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ELCPartially AllowedMemorandum of Appeal dated 5 July 2024 (original ELC Petition No. E013 of 2021 transferred to the Land Acquisition Tribunal)

Kenya National Highway Authority v Igainya Ltd & another (Environment and Land Appeal E032 of 2024) [2026] KEELC 2771 (KLR)

Environment and Land Court of Kenya
12 May 2026
5,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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When Kenya's Land Commission cuts the size of land being compulsorily acquired, it must hear the landowner again and hold a fresh inquiry before awarding new compensation.

What this practically means

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Executive summary

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The Environment and Land Court at Machakos, per Hon. A. Y. Koross, J, determined a first appeal from the Land Acquisition Tribunal (LAT). The 1st respondent, owner of L.R. No. 7815/8 in Lukenya, had its land compulsorily acquired for a road project; an award of Kshs. 646,316,243/- was made on 23 January 2018 and accepted, but only 10% was paid. Following an EACC investigation and the appellant's redesign of the project, the acquisition was reduced to 2.222 hectares by gazette notice 1919 of 6 March 2020, and a new award of Kshs. 123,537,645/- was issued on 25 June 2021 without a fresh inquiry. The LAT allowed the landowner's petition, declaring violations of Articles 40 and 47, quashing the 2020 gazette notice and the 2021 award, and ordering payment of the 90% balance. On appeal, the court first rejected the contention that the LAT lacked jurisdiction, holding itself functus officio on the transfer. It held that although the NLC could vary acquisition notices under the Interpretation and General Provisions Act, such variation required fresh engagement of project-affected persons and a fresh inquiry under Section 112 of the Land Act, failing which Articles 40 and 47 were contravened. However, the LAT erred in ordering payment of the 90% balance of the 2018 award for the unacquired land. The appeal was partly allowed: the LAT judgment was set aside and substituted with orders for a fresh notice of inquiry over the 2.222 hectares, certiorari quashing both the 2018 and 2021 awards, and crediting the Kshs. 64,631,624/- already paid. Each party bears its own costs of the appeal; LAT costs are borne jointly by the appellant and the 2nd respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the LAT erred in its finding that the remainder of the suit property comprising 56.86 acres was not usable
  2. 2.Whether the LAT erred in finding that, upon reducing the portion to be acquired, personal service upon the landowner, fresh gazettement and fresh inquiry were required by law
  3. 3.Whether the Tribunal acted without a statutory mandate, given that it was not fully constituted as a tribunal
  4. 4.Whether, where the initial acquisition was lawfully commenced and the project proponent subsequently alters the project before full compensation is paid, the acquisition process must be restarted
  5. 5.Whether government entities may be required to acquire and compensate for land they no longer require

Key legal issues

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01

Jurisdiction of the Land Acquisition Tribunal where it was allegedly not fully constituted at the time the petition was filed

Holding

The ground is misplaced; the court transferred the case to the LAT's docket after establishing its jurisdiction and cannot sit in appeal over its own decision

Reasoning

The court found it had already determined the LAT's jurisdiction when it transferred the petition on 14 December 2023. Being functus officio on that question, it is barred from reviewing its own transfer decision; any grievance lay in the Court of Appeal, which the appellant did not pursue.

p. 4
02

Whether the NLC could vary the area of land under acquisition without a fresh inquiry and hearing

Holding

Although the NLC had power under the Interpretation and General Provisions Act to amend/revoke its notices, it could not do so without fresh engagement of the project-affected persons and a fresh inquiry under Section 112 of the Land Act

Reasoning

The Land Act and its Regulations are silent on variation of a completed acquisition process. Section 3 of the Interpretation and General Provisions Act permits amendment including revocation and variation. However, such unilateral action affects substantive constitutional rights to property and fair administrative action, so the project-affected persons must be heard and a fresh inquiry held before any new award.

p. 8
03

Whether the LAT erred in awarding compensation for unacquired land

Holding

The LAT erred; compensation for the 2.222 hectares actually acquired should be established through a fresh inquiry, with the sums already paid taken into account

Reasoning

The inquiry originally conducted related only to the 5.6861 hectares under the earlier notices. A fresh inquiry under Section 112, read with the Land Value (Amendment) Act, 2019, would suffice to fix the appropriate award for the 2.222 hectares. Directing payment of the 90% balance of the 2018 award for 5.6861 hectares was a significant error.

p. 10
04

Scope of the first appeal from the Land Acquisition Tribunal

Holding

The appeal lies only on questions of law under Section 133D of the Land Act and Order 42 Rule 32; the appellate court will not interfere unless the Tribunal misdirected itself or wrongly exercised its discretion causing injustice

