REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITUI

ELC APPEAL NO. E004 OF 2021

RAVASPAUL KYALO MUTISYA…………………………………. APPELLANT

-VERSUS-

NATIONAL LAND COMMISSION………………….…………..RESPONDENT

JUDGEMENT

1. Before the court is an Appeal from the Award of Isabel Njeru, Director of Valuation and Taxation for Chairman National Land Commission Nairobi dated 4^th March 2021 and Gazette Notice 6378 of 28^th August 2021. The Memorandum of Appeal dated 30^th September 2021 sets forth the following Grounds of Appeal:

1. THAT the Appellants land was compulsorily acquired without his knowledge and the contested award was given arbitrary in total disregard and violation of the law and the Constitution provisions and a denial of natural justice and fairness which adversely affected the Appellant’s right to property

2. THAT the actual area of land acquired(0.035 Ha), is a gross underestimation and the subsequent award(Ksh.1,168,380) given by the Respondent is a gross undervaluation of the Appellant’s property which was arrived entirely on the opinion of the Respondent without the benefit of the actual claim of the Appellant and cannot be taken to mean FULL and JUST compensation.

3. THAT the Respondent failed/ignored to take into account loss of value of land and loss of use of the land by the Appellant when considering the offer of the award in dispute.

4. THAT the Respondent failed/ignored to consider the actual size/area of land acquired(0.056Ha), the location, utility and the market value of the property of the Appellant in relation to similar neighborhood properties previously sold but arrived at an opinion of a unilateral quantum of the contested award not backed by any survey and valuation contrary to Sec 107(8) Land Act,2012 and Land Rules(2017)(Assessment and Just Compensation)

5. That the Respondent failed/ignored to take into account that the compulsory acquisition of 0.056 Ha of the Appellant’s land stalled/stopped his project of constructing a matrimonial house and food store occupying 0.0443Ha indefinitely and has to relocate it by buying another land of equal area.

6. THAT the Respondent in the awarding opinion failed/ignored to make reasonable allowance predicted on the principles of placing the dispossessed Appellant in the same or similar position prior to acquisition of the land.

7. THAT the Respondent failed/ignored to consider the special value factor being the injury occasioned on the Appellant by reason of acquisition of his land without notice pursuant to Section 110(1) of the Land Act, 2012.

8. THAT the Respondent failed/ignored to consider the reasonable allowance for the attributable severance due to the acquisition of 0.056Ha of the land; damages sustained due to the severance of the land, settlement relocation costs and loss of value of the remaining land(0.017 Ha)

9. THAT the Respondent applied a flawed arbitrary and unknown opinion or decision on the compensation assessment and awarding without giving reasons and factors considered in arriving at an award which is a total violation of the principles of the just compensation under Article 40(3) of the Constitution of Kenya(2010)

10. THAT the Respondent gazetted the portion of land taken and gave the disputed award based on an arbitrary and approximate area of land acquired as 0.035 ha without considering the actual measurement on the ground of the Appellant’s land acquired which is 0.056Ha as indicated in the expert survey report, whose market value is Ksh.1,920,000 going by the expert valuation report.

11. THAT the Respondent failed/ignored to give the Appellant an opportunity to be heard on his presentations, arguments and complaints submitted to the Respondent on 15^th October 2020; 15^th February 2021 and on 15^th March 2021 contrary to Article 47 of the Constitution and a denial of natural justice and fairness which adversely affected the Appellant’s right to property.

12. THAT the Respondent did not raise an objection on the Appellant’s presented claim received by the Commission’s staff on the date of inquiry dated 15^th October 2020.

13. THAT the Respondent ignored/failed to consider the actual just value of the improvements and materials on the land acquired(0.035Ha) indicated on the Expert Valuation Report as Ksh.931,653.00 and awarded an arbitrary undervalued amount of Ksh.734,984 for improvements only.

14. THAT the Respondent failed/ignored to take into account the costs borne by the Appellant in obtaining expert reports on survey and valuation of the acquired land and its developments.

