Doshi & another v Kenya National Highway Authority & 2 others (Environment and Land Petition E004 of 2025) [2025] KEELC 8368 (KLR)
The bottom line
#A Kenyan court ruled the government must compensate Mariakani landowners whose property was taken for highway expansion without any legal process.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC vis-à-vis the Land Acquisition Tribunal and the doctrine of exhaustion
The Petition is properly before the ELC; exhaustion does not apply because no final NLC award was made and constitutional violations are alleged that the Tribunal cannot determine.
The 1st and 3rd Respondents argued that the Land Acquisition Tribunal has exclusive review jurisdiction under section 133C of the Land Act, invoking the exhaustion doctrine. The court accepted that the doctrine generally applies but held it is not absolute: where clear violations of fundamental constitutional rights are alleged, the Tribunal's limited statutory jurisdiction cannot be invoked. No evidence of a final NLC award existed to found an appeal to the Tribunal. Section 13 of the ELC Act confers original jurisdiction, including over compulsory acquisition disputes.
Violation of Articles 40(3) and 60(1)(b) of the Constitution
The Respondents' entry, demolition of the perimeter wall and commencement of construction without any compulsory acquisition process constituted an unconstitutional deprivation of property entitling the Petitioners to compensation for LR 17439.
Relying on Kenya Ports Authority v NLC, the court outlined the mandatory Part VIII process under the Land Act. It found as undisputed that the 1st and 2nd Respondents entered the properties, demolished the wall and began construction with no notice of intent to acquire, no inquiry, no valuation, no award and no compensation. This amounted to deprivation contrary to Article 40(3) and undermined security of land rights under Article 60(1)(b), requiring compensation for LR 17439.
Ownership of LR No. 16142 and the encroachment/overlap dispute with LR No. 27249
The Court declined to make a definitive declaration of ownership over LR 16142 because the survey and boundary disputes require viva voce evidence; ownership may be ventilated in a civil suit.
The Respondents alleged LR 16142 encroached 7.5 metres into the road reserve and that LR 17439 was untraceable. The Petitioners produced a surveyor's report and the Director of Surveys' letter showing the 1991 survey of LR 16142 preceded the 2004/2005 survey of LR 27249, which overlaps it. The court also noted the Respondents selectively ignored the Gazette Notice's recommendation to cancel LR 27249. These granular factual disputes could not be resolved on affidavits in a constitutional petition.
Effect of Gazette Notice No. 6862 of July 17, 2017 and the earlier judicial review judgment
The judicial review judgment in Malindi ELC JR Application No. 16 of 2016 quashed only the cancellation decision concerning LR 17439, not the whole Gazette Notice, so the Petitioners' ownership of LR 17439 was confirmed by that court.
The court reviewed the JR judgment and found the certiorari granted concerned only the direction to revoke the applicant's title over LR 17439. The Petitioners had not shown that the whole Gazette Notice No. 6862 was invalidated. Consequently, reliance on the Gazette Notice to defeat LR 17439 fails, whereas its status regarding LR 16142 fed into the unresolved factual disputes.
Legal principles established
#- The State may acquire private property for public purposes only by strictly adhering to the constitutional and statutory safeguards in Article 40(3) and Part VIII of the Land Act; entry, demolition and construction without notice, inquiry, valuation, award or compensation amount to deprivation of property contrary to Articles 40(3) and 60(1)(b).
- The doctrine of exhaustion of remedies is not absolute; where a petition alleges clear violations of fundamental constitutional rights, the Environment and Land Court's jurisdiction is not ousted by the Land Acquisition Tribunal's limited statutory jurisdiction.
- Jurisdiction is everything; without it a court must halt proceedings.
Court orders
#- 1.A declaration that the Petitioners are the lawful and valid owners of LR No. 17439; the Court declines to issue a definitive declaration of ownership regarding LR No. 16142
- 2.A declaration that the Respondents have breached and violated the Petitioners' constitutional rights under Article 40(3) and 60(1)(b) of the Constitution
- 3.An order of mandamus compelling the 1st and 3rd Respondents to pay just and full compensation to the Petitioners for the whole or portions of LR No. 17439 within sixty (60) days from the date of the order
- 4.Costs of the Petition awarded to the Petitioners
- 5.Liberty to apply
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Doshi & another v Kenya National Highway Authority & 2 others (Environment and Land Petition E004 of 2025) [2025] KEELC 8368 (KLR)", Case Analysis (2025). Petition dated February 11, 2025 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8368/eng@2025-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.