
  • Land (Assessment of Just Compensation) Rules2017
  • Civil Procedure Actsection 27

Cases cited (1)

  • Ravaspaul Kyalo Mutisya v National Land Commission
    [2022] eKLR

    That failure to give reasons for an award is an error, though not necessarily fatal

Jurisdiction invoked
Land Act No. 6 of 2012, section 128 (original jurisdiction of the Environment and Land Court over compulsory acquisition compensation disputes)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Barclays Bank of Kenya Limited v National Land Commission & another", Case Analysis (2023). Environmental and Land Originating Summons 152 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17273/eng@2023-05-10

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