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ELCStruck OutNot stated in the judgment· [2024] KEELC 6242 (KLR)

Said & another (Suing as the administrators of the Estate of the Late Said Mohamed Mtawa - Deceased) v National Land Commission (Environment and Land Appeal E019 of 2023) [2024] KEELC 6242 (KLR)

Environment and Land Court
25 September 2024
NMN. A. Matheka
2,473 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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Landowners disputing NLC compensation must first go through the statutory inquiry and Land Acquisition Tribunal before appealing to the Environment and Land Court.

What this practically means

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Executive summary

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Noor Hassan Said and Fahima Said Mohamed, administrators of the estate of the late Said Mohamed Mtawa, appealed to the Environment and Land Court at Mombasa against compensation awarded by the National Land Commission on compulsory acquisition of two parcels, MN/VI/1745 and MN/VI/1746, for the Port Reitz–Moi Airport road project. The Commission awarded Kshs 12,825,265/= and approximately Kshs 40–42 million respectively, which the Appellants alleged were gross under-valuations arrived at without survey or valuation, contrary to Section 107(8) of the Land Act and Articles 40 and 47 of the Constitution. They relied on a private valuation by M/S Musyoki & Associates and sought the balances of Kshs 46,424,734/= and Kshs 62,480,760/=. The Respondent filed no response. The court identified jurisdiction as the preliminary issue, setting out the statutory framework in Part VIIIA of the Land Act: an inquiry before the Commission under Section 112, an appeal to the Land Acquisition Tribunal under Section 133C, and only thereafter an appeal to the ELC on a question of law under Section 133D. Taking judicial notice that the Tribunal is gazetted and operational, the court held that the Appellants had bypassed these forums and that the appeal was prematurely before it. The appeal was struck out with liberty to pursue appropriate statutory redress, and no order as to costs was made because the appeal was undefended.

Key legal issues

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01

Whether the ELC had jurisdiction over an appeal against the National Land Commission's compensation awards filed directly to the court

Holding

The court held its jurisdiction had been prematurely invoked; the Appellants had to first exhaust the Section 112 inquiry and the Land Acquisition Tribunal before appealing to the ELC under Section 133D.

Reasoning

Part VIIIA of the Land Act establishes a tiered adjudication framework: the Commission conducts an inquiry under Section 112 into propriety and compensation claims; a dissatisfied person applies to the Land Acquisition Tribunal under Section 133C; and only a party dissatisfied with the Tribunal's decision may appeal to the ELC on a question of law under Section 133D. Judicial notice was taken that the Tribunal is gazetted and operational, so the alternative forum was available.

p. 6
02

The standard of compensation for compulsory acquisition under Article 40(3)

Holding

Just compensation means prompt payment in full of an equivalent market value, protecting both the owner and the public purse, as restated in Patrick Musimba v National Land Commission.

Reasoning

The court recited Article 40(3) and the Musimba holding that the Constitution requires compensation equivalent to the pecuniary detriment suffered while also protecting the public treasury against improvidence. However, this discussion was preliminary and the appeal failed on jurisdiction, so it was not determinative of the parties' entitlements.

p. 3

Legal principles established

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  • Where an award of the National Land Commission on compulsory acquisition is disputed, the statutory route is the Section 112 inquiry, then the Land Acquisition Tribunal under Section 133A, and only then an appeal to the ELC on a question of law.
  • The ELC's appellate jurisdiction from the Land Acquisition Tribunal is restricted to issues of law.
  • Article 40(3) guarantees prompt payment in full of just compensation, meaning equivalent market value, not speculative value.

Court orders

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  1. 1.The appeal is struck out
  2. 2.The Appellants are at liberty to pursue appropriate redress as provided under the law
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(3), Article 47, Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Land Act, 2012Section 107(8), Section 112, Section 133A, Section 133C, Section 133D, Part VIII, Part VIIIA
  • Land (Assessment of Just Compensation) Rules, 2017Not specified (cited in grounds of appeal)

Cases cited (2)

  • Patrick Musimba v National Land Commission & 4 others
    [2016] eKLR
  • Horn v Sunderland Corporation
    [1941] 2 KB 26
On appeal from
National Land Commission (award on compulsory acquisition, Gazette Notice No. 10503 dated 4th October 2018)
Gazette Notice No. 10503 dated 4th October 2018
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; appellate jurisdiction under Section 133D of the Land Act

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, "Said & another (Suing as the administrators of the Estate of the Late Said Mohamed Mtawa - Deceased) v National Land Commission (Environment and Land Appeal E019 of 2023) [2024] KEELC 6242 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6242/eng@2024-09-25

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