15. THAT the Respondent ignored/failed to carry out actual survey and satisfy itself that the partial compulsory acquisition of 0.056ha rendered the remaining area of land of 0.017 inadequate for the Appellant’s intended use(0.0464Ha) and/or severely and disproportionately reduced the value of remaining land necessitating it to instruct the acquiring authority to acquire the remaining land as provided for in Section 122(3) of Land Act,2012.

The Appellant prays:

a) That this Appeal be allowed.

b) THAT the disputed award of Ksh.1,168,380 be set aside.

c) THAT the Respondent’s award and pay the Appellant Kshs.5,024,561.60 as Just compensation or as the Court may decide.

d) THAT the Respondent provide the reports on Survey, Inspection and Valuation to the Appellant’s land before acquisition.

e) THAT the Respondent provide Gazette Notice for Intention to acquire the Appellant’s land.

f) THAT the Respondent invoke Section 122(3) of the Land Act 2012.

g) THAT the costs and interests of this Appeal be awarded to the Appellant at Court rates.

2. The Appellant filed a Supporting Affidavit stating that he is the registered proprietor of L.R NO. Kisasi/Nguuni/1462 situated along Kibwezi-Kitui Road near Kisasi Market, Kisasi District, Kitui County whose land tenure is freehold.That he purchased the land in the year 2008 and started developing it by building a home in the year 2012. On 7^th March, 2019 a portion of his land measuring 0.056Ha was compulsorily acquired by Kenya National Highway Authority(KeNHA) by marking the same with beacons. He claims that they further demolished his building that was under construction and excavated his land to construct the Kibwezi-Mutomo-Kitui-Kabati-Migwani Road(A9/B64). He states that all this was carried out without notice having been issued to him. He claims upon investigation he found out that gazette notice number 1640 dated 22^ndFebruary 2019 had been published by the Respondent but the same did not include his land among the ones for compulsory acquisition.

3. The Appellant claims that the Respondent subsequently publishedGazette Notice number 6380 dated 28^th August 2020 which listed his parcel of land listed for inquiry purposes. The said inquiry was set for 5^th October 2020 at Kisasi DC’s office this being nineteen months after the Appellants portion of land was acquired and his house demolished. The Appellant engaged the services of a private valuer to determine the market value of the parcel of land together with the improvements thereon and the valuation was found to be Ksh.3,360,000. The said valuation report was presented at the inquiry.

4. After several visits and communication with the Commission’s compensation offices The Appellant was issued with an award dated 4^th March 2021for Ksh.1,168,000in respect of his interests in the land and improvements thereon and the said award gave the following particulars relating to the acquisition;

a) Areaof land acquired     0.0350 Ha Approx.

b) The Value of the land in the Commissions opinion  Kshs. 280,000/-

c) The value of the improvements in the Commission’s opinion  Kshs 735,984/-

d) The total compensation payable for the land and improvements

 inclusive of 15% disturbance allowance and any other

applicable statutory additions (if any)     Kshs 1,68,380

5. The Appellant states that he did not accept the award and indicated his intention to appeal to court against the award. He further wrote to the Respondent seeking a review of the award but the same was never reviewed or changed.

6. Further, the Appellant claims that he later discovered that KeNHA erected beacons indicating the extent of the road and the road reserve and the same covered 75%of his property being 0.056 Ha and not 50%(0.035Ha) that was gazzetted. That he engaged the services of Radian Surveys Ltd who confirmed that indeed the size of the land taken by road was 0.056 Ha and not 0.035 Ha. According to the Appellant, and considering this addition, the value of the land acquired rises to Ksh.5,024,561.60 and not Ksh.3,360,000.00 as he had earlier claimed or Kshs. 1,168,380 as awarded. He states that he has suffered loss and damage in terms of being landless, homeless and not yet compensated as he continues to service a loan which he had secured to buy the land and put up the building on the suit property.

The Appellant’s Submissions

7. The Appellant filed written submissions touching on the following issues:

a) Whether the Award given to the Appellant by the Respondent is to be upheld.

b) Whether the Appellant was given notice and opportunity to present its written representations and by extension whether it was given opportunity to be heard by the Respondent.

