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ELCPartially AllowedConstitutional Petition No 2 of 2023· [2025] KEELC 1365 (KLR)

Kishamba "B" Group Ranch v National Land Commission & 3 others (Constitutional Petition 2 of 2023) (Environment and Land) [2025] KEELC 1365 (KLR)

Environment and Land Court
20 March 2025
EWE. K. Wabwoto
7,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Land Court ordered the National Land Commission to pay a Taita-Taveta group ranch KES 187 million for SGR land taken without compensation.

What this practically means

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Executive summary

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The Petitioner, Kishamba 'B' Group Ranch, a body incorporated under the Land (Group Representatives) Act, petitioned under Articles 21, 23, 24, 27, 40, 43, 47, 48, 64, 165(3) and (5) of the Constitution and Section 107 of the Land Act, challenging the compulsory acquisition of 12.542 hectares of Parcel No. L/R 13590 Title No. Sagalla/Kishamba 'B'/1 for the Standard Gauge Railway, gazetted on 20th June 2014 and 19th September 2014, without just compensation, and alleging that the National Land Commission fraudulently compensated strangers to the land. The 1st Respondent (National Land Commission) filed no response; the 2nd Respondent (Kenya Railways Corporation) and the 4th Respondent (former NLC Chair) contested the Petition. The matter proceeded by viva voce evidence. The court found the parcel was compulsorily acquired, that the Petitioner as registered owner was never compensated despite the railway being operational, and that the 1st Respondent's payment of compensation to non-members, failure to hold hearings and disregard of the Petitioner's objections and the Commission on Administrative Justice recommendations amounted to negligence and a violation of its constitutional rights under Articles 40, 47, 43, 27 and 28. Fraud allegations against the 4th Respondent personally failed for want of evidence of direct personal liability, and the 2nd Respondent was absolved having discharged its mandate by remitting compensation funds to the Commission. The court declared the acquisition without just compensation a violation, declared the Petitioner entitled to compensation, and issued mandamus compelling the 1st Respondent to pay Kshs. 187,652,767.00 with interest at court rates from filing until payment in full, with costs of the Petition borne by the 1st Respondent.

Key legal issues

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01

Whether the suit parcel was compulsorily acquired

Holding

Yes, approximately 12.542 hectares were compulsorily acquired for the Standard Gauge Railway without compensation to the Petitioner.

Reasoning

Both the Petitioner's witness and the 2nd Respondent's witness confirmed acquisition of the parcel for construction of the SGR. The Petitioner is the registered owner, protected under Article 40 of the Constitution. The railway is complete and operational, yet the Petitioner was never compensated despite follow-ups, so the acquisition was completed without payment.

p. 12
02

Negligence and fraud by the 1st and 4th Respondents and personal liability of the 4th Respondent

Holding

Negligence proved against the 1st Respondent; no personal liability attached to the 4th Respondent.

Reasoning

Fraud must be strictly pleaded and proved to a heightened standard. The Petitioner's witness could not produce evidence demonstrating direct personal liability of the 4th Respondent, who only acted as Chairperson. However, the evidence showed the 1st Respondent compiled a list of non-members for compensation, held no public hearings, and ignored the Petitioner's objections and the CAJ recommendations, amounting to negligence.

p. 13
03

Violation of the Petitioner's constitutional rights

Holding

The 1st Respondent's actions amounted to a violation of the Petitioner's rights; the 2nd Respondent was not in breach.

Reasoning

The National Land Commission paid persons who were not members of the Petitioner despite the Petitioner's pleas, violating its rights. Accountability, transparency and order under Article 10(2)(b) required the Commission to take full responsibility for prompt, full and fair payments. The 2nd Respondent had discharged its statutory mandate by releasing the funds and could not be faulted.

p. 14
04

Entitlement to reliefs

Holding

Reliefs granted against the 1st Respondent only, including mandamus to pay Kshs. 187,652,767.00 with interest at court rates.

Reasoning

Having found the Petitioner proved its case against the 1st Respondent, the court granted the declarations and mandamus against that Respondent. Costs followed the event because the 1st Respondent ignored the Petitioner's demands and even the Commission on Administrative Justice recommendations.

p. 14

Legal principles established

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  • Just compensation for compulsorily acquired land must be paid promptly, meaning within one year of taking possession.
  • Allegations of fraud must be strictly pleaded and proved to a standard higher than the balance of probabilities, though below the criminal standard.
  • A paying agency that forwards compensation funds to the acquiring commission cannot be faulted where the acquiring body misapplies the funds.

Court orders

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  1. 1.A declaration that the compulsory acquisition of 12.542 Ha of the Petitioner's land being Parcel No. L/R 13590 Title No. Sagalla/Kishamba 'B' without just compensation amounted to a violation of its constitutional rights under Articles 40, 47, 43, 27, 28 of the Constitution.
  2. 2.A declaration that the 1st Respondent acted negligently and fraudulently in compensating persons other than the Petitioner for the compulsory acquisition of 12.542 hectares in Parcel No. L/R 13590 Title No. Sagalla/Kishamba 'B'.
  3. 3.A declaration that the Petitioner is entitled to be compensated for the compulsory acquisition of its 12.542 hectares in parcel LR 13590 Title No. Sagalla/Kishamba 'B'/1.
  4. 4.An order of mandamus compelling the 1st Respondent to compensate the Petitioner Kshs. 187,652,767.00 with interest at court rates from the date of filing of the Petition until payment in full.
  5. 5.The costs of the Petition awarded to the Petitioner, to be borne by the 1st Respondent.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(2)(b), 21, 22, 23, 24, 27, 28, 40, 43, 47, 48, 64, 65, 67, 165(3) and (5)
  • Constitution of Kenya, 2010Section 19 of the Sixth Schedule
  • Land Act, No. 6 of 2012Sections 2, 107, 107(1), 108, 110, 111(1), 112, 112(1), 112(3), 113, 113-119, 120-122, 148(1), Part VIII
  • Kenya Railways ActSection 14
  • Land (Group Representatives) Act, Cap 287Section 7(2)

Cases cited (7)

  • Patrick Musimba v National Land Commission & 4 Others
    (2016) eKLR
  • Revital Health Care (EPZ) Limited and Another v Ministry of Health & 5 Others
    Mombasa H.C Constitutional Petition No. 63 of 2013
  • Mwakombo Group Ranch v National Land Commission & 3 Others
    [2019] eKLR
  • Emfil Limited v Registrar of Titles Mombasa & 2 others
    Mombasa Civ Appeal No. 312 of 2012 [2014] eKLR
  • John Kamunya & another v John Nginyi Muchiri & 3 others
    [2015] eKLR
  • Magutu Electrical Services Ltd vs Miriam Nyawira Ngure & Anor
    [2019] eKLR
  • RG Patel v Lalji Makanji
    [1957] EA 314
Jurisdiction invoked
Articles 23 and 165(3) of the Constitution of Kenya, 2010

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, "Kishamba "B" Group Ranch v National Land Commission & 3 others (Constitutional Petition 2 of 2023)  (Environment and Land) [2025] KEELC 1365 (KLR)", Case Analysis (2025). Constitutional Petition No 2 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1365/eng@2025-03-20

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