PN Mashru Limited v Kenya National Highways Authority & another (Environment & Land Petition E002 of 2025) [2025] KEELC 3515 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction to entertain a constitutional petition seeking compensation for compulsory acquisition without prior recourse to the Land Acquisition Tribunal
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
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.
What constitutes a valid Preliminary Objection
A PO must raise a pure point of law on the basis of pleaded facts with no facts requiring ascertainment, per Mukisa Biscuit
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.
Interaction between constitutional rights enforcement and alternative dispute resolution mechanisms (nuanced approach)
While constitutional violations are not barred by exhaustion where not mere 'bootstraps', here the claim was substantively a statutory compensation dispute
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 21st February 2025 is upheld
- 2.The Petition dated 7th February 2025 is struck out in its entirety
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.