8. Regarding the issue of whether the Award given to the Appellant by the Respondent is to be upheld, Counsel for the Appellant submitted that the Respondent failed to consider the actual value of the improvements and materials on the acquired land and gave an undervalued amount contrary to the law.

9. It is also the Appellant’s submission that they were not given reasons for the decision which is a violation of Article 47(2) of the Constitution of Kenya. They relied on the decision in Stanley Munga Githunguri v National Lands Commission &Another (2015) eKLR.

10. The Appellant submitted that contrary to the rules of natural justice and fair administrative action he was not given prior notice of the decision to compulsorily acquire his land nor the notice for hearing of the inquiry into compensation to enable him prepare for his case. They relied on the decision in Sceneries Limited vs National Land Commission(2017)eKLR where the court held that failure to give proper notice is initself a denial of natural justice and fairness.

Analysis and Determination

11. I have considered the grounds of appeal, prayers sought and the supporting affidavit and in my view the grounds of appeal may be compressed into 4 and dealt with as hereunder;

A) Ground 1 and 7 Whether the Respondent notified the Appellant of the compulsory acquisition of his land and whether the acquisition was carried out in accordance with the law.

B) Grounds 4, 5, 7, 9, 10 and 15 Whether the size of the land acquired was as shown in the gazette notice and whether acquiring authority should acquire the remaining land as provided for in Section 122(3) of Land Act, 2012.

C) Ground 8, 11 and 12 Whether the Appellant was given an opportunity to be heard and given reasons for the Respondents decision and whether principals of natural justice were observed.

D) Grounds 1 (b), 2, 3, 6, 13 and 14 Whether the compensation award of KshsKsh.1,168,380 was a full and just compensation.

A) Ground 1 and 7 Whether the Respondent notified the Appellant of the compulsory acquisition of his land and whether the acquisition was carried out in accordance with the law.

12. It has been confirmed that the Appellant is the registered owner of land parcel NO. Kisasi/Nguuni/1462situated along Kibwezi-Kitui Road near Kisasi Market, Kisasi District, Kitui County. His right to the said land is protected under the Bill of Rights Chapter four of the Constitution of Kenya 2010Article 40 which states that;

(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;

b) and 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 interestin, 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 the basis of any of the grounds specified or contemplated in Article 27(4).

Article 40 (3) of the Constitution further provides that

“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

13. Further Article 67 of the Constitution establishes the National Land Commissionwith mandate over public land including land that has been compulsorily acquired.The Land Act(2012) governs the process of Compulsory Land Acquisition in Kenya and mandates at Section 111(1) that the National Land Commission shall regulate the assessment of such just compensation and to prepare the award for compensation of such land that has been acquired:

“If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined.

(2) The Commission shall make rules to regulate the assessment of just compensation.”

14. The Land Value Amendment Act 2019 which made amendments to the Land Act(2012) established the Land Acquisition Tribunal at Section 133A.Section 133C provides that:

“The Tribunal has jurisdiction to hear and determine appeals from the decision of, the Commission in matters relating to the process of compulsory acquisition of land.

(2) A person dissatisfied with the decision of the Commission. may, within thirty days, apply to the Tribunal in the prescribed manner.

(3) Within sixty days after the, filing of an application under this Part, the Tribunal shall hear and determine the application.”

15. Further to this, Section 133C(6) of the Land Actprovides that: “Despite the provisions of, sections 127, 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of wayleaves, easementsand public right of way, shall, in the first instance, be referred to, the Tribunal.”This means that the Land acquisition Tribunal is the first dispute resolution mechanism established under the law in case a dispute arises from compulsory acquisition of land. Section 133(7) provides that the Tribunal has power to confirm, vary or quash the decision of the National Land Commission. The Act further provides that if a party is dissatisfied with the Tribunal’s decision, they may appeal to the court on a question of law only as provided by Section 133D of the Land Act.

16. Unfortunately, it appears that the Land Acquisition Tribunal is yet to be established and be fully operational. The right of access to court in case of a dispute relating to compulsory acquisition of land is a constitutional right under Article 40 (3) (ii) which allows any person who has an interest in, or right over, the property to be acquired a right of access to a court of law.Section 128 of the Land Act(2012) provides that any dispute arising out of any matter provided for under this Act may be referred to the Land and Environment Court for determination. It is the Courts view that the lack of an operational Land Acquisition Tribunal does not limit the Appellant’s right of access to the Courts and I find that the dispute as filed in Court is properly presented.

