Kenya Urban Roads Authority v Muambi Properties Ltd & another; Katheka Kai Farmers' Co-operative Society Limited (Interested Party)

Supeyo) dated and delivered on 26 September, 2024 in Tribunal Case No. LAP 028 of 2024 (Muambi Properties vs. Kenya Urban Roads Authority and National Land Commission) ] 1. To better understand the appeal, the 1st respondent has been, and remains, the registered owner of the property known as L.R. No. 7374/3 (the suit land), located along Mombasa Road near Konza City. The parcel of land had been the subject of eminent domain proceedings, and the appellant, as the acquiring body, and the 2nd respondent, as the body that manages the process of acquiring private land for public use on behalf of the national or county government, commenced the process of acquiring a portion of the suit land as envisaged under the legal framework for compulsory acquisition under Article 40 of the Constitution and Part VIII, Sections 107 to 131 of the Land Act. 2. On 29 March 2018, the 2nd respondent, acting on behalf of the appellant, publicly announced via gazette notice no. 3215, their plan to acquire a part of the suit land, approximately 0.7972 hectares, to build the “Kathekakai – Machakos Road” (road). Later, the 2nd respondent reached out to the projectaffected persons (PAPs) for an inquiry through gazette notice number 5264 on 31 May 2018. This process was followed by the issuance of an award in the amount of Kshs. 52,632,888/= ELCC E048/24 JDGMNT 2

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(“award”) on 14 August 2018 to the 1st respondent, which was accepted promptly on 15 August 2018. 3. The award was not paid to the 1st respondent because, after the appellant received the payment schedule from the 2nd respondent, it informed the 2nd respondent that the award amount exceeded the project budget. As a result, the appellant asked the 2nd respondent to cancel the compulsory acquisition process of part of the suit land. Following this request, the 2nd respondent issued another gazette notice no. 7666 on 2 October 2020, revoking the acquisition of part of the suit land. This withdrawal notice falls under Section 123 of the Land Act, as the appellant had not yet taken possession of part of the suit land at that time. 4. The 1st respondent continued its activities on the suit land only to be summoned by the parliamentary departmental committee on lands following concerns from members of the public who had sought to have the road traverse the suit land after it had stalled. In these proceedings, all the parties herein were heard, and certain non-binding recommendations were made. 5. Unexpectedly, without following the statutory procedures, on 25 June 2021, the 2nd respondent published a notice in the gazette announcing its intention to establish a right of way ELCC E048/24 JDGMNT 3

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across part of the suit land that had earlier been the subject of compulsory acquisition and withdrawal. 6. Following this publication, the appellant moved onto the suit land and began building the road. The LAT and the parties in its proceedings alluded to the fact that the 1st respondent instituted the Machakos ELC case no. E078 of 2021, which made findings that the appellant and/or the 2nd respondent breached the 1st respondent’s rights. However, this decision was not tendered as evidence. Nevertheless, aggrieved by the appellant's arbitrary decision to acquire a portion of the suit land without compensation, the 1st respondent, in its plaint dated 18 June 2024, sought the following reliefs from LAT: a) Kshs. 52, 632,888/b) Interest on (a) above at the base lending rate set by the Central Bank of Kenya with effect from 15 August 2018 until the date of institution of this claim. c) Interest on the sum of (a) and (b) above from the date of institution of the suit until the date of the judgment at court rate of 12% per annum. d) Exemplary and punitive damages for breach of the Constitution and the law. ELCC E048/24 JDGMNT 4

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e) Interest on the aggregate sum of (a), (b), (c) and (d) from the date of judgment until payment in full. f) Cost of this suit. 7. In response, the appellant filed a defence dated 30 July 2024, largely consisting of denials and putting the 1st respondent to strict proof. Most importantly, it contended that LAT could not entertain the matter because the 2nd respondent had acquired a portion of the suit land as a public right-of-way ostensibly under Section 120(2) of the Land Act. 8. The 2nd respondent’s undated defence also contained denials and put the 1st respondent to strict proof. It also made admissions as to the existence of the road on the suit land and the various gazette notices. Similar to the appellant, it stated that the 1st respondent was undeserving of any orders, as the construction of the road on part of the suit land was legal. 9. The hearing was conducted by way of written submissions, and LAT considered the pleadings, witness statements, documentary evidence and findings in ELC case no. E078 of 2021. Having taken all this into account, it framed one issue for determination, namely the assessment of the correct compensation due to the 1st respondent for the creation of the public right of way on the suit land. Accordingly, it found the ELCC E048/24 JDGMNT 5

