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ELCStruck OutNot stated in judgment· [2025] KEELC 1406 (KLR)

Okelo & 2 others v National Irrigation Authority & 3 others (Environment & Land Petition E004 of 2022) [2025] KEELC 1406 (KLR)

Environment and Land Court
20 March 2025
MSMunyao Sila
2,428 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Villagers displaced by an irrigation project had their compensation petition struck out because they must first take their claim to the Land Acquisition Tribunal.

What this practically means

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Executive summary

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The petitioners, former inhabitants of Sagama Village in Nyatike Sub-County, Migori County, claimed ancestral rights over land parcel North Kadem/Karopolo/701 and alleged that in September 2019 the 1st respondent, the National Irrigation Authority, forcibly created wayleaves and public rights of way for the Lower Kuja Irrigation Development Project without notice, valuation or compensation, converting the land into a paddy field and displacing them. They sought declarations that they are Internally Displaced Persons, damages for violation of various constitutional rights, and compensation including special damages of Kshs. 734,000 for destroyed structures and other sums for alternative land and resettlement. On 5 November 2024 the 1st respondent raised a preliminary objection on jurisdiction, contending that the claim was essentially one of compensation for compulsory acquisition, a matter which Section 133C(6) of the Land Act requires to be referred in the first instance to the Land Acquisition Tribunal, this court having only appellate jurisdiction. Despite repeated directions, petitioners' counsel filed no submissions in response. The court held that compensation was the core issue in the petition and that the alternative mechanism of the Tribunal must first be exhausted, applying the exhaustion doctrine from the Court of Appeal's decision in Geoffrey Muthinja & Another v Samuel Muguma Henry & 1756 Others. The petition was struck out, with each party bearing its own costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over a petition whose core issue is compensation for compulsory acquisition of land

Holding

The court held that the core issue in the petition was compensation for compulsory acquisition, which under Section 133C(6) of the Land Act must in the first instance be referred to the Land Acquisition Tribunal; this court would only have appellate jurisdiction over the Tribunal's decisions

Reasoning

The petitioners alleged they were displaced without compensation and made specific claims for special and general damages, invoking Sections 143 to 149 of the Land Act which govern creation of wayleaves and public rights of way and compensation thereof. Section 133C(6), introduced by the Land (Value) Amendment Act, 2019, mandates first reference of such matters to the Tribunal. The court could have jurisdiction over the petition itself but must avoid jurisdiction where an alternative mechanism exists.

p. 4
02

Exhaustion of alternative dispute resolution mechanisms

Holding

The doctrine of exhaustion applies; the petitioners were required first to present their grievance before the Land Acquisition Tribunal before approaching the court

Reasoning

Relying on the Court of Appeal decision in Geoffrey Muthinja & Another v Samuel Muguma Henry & 1756 Others, the court affirmed that where a dispute resolution mechanism exists outside courts, it must be exhausted before the jurisdiction of the courts is invoked. Courts should be fora of last resort, in line with Article 159 of the Constitution. The petitioners, despite being given the opportunity, failed to put forth any reason why the court should continue hearing the suit despite the presence of the Tribunal.

p. 5

Legal principles established

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  • Matters relating to compulsory acquisition of land or creation of wayleaves, easements and public rights of way must, in the first instance, be referred to the Land Acquisition Tribunal under Section 133C(6) of the Land Act
  • Where an alternative dispute resolution mechanism exists outside the courts, that mechanism must be exhausted before the jurisdiction of the court is invoked; courts are fora of last resort

Court orders

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  1. 1.The petition is struck out
  2. 2.Each party to bear his/her own costs

Authorities

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Legislation

  • Land ActSections 143-149
  • Land ActSection 133A
  • Land ActSection 133C
  • Land ActSections 133A-133E
  • Land (General) RegulationsRegulations 52-91
  • Land (Value) Amendment Act
  • Constitution of Kenya, 2010Articles 40(3) and (4), 26(1), 27, 28, 29, 43, 31, 42, 47, 53, 55, 56, 159, 23(2)
  • Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities ActAct No. 56 of 2012
  • Fair Administrative Action Act

Cases cited (1)

  • Geofirey Muthinja & Another vs Samuel Muguma Henry & 1756 Others
    (2015) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court; objection based on Section 133C(6) of the Land Act (Land Acquisition Tribunal) and exhaustion of alternative remedies doctrine

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, "Okelo & 2 others v National Irrigation Authority & 3 others (Environment & Land Petition E004 of 2022) [2025] KEELC 1406 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1406/eng@2025-03-20

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