17. The Appellants claim is mainly based on the fact that a portion of his land parcel No. Kisasi/Nguuni/1462was unlawfully acquired compulsorily by the Respondent and the compensation awarded does not amount to a full and just compensation as contemplated by the law. He claims that he did not receive notice that his property was to be part of the land to be acquired by the Respondent for construction of Kibwezi-Mutomo-Kitui-Kabati-Migwani Road (A9/B64). He also claims that his property was demolished before issuance of this notice even though the same is a requirement of the law. That when the Appellant made inquiries he found out that gazette notice number 1640 of 22^nd February 2019 had been issued being a notice of intention by the government to acquire the listed parcel of land, for Kenya National Highway Authority (KeNHA). However, the Appellant claims that his parcel of land was not one of the ones published for compulsory acquisition. This fact has not been denied.

18. The process of compulsory land acquisition is provided for under Section 107 of the Land Act. The said section provides an elaborate and detailed process that commences with submission of a request from the National or county governments to the Commission for acquisition of land on its behalf. Under subsection 4 if the Commission is satisfied that the request meets the requirements of Section 107 (2) and Article 40 (3) of the Constitution the Commission shall;

a) cause the affected land to be mapped out and valued by the Commission using the valuation criteria set out under this Act; and

b) establish that the acquiring authority has identified the number and maintains a register of persons in actual occupation of the land, confirming for each such occupation how much time they have been in uninterrupted occupation or ownership of interest in the land prior to the date of the request for acquisition of the land, and the improvements thereon.

Subsection 5 provides that;

“Upon approval of a request under subsection (1), the Commission shall publish a notice to that effect in the Gazette and the county Gazette, and shall deliver a copy of the notice to the Registrar and every person who appears to the Commission to be interested in the land”

19. However, the law provides under Section 120 (2) of the Land Act (2012) for situations where land can be acquired before the process of compensation is completed. The court in African Gas and Oil Company Limited v Attorney General & 3 others [2016] eKLR asserted this as it held that:

“First, it is correct that section 120 (2) of the Land Act empowers the 3^rd Respondent, in cases where there is an urgent necessity for the acquisition of land, and it would be contrary to the public interest for the acquisition to be delayed by following the normal procedures of compulsory acquisition under the Land Act, to take possession of land upon the expiration of fifteen days from the date of publication of the notice of intention to acquire.”

20. From the foregoing it is clear that the Commission can only take possession of property before payment of compensation where there is an urgent necessity for the acquisition of the land, and it would be contrary to the public interest for the acquisition to be delayed by following the normal procedures of compulsory acquisition under this Act. Possession can only be taken upon the expiration of fifteen days from the date of publication of the notice of intention to acquire.It is the Courts view that this section does not apply to a situation where the property to be acquired was not in the notice of intention to acquire land.

21. The court finds that the Preliminary notice provided for under Section 107 (5) of the Land Act is a mandatory requirement in the process of compulsory acquisition and the same must be served on every person who appears may be interested in the land and this would include the Appellant herein as the registered proprietor of the land. The Court thus finds that the Respondent did not follow the law in acquiring the Appellants property due to failure to issue a notice of intention to acquire land under Section 107 (5) of the Land Act. For this reason, the Appellant is entitled to be issued with the notice, if any existed, as prayed under prayer e) of the appeal.

B) Grounds 4, 5, 7, 9, 10 and 15 Whether the size of the land acquired was as shown in the gazette notice and whether acquiring authority should acquire the remaining land as provided for in Section 122(3) of Land Act, 2012.

22. The Appellant states that on 29^th March 2021 KeNHA erected beacons indicating the extent of the road and the road reserve and the same covered 75%(0.056Ha) of his property and not 50% (0.035Ha) that was gazzetted for acquisition thus leaving him with o.017 Ha (25%). The Appellant states that he engaged an expert surveyor M/S Radian Surveys Ltdwho confirmed the above-mentioned anomaly thus making the value of the land acquired to rise to Ksh.5,024,561.60 and not Ksh.3,360,000.00 as initially claimed.

