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ELCPartially AllowedMilimani ELC Appeal No. E090 of 2024 (consolidated with ELC Appeal No. E097 of 2024)

Ngoje & 7 others v National Irrigation Authority & another (Civil Appeal E090 & E097 of 2024 (Consolidated)) [2025] KEELC 771 (KLR)

Environment and Land Court of Kenya
14 February 2025
18,272 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~73 min to read original · ~4 min brief

The bottom line

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Eight farmers won damages, interest and a 180-day restoration order after a state irrigation project occupied their land without paying compensation.

What this practically means

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Executive summary

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This is a judgment of the Environment and Land Court at Milimani (Oguttu Mboya, J) delivered on 14th February 2025 in two consolidated first appeals, E090 of 2024 (by eight project-affected persons) and E097 of 2024 (by the National Irrigation Authority), against the Land Acquisition Tribunal's judgment of 14th June 2024 arising from the creation of wayleaves and construction of irrigation infrastructure (MD4 of the Lower Kuja Irrigation Development Project) on the appellants' land parcels without compensation. The court framed six issues. On jurisdiction, it held that section 133C(6) and (8) of the Land Act conferred first-instance jurisdiction on the Tribunal over wayleaves and permitted it to hear Article 47 complaints and grant declaratory reliefs under Article 23(2) of the Constitution, rejecting the NIA's contrary contention. It held the Tribunal abdicated its mandate by failing to determine the declaratory reliefs despite finding violations of property and environmental rights, and that its direction to the National Land Commission to survey and value the properties was illegal and unconstitutional, since the dispute did not involve compulsory acquisition and NLC is an independent commission. The mesne profits award of KShs. 200,000 per appellant was set aside as unproven. The court entered declaratory judgments in favour of the appellants, awarded general damages for trespass to each appellant on the basis of the undisputed valuation report, exemplary damages of KShs. 3,000,000 each with 14% interest, and a restoration order against the NIA within 180 days, with NEMA to execute restoration at NIA's cost in default. Claims for compensation for land value and unreceipted report costs were declined. E090 was allowed with costs; E097 was dismissed save for the mesne profits aspect, with ¼ costs to the NIA.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Land Acquisition Tribunal was seized of the requisite jurisdiction to entertain the subject dispute and to grant the various reliefs sought
  2. 2.Whether the Land Acquisition Tribunal entertained and adjudicated upon all the issues/claims placed before it by the parties
  3. 3.Whether the Tribunal abdicated its constitutional and statutory mandate in handing over issues to the National Land Commission, and whether such conduct constitutes dereliction of duty
  4. 4.Whether the award on account of mesne profits in favour of the appellants in E090 of 2024 was lawful and well-grounded
  5. 5.Whether the Tribunal ought to have granted the declaratory reliefs sought together with general damages and exemplary damages
  6. 6.What reliefs, if any, ought to issue in respect of the subject appeals

Key legal issues

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01

Jurisdiction of the Land Acquisition Tribunal over wayleaves and constitutional complaints

Holding

The Tribunal had first-instance statutory jurisdiction over wayleaves and could grant declaratory remedies under section 133C(6) and (8) of the Land Act read with Articles 23(2) and 47 of the Constitution

Reasoning

Section 133C(6) makes matters of wayleaves, easements and public right of way referable to the Tribunal in the first instance. Article 23(2) permits Parliament to clothe subordinate courts with jurisdiction over Bill of Rights violations, and section 133C(8) does so for complaints under Article 47. It would be absurd to require the Tribunal to refer declaratory issues to a superior court and await the outcome. The NIA's jurisdictional objection was therefore misconceived.

p. 12
02

Failure of the Tribunal to determine all issues placed before it

Holding

The Tribunal abdicated its judicial mandate by failing to address the declaratory reliefs and other claims

