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ELCStruck OutPetition dated 24/7/24 (with Notice of Motion dated 30/9/24)· [2025] KEELC 993 (KLR)

Kigathi v Kenya National Highways Authority & another; National Land Commission (Interested Party) (Environment & Land Petition E062 of 2024) [2025] KEELC 993 (KLR)

Environment and Land Court
28 February 2025
4,329 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Landowners disputing compulsory acquisition compensation in Kenya must first go to the Land Acquisition Tribunal before filing a court case, or risk having it struck out.

What this practically means

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Executive summary

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The Petitioner, owner of land parcel Muguga/Gitaru/1383 (approx. 0.226 ha), petitioned for a declaration that his Article 40 property rights had been violated after his land was compulsorily acquired in 2020 for the James Gichuru Junction-Rironi Junction road project. An award of Kshs. 38,997,000/= was made on 29/3/21 but remained unpaid four years later. He sought setting aside of the award, mandamus directing a fresh valuation to reflect current market value, and deposit of compensation funds under Section 111(1A) of the Land Act. He also moved for an injunction restraining entry onto the suit property, citing inability to exhume and re-inter a relative's body buried on the land. The 1st Respondent raised a preliminary objection contending that under Section 133C of the Land Act the Land Acquisition Tribunal has primary jurisdiction over compulsory acquisition disputes and the Petitioner had not exhausted that mechanism. The Interested Party acknowledged the award but said funds had not been remitted, and opposed the injunction as undermining public interest. The court applied the Mukhisa Biscuit test, found the objection a pure point of law, and upheld it. It held that Section 133C(6) requires compulsory acquisition matters to go first to the Tribunal, which under Section 133C(8) may even entertain constitutional complaints. The Petitioner prematurely invoked this court's jurisdiction; the Petition and Motion were struck out, with each party bearing their own costs.

Key legal issues

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01

Whether the Preliminary Objection is a pure point of law

Holding

The Preliminary Objection meets the test - it raises pure points of law determinable without ascertaining facts

Reasoning

Applying the Mukhisa Biscuit test as restated by the Supreme Court in Hassan Ali Joho, the court distilled that a proper preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct, and cannot be raised where facts are disputed or discretion is sought. The jurisdictional/exhaustion objection here satisfied that test since it required no ascertainment of facts.

p. 6
02

Whether this Court has jurisdiction over the Petition given Section 133C of the Land Act

Holding

The Petitioner prematurely invoked the court's jurisdiction; the Land Acquisition Tribunal enjoys jurisdictional primacy over compulsory acquisition disputes, including delayed payment and constitutional property-rights complaints

Reasoning

Section 133C(6) requires all matters relating to compulsory acquisition to go first to the Tribunal, and Section 133C(8) empowers the Tribunal to hear constitutional complaints under Articles 23(2) and 47(3). The Petitioner's grievance - non-payment and depreciation of a 2021 award - falls within the Tribunal's wide jurisdiction. This court's jurisdiction is appellate and restricted to questions of law under Section 133D. The exhaustion doctrine, as explained by the Supreme Court, required resort to the Tribunal first.

p. 9

Legal principles established

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  • A matter relating to compulsory acquisition of land must, in the first instance, be referred to the Land Acquisition Tribunal, including complaints arising under Articles 23(2) and 47(3) of the Constitution
  • Where Parliament has provided a forum to adjudicate a matter, that forum ought to be given the opportunity to carry out its duty (exhaustion doctrine)
  • A court cannot adjudicate on matters in which it lacks jurisdiction and cannot arrogate to itself jurisdiction not conferred by law

Court orders

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  1. 1.The Preliminary Objection dated 17/9/24 is upheld; it succeeds
  2. 2.The Petition dated 24/7/24 together with the Notice of Motion dated 30/9/24 are struck out
  3. 3.Each party to meet their costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40; Article 162(2)(b); Articles 23(2) and 47(3); Article 159
  • Land Act, 2012Sections 111(1)(1A), 112, 113C, 115, 125, 127, 128, 133A, 133C, 133D, 146(referenced via Public Health Act? no), 148(5), Part VIII and Part VIIIA
  • Environment and Land Court ActSection 13(2), Section 13(5)
  • Civil Procedure ActSections 1A, 3A
  • Public Health ActSection 146
  • Civil Procedure RulesOrder 50 Rule 6
  • Fair Administrative Action ActFramework referenced in Section 133C(8)

Cases cited (12)

  • Speaker of the National Assembly –vs- Njenga Karume
    (1992) eKLR
  • Sato Nyumbaz Limited –vs- National Land Commission
    (Tribunal Case E012 of 2024) (2024)
  • Steyn –vs- Ruscone
    (Application 4 of 2012) (2013) KESC 11 (KLR)
  • Mulu & 55 others -vs- National Land Commission & 2 others
    [2024] KEELC 5482 (KLR)
  • GNC NGOs Co-ordination Board –vs- EG & 4 Others; Katiba Institute (Amicus Curiae)
    (Petition 16 of 2019) [2023] KESC 17 (KLR)
  • Albert Chaurembo Mumbo & 7 Others -vs- Maurice Munyao & 148 Others
    SC Petition No 3 of 2016, [2019] eKLR
  • Hassan Ali Joho & Another -Vs- Suleiman Said Shabal & 2 Others
    SC Petition No. 10 of 2013 [2014] eKLR
  • Mukhisa Biscuit Manufacturers Ltd vs West End Distributors Ltd
    (1969) E.A
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • Benard Murage -vs- Fine Serve Africa Limited & 3 Others
    [2015] eKLR
  • Benson Ambuti Adega –vs- Kibos Distillers Ltd & 5 Others
    [2020] eKLR
  • Giciri Thuo & 4 Others –vs- NLC & 6 Others
    [2021] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13 and 133C of the Land Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kigathi v Kenya National Highways Authority & another; National Land Commission (Interested Party) (Environment & Land Petition E062 of 2024) [2025] KEELC 993 (KLR)", Case Analysis (2025). Petition dated 24/7/24 (with Notice of Motion dated 30/9/24). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/993/eng@2025-02-28

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