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ELCStruck Out(not stated in judgment)· [2024] KEELC 4307 (KLR)

Muambi Properties Limited v Kenya Urban Roads Authority & 2 others (Environment & Land Case E078 of 2021) [2024] KEELC 4307 (KLR)

Environment and Land Court
23 May 2024
4,379 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A landowner's compensation claim over a public road right of way was struck out because Kenya's Land Acquisition Tribunal must first assess compensation.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of L.R. No. 7374/3, sued the Kenya Urban Roads Authority, the National Land Commission and a third Defendant, seeking a declaration that its 0.7972-hectare portion was unlawfully compulsorily acquired without compensation, Kshs. 52,632,888 with interest at 14% per annum from 6th April 2018, exemplary and punitive damages, and costs. The NLC had gazetted the land for acquisition for the Katumani-Vota-Konza Road, issued an Award of Kshs. 52,632,888 dated 14th August 2018 which the Plaintiff accepted, but KURA, considering the award to exceed its project budget of Kshs. 33,137,520, declined to pay; the acquisition was degazetted in 2020. Following a residents' petition, Parliament directed that a public right of way be created over the land, NLC issued notices of taking possession, and KURA entered and constructed the road without a public notice and without consulting or compensating the Plaintiff. Only the 1st Defendant filed a Defence, contending there was no compulsory acquisition and hence no compensation was payable. The court found the acquisition process had commenced when NLC began creating the right of way and KURA took possession, and that the Defendants breached the Plaintiff's rights by entering without following the Land Act procedure. However, applying Sections 133A and 133C(6) of the Land Value Amendment Act, 2019, the court held that disputes over compulsory acquisition and creation of public rights of way must first go to the Land Acquisition Tribunal, which has jurisdiction to assess compensation. The court granted the Plaintiff thirty days' leave to lodge its claim at the Tribunal, struck out the suit as premature, and made no order as to costs.

Key legal issues

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01

Whether compulsory acquisition without compensation occurred

Holding

The process of compulsory acquisition had begun - NLC commenced creating a public right of way and KURA took possession - but the Defendants breached the Plaintiff's rights by entering without following the Land Act procedure, and there is no evidence of compensation.

Reasoning

The court traced the gazette notices, the Award of Kshs. 52,632,888 which was accepted but never paid, and its rescission. DW1 confirmed KURA took possession and constructed the road without issuing public notice or consulting the Plaintiff. The court found the acquisition process had effectively begun and the Plaintiff had not been compensated.

p. 6
02

Whether the court has jurisdiction over the claim for compensation for the public right of way

Holding

The suit is premature; the Land Acquisition Tribunal has first-instance jurisdiction to assess compensation for creation of a right of way, and the Plaintiff must first lodge its claim there.

Reasoning

Sections 133A and 133C(6) of the Land Value Amendment Act, 2019 vest the Tribunal with jurisdiction to hear disputes relating to compulsory acquisition and creation of wayleaves, easements and public rights of way in the first instance, with appeals lying to the Environment and Land Court. Since the Tribunal is now fully operational, the Plaintiff should first lodge its claim there.

p. 8

Legal principles established

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  • Matters relating to compulsory acquisition of land or creation of wayleaves, easements and public rights of way must, in the first instance, be referred to the Land Acquisition Tribunal established under Section 133A of the Land Value Amendment Act, 2019, with appeals lying to the Environment and Land Court.
  • Where the State takes possession of land or commences creating a public right of way without following the strict procedure of the Land Act and without compensation, it breaches the landowner's rights under Article 40(3) of the Constitution.

Court orders

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  1. 1.Leave granted to the Plaintiff of thirty (30) days from the date of the judgment to lodge its claim at the Land Acquisition Tribunal to assess the correct compensation due for the creation of the public right of way over its land
  2. 2.Suit struck out as premature
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40 (including Article 40(2) and 40(3))
  • Land Act, 2012Sections 107, 108, 110, 111, 112, 113, 114-119, 120, 120(2), 121-122, 127, 128, 143-146
  • Land Value Amendment Act, 2019Sections 133A and 133C(6)

Cases cited (14)

  • Lancashire County Council v Municipal Mutual Insurance Ltd
    [1996] 3 All ER 545
  • Horn v Sunderland Corporation
    [1941] 1 All ER 166; [1941] 2 KB 26, 40
  • Prest v Secretary of State for Wales
    (1982) 81 LGR 193, 198
  • R (on the application of Sainsbury's Supermarkets Ltd) v Wolverhampton City Council and another
    [2010] UKSC 20
  • Patrick Musimba v National Land Commission & 4 others
    [2016] eKLR
  • D K Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Feroz Nuralji Hirji v Housing Finance Company of Kenya Ltd & another
    [2015] eKLR
  • David Gitaru v Government of Machakos and 2 others
    (2020) eKLR
  • MWK and Arnold -V- AG & 3 others
    (2017) eKLR
  • Isinya Roses Limited v Zakayo Nyongesa
    Civil Appeal No. 26 of 2015 [2016] eKLR
  • Karugi & Another v Kabiya & 3 Others
    [1987] KLR 347
  • Attorney General v Zinj Limited
    Petition 1 of 2020 [2021] KESC 23 (KLR) (Civ) (3 December 2021)
  • Swalleh C. Kariuki & another v Violet Owiso Okuyu
    [2021] eKLR
  • Director of Buildings and Lands -v- Shun Fung Wouworks Ltd
    [1995] AC 111, 125
Jurisdiction invoked
Environment and Land Court jurisdiction; court finds the Land Acquisition Tribunal under Section 133A/133C of the Land Value Amendment Act, 2019 has first-instance jurisdiction over the claim

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muambi Properties Limited v Kenya Urban Roads Authority & 2 others (Environment & Land Case E078 of 2021) [2024] KEELC 4307 (KLR)", Case Analysis (2024). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4307/eng@2024-05-23

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