Reasoning

A tribunal owes parties and the rule of law a duty to determine all issues canvassed. The Tribunal made findings that the 1st Respondent breached property and environmental rights but failed to distil appropriate declaratory orders, contrary to Articles 10(2)(b) and (c), 27 and 50(1) of the Constitution. It also ignored evidence including correspondence by Engineer Nesline Ogwe and reports by KNHRC and NEMA.

p. 17
03

Directive to the National Land Commission to survey and value the suit properties

Holding

The order was illegal and unconstitutional: the dispute did not involve compulsory acquisition and NLC is an independent commission not subject to tribunal directions

Reasoning

NLC's mandate to survey and value arises only for compulsory acquisition under sections 107–113 of the Land Act. NLC had not been approached for compulsory acquisition and had itself confirmed this by letter dated 11th March 2021. Under Articles 67, 249(2) and 250, NLC is independent and not subject to direction. Ceding the mandate to a litigant party also constituted abdication.

p. 21
04

Validity of the mesne profits award of KShs. 200,000 per appellant

Holding

The award was not well grounded because the claim was not strictly proved

Reasoning

Mesne profits are akin to special damages and must be pleaded and strictly proved. Although pleaded, no agricultural report or expert evidence supported the claimed KShs. 25,000 per season; the figure was 'plucked from the blues'. The 1st Respondent's appeal therefore succeeded on this aspect only.

p. 23
05

General and exemplary damages for trespass and rights violations

Holding

The Tribunal erred in failing to award general damages for the proved trespass and exemplary damages for the oppressive, arbitrary and cynical conduct of the state organ

Reasoning

Trespass was vindicated by the evidence, including letters by Engineer Nesline Ogwe, and is actionable per se. The 1st Respondent, a state organ, disregarded recommendations by NEMA, NLC and KNHRC and behaved oppressively and cynically, squarely within the Rookes v Barnard categories for exemplary damages. The court itself assessed general damages using the undisputed valuation report.

p. 25
06

Restoration of the suit properties

Holding

A restoration order was appropriate, with NEMA to execute restoration at the 1st Respondent's cost in default within 180 days

Reasoning

The 1st Respondent obtained an ESIA licence from NEMA but failed to implement the mitigation measures, causing flooding and environmental degradation. Relying on the Supreme Court's restorative-remedies framework in the Owino Uhuru case and Articles 42, 69 and 70, the court issued a structural restorative order under section 111 of EMCA.

p. 32

Legal principles established

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  • A statutory tribunal seized of jurisdiction over wayleaves and compulsory acquisition matters may, under section 133C(8) of the Land Act and Article 23(2) of the Constitution, hear and determine complaints and grant declaratory reliefs arising under Article 47 of the Constitution
  • Abdication of jurisdiction by a court or tribunal is as serious an error as assumption of jurisdiction where none exists
  • An independent constitutional commission such as the National Land Commission is not subject to direction or control by a court or tribunal in the discharge of its mandate
  • Mesne profits, being in the nature of special damages, must be both pleaded and strictly proved
  • Trespass to land is actionable per se and damages must be awarded once trespass is proved
  • Expert/valuation evidence can only be challenged by contrary expert evidence; absent a counter-report the tribunal must act on the valuation on record

Court orders

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  1. 1.Appeal ELCA No. E090 of 2024 allowed
  2. 2.Decision of the Tribunal rendered on 14th June 2024 set aside and/or varied
  3. 3.Declaration that the purported creation of wayleaves and public rights of way over the Appellants' land parcels without just and prompt compensation did not follow the law and is unconstitutional, illegal, unlawful, null and void
  4. 4.Declaration that the decision to commence construction of MD4 of the Lower Kuja Irrigation Development Project without implementing a resettlement action plan and paying just compensation is unconstitutional and amounts to trespass
  5. 5.Declaration that the abandoned construction activities without creation of wayleaves and without adequate compensation infringed upon the Appellants' property rights
  6. 6.General damages for trespass awarded to each of the eight Appellants (ranging from KShs. 90,000 to KShs. 1,440,000)
  7. 7.Exemplary damages of KShs. 3,000,000 each awarded to the Appellants
  8. 8.Interest on general and exemplary damages at court rates (14% per annum) from the date of judgment
  9. 9.Restoration order against the 1st Respondent to restore the suit properties to the status quo ante within 180 days
  10. 10.In default of restoration, NEMA to undertake restoration at the expense of the 1st Respondent
  11. 11.Costs of ELCA E090 of 2024 awarded to the Appellants
  12. 12.ELCA E097 of 2024 dismissed save for the aspect touching on mesne profits
  13. 13.The Appellant in ELCA E097 of 2024 awarded ¼ costs to be borne by the Respondents in that appeal
  14. 14.Any other relief not expressly granted declined

