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ELCDismissedOriginating Summons dated 25th June 2023· [2024] KEELC 4416 (KLR)

Dembena International Limited v National Land Commission (Enviromental and Land Originating Summons E005 of 2023) [2024] KEELC 4416 (KLR)

Environment and Land Court
30 May 2024
EWE. K. Wabwoto
2,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A landowner lost a Kshs 718 million compensation claim because it produced no survey or expert evidence to challenge a revised compulsory acquisition award.

What this practically means

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Executive summary

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Dembena International Limited, the registered owner of Nairobi/Block 98/78 measuring approximately 0.809Ha in South C along Mombasa Road, filed an Originating Summons under Order 37 of the Civil Procedure Rules against the National Land Commission. Its land was compulsorily acquired for the Nairobi Expressway project, and on 3rd February 2021 the Commission issued an Initial Award of Kshs. 1,019,425,121, of which only Kshs. 300,937,160 was paid. On 23rd September 2021 the Commission revised the award downwards to Kshs. 804,144,317 on the ground that part of the land was a road reserve. The Applicant sought setting aside of the Revised Award, substitution of the Initial Award, payment of the balance of Kshs. 718,487,961 with interest under Section 117(1) of the Land Act, and costs. The Commission did not respond or file submissions. The Applicant argued that the Land Acquisition Tribunal had not been constituted at filing, conferring jurisdiction on the court, relying on Ravaspaul Kyalo Mutisya v National Land Commission (2022) eKLR. The court found jurisdiction properly engaged since the Tribunal was gazetted only on 7th September 2023, after filing. On the merits, however, the court held that the Applicant failed to adduce any survey or expert evidence to displace the road reserve justification for the revised award, and dismissed the suit in its entirety with each party bearing its own costs.

Key legal issues

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01

Whether the court should set aside the Revised Award and restore the Initial Award

Holding

The court declined; the Applicant produced no evidence to rebut the Respondent's finding that part of the suit property was a road reserve justifying the downward revision

Reasoning

Although the suit was undefended, the court examined the revised award of 23rd September 2021 showing compensation of Kshs. 804,144,317 and noted the revision rested on a finding that part of the land was road reserve. The Applicant did not provide any survey, expert or independent report to the court, nor evidence that it had disputed the road reserve finding before the Respondent, so the burden of proof was not discharged and the reliefs failed.

p. 5
02

Whether the court had jurisdiction despite the subsequent gazettement of the Land Acquisition Tribunal

Holding

Yes; the Tribunal was gazetted only after this suit was filed, so the court properly heard the matter

Reasoning

The Applicant argued, relying on Ravaspaul Kyalo Mutisya v National Land Commission (2022) eKLR, that the Land Acquisition Tribunal was not in place at filing. The court confirmed the Tribunal members were gazetted on 7th September 2023, after the filing of this suit, necessitating its hearing before the Environment and Land Court.

p. 5

Legal principles established

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  • A party challenging a revised compulsory acquisition award bears the burden of adducing evidence, such as survey or expert reports, to displace the basis of the revision
  • Where the Land Acquisition Tribunal is gazetted after a suit has been filed, the court seized of the matter retains jurisdiction to hear it

Court orders

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  1. 1.The Originating Summons is dismissed in its entirety
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 37
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land ActSection 117(1)
  • Land ActSection 120(2)
  • Land ActSection 113(1)
  • Land Acquisition Act (Chapter 295)Sections 9(3) and 23(2)

Cases cited (1)

  • Ravaspaul Kyalo Mutisya versus National Land Commission (2022) eKLR
    (2022) eKLR
Jurisdiction invoked
Order 37 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act; jurisdiction preserved because the Land Acquisition Tribunal had not been constituted when the suit was filed

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, "Dembena International Limited v National Land Commission (Enviromental and Land Originating Summons E005 of 2023) [2024] KEELC 4416 (KLR)", Case Analysis (2024). Originating Summons dated 25th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4416/eng@2024-05-30

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