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ELCAllowedPetition dated 18th May 2022 (ELC, Nairobi)· [2024] KEELC 1076 (KLR)

Mwangi & 33 others (Petitioning on their Behalf and on Behalf of 106 others) v National Land Commission & another (Environment & Land Petition E018 of 2022) [2024] KEELC 1076 (KLR)

Environment and Land Court
29 February 2024
6,072 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Nairobi's Environment and Land Court ordered the National Land Commission and Nairobi City County to pay 23 landowners Kshs 113.6 million plus 30-plus years of interest for the Ndakaini dam land acquired in 1989.

What this practically means

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Executive summary

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The 23 Petitioners sought declarations and mandamus orders compelling the National Land Commission (1st Respondent) and Nairobi City County Government (2nd Respondent) to compensate them for land compulsorily acquired in 1989 for the construction of the Ndakaini Dam in Muranga County. The awards in High Court Land Acquisition Appeals HCLAA No. 1 to 84 of 1989 were enhanced by consent on 6th July 1990, but save for a decree of Kshs. 3,448,234.16 executed by the 18th to 23rd Petitioners in Judicial Review Misc. Application No. 443 of 2018, the agreed compensation of approximately Kshs. 113,659,911.04 was never paid. The 1st Respondent disclaimed liability, arguing the obligation lay with the acquiring body which never deposited compensation funds; the 2nd Respondent denied privity to the consents and decree and faulted the Petition for lack of precision. The court, A. Omollo J, applied the Anarita Karimi Njeru threshold and held the Petition was pleaded with sufficient precision: non-payment for over thirty years violated Articles 40(3) and 47. The 2nd Respondent was liable because the land was acquired for the benefit of its predecessor, the Nairobi City Council, within the meaning of the repealed Land Acquisition Act; non-privity to the consent was no defence. The res judicata objection failed because Misc. App. 443 of 2018 was an execution application, not a determination of the dispute. Judgment was entered for the Petitioners with declarations of infringement of Articles 40, 47, 35, 27, 28 and 43, mandamus to pay Kshs. 113,659,911.04 with interest at court rates from 6th July 1990 until payment in full, and costs against the Respondents.

Key legal issues

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01

Whether the Petition met the constitutional petition threshold (Anarita Karimi Njeru precision)

Holding

The Petition met the threshold; the violation of the right to prompt and full compensation was pleaded with precision and substantiated.

Reasoning

The court found it undisputed that the Petitioners' lands were compulsorily acquired by the predecessor of the 1st Respondent and that enhanced awards were made by consent in 1990 but never paid. Non-payment for over thirty years was a clear violation of Article 40(3), and the denial of responsibility by each Respondent evidenced breach of Article 47 fair administrative action. The claim was precise as to amounts and rights.

p. 8
02

Whether the 2nd Respondent (Nairobi City County) was liable despite not being party to the consent and decree

Holding

The 2nd Respondent was liable as the land was acquired for the benefit of its predecessor, the Nairobi City Council, within the definition of a public body under the repealed Land Acquisition Act.

Reasoning

Section 2 of Cap 295 defined a public body broadly, and section 6 authorised acquisition for a public body's purposes. The land was acquired to supply water to Nairobi residents. Correspondence showed the 2nd Respondent was aware of the claims before the Petition; if it wished to share liability with other public bodies it could have joined them. Non-privity to the consent did not exempt it.

p. 9
03

Whether the Petition was barred by res judicata by virtue of Judicial Review Misc. Application No. 443 of 2018

Holding

Res judicata did not apply because the prior judicial review application was an execution proceeding, not a determination of a dispute between the parties.

Reasoning

The Misc. App. 443 of 2018 was filed in execution of the decree in HCCA 42 of 1989 and concerned compliance with section 21 of the Government Proceedings Act. It did not determine the underlying dispute. Each Petitioner holds an individual award under the consent, and each has an independent right of execution that cannot be barred because some Petitioners already commenced execution.

p. 10

Legal principles established

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  • Where land has been compulsorily acquired for the benefit of a public body, that body is liable to pay the compensation decree even if it was not party to the consent or decree fixing the enhanced awards.
  • The National Land Commission, as successor to the Commissioner of Lands, retains an administrative duty to pursue release of compensation funds and cannot be removed from liability until the matter is concluded.
  • Execution of a decree by some judgment-creditors is not barred by res judicata against other judgment-creditors who hold individual awards under the same consent.

Court orders

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  1. 1.A declaration that the failure by the 1st and 2nd Respondents to compensate the Petitioners for their lands compulsorily acquired for the Ndakaini dam is an infringement of the Petitioners' rights under Articles 40, 47, 35, 27, 28 and 43 of the Constitution
  2. 2.An order of Mandamus by way of Judicial Review compelling the 1st and 2nd Respondents to pay the Petitioners an aggregate sum of Kes. 113,659,911.04/= being the agreed compensation
  3. 3.An order of Mandamus compelling the 1st and 2nd Respondents to pay the agreed compensation together with interest at court rates pursuant to Section 26 of the Civil Procedure Act and Section 117 of the Land Act from 6th July 1990 until payment in full
  4. 4.The Respondents to pay the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 35, 40, 40(3), 43, 47; Section 33 of the Sixth Schedule
  • Land Act No. 6 of 2012Sections 107, 111(1), 117, 125
  • Land Acquisition Act Cap 295 (repealed)Sections 2, 6, 7-11, 8, 16; Paragraph 4 of the Schedule
  • Civil Procedure ActSection 26
  • Interpretation and General Provisions ActSection 23(3)(b) to (e)
  • Government Proceedings Act Cap 40Section 21

Cases cited (9)

  • Mohamed Mire v Attorney General & another
    [2016] eKLR
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 Others
    Civil Appeal No 234 of 1996; (1997) eKLR
  • Patrick Musimba v National Land Commission & 4 others
  • Five Star Agencies Ltd v National Land Commission
    NBI ELC. Case No. 445 of 2014 [2014] eKLR
  • Republic v National Land Commission & 2 Others Ex-Parte Samuel M. N. Mweru & 5 Others
  • Anarita Karimi Njeru vs. The Republic
    [1976-1980] KLR 1272
  • Mumo Matemo v Trusted Society of Human Rights Alliance
    [2013] eKLR
  • Republic vs. Town Clerk of Webuye County Council & Another
    HCCC 448 of 2006
  • Mwangi Mweru & 5 others Vs. The Commissioner of Lands
    HC Misc. No. 443 of 2018 - Nairobi
Jurisdiction invoked
Articles 40, 47, 35, 27, 28 and 43 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwangi & 33 others (Petitioning on their Behalf and on Behalf of 106 others) v National Land Commission & another (Environment & Land Petition E018 of 2022) [2024] KEELC 1076 (KLR)", Case Analysis (2024). Petition dated 18th May 2022 (ELC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1076/eng@2024-02-29

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