Reasoning

Section 133D confines the appeal to questions of law. The court adopted Lord Simon's speech in Watt v Thomas, as approved in Chief Land Registrar v Nathan Tirop Koech, on the caution an appellate court owes to a tribunal that saw and heard the witnesses.

p. 5

Legal principles established

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  • Where the acquiring authority revokes or varies acquisition notices before full compensation is paid, it must engage the project-affected persons anew and conduct a fresh inquiry; the right to fair administrative action under Article 47 attaches to such variations
  • An accepted award confers an enforceable legitimate expectation to the unpaid balance which cannot be arbitrarily negated by a subsequent unilateral administrative action
  • A party who accepted an award and received part payment has a constitutional right to prompt payment in full under Article 40(3)(b)(i)

Court orders

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  1. 1.Within 30 days, the 2nd respondent shall issue a notice of inquiry regarding 2.222 hectares of L.R. No. 7815/8, originally no. 7815/6/1
  2. 2.An order of certiorari quashing the 1st respondent's award issued on 23rd January 2018 for the acquisition of 5.6861 hectares of L.R. No. 7815/8
  3. 3.An order of certiorari quashing the 1st respondent's award issued on 25th June 2021
  4. 4.The sum of Kshs. 64,631,624/- already paid to the 1st respondent shall be taken into account in the subsequent new award
  5. 5.Each party shall bear their respective costs of the appeal
  6. 6.The costs of the Land Acquisition Tribunal proceedings shall be borne jointly by the appellant and the 2nd respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Land Acquisition Tribunal (LAT)
ELC Petition No. E013 of 2021 (as transferred)
Jurisdiction invoked
Section 133D of the Land Act (first appeal from the Land Acquisition Tribunal on questions of law); Order 42 of the Civil Procedure Rules

Relief refused

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Payment of the 90% balance of the 23 January 2018 award (Kshs. 581,684,619/-) as ordered by the LAT

The LAT erred in directing payment of the balance of the 2018 award; a fresh inquiry under Section 112 of the Land Act should establish the appropriate award for the 2.222 hectares actually acquired

p. 10

The 1st respondent's constitutional claim for compensation for the full 5.6861 hectares as originally awarded

The award of 23 January 2018 was quashed; the acquisition was validly reduced to 2.222 hectares but required a fresh inquiry before a new award

p. 10

Costs

Each party to bear their respective costs of the appeal; the costs of the Land Acquisition Tribunal proceedings to be borne jointly by the appellant and the 2nd respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Guided by the law, judicial precedence, reasons and findings, this court finds that the appeal is partly merited. Each party shall bear their respective costs of the appeal. Consequently, the judgment rendered by the LAT on 6 June 2024 is hereby set aside and substituted with an order in the following terms
p. 10Disposition - appeal partly allowed and LAT judgment set aside and substituted
That within 30 days hereof, the 2nd respondent shall issue a notice of inquiry regarding 2.222 hectares of L.R. No. 7815/8, originally no. 7815/6/1.
p. 10Final orders - fresh notice of inquiry
That the sum of Kshs. 64,631,624/-, already paid to the 1st respondent, shall be taken into account in the subsequent new award to be made to it.
p. 10Final orders - credit for sums already paid
an opportunity to be heard preceded the amendment concerning the 1st respondent's land and any subsequent awards arising from it.
p. 8Right to be heard before variation of acquisition
It's right to prompt and full payment of this remaining sum, having accrued and become enforceable, then such right could not be arbitrarily negated, even under the provisions of the Interpretation and General Provisions Act.
p. 8Legitimate expectation and accrued right to payment
By issuing a new award without a fresh inquiry, the 2nd respondent contravened the 1st respondent's statutory right under Section 112 of the Land Act
p. 9Statutory right to inquiry before a new award

Issues in the judgment

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minor

The judgment quashes the 23 January 2018 award of Kshs. 646,316,243/- while simultaneously affirming the 1st respondent's enforceable right to the remaining 90% of that same award, and records the LAT as having quashed 'the 1st respondent's award issued on 25th June 2021' though that award was made in favour of the 1st respondent

minor

The memorandum of appeal is dated 5 July 2024 and filed on 'the instant date', yet submissions dated 5 November 2025 and 3 December 2025 and delivery on 12 May 2026 are referenced, indicating a long interval not explained in the judgment

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, "Kenya National Highway Authority v Igainya Ltd & another (Environment and Land Appeal E032 of 2024) [2026] KEELC 2771 (KLR)", Case Analysis (2026). Memorandum of Appeal dated 5 July 2024 (original ELC Petition No. E013 of 2021 transferred to the Land Acquisition Tribunal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2771/eng@2026-05-12

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