23. The court is of the view that even though this fact is not controverted, the survey report confirms that the survey was carried out on 14^th July 2021 while the inquiry as to compensation by the Respondent was carried out on 15^th October 2020. The said issue was not placed for determination before the Commission and did not form part of its decision while making the award subject matter of this appeal. As per the award the size of the land acquired by the Respondent is 0.035 Ha and not as claimed by the Appellant to be 0.056 Ha.

24. The Appellant has also not shown and did not claim during the inquiry that the land that was left after acquisition was not fit for the purpose the Appellant intended it for. The prayer that theacquiring authority should invoke Section 122(3) of Land Act, 2012 and acquire the remaining land is hereby declined.

C) Ground 8, 11 and 12 Whether the Appellant was given an opportunity to be heard and given reasons for the Respondents decision and whether principals of natural justice were observed.

25. Section 112 of the Land Act provides for issuance of notice at least thirty days after publishing the notice of intention to acquire land, giving a date for an inquiry to hear issues of propriety and claims for compensation by persons interested in the land. At the hearing, the Commission is expected to make full inquiry into and determine who are the persons interested in the land and receive written claims of compensation from those interested in the land.The Appellant states that when he saw the notice of inquiry in the Kenya Gazette number 6380 dated 28^th August 2020 he engaged the services of a private valuer to determine the market value of the parcel of land together with the improvements thereon and the valuation was found to be Ksh.3,360,000 and the said valuation report was presented at the inquiry.

26. From the Appellants claim and the documents filed in court the court is satisfied that he was given an opportunity to be heard, he presented his written statement of claim and the supporting documents.

27. On the second limb of this ground of appeal the court finds that the Respondent was wrong in failing to give to the Appellant reasons for the award and neither did they show the criteria used in arriving at the assessed award in spite of various requests for the same. The Respondent further failed to supply the Appellant with the documents in support of the award.

D) Grounds 1 (b), 2, 3, 6, 13 and 14 Whether the compensation award of KshsKsh.1,168,380 was a full and just compensation

28. Inquiry as to compensation for land under compulsory acquisition is provided for under Section 112 of the Land Act. The same provides that anotice of at least thirty days after publishing the notice of intention to acquire land is issuedgiving a date for an inquiry to hear issues of propriety and claims for compensation by persons interested in the land. The Appellant states that when he saw the notice of inquiry in the Kenya Gazette he engaged the services of a private valuer to determine the market value of the parcel of land together with the improvements thereon. The valuation was found to be Ksh.3,360,000 and the said valuation report was presented at the inquiry together with claim forms.

29. The Appellant claims that his land was undervalued. Article 40 (3) of the Constitution requires prompt payment in full, of just compensation to the person whose land has been taken. The question for determination is whether the award made meets the criteria for assessment thus making it a “just compensation”.Section 2 of the Land Act defines"just compensation" in relation to compulsorily acquired land or creation of wayleaves, easements and public rights means a form of fair compensation that is assessed and determined through criteria set out under this Act

30. It was held in Katra Jama Issa v Attorney General & 3 others [2018] eKLR that;“…Compensation of compulsorily acquired property be quantified in accordance with the principle of equivalence. A person is entitled to compensation for losses fairly attributed to the taking of his land but not to any greater amount as “fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority” (emphasis added)”

31. The Land Value (Amendment) Act 2019 establishes the criteria for assessing value for compulsorily acquired freehold land at Section 107A(1) which states that:

“Valuation of freehold land and community land for purposes of compensation under this Act shall be based on the provisions of this Part and the land value index developed for that purpose by the Cabinet Secretary in consultation with county governments and approved by the National Assembly and the Senate.”

