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ELCPartially AllowedPetition dated 10th February, 2023 (number not stated in judgment)· [2025] KEELC 7830 (KLR)

Kigotho & another v National Land Commission & another (Environment and Land Petition E001 of 2023) [2025] KEELC 7830 (KLR)

Environment and Land Court
12 November 2025
4,033 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Land Court ordered the National Land Commission to pay landowners their compensation plus interest, ruling a vague objection letter was no excuse for withholding it.

What this practically means

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Executive summary

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The Petitioners, registered proprietors of parcels Kiine/Kibingoti/Nguguine/3101 and 3102, petitioned after the National Land Commission (NLC) failed to pay compensation awarded on 28th July 2021 (Kshs 1,473,960/- and Kshs 732,010/-) for land compulsorily acquired for the Kenol-Sagana-Marua road. The NLC opposed, relying on an objection letter of 21st July 2021 from Ralph A. M. Kimotho citing a pending historical land injustice claim, and invoked the prohibition in Section 115(1)(c) of the Land Act against payment where entitlement is disputed, and the exhaustion doctrine. KeNHA filed submissions adopting the NLC's position and disclaiming further responsibility, though the court found the NLC had disclosed that KeNHA had not deposited the compensation funds as required by Section 111(1A). The court framed four issues and held that the acquisition was lawfully initiated and that it served a public purpose, but the failure to pay the awarded compensation contravened Articles 40(3) and 47(2) of the Constitution. The Kimotho letter related to parcel 939, its nexus to the suit parcels was not shown, and the Petitioners were not joined in the historical claim; the NLC also failed to deposit funds in a special account under Section 115(2). Judicial relief was granted in part: declarations of contravention of Articles 40 and 47, an order that the Respondents pay the awards with interest at court rates from the date of the award, and costs. Aggravated, exemplary and general damages were refused, the court finding no callous, arbitrary or oppressive conduct.

Key legal issues

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01

Legality of the compulsory acquisition process

Holding

The acquisition was lawfully initiated and conducted in accordance with Sections 107, 112, 113 and 114 of the Land Act and Article 40(3) of the Constitution

Reasoning

The NLC issued the Gazette Notices of intention to acquire and of inquiry, the inquiry was concluded, and awards were published and accepted by the Petitioners. The acquisition served a public purpose (the Kenol-Sagana-Marua road), which has been completed and is in use. What failed was completion of the process through payment of compensation.

p. 8
02

Whether withholding compensation on account of a pending historical land injustice claim was justified

Holding

The withholding contravened Articles 40(3) and 47(2) of the Constitution; the letter objecting to payment related to a different parcel and the Petitioners were not shown to be parties to the historical claim

Reasoning

Section 115(1)(c) permits deferral only where there is a genuine dispute as to entitlement. The objection letter concerned Kiine/Kibingoti/Nguguini/939 and it was not demonstrated how it related to the Petitioners' parcels or that they were joined in the historical claim. The NLC also did not pay the funds into a special account under Section 115(2) and did not disclose progress in the historical case.

p. 8
03

Entitlement to general, exemplary and aggravated damages

Holding

Refused; the refusal to pay was based on a mistaken but not oppressive view of Section 115(1)(c)

Reasoning

The court distinguished between a violation arising from an erroneous statutory interpretation and conduct that is callous, arbitrary or oppressive. The NLC genuinely, though wrongly, believed Section 115(1)(c) applied. Aggravated and exemplary damages require oppressive or injurious conduct absent here.

p. 8

Legal principles established

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  • The acquiring authority must deposit compensation funds with the National Land Commission before acquisition is undertaken; it has no discretion to withhold them
  • A pending historical land injustice claim does not justify withholding compensation where its nexus to the acquired parcels is not demonstrated

Court orders

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  1. 1.A declaration that the Petitioners rights under Article 40 and 47 of the Constitution were contravened by the Respondents
  2. 2.The Respondents are ordered to pay the Petitioners the compensation awards made on 28th July 2021 for land parcel Kiine/Nguguini/3101 Kshs 1,473,965/- and land parcel Kiine/Nguguini/3102 Kshs 732,010/- together with interest at Court rates from the date of the award
  3. 3.The Petitioners are awarded the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3), 35, 40(1), 40(2)(a), 40(3), 47(1), 47(2), 67
  • Land Act, 2012Sections 107, 107A, 107B, 110, 111(1), 111(1A), 112, 113, 114, 115(1), 115(2), 117(1), 120(1), 120(4), 133

Cases cited (6)

  • Republic -vs- Public Procurement Administrative Review Board & Another; Exparte CMC Motors Group Ltd
    (2020) eKLR
  • Republic -vs- National Employment Authority & 3 Others; Exparte Middle East Consultancy Services Ltd
    (2018) eKLR
  • Five Star Agencies Ltd -vs- National Land Commission
    (2014) eKLR
  • Godfrey Julius Ndumba Mbogori & Another -vs- Nairobi City County
    (2018) eKLR
  • Pamela Waithera Mburu -vs- County Government of Kajiado
    (2018) eKLR
  • Patrick Musimba -vs- National Land Commission & 4 Others
    (2016) eKLR
Jurisdiction invoked
Articles 40, 47 and 23 of the Constitution of Kenya, 2010

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, "Kigotho & another v National Land Commission & another (Environment and Land Petition E001 of 2023) [2025] KEELC 7830 (KLR)", Case Analysis (2025). Petition dated 10th February, 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7830/eng@2025-11-12

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