Analysis and Determination
7.I have considered the Petition, respective affidavits, annexures and submissions, noting that the 1st Petitioner’s claim was settled through a consent judgement dated the 2nd November, 2022, hence the following are the only issues for determination:
- Whether the 2nd and 3rd Petitioners’ should be compensated as per the terms contained in the initial Award and the said monies to attract 14% interest.
- Whether the Petition is merited.
- Who will bear costs of the Petition.
8.It is not in dispute that the 2nd and 3rd Petitioners are the registered proprietors of LR. No. Athi River/Athi River Block 1/5089; Athi River/Athi River Block 1/40 and Athi River/Athi River Block 1/33 (suit lands). It is further not in dispute that the Respondent sought to compulsorily acquire a portion of the suit lands for construction of the second carriage-way of Athi River/Machakos turn off section off Mombasa road of the Athi River carriageway. The 2nd and 3rd Petitioners’ claim is premised on the argument that their constitutional rights have been violated as the Respondent has not compensated them, for the compulsorily acquired land. The Respondent has confirmed that it is ready to release the compensation amount subject to the acceptance of the revised Awards by the 2nd and 3rd Petitioners.
9.From a cursory glance at the documents presented by the parties herein, I note the original Award as issued to the 2nd Petitioner was Kshs. 160,167,973 whereas the 3rd Petitioner was awarded Kshs. 92,933,322 respectively, for their respective parcels of land but the said Awards were revised downwards.
10.The Respondent in its replying affidavit presented documents confirming that KeNHA had revised the road design and hence there was a revised schedule of land acquisition in July, 2019. Further, that the EACC had also requested for re evaluation of the suit properties.
11.I have highlighted herebelow certain legal provisions governing compulsory acquisition of land.
13.While Section 113 of the Land Act provides that: -
14.Further, Section 119 of the Land Act (Amended) provides condition for payment of compensation and stipulates thus:
15.The Petitioners have not expressly disputed that the road design was revised by KeNHA. I note as per the letter dated the 30th July, 2019, which KeNHA sent to the Respondent, the Director General stated thus:
16.From a reading of this excerpt which emanated from KENHA, it emerges that the road design was indeed revised and portions of land earlier acquired left out. Insofar as the 2nd and 3rd Petitioners insists on being paid compensation with the initial Award, this Court takes judicial notice of the fact that once a portion of land which was initially acquired is left out, it indeed impacts on the amount of compensation to be paid. It is my considered view that since the revised road design with the fresh area to be acquired was gazetted, the Respondent indeed adhered to the legal process as indicated in the Land Act. Further, I note vide their letter dated the 29th June, 2021, the 2nd and 3rd Petitioners were indeed aware of the revised Award, but rejected it, claiming that the amount presented was below the market value. Further, they admit that they held a meeting with the Respondent’s valuer a Mr. Jacob on 29th June, 2019. The 2nd and 3rd Petitioners have further insisted that that the Respondent being an independent commission cannot take directions and be controlled by the EACC over the issuance of Awards and payment. However, this Court also takes judicial notice of the fact that EACC is indeed mandated to conduct investigations on matters touching on use and mis-use of public funds. Further, the Respondent tabled the reasons as given by the EACC as to why the re-valuation was necessary and these included allegations of fraud, over-valuations and influence. I opine that since the funds used for compensation are drawn from public coffers, the EACC was proper in its intervention which culminated in the re-valuation of the said properties.
17.In the case of Patrick Musimba v National Land Commission & 4 others  eKLR Learned Judges held that:
18.Whereas the 2nd and 3rd Petitioners’ demand to be paid compensation as per the initial Awards, they have failed to demonstrate how the revised Award was erroneous or how their properties were under-valued as no fresh valuation reports have been tendered in Court. I note as per the Order of this Court issued on 26th July, 2022, the parties herein were supposed to undertake a joint valuation exercise and present the report in court, which they did not. The Respondent on its part outlined the reasons for the re-valuation and confirm it issued the requisite notice to the Petitioners before carrying out the re-valuation and inviting them for a meeting over the issue. It is my considered view that just compensation as envisaged in Article 40 of the Constitution to project affected persons assumes the said compensation can only accrue to the portion of land acquired. Further, where there is reduction in the land acquired, a project affected person cannot be compensated for more land and where there is a dispute, fresh valuations have to be undertaken. However, the issue of conducting valuations is not the mandate of this court. I hence find that the 2nd and 3rd Petitioners’ rights as envisaged under Article 40 of the Constitution was not violated.
19.I note as per the provisions of the Land Value Amendment Act 2019, the Land Acquisition Tribunal was established. Section 133A of the said Act provides inter alia:
20.Further, Section 133C (6) of the said Land Value Amendment Act 2019 provides that:-
21.From a reading of the above quoted legal provisions, it is clear that disputes emