Telcom Kenya Ltd v Wanene & 3 others (Environment & Land Case 98 of 2015) [2024] KEELC 5230 (KLR)
The bottom line
#A Kenyan court ruled Telkom Kenya must pay a school the current value of two acres it took decades ago, but kept the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the School was entitled to compensation for the two acres taken
Yes; the Plaintiff's own letters acknowledged the School owned the land and the School consented subject to compensation with alternative land
The Plaintiff approached the School seeking a portion of its land for a satellite support station, acknowledging ownership. The School consented to the excision on condition of compensation with alternative land, a request reiterated in several letters to the Commissioner of Lands. The entitlement to compensation was therefore established on the correspondence.
Whether compensation was paid
No; the Plaintiff produced only a payment voucher with no evidence the money reached the Defendants or that a written award issued
The Plaintiff relied on a voucher in favour of the Commissioner of Lands but produced no bank statement, acknowledgement, or correspondence showing the money reached the School or was a written award following an inquiry as to compensation. The burden of proving payment lay on the Plaintiff, and it failed to discharge it.
Whether permanent injunction should issue
Yes; the Defendants' consent to occupation and the Plaintiff's registration since 2002 meant invasion was not a lawful remedy; their recourse was to the High Court under section 75 of the former Constitution
The taking over of the suit property was not illegal since the Defendants consented subject to compensation. The proper remedy for non-payment was direct access to the High Court under section 75 of the former Constitution, not interference with possession. The Defendants' interference with the Plaintiff's use and occupation was therefore unlawful and enjoined.
Whether the Plaintiff's non-compliance with section 6(1) of the Land Acquisition Act (repealed) affects liability for compensation
The taking did not fully comply with the Act; no inquiry as to compensation or written award was undertaken, so the Plaintiff itself must pay compensation at current value
Once the Plaintiff requested the Commissioner to acquire the land on its behalf, an inquiry as to compensation and a written award were required. No evidence of such award was produced. Because the statutory process was not followed, liability for compensation rests on the Plaintiff, assessed at current value to account for inflation.
Effect of non-joinder of the National Land Commission / Commissioner of Lands
Non-joinder does not defeat the Defendants' claim; it was the Plaintiff, on whose behalf the land was acquired and who alleged payment, that was obligated to join the Commissioner
The Attorney General argued the Defendants should have joined the National Land Commission, the body responsible for compulsory acquisition. The court held that the claim arose from the Plaintiff's acquisition and its allegation of payment, so the Plaintiff should have joined the Commissioner. The Defendants only want their land back or compensation, so non-joinder is not fatal.
Legal principles established
#- A party alleging non-payment of compensation bears the burden of proving it, and where the acquisition on its behalf did not comply with the Land Acquisition Act, the beneficiary of the acquisition is liable to pay compensation at current value
Court orders
#- 1.Permanent injunction restraining the Defendants from trespassing, entering, encroaching or interfering with the Plaintiff's peaceful entitlement and possession of Gitithia Township/1149
- 2.Order for payment from the Plaintiff to the 3rd Defendant of the equivalent current value of the two-acre portion of land known as Gitithia Township/1149 (without developments) once the value is ascertained, as compensation
- 3.Order directed at the County Valuer from the Ministry of Lands Housing, Roads and Urban Development, Kiambu County Lands Registry to undertake the valuation of the suit land (without developments) and file a report within 60 days of service
- 4.The order to be served upon the said officer; court to issue further appropriate orders once the report is filed
- 5.Each party to bear their respective costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); no specific constitutional article cited for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Telcom Kenya Ltd v Wanene & 3 others (Environment & Land Case 98 of 2015) [2024] KEELC 5230 (KLR)", Case Analysis (2024). ELC Case (Plaint dated 9th February 2015 - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5230/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.