Engen Kenya Limited (Now known as Vivo Marketing Kenya Limited) v National Land Commission
The bottom line
#A Kenyan court struck out Engen's bid for Kshs 129 million compensation because its land title had been cancelled and it couldn't prove business losses.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the appeal
The appeal was filed within time, computed from the Appellant's communication of rejection of the revised Award in February 2021
The court noted the Appellant was presented with the revised Award and communicated rejection on 22nd February 2021, then filed the Memorandum of Appeal on 19th March 2021, within the thirty days prescribed by the ELC Act. The preliminary objection on limitation therefore failed.
Validity of the initial Award of Kshs 129,760,767 and entitlement to compensation
The Appellant could not rely on the initial Award because the lease was anchored on a title declared null and void, and the Appellant was found in the Tinek case not entitled to compensation
Justice Angote in Tinek Limited declared the titles including LR Nos 337/3821-3838 null and void and held the interested parties, including the Appellant, not entitled to compensation. The Appellant's lease therefore could not ground a claim for the initial Award, and the revised Award could not be set aside on the basis of a cancelled root title.
Proof of loss of business
The Appellant failed to discharge the burden of proving profits as required under Sections 107 and 108 of the Evidence Act
Despite insisting on compensation for loss of business, the Appellant only attached the Lease Agreement, two Awards and photographs, but no statement of account indicating profits. The Respondent indicated willingness to reassess the Award if the Appellant furnished statements of accounts and proof of profits, and the court directed the Appellant to present its evidence before the Land Acquisition Tribunal.
Forum for compulsory acquisition disputes
Compulsory acquisition disputes must in the first instance go to the Land Acquisition Tribunal under the Land Value Amendment Act 2019
Sections 133A and 133C(6) of the Land Value Amendment Act 2019 vest first-instance jurisdiction over compulsory acquisition matters in the Land Acquisition Tribunal, with appeals to the ELC on questions of law. The court took judicial notice that the Tribunal is established but not yet fully operational.
Legal principles established
#- Disputes emanating from compulsory acquisition should in the first instance be referred to the Land Acquisition Tribunal, with appeals to the ELC on questions of law
- The burden of proving profits for loss-of-business compensation lies on the claimant under Section 107 of the Evidence Act
Court orders
#- 1.The Appeal is struck out as unmerited
- 2.No order as to costs
- On appeal from
- National Land Commission
- Jurisdiction invoked
- Appeal from an Award of Compensation by the National Land Commission pursuant to Section 113(1) of the Land Act 2012, filed in the Environment and Land Court under the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Engen Kenya Limited (Now known as Vivo Marketing Kenya Limited) v National Land Commission", Case Analysis (2023). Environment and Land Appeal E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18281/eng@2023-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.