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ELCStruck Out· [2025] KEELC 1438 (KLR)

Kasimba v National Irrigation Authority & 3 others (Environment & Land Petition 008 of 2022) [2025] KEELC 1438 (KLR)

Environment and Land Court
20 March 2025
MSMunyao Sila
2,533 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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A Migori landowner's compensation claim against the National Irrigation Authority was struck out because he had to first go to the Land Acquisition Tribunal.

What this practically means

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Executive summary

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This was a petition filed in the Environment and Land Court at Migori by a former inhabitant of Kanyuor Village, Migori County, claiming that in September 2020 the 1st respondent, the National Irrigation Authority, forcibly created public rights of way, wayleaves and irrigation infrastructure on his land parcel Migori/Kanyuor/6601, converting it into a paddy field and displacing him without compensation or due process, in violation of Sections 143-149 of the Land Act, the Land (General) Regulations and multiple constitutional rights (Articles 26, 27, 28, 29, 31, 40, 42, 43 and 47). He sought declarations, constitutional and trespass damages, special damages of Kshs. 552,000/=, restoration costs of Kshs. 283,200/=, mesne profits at Kshs. 50,000/= per acre yearly, rectification of the register, costs and interest. At directions, counsel for the 1st respondent raised a jurisdictional objection: the core dispute concerns 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, with the ELC having only appellate jurisdiction. Although the petitioner was given repeated opportunities to file submissions, none were filed. Munyao Sila J agreed that compensation was the core issue and, applying the exhaustion doctrine as stated by the Court of Appeal in Geoffrey Muthinja v Samuel Muguma Henry, held the petitioner ought first to present his grievance to the Tribunal. The petition was struck out with each party bearing their own costs.

Key legal issues

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01

Whether the Environment and Land Court should hear at first instance a petition whose core complaint is compensation for compulsory acquisition/creation of wayleaves

Holding

No - the petition was struck out because the petitioner must first present the compensation grievance to the Land Acquisition Tribunal established under Section 133A of the Land Act

Reasoning

The court found that the central issue in the petition is compensation for compulsory acquisition, since the petitioner's alleged constitutional violations all flow from the absence of compensation. Section 133C(6) of the Land Act requires such matters to be referred first to the Tribunal. The petitioner, despite opportunity, made no submissions showing he could not access the Tribunal. Applying the exhaustion doctrine as articulated by the Court of Appeal, the court declined jurisdiction, noting it could hear any appeal from the Tribunal.

p. 4
02

Whether the exhaustion doctrine applies even where the court has jurisdiction over the subject matter

Holding

Yes - the court ought to avoid jurisdiction where an alternative mechanism exists

Reasoning

Relying on Geoffrey Muthinja & Another v Samuel Muguma Henry & 1756 others, the court adopted the position that courts are fora of last resort, that exhaustion postpones judicial consideration and ensures parties first diligently pursue mechanisms outside court, consistent with Article 159 of the Constitution on alternative dispute resolution. The petitioner gave no reason why the court should continue hearing the suit despite the existence of the Tribunal.

p. 5

Legal principles established

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  • Where an alternative dispute resolution mechanism exists, it must be exhausted before invoking the court's jurisdiction; courts are a forum of last resort
  • Under Section 133C(6) of the Land Act, 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
  • A court with jurisdiction may nonetheless decline to exercise it where an alternative statutory mechanism exists and has not been exhausted

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, 2010Articles 23(2), 26(1), 27, 28, 29, 31, 42, 43, 47
  • Constitution of Kenya, 2010Article 47(3)
  • Constitution of Kenya, 2010Article 159
  • Land ActSections 133A, 133C, 133D-133E, 143, 144, 148, 127, 128, 148(5), 149
  • Land (General) RegulationsRegulations 52 to 91
  • Land (Value) Amendment Act, 2019introduction of Sections 133A to 133E into the Land Act
  • Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, No. 56 of 2012not specified
  • Fair Administrative Action Actframework referenced in Section 133C(8)

Cases cited (1)

  • Geoffrey Muthinja & Another vs Samuel Muguma Henry & 1756 others
    (2015) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition under the Bill of Rights, including Articles 23, 40, 47); exhaustion of alternative remedies under Section 133C(6) of the Land Act

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, "Kasimba v National Irrigation Authority & 3 others (Environment & Land Petition 008 of 2022) [2025] KEELC 1438 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1438/eng@2025-03-20

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