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ELCStruck OutNot stated in extract (Petition dated 7th February 2025)· [2025] KEELC 3515 (KLR)

PN Mashru Limited v Kenya National Highways Authority & another (Environment & Land Petition E002 of 2025) [2025] KEELC 3515 (KLR)

Environment and Land Court
30 April 2025
3,294 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A landowner challenging a road-project compensation award lost because the court said the Land Acquisition Tribunal, not a constitutional petition, must hear the claim first.

What this practically means

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Executive summary

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The Petitioner filed a Petition dated 7th February 2025 in the Environment and Land Court at Malindi seeking declarations that its rights under Articles 40 and 47 of the Constitution were violated by the Respondents' threatened compulsory acquisition and demolition of L.R. Kilifi/Ngumopatsa/Mazeras 'A'/1047 in the course of the Mombasa-Mariakani Road dualling project, a permanent injunction, compensation of Kshs. 19,291,250.00 (against an NLC award of Kshs. 2,565,593.00), damages, interest and costs. The 1st Respondent (KENHA) raised a Preliminary Objection dated 21st February 2025, contending that under Section 133 of the Land Act, 2012 the Land Acquisition Tribunal has original jurisdiction over appeals from NLC decisions on compulsory acquisition. E. K. Makori J applied the Mukisa Biscuit test for Preliminary Objections and the Lillian S principle on jurisdiction. Although the Petitioner relied on the Supreme Court's Abidha Nicholus nuanced approach to exhaustion and constitutional rights enforcement, the court held that the Petition, though drafted as multifaceted constitutional litigation, was in substance a compensation dispute anchored on compulsory acquisition. The Petitioner had not demonstrated that the LAT was an inadequate forum. The court upheld the Preliminary Objection, struck out the Petition in its entirety, and awarded costs to the Respondents. Judgment delivered virtually in Malindi on 30th April 2025.

Key legal issues

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01

Whether the ELC has jurisdiction to entertain a constitutional petition seeking compensation for compulsory acquisition without prior recourse to the Land Acquisition Tribunal

Holding

The court lacks jurisdiction; the Petitioner must first approach the LAT under Section 133 of the Land Act, 2012, after which an appeal lies to this court

Reasoning

The court found that the substance of the Petition is a compensation dispute arising directly from compulsory acquisition of L.R. Kilifi/Ngumopatsa/Mazeras 'A'/1047, for which Section 133 of the Land Act provides a clear framework. Although drafted as multifaceted constitutional litigation, the claim was held to be an attempt to circumvent the statutory route by alleging constitutional violations. The doctrine of exhaustion applies and the Petitioner did not demonstrate the LAT is an inadequate forum.

p. 6
02

What constitutes a valid Preliminary Objection

Holding

A PO must raise a pure point of law on the basis of pleaded facts with no facts requiring ascertainment, per Mukisa Biscuit

Reasoning

The court applied the classic Mukisa Biscuit test as restated by the Court of Appeal in the Andrew Maina Githinji case: a PO must raise a pure point of law, the correctness of the facts pleaded by the other side must be demonstrated, and there must be no fact requiring ascertainment. The jurisdictional objection under Section 133 of the Land Act was held to satisfy this threshold as it turned purely on the scope of statutory jurisdiction.

p. 2
03

Interaction between constitutional rights enforcement and alternative dispute resolution mechanisms (nuanced approach)

Holding

While constitutional violations are not barred by exhaustion where not mere 'bootstraps', here the claim was substantively a statutory compensation dispute

Reasoning

The court considered Abidha Nicholus (Supreme Court) recognising a nuanced approach and the exception under Section 9(4) of the Fair Administrative Action Act, and the Ramogi 5-Judge bench decision on exhaustion. It nevertheless held that the Petitioner's constitutional framing was a camouflage for a compulsory acquisition compensation claim, so the exception did not apply and exhaustion before the LAT was required.

p. 6

Legal principles established

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  • Where a claim arises from compulsory acquisition and Section 133 of the Land Act provides a dispute framework via the LAT, a constitutional petition alleging rights violations does not oust the requirement to first exhaust that remedy
  • A court's jurisdiction flows only from the Constitution or legislation and cannot be arrogated beyond what is conferred by law
  • The doctrine of exhaustion requires a litigant to pursue available administrative/alternative remedies before invoking the court's jurisdiction, absent demonstration that the alternative forum is inadequate

Court orders

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  1. 1.The Preliminary Objection dated 21st February 2025 is upheld
  2. 2.The Petition dated 7th February 2025 is struck out in its entirety
  3. 3.Costs of the Petition awarded to the Respondents
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; issue of jurisdiction under Section 133 of the Land Act, 2012

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, "PN Mashru Limited v Kenya National Highways Authority & another (Environment & Land Petition E002 of 2025) [2025] KEELC 3515 (KLR)", Case Analysis (2025). Not stated in extract (Petition dated 7th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3515/eng@2025-04-30

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