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Land Acquisition Tribunal
not stated (statements of claim dated 9th February 2024)
Jurisdiction invoked
First appellate jurisdiction under section 78 of the Civil Procedure Act over appeals from the Land Acquisition Tribunal established under Section 133C of the Land Act, 2012 (2016)
Consolidated with
Milimani ELC Appeal No. E097 of 2024

Relief refused

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Compensation for the value of the portion of land lost (prayer (b))

Compensation while retaining ownership would amount to unjust enrichment; the 1st Respondent never pursued compulsory acquisition

p. 29

Special damages of KShs. 1,090,000 for the value of destroyed land

Replica of the refused compensation prayer; no basis laid

p. 29

Costs of valuation report (KShs. 60,000) and EIA report (KShs. 40,000)

Not strictly/specifically proved; no receipts tendered

p. 29

Mesne profits of KShs. 200,000 per appellant awarded by the Tribunal

Claim, though pleaded, was not strictly proved; no agricultural report or expert evidence

p. 24

Costs

Costs of ELCA E090 of 2024 awarded to the Appellants; ELCA E097 of 2024 dismissed save for the mesne profits aspect; the Appellant in ELCA E097 of 2024 awarded ¼ costs to be borne by the Respondents in that appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I hold the firm position that the tribunal was seized of the requisite jurisdiction and thus same [tribunal] correctly entertained the claim[s] that was canvassed by the Appellants.
p. 14Tribunal's jurisdiction over wayleaves
The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2)
p. 13Statutory basis for tribunal's declaratory jurisdiction
the orders and direction by the tribunal and in particular, where same directed the National Land Commission to undertake survey and valuation were therefore illegal and unconstitutional.
p. 21Illegality of directive to NLC
the Appellants fell short of adducing plausible, cogent and credible evidence towards strictly proving the claim for mesne profits.
p. 24Proof of mesne profits
Exemplary damages be and is hereby awarded to the Appellants in the sum of KShs. 3,000,000/- each.
p. 34Final orders - exemplary damages
A restoration order be and is hereby issued against the 1st Respondent to restore the suit properties to the status quo ante [status quo prior to the construction of the now abandoned irrigation infrastructure] and same to be undertaken and completed within 180 days from the date of Judgement hereof.
p. 34Final orders - restoration
Appeal ELCA No. E 090 of 2024 be and is hereby allowed.
p. 33Final orders - disposition

Issues in the judgment

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minor

Judgment records the award of general damages as detailed in 'paragraph 179' in the final orders, but the awards actually appear under a differently numbered passage, and internal paragraph cross-references are unreliable

minor

Section 133C(8) is reproduced twice with inconsistent wording; the second reproduction truncates the provision after 'Articles 23 (2)', omitting the reference to Article 47(3)

minor

The land parcels are inconsistently identified; the reliefs describe North Kadem/Kanyuor/646 while the final orders refer to parcels 'North Kadem/Kanyuor/646, 602, 730, 6931, 6176, 646, 6178, 647, and 634' with parcel 646 appearing twice

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngoje & 7 others v National Irrigation Authority & another (Civil Appeal E090 & E097 of 2024 (Consolidated)) [2025] KEELC 771 (KLR)", Case Analysis (2025). Milimani ELC Appeal No. E090 of 2024 (consolidated with ELC Appeal No. E097 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/771/eng@2025-02-14

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