32. It establishes an elaborate and detailed criteria for assessing this compensation including the improvements made and increase in value of the land, damage likely to be caused during the process and the number of people living on he property. Factors to be considered in assessment of compensation include the market value of the land, damage sustained or likely to be sustained by persons interested at the time of the Commission's taking possession of the land by reason of severing the land from his or her other land,  damage sustained or likely to be sustained by persons interested at the time of the Commission's taking possession of the land by reason of the acquisition injuriously affecting his or her other property, whether moveable or immovable in any other manner or his or her actual earnings. damage genuinely resulting from diminution of the profits of the land between the date of publication in the Gazette of the notice of intention to acquire the land and the date the Commission takes possession of the land.

33. The Appellant challenges the criteria used by the Respondent in assessing compensation. He claims that the award is a gross undervaluation, arbitrary provides no reasons for the award and does not show the factors taken into consideration in coming up with the amounts awarded. He further claims that award ignored loss of value of the land and failure to award actual market value and place the Appellant in the same position he was in before acquisition. He further claims that the Respondent failed to give the actual size of the land acquired and compensation for the actual loss.

34. The Court is of the view that considering the elaborate criteria given under the Land Act and the Land (Assessment of Just Compensation) Rules, 2017, it was imperative that the Respondent gives reasons and shows the criteria used in arriving at the assessed award. No reasons were given. As stated earlier, the law under Section 107 (4) of the Land Act provides that prior to issuing the preliminary notice of intention to acquire land the Commission shallcause the affected land to be mapped out and valued.It is to be presumed form the said section that prior to making the award of compensation the Respondent carried out a valuation of the land and improvements thereon and the said valuation would form the basis for the award. The court has perused the communication and letters by the Appellant to the Respondent seeking to be given reasons for rejection of his claim for compensation in the sum of Kshs 3,360,000 as per the valuation report he gave. He also sought information and justification for the award in the sum of Kshs. 1,168,380 but none was given.

35. The Court finds that the Appellant stood to loose his right to land by way of compulsory acquisition by the Respondent, he was entitled to be given written reasons and justification for the award made. This is a constitutional right under Article 47 (2) of the Constitution of Kenya 2010 which provides that;

“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

36. Having failed to give reasons and justification for the award dated 4^th March 2021, I find that the assessment by the Respondent was arbitrary, and the compensation does not amount to just compensation as envisaged under Article 40 (3) (b) (i) of the Constitution and the same ought to be set aside.

37. Having set aside the award I find that the assessment made by the Appellant raises certain issues that ought to be considered in what the Court views to be a just compensation to the Applicant for a portion of 0.035 out of land parcel No. Kisasi/Nguuni/1462.It is noted as follows;

i) That the Appellants valuation report by Wamae Mureithi & Associates shows that valuation was carried out on 9^th October 2020. It is further noted that the same includes as part of the assessment the value of developed foundations completely destroyed (10%) completion level and developed foundations partially (95%) destroyed (2% completion level). By the date of assessment, it is clear that the properties were already destroyed as per the evidence of the Appellant the property was destroyed around 15^th March 2019.  It is thus not clear what the subject of valuation of structures was at the time of valuation.

On the valuation of the land the valuer remarks that “The property is located in an area where properties have been on the rise due to improved social amenities such as the newly constructed Kitui-Kibwezi Highways” It is the Courts view that the said consideration is in contravention of the provisions of Section 107 (A) for the reason that the land herein was being acquired for the purpose of construction of the same road that is considered to have occasioned the increase in the value of the land. The said section provides that;“In assessing the value of freehold land and determining the just compensation to be awarded for land acquired under this Act, an increase in the value shall be disregarded if—

a) the increase in the value of land is occasioned by the intended use or development of the land to be acquired.”

ii) The Appellant states that KeNHA erected beacons indicating the extent of the road and the road reserve and covered 75%(0.056Ha) of his property and not 50%(0.035Ha) that was gazzetted. Making the value of the land acquired riseto Ksh.5,024,561.60 and not Ksh.3,360,000.00. The Appellant claims that this factor must also be considered in making an award. This claim was earlier dealt with and the same is rejected.

iii) The Court has considered the Appellants claim that he purchased the entire land parcel Kisasi/Nguuni/1462in the year 2008 and 2010 for Kshs. 565,000.

