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ELCDismissedPetition dated 27th March 2025 (Not stated in full)· [2025] KEELC 4618 (KLR)

Abdille & another v Kenya National Highways Authority & 3 others; Ndungu & 21 others (Interested Parties) (Environment and Land Petition E003 of 2025) [2025] KEELC 4618 (KLR)

Environment and Land Court
20 June 2025
5,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a World Bank-funded road compensation program to proceed, ruling resettlement payments differ from compulsory land acquisition.

What this practically means

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Executive summary

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The Petitioners petitioned the Environment and Land Court at Kerugoya alleging that KeNHA, in implementing the Horn of Africa Gateway Development Project (Isiolo–Modogashe–Wajir–Mandera road), was unlawfully acquiring land and compensating project affected persons (PAPs) without public participation and in usurpation of the National Land Commission's mandate under Article 67 of the Constitution and Sections 107–115 of the Land Act. Simultaneously they sought conservatory orders suspending land acquisition, compensation and disbursement of World Bank funds pending the Petition. An interim conservatory order was issued on 4th April 2025, and the Court referred parties to mediation, which failed. KeNHA maintained the compensation was for 'replacement assets' and 'livelihood restoration' of PAPs on the existing public road reserve, that NLC had undertaken the valuations and furnished a compensation schedule, and that a World Bank facility of Kshs 2.05 Billion had to be disbursed by 30th June 2025. The 3rd and 4th Respondents objected to jurisdiction, citing Section 133A of the Land Act and Section 29 of the Kenya Roads Act. The Court overruled the jurisdictional objections, holding no actual dispute existed and that resettlement compensation for occupants of the public road reserve did not constitute compulsory acquisition. It found KeNHA had not usurped NLC's mandate, that the Petitioners showed no prima facie case, and that public interest favoured allowing the project and payments to proceed. The application was dismissed with no order as to costs and the interim conservatory order discharged.

Key legal issues

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01

Jurisdiction of the ELC vis-à-vis the Land Acquisition Tribunal and Section 29 of the Kenya Roads Act arbitration mechanism

Holding

Objections to jurisdiction overruled; the Court was properly seized of the matter

Reasoning

Sections 107–133 of the Land Act deal exclusively with compulsory acquisition of land, whereas the compensation in issue was for 'replacement assets' and 'livelihood restoration' of persons on the public road reserve. As no PAP objected to the NLC's valuation schedule, there was no dispute requiring reference to the Tribunal or to an arbitrator under Section 29 of the Kenya Roads Act.

p. 9
02

Whether KeNHA usurped the NLC's constitutional and statutory mandate

Holding

KeNHA did not usurp NLC's mandate as the payments were resettlement/displacement costs, not compulsory acquisition

Reasoning

The NLC itself identified the PAPs, carried out the valuations and furnished the compensation schedule to KeNHA; only disbursement remained. The works lay on an existing public road reserve, and any compulsory acquisition of private or community land would still be carried out by the NLC under the Land Act.

p. 10
03

Whether conservatory orders should issue

Holding

Conservatory orders refused; application dismissed

Reasoning

Applying the Munya and Wilson Kaberia Nkunja principles, the Petitioners failed to demonstrate a prima facie case with probability of success, and public interest favoured allowing the World Bank-funded compensation to be paid before the facility deadline rather than stalling a project of great regional public benefit.

p. 10

Legal principles established

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  • Valuations and compensation for 'replacement assets' and 'livelihood restoration' of persons occupying a public road reserve do not constitute compulsory acquisition of land under Sections 107–133 of the Land Act, 2012, and do not oust KeNHA's role as disbursing agency
  • The Land Acquisition Tribunal's jurisdiction under Section 133A is confined to disputes concerning compulsory acquisition of land; it does not extend to resettlement compensation absent an actual dispute
  • Section 29 of the Kenya Roads Act, 2007 arbitration route applies only where there is a genuine dispute as to compensation; where the valuation schedule is undisputed, no reference to an arbitrator arises

Court orders

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  1. 1.The Petitioners' Notice of Motion dated 27th March 2025 is dismissed with no order as to costs
  2. 2.The interim conservatory order granted on 4th April 2025 is discharged

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 67; Article 159
  • Land Act, 2012Sections 107, 113, 114, 115, 127, 128, 133A, 133C(6), 148(5)
  • Kenya Roads Act, 2007Section 29
  • Land Act (as cited by 3rd and 4th Respondents)Sections 107 to 115 (cited as Land Act, 2017)

Cases cited (8)

  • Judicial Service Commission –vs- Speaker of the National Assembly & Another
    (2013) eKLR
  • Wilson Kaberia Nkunja –vs- The Magistrates, Judges Vetting Board & Others
    (2016) eKLR
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    (2003) KECA 175 (KLR)
  • Gatirau Peter Munya –vs- Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Jura –vs- National Irrigation Authority & 3 Others
    (2025) KEELC 1414 (KLR)
  • Geofirey Muthinja & Another –vs- Samuel Muguma Henry & 1756 others
    (2015) eKLR
  • Kelvin Mwiti & Others –vs- Kenya School of Law
    (2015) eKLR
  • Martin Wambora –vs- Speaker of County Assembly of Embu & 3 Others
    (2014) eKLR
Jurisdiction invoked
Articles 67 and 70 of the Constitution and the Land Act, 2012 (constitutional petition for conservatory orders); jurisdiction objections under Section 133A of the Land Act, 2012 and Section 29 of the Kenya Roads Act, 2007 rejected

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, "Abdille & another v Kenya National Highways Authority & 3 others; Ndungu & 21 others (Interested Parties) (Environment and Land Petition E003 of 2025) [2025] KEELC 4618 (KLR)", Case Analysis (2025). Petition dated 27th March 2025 (Not stated in full). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4618/eng@2025-06-20

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