Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 384 of 2017 (test suit for ELC Nos. 382 of 2017, 383 of 2017 and 454 of 2017)· [2024] KEELC 4090 (KLR)

Kimweli v National Land Commission & another (Environment & Land Case 384 of 2017) [2024] KEELC 4090 (KLR)

Environment and Land Court
22 May 2024
SKS. M. Kibunja
3,835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's land commission must pay SGR-acquired landowners for their land itself, after paying only for developments was ruled unconstitutional.

What this practically means

#

Executive summary

#
The plaintiff sued the National Land Commission (1st defendant) and the Attorney General (2nd defendant), claiming compensation for plot number 1469/Maganda Squatter Settlement Scheme, allotment dated 12th September 2011, which was compulsorily acquired for the SGR project in 2015. She vacated and was paid Kshs.248,928/= for developments plus disturbance allowance, but the space for the value of the land in the award was marked 'Nil (pending)' and the land compensation was never paid. This suit was heard as a test suit whose outcome was agreed to bind ELC Nos. 382, 383 and 454 of 2017. Preliminary objections on jurisdiction had already been dismissed by a ruling of 16th October 2018 in ELC No. 382 of 2017, which the court held still stood. The plaintiff testified; the 2nd defendant closed its case without calling witnesses, and the 1st defendant never filed a defence. The court framed five issues and found the plaintiff's ownership uncontested, the acquisition lawful and unchallenged, but the payment made covered only developments, not the land. Citing Article 40(3) of the Constitution, sections 111 and 125 of the Land Act and the principle of equivalence in Patrick Musimba, the court held the failure to value the plot and pay just compensation was unlawful and breached the plaintiff's property rights. However, the court could not itself fix quantum absent a valuation report. The claim against the Attorney General failed as his role was unexplained. Judgment was entered for the plaintiff against the 1st defendant with a declaration of entitlement to just compensation, an order that the 1st defendant conduct a valuation and pay within six months, costs against the 1st defendant, and dismissal of the claim against the 2nd defendant with no order as to costs.

Key legal issues

#
01

Ownership and compulsory acquisition of the suit property

Holding

The plaintiff's ownership was uncontested and the plot was compulsorily acquired by the 1st defendant for the SGR project

Reasoning

The plaintiff produced a letter of allotment dated 12th September 2011 showing a 99-year leasehold. The defendants did not dispute her ownership. She testified the plot was taken for the SGR project and she vacated as required. The 1st defendant did not file a defence, so the acquisition and ownership stood unchallenged on the evidence.

p. 4
02

Whether the payment made was full compensation or only for developments

Holding

The Kshs.248,928/= paid covered only the value of developments plus 15% disturbance allowance; the value of the land was left as 'Nil (pending)'

Reasoning

Items (c) and (d) of the letter of award showed the payment comprised the value of developments (Kshs.213,850/=) plus 15% disturbance allowance. Item (b) showed the value of land as 'Nil (pending)'. No explanation was tendered for failure to value the plot. Compensation for the land itself was therefore never paid.

p. 4
03

Whether the failure to value and compensate the land was lawful

Holding

It was unlawful and contravened the plaintiff's Article 40 right to property; there was a legitimate expectation that valuation would be conducted

Reasoning

Article 40(3) requires prompt payment in full of just compensation, and sections 111 and 125 of the Land Act oblige the Commission to assess and pay just compensation promptly. Failure to value the acquired plot and pay for it, while ownership was uncontested, breached these provisions and gave rise to a legitimate expectation of valuation.

p. 7
04

Liability of the 2nd defendant

Holding

The claim against the Attorney General failed

Reasoning

The role of the 2nd defendant in the compulsory acquisition was not explained, and judicial notice was taken that none of the ministries or agencies it ordinarily represents was a party. The plaintiff failed to show how the 2nd defendant could be held responsible for the claim.

p. 7
05

Quantum of compensation

Holding

The court could not fix the amount without a valuation report; the 1st defendant was directed to conduct the valuation and pay within six months

Reasoning

Since the 1st defendant never valued the plot, the court would have been assessing adequacy of an award had a valuation existed. Absent a valuation report, the appropriate remedy is to compel the 1st defendant to conduct the valuation and pay just compensation within six months.

p. 7

Legal principles established

#
  • Failure by the acquiring authority to value compulsorily acquired land and promptly pay just compensation where title is not in question contravenes Article 40 of the Constitution
  • Just compensation in compulsory acquisition must equate restitution, based on market value, per the principle of equivalence

Court orders

#
  1. 1.A declaration that the plaintiff is entitled to just compensation for plot number 1469-Miritini, Mombasa, compulsorily acquired by the 1st defendant for the SGR project in 2015
  2. 2.The 1st defendant directed to conduct a valuation of the suit property and ensure the plaintiff receives just compensation promptly
  3. 3.Valuation to be done and compensation paid within six (6) months
  4. 4.The 1st defendant to meet the plaintiff's costs
  5. 5.The plaintiff's claim against the 2nd defendant dismissed with no order as to costs

Authorities

#

Legislation

  • Land Act No. 6 of 2012sections 107, 107A, 111(1), 111(2), 112(1) and (5), 125, PART VIII, 133A, 133C, 133D, 133(7), sections 107 to 122
  • Constitution of Kenya, 2010Article 40(3), Article 40, Article 159(2)(d), Chapter Five
  • Land Value Amendment ActSection 133A (establishment of Land Acquisition Tribunal)
  • Public Authorities Limitation Act (PALA) Chapter 39section 3(1)
  • Government Proceedings Act Cap 40section 13A
  • Evidence Act, Chapter 80section 107(1)
  • Civil Procedure Act Chapter 21section 27

Cases cited (6)

  • Patrick Musimba v National Land Commission & 4 others
    (2016) eKLR
  • Zachariah Okoth Obado v Edward Akong'o Oyugib & 2 others
    (2014) eKLR
  • David Njenga Ngugi v Hon. Attorney General
    [2016] eKLR
  • Five Star Agencies Limited v National Land Commission
    [2014] eKLR
  • Horn v Sunderland Corporation
    [1941] 2 KB 26, 40
  • Director of Buildings and Lands v Shun Fung Wouworks Ltd
    [1995] AC 111, 125
Jurisdiction invoked
Article 40(3) of the Constitution and Part VIII of the Land Act No. 6 of 2012; jurisdiction confirmed in ruling of 16th October 2018 dismissing preliminary objections in ELC No. 382 of 2017

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kimweli v National Land Commission & another (Environment & Land Case 384 of 2017) [2024] KEELC 4090 (KLR)", Case Analysis (2024). ELC No. 384 of 2017 (test suit for ELC Nos. 382 of 2017, 383 of 2017 and 454 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4090/eng@2024-05-22

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