38. While dealing with compensation for compulsory acquisition of land the court in the case of Patrick Musimba v National Land Commission & 4 others [2016] eKLR where the Learned Judges held that:

“In our view, a closer reading of Article 40(3) of the Constitution would reveal that the Constitution did not only intend to have the land owner who is divested of his property compensated or restituted for the loss of his property but sought to ensure that the public treasury from which compensation money is drawn is protected against improvidence. Just as the owner must be compensated so too must the public coffers not be looted. It is that line of thought that, under Article 40(3), forms the basis for “prompt payment in full, of just compensation to the person” deprived of his property though compulsory acquisition. As was stated by Scott L.J, in relation to compulsory acquisition, in the case of Horn-v- Sunderland Corporation [1941] 2 KB 26,40: “The word “compensation” almost of itself carries the corollary that the loss to the seller must be completely made up to him, on the ground that unless he receives a price that fully equaled his pecuniary detriment, the compensation would not be equivalent to the compulsory sacrifice”. Effectively Lord Scott’s statement gave rise to the unabated proposition that the compensation of compulsorily acquired property be quantified in accordance with the principle of equivalence. A person is entitled to compensation for losses fairly attributed to the taking of his land but not to any greater amount as “fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority”: see Director of Buildings and Lands –v- Shun Fung Wouworks Ltd [1995] AC 111,125.  We see no reason why the same approach should not be adopted locally. The Constitution decrees “just compensation” which must be paid promptly and in full. The Constitution dictates that the compensation be equitable and lawful when the word “just” is applied as according to Black’s Law Dictionary 9th Ed page 881 the word “just” means “legally right; lawful; equitable”. In our view, the only equitable compensation for compulsory acquisition of land should be one which equates restitution. Once the property is acquired and there is direct loss by reason of the acquisition the owner is entitled to be paid the equivalent. One must receive a price equal to his pecuniary detriment; he is not to receive less or more. This can be achieved to the satisfaction of the owner of land by Appeal to the market value of the land.’

39. From the foregoing analysis of the issues arising out of the Appeal herein, I find the Award made by Isabel Njeru, Director of Valuation and Taxation for Chairman National Land Commission Nairobi dated 4^th March 2021 was arbitrary and unjust. I further find thefollowing award to be a just compensation to the Appellant for the compulsory acquisition by the Respondent of a portion of 0.035 out of land reference Kisasi/Nguuni/1462 and the improvements thereon;

a) Area of land acquired   0.0350 Ha Approx.

b) The Value of the land   Kshs. 800,000

c) The value of the improvements   Kshs 931,653

d) The total compensation payable for the land and

improvements inclusive of 15% disturbance allowance

 and any other applicable statutory additions (if any)   Kshs 1,991,400.95

e) Cost of valuation  Kshs 106,583

Total  Kshs. 2,097,983.95

f) Interest on the award to accrue at the base lending rate set by the Central Bank of Kenya and prevailing from 4^th March 2021, the date of the award until the time of payment.

g) The cost of professional fees is declined since no receipt is provided.

The final orders made are that the appeal this Appeal be allowed in the following terms;

A) THAT the disputed award of Ksh.1,168,380 be and is hereby set aside.

B) THAT the Respondent’s award and pay to the Appellant the sum of Kshs. 2,097,983.95 as just compensation.

C) Interest on the award to accrue at the base lending rate set by the Central Bank of Kenya and prevailing from 4^th March 2021, the date of the award, until the time of payment.

D) THAT the Respondent provide to the Appellant the reports on Survey, Inspection and Valuation on the Appellant’s land before acquisition.

E) THAT the Respondent provide to the Appellant Gazette Notice for Intention to acquire the Appellant’s land.

F) THAT the costs of this Appeal be awarded to the Appellant.

DELIVERED, DATED AND SIGNED AT KITUI THIS  8TH DAY OF MARCH, 2022

 HON. L. G. KIMANI

 ENVIRONMENT AND LAND COURT JUDGE

Judgement read in open court in the presence of-

C. Nzioka……………………………………...Court Assistant

Theuri Advocate holding brief for Momanyi Advocate.……………..............for the Appellant

No attendance………... ………………………………………………….…for the Respondent