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1st respondent had succeeded in its claim and granted it the following orders: a) An order be and is hereby issued that the 1st respondent is entitled to compensation by the appellant for the acquisition of part of the parcel of land known as L.R. No. 7374/3 for the sum of Kshs. 52,632,888/=; b) That the 52,632,888/= said compensation shall be paid of together Kshs. with interest at court rates from 25th June 2021 until payment in full; c) The appellant shall pay general damages of Kshs. 1,000,000/= together with interest from the date of this judgement until payment in full. d) Costs of this suit shall be borne equally by the appellant and the 2nd respondent. e) The above sums shall be paid within a period of 90 days. 10. Dissatisfied, the appellant appealed to this court and filed a memorandum of appeal dated 3 October 2024 and filed on 5 October 2024, in which the following grounds were raised, verbatim: - ELCC E048/24 JDGMNT 6

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a) The Honourable LAT erred in law and in fact in failing to find that the appellant cancelled the compulsory acquisition process in respect to the suit land. b) The Honourable LAT applied a flawed arbitrary and unknown opinion or factors decision on the compensation assessment and award without giving reasons and considering in arriving at an award which is in total violation of principles of just compensation under Article (40)(3) of the Constitution. c) The Honourable LAT in awarding the amount failed to make reasonable amounts that similar, predicted positions on the principles of placing the dispossessed party in the same or prior to the alleged acquisition. d) The Honourable LAT failed to consider the location, utility, size/area of the land acquired as well as the market value of the property in relation to similar neighbourhood properties within the area. e) The Honourable LAT erred in law and fact by failing to find that the 1st respondent had not proven its case on a balance of probabilities. ELCC E048/24 JDGMNT 7

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11. Accordingly, the appellant urged this court to grant the appeal with costs, disallow LAT’s judgment and grant such other order as the Honourable court may deem fit. 12. Accordingly, in accordance with the court’s directions, the appeal was argued through written submissions. In compliance, the appellant’s counsel, Ms. Elizabeth Mwalozi, filed written submissions dated 9 December 2024, whereas the 1st respondent’s law firm on record, Ms. Kivuva Omuga & Co. Advocates, filed composite written submissions on several applications filed by various parties and on the substantive appeal and it was dated 30 January 2026. 13. As this is a first appeal, this court will not interfere with the impugned judgment unless it is satisfied that the LAT misdirected itself and thereby reached an incorrect decision, exercising its discretion wrongly and causing injustice through such erroneous exercise of discretion. The role of an appellate court was aptly described in the decision of Watt v Thomas [1947] AC, 484 at p 485, which was cited with approval in the Court of Appeal decision of Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR, thus: “Lord Simon’s speech in Watt v Thomas [1947] AC, 484 at p 485 as follows: ELCC E048/24 JDGMNT 8

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“….an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight…” 14. This court, having preliminarily considered certain grounds of appeal that the appellant informs the court raise matters of law and fact, finds that the matters of fact are not tenable. Under the legal framework of Section 133D of the Land Act, the jurisdiction of this court, as a first appellate court, is ELCC E048/24 JDGMNT 9

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confined to matters of law, as provided in the statute. This proviso states: “(1)A party to an application to the Tribunal who is dissatisfied with the decision of the Tribunal may, in the prescribed time and manner, appeal to the court on any of the following grounds— (a)the decision of the Tribunal was contrary to law or to some usage having the force of law; (b)the Tribunal failed to determine some material issue of law or usage having the force of law; or(c)a substantial error or defect in the procedure provided by or under this Act has produced error or defect in the decision of the case upon the merits. (2)An appeal from the decision of the Tribunal may be made on a question of law only.” 15. Black’s Law Dictionary, 11th Edition, page 1173 defines matters of fact and law in the following words: Matter of fact: ELCC E048/24 JDGMNT 10

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“A matter involving a judicial inquiry into the truth of alleged facts.” Matter of law: “A matter involving a judicial inquiry into the applicable.” 16. Since the appellant has entwined matters of fact and law in its grounds of appeal, particularly grounds (a) and (e), the court will separate matters of fact from matters of law and will consider only matters of law substantively. Notably, the appellant, in its submissions, abandoned ground (b) of the appeal. 17. Regarding the matter at hand, this court has carefully reviewed the records, the impugned judgment, the appellant’s submissions on the residual grounds of appeal, and the 1st respondent’s rival submissions. It is the considered view of this court that the appeal can be adequately determined by considering the primary issue of whether LAT failed to apply the appropriate principles in its assessment of compensation. As a secondary issue, this court will address itself to what grounds of appeal raise matters of fact. We will address the issues separately, with the latter dealt with first. ELCC E048/24 JDGMNT 11

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a) What grounds of appeal raise matters of fact 18. None of the parties addressed this court in relation to the matter at hand. Upon consideration of grounds (a) and (e) of the appeal in light of the submissions, it is apparent to the court that these grounds concern questions of fact. 19. It was a common factual issue before LAT that the suit land was the subject of compulsory acquisition, which was subsequently withdrawn by gazette notice. It was also an uncontested fact before the LAT that this court in Machakos ELCC case No. E078 of 2021 had determined that the 1st respondent had demonstrated that its rights were infringed by the appellant's entry onto the suit land without adherence to the procedural requirements set forth in the Land Act. 20. Suffice it to say, the sole issue before the LAT was the assessment of compensation. Unfortunately, the appellant has not clarified in its submissions whether matters of law arose concerning the 1st respondent’s evidence. Consequently, the court is inclined to find that grounds (a) and e) involve questions of fact. In reaching this conclusion, the court is guided by the Court of Appeal decision in Kenya Breweries Ltd v Odoyo [2010] KECA 498 (KLR), which held that: ELCC E048/24 JDGMNT 12

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“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. In the case of Stephen Muriungi and another vs Republic [1982-88] 1 KAR 360, Chesoni Acting JA (as he then was) said at page 366:“We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached ELCC E048/24 JDGMNT 13

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that conclusion, which would be the same as holding the decision is bad in law.” b) Whether LAT failed to apply the appropriate principles in its assessment of compensation. 21. In addressing this matter, it is essential to reinforce the doctrine of eminent domain, which permits the compulsory taking of a person’s private property. Article 40 of the Constitution delineates the rights related to private land in the context of eminent domain. This Article states: “(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— (a)of any description; and (b)in any part of Kenya. (2)Parliament shall not enact a law that permits the State or any person— (a)to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b)to limit, or in any way restrict the enjoyment of any right under this Article on ELCC E048/24 JDGMNT 14

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the basis of any of the grounds specified or contemplated in Article 27(4). (3)The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation— (a)results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b)is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that— (i)requires prompt payment in full, of just compensation to the person; and (ii)allows any person who has an interest in, or right over, that property a right of access to a court of law. (4)Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land. ELCC E048/24 JDGMNT 15

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(5)The State shall support, promote and protect the intellectual property rights of the people of Kenya. (6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” 22. A careful reading of this statutory provision, particularly Article 40(3), demonstrates conformance with Chapter V of the Constitution, and the public use requirements impose stringent limitations on the governmental authority to acquire private property. To give effect to this Article, the Parliament enacted a comprehensive legal framework for compulsory acquisition, as detailed in Part VIII, Sections 107 to 131 of the Land Act. 23. Section 107 states that whenever the County or National Government needs to acquire land, the Cabinet Secretary or the County Executive Committee member submits a request to the National Land Commission (“NLC”- the 2 nd respondent herein). If the NLC determines that the request complies with the requirements of Article 40 (3) of the Constitution, it proceeds to map and value the land and ensures that the acquiring authority has identified the number and register of persons in actual occupation of the land. ELCC E048/24 JDGMNT 16

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24. The NLC also establishes the duration of their uninterrupted occupation or ownership interests. Subsequently, the NLC then publishes the intention to acquire the land in the gazette. According to Section 112, 30 days after publishing the notice of intention to acquire, a date is set for an inquiry to resolve proprietary issues and claims for compensation by interested parties, followed by the inquiry itself. After the inquiry, and by Sections 113, 114 and 115, NLC is required to prepare a written award, issue a notice of the award and make payments unless there is no person competent to receive payment, the person entitled does not consent to receive the amount awarded, or there is a dispute as to the right of the persons entitled to receive the compensation or as to the shares in which the compensation is to be paid. Section 111 mandates that, in cases of compulsory acquisition, just compensation must be paid in full to all persons with established interests in the land. In Attorney General v Zinj Limited [2021] KESC 23 (KLR), the apex court held: “Any compulsory acquisition process, ought to have commenced with a requisite notice to the respondent, and any other persons claiming an interest in the land. The public purpose for which the land was to be acquired, ought to have been clearly stated. Most critically, the resultant acquisition ought to have been attended with ELCC E048/24 JDGMNT 17

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prompt payment in full of a just compensation to the respondent.” 25. In the present case, it is undisputed that all procedural requirements mandated by the Land Act were properly adhered to in the initial acquisition of the suit land. The award was duly accepted; however, there was neither prompt payment nor any payment at all, as stipulated by Section 115 of the Land Act. In this initial acquisition, neither party contested the assessment carried out by the 2nd respondent as being excessive. The sole reason the appellant, as the acquiring body, stated for failing to proceed with the compulsory acquisition process at that time was evidenced by its correspondence to the 2nd respondent dated 5 October 2018, asserting that the award exceeded its budget, which eventually led to the withdrawal of the process. 26. Subsequently, the appellant unilaterally entered upon the suit land and undertook construction without making any compensation, hence the assessment before the LAT. 27. Before LAT, the 1st respondent submitted a valuation report prepared by Keriasek & Co Ltd Valuation Surveyors & Real Estate Agents, dated 18 June 2018, which valued the portion to be acquired at Kshs. 78,517,500. However, this report was not considered by LAT because the 1st respondent's case ELCC E048/24 JDGMNT 18

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was primarily based on the valuation established in the award issued by the 2nd respondent. 28. In making this award, the 2nd respondent, as the government body mandated to carry out the assessment, was guided by the statutory criteria set forth under Section 107B of the Land Act on leasehold land and Rules 3 and 4 of the Land (Assessment of Just Compensation) Rules. 29. Section 107 B (2)(b) and (c) delineate the parameters for assessing the value of such land, specifically in determining the just compensation to be awarded. This valuation is based on the unexpired term of the lease, calculated on the basis of a land value index the government and developed the value for of that purpose by developments or improvements on the land, and any other costs incurred on the basis of the terms and conditions of the grant. 30. This criterion of assessment was employed by the 2nd respondent and was relied upon by the 1st respondent as the foundation of its claim. During LAT's consideration of the matter, the Land Value (Amendment) Act, 2019, which aimed to standardise public compensation, prevent inflation of figures and prevent land fraud, had come into force. The appellant was thus required to displace the assessment made by the 2nd respondent with a valuation report anchored in legally established criteria, but such a report was not provided. ELCC E048/24 JDGMNT 19

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Accordingly, the court finds that LAT did not err in relying on the 2nd respondent’s award in the assessment of compensation. Its decision is hereby upheld. 31. Ultimately, this court finds the appeal lacks merit and dismisses it, with each party bearing their respective costs of the appeal. Since the suit land is the subject of disputes before this court, the appellant is directed to deposit the decretal sum within 90 days hereof into a special compensation account to be held by the 2nd respondent in accordance with the law. Judgment accordingly. Delivered and Dated at Machakos this 22nd day of September, 2026. HON. A. Y. KOROSS JUDGE 22.09.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms. Kanja Court Assistant. Miss Mwalozi for appellant. ELCC E048/24 JDGMNT 20

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Mr. Kivuva for 1st respondent. Mr. Mureithi for Mr. Nzaku for interested party. ELCC E048/24 JDGMNT 21

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