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ELCStruck OutNot stated in the judgment (ELC Petition, Migori)· [2025] KEELC 1415 (KLR)

Otieno & 3 others v National Irrigation Authority & 3 others (Environment & Land Petition E003 of 2022) [2025] KEELC 1415 (KLR)

Environment and Land Court
20 March 2025
MSMunyao Sila
2,404 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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Villagers seeking compensation for land taken for irrigation must first take their claim to the Land Acquisition Tribunal before a Kenyan court will hear it.

What this practically means

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Executive summary

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The petitioners, described as former inhabitants of Sagama village in Nyatike Sub-County, Migori County, claimed that land parcel North Kadem/Karopolo/701, ancestral family land adjudicated in the name of Okelo Aago, was taken over by the 1st respondent, the National Irrigation Authority, in September 2019 when it created public rights of way and wayleaves for irrigation infrastructure and converted the land into a paddy field, allegedly without notice, valuation or compensation, contrary to Sections 143 to 149 of the Land Act, Regulations 52 to 91 of the Land (General) Regulations and Article 40(3) and (4) of the Constitution. They sought declarations of internally displaced persons status and of multiple rights violations, damages, compensation for lost structures, alternative land and resettlement, interest and costs. At directions, counsel for the 1st respondent objected to jurisdiction, contending the claim was one of compensation for compulsory acquisition which must, under Section 133C(6) of the Land Act, be brought first before the Land Acquisition Tribunal. The petitioners filed no submissions in response. The court held that compensation was the core issue in the petition and that, although the court has jurisdiction, it should decline to exercise it where an alternative mechanism exists, following the exhaustion doctrine and Article 159 of the Constitution. The petition was struck out, with each party bearing their own costs, leaving the petitioners free to present their grievance to the Tribunal.

Key legal issues

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01

Jurisdiction and exhaustion of alternative remedies

Holding

The petition was struck out because its core issue - compensation for compulsory acquisition and creation of wayleaves - falls within the first-instance jurisdiction of the Land Acquisition Tribunal under Section 133C(6) of the Land Act, and the petitioners did not demonstrate why they could not access that tribunal.

Reasoning

The court found that the petitioners allege displacement without compensation and claim special and general damages, making compensation the core issue. Section 133C(6) of the Land Act (introduced by the Land (Value) Amendment Act, 2019) mandates first-instance referral of such matters to the Tribunal. Although the court itself has jurisdiction over such petitions, it should decline to exercise it where an alternative mechanism exists, in line with the exhaustion doctrine and Article 159. The petitioners, despite opportunity, filed no submissions resisting the objection.

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, courts ought to be fora of last resort and a party must first exhaust that mechanism before invoking the jurisdiction of the court.

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

  • Constitution of Kenya, 2010Article 40(3) and (4)
  • Constitution of Kenya, 2010Article 26(1)
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 29
  • Constitution of Kenya, 2010Article 31
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 43
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Articles 53, 55 and 56
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 23(2)
  • Land ActSections 133A to 133E, 133C, 143 to 149
  • Land (General) RegulationsRegulations 52 to 91
  • Land (Value) Amendment Act, 2019
  • 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
    (2015) eKLR
Jurisdiction invoked
Article 40(3) and (4) of the Constitution and Sections 143-149 of the Land Act invoked in the petition; jurisdiction contested by reference to Section 133A/133C of the Land Act establishing the Land Acquisition Tribunal

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, "Otieno & 3 others v National Irrigation Authority & 3 others (Environment & Land Petition E003 of 2022) [2025] KEELC 1415 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC Petition, Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1415/eng@2025-03-20

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