Chelelgo Limo v Commissioner of Lands

High Court, at Eldoret August 10, 1990

Aganyanya J

Civil Appeal No 6 of 1987

Land law – compulsory acquisition of land – Government acquiring land for the purpose of building a municipal water dam–– valuations conducted by Commissioner of Lands on the affected lands for purposes of compensating the owners–– valuation of Kshs 20,000 per hectare for arable land - appellant disputing the valuation of his lands – whether valuation reasonable – matters the courts will consider in assessing compensation.

In 1986, the Government intended to compulsorily acquire some pieces of land for the construction of a water dam for the Eldoret Municipality. For this purpose, the Commissioner of Lands issued notices to the affected landowners as required under section 6 of the Land Acquisition Act (cap 295).

A valuer who carried out an inspection on the Commissioner’s behalf gave the following as the estimates of compensation per hectare: Kshs 20,000 per for both arable and fairly arable land; Kshs 6,000 for rockoutcrop and steep land; Kshs 8,000 for rock-outcrop and flay land and Kshs 4,000 for rock and steep land.

Based on these estimates and considering the developments on his two pieces of land which comprised about 42 hectares, the total estimate for the appellant’s compensation came to Kshs 854,170. The appellant disputed this figure and claimed instead a total of Kshs 2,318,976.

Held:

1. The cardinal principle in cases of this nature is that the appellant has the onus to prove that the valuer was wrong in his valuation, although that onus is not a heavy one.

2. In addition to the matters contained in the Schedule to the Land Acquisition Act which a court should consider in assessing the compensation to be paid to a person whose land has been compulsorily acquired, courts have tended to take into account the nearness of the land in question to the main town and its nearness to the road of access.

3. The Court would also consider that the appellant was likely to benefit more from the construction of the dam on his land than he was benefiting before.

4. The valuer had taken all the relevant conditions appertaining to compensation except that he had said nothing about the nearness of the parcels of land to Eldoret town and the Eldoret/Chepkorio road which was all tarmac. This was a material factor in assessing the value of the parcels.

5. However, and considering the values of other parcels of land previously sold within the area, even if the valuer had taken that issue into consideration, he would still have arrived at the same valuation.

6. The valuations done on the appellant’s pieces of land were reasonable.

Appeal dismissed with half costs to the respondent.

Cases

1. Collector v Bhimji [1959] EA 1063

2. Collector v Rahim [1959] EA 1063

3. Collector v Pirmohamed [1958] EA 616

Statutes

1. Land Acquisition Act (cap 295) sections 6, 8, 9(3); Schedule; para 2(b), (c)

2. Constitution of Kenya section 75; 75(1)(c)

Advocates

Birech for the Appellant

Mrs Njuguna, State Counsel, for the Respondent.