Kivuti v Embu Water & Sanitation Company Limited (Environment and Land Case E027 of 2024) [2026] KEELC 1987 (KLR)

sewerage infrastructure project including the construction of a sewerage treatment plant in 2018. The Defendant submitted a formal request to the NLC for the acquisition of several of parcels of land for public use. Some of the parcels of the Plaintifi’s land which form the subject matter of this dispute were earmarked acquisition. That NLC approved the Defendant’s request and issued a public notice of the intention to acquire the parcels of land in question. NLC also carried out valuations and determined the compensation payable. However, the Plaintifi declined to accept the compensation and filed this suit challenging the alleged occupation, use and interference with his land by the Defendant by making claims of trespass, encroachment, loss of use and nonpayment of compensation. 4. The Defendant submitted that under Section 133C of the Land Act, the Land Acquisition Tribunal is clothed with jurisdiction to hear and determine appeals from NLC’s decision on matters relating to the process of the compulsory acquisition of land. It urged that the position has been afirmed by the court and cited Kariuki Muigwa v National Land Commission & Another [2021] eKLR. 5. The Defendant argued that the Plaintifi’s complaints arose directly from activities the Defendant conducted on the parcels of land earmarked and acquired for the development of the Embu Sewerage Treatment Plant, which is a public project. 6. Further, that the Defendant requested NLC to compulsorily acquire the parcels of the land, which constitute the subject matter of this suit pursuant to Section 107 of the Land Act. It urged that it deposited compensation totaling Kshs. 26,749,606/= with the Cooperative Bank of Kenya in compliance with Section 115 of the Land Act. It urged that whether or not the Plaintifi collected the award did not vitiate the process. The Defendant reiterated that the Plaintifi’s claim was a challenge to the compulsory acquisition process. 7. The Defendant submitted that Section 9 (2) and (3) of the Fair Administrative Actions Act required parties to exhaust existing remedies before instituting proceedings in court. The Defendant referred to the decision in Geofirey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR and Speaker of the National Assembly v Karume [2008]1 KLR 426 where the court reafirmed the requirement to exhaust the existing dispute resolution mechanisms prescribed by law before resorting to court action. The Defendant mentioned that to date the Plaintifi have not filed any application before the Land Acquisition Tribunal over the suit land. The Defendant invited the court to struck out the suit and award its costs. 8. The Plaintifi submitted that the preliminary objection was general, broadly framed and did not meet the threshold of a preliminary objection. Further, that it was not founded on pure points of law and was instead distorted or blurred by facts. 9. The Plaintifi gave the factual background to the suit. He stated that in 2018, the Defendant expanded the Embu Municipality Sewerage System within the wider Dallas area in Embu County. That during the construction of the sewerage treatment plant, the Defendant acted negligently and in blatant breach of his constitutional right to property and constructed the plant adjacent to the Plaintifi’s land being parcel numbers 7010 to 7014, 7044 to 7049 and 7050, without following the law thereby rendering the Plaintifi’s parcels of lands completely uninhabitable and worthless. Further, that it erected site houses for the construction of the plant on the Plaintifi’s land being parcel numbers 6982 to 6984 without his consent. That these actions are what prompted the Plaintifi to institute this suit. 10. The Plaintifi submitted that the law on preliminary objections was settled in Mukisa Biscuits Manufacturing Company Limited v West End Distribution Limited [1969] EA 696 in that it should consist of a pure point of law which has been pleaded or arises out of the pleadings and which if argued may dispose of the suit. The Plaintifi submitted that the preliminary objection raised was a tactical https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1987/eng@2026-02-19 2

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maneuver to delay the hearing of the dispute because it is based on factual assertions that require evidence to be ascertained by the court. 11. He submitted that the Defendant constructed the sewerage plant adjacent to his parcels of land and erected site houses on three of his parcels of land. Further, that some properties in question were not compulsorily acquired and if at all the compulsory acquisition took place, then the process was incomplete because he was not involved and had not been compensated yet other people were compensated. 12. He pointed out that a perusal of the plaint shows that his claim brings out issues of trespass, negligence, loss of use of his property among others, which in essence do not relate to compulsory acquisition. He argued that to determine whether the claims he raises entail compulsory acquisition, the court has to take his evidence at the trial. He urged that the court would also need to take evidence and conduct judicial inquiry on whether the compulsory acquisition was done and if it was done with accordance with the law. 13. The other point highlighted by the Plaintifi is that the Defendant pleaded that any claims related to use of the Plaintifi’s properties for site houses or rent payment fell within the responsibilities of Benisa Limited with which it had a contractual relationship and that this aspect had nothing to do with compulsory acquisition. The Plaintifi urged the court to dismiss the preliminary objection. 14. The issue for consideration is whether this court lacks jurisdiction to hear and determine the dispute pursuant to Section 133C (6) and (8) of the Land Act and if the suit should be struck out. 15. From the plaint the Plaintifi seeks compensation for loss of use of parcel numbers Gaturi/ Githimu/7010 to 7014 and 7044 to 7050 at current market rates and compensation for occupation and use of parcel numbers Gaturi/Githimu/6982 to 6984 for four years. The Plaintifi set out particulars of negligence, trespass and breach of law against the Defendant. 16. In its defence dated 7/2/2025, the Defendant averred that the compulsory acquisition of the suit properties was conducted in compliance with the law. It set out the procedure for compulsory acquisition of land and denied discharging efiuent in a manner that afiects the suit properties. The Defendant argued that the Plaintifi was estopped from asserting ownership of the parcels of land, which were compulsorily acquired because ownership of those parcels of land vested in the Defendant upon compliance with the process of compulsory acquisition. 17. The Plaintifi contends that the Defendant constructed the sewerage plant adjacent to his parcels of land and erected site houses on three of his parcels of land. He added that some properties were not compulsorily acquired. He added that in other instances the compulsory acquisition process was incomplete because he was not involved and had not been compensated yet other people were compensated. The Defendant’s response on this point was that that it requested NLC to compulsorily acquire some of the Plaintifi’s parcels of the land pursuant to Section 107 of the Land Act and that it deposited compensation totaling Kshs. 26,749,606/= with the Cooperative Bank of Kenya in compliance with Section 115 of the Land Act. This in itself is an admission that a substantial part of the Plaintifi’s claim relates to the compulsory acquisition of his land for construction of a public facility. 18. It is not in dispute that some of the parcels of land which form the subject matter of this dispute were compulsorily acquired for the construction of the sewerage treatment plant for the benefit of the residents of Embu Town. Any claim over the acquisition of land for purposes of the construction of the sewerage plant fall within the mandate of the Land Acquisition Tribunal under Section 133C of the Land Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1987/eng@2026-02-19 3

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19. The order that commends itself to this court to make is to stay this suit to give the Plaintifi an opportunity to pursue his claim before the Land Acquisition Tribunal. 20. The portion of the Plaintifi’s claim that falls outside the purview of the Land Acquisition Tribunal will be determined by the court after the Plaintifi has exhausted the legal channels prescribed in Section 133 of the Land Act. The costs of the application shall be in cause. DELIVERED VIRTUALLY AT BUNGOMA THIS 19TH DAY OF FEBRUARY 2026. K. BOR JUDGE In the presence of: Ms. Z. Okallo holding brief for Mr. H. Wamwea for the Plaintifi Ms. A. Amor holding brief for Mr. S. Alosa for the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1987/eng@2026-02-19 4

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