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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Petition met the constitutional petition threshold (Anarita Karimi Njeru precision)
The Petition met the threshold; the violation of the right to prompt and full compensation was pleaded with precision and substantiated.
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.
Whether the 2nd Respondent (Nairobi City County) was liable despite not being party to the consent and decree
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acquired for the benefit of its predecessor, the Nairobi City Council, within the definition of a public body under the repealed Land Acquisition Act.
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.
Whether the Petition was barred by res judicata by virtue of Judicial Review Misc. Application No. 443 of 2018
Res judicata did not apply because the prior judicial review application was an execution proceeding, not a determination of a dispute between the parties.
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.
Legal principles established
#- 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
#- 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.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.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.The Respondents to pay the costs of the Petition
- Jurisdiction invoked
- Articles 40, 47, 35, 27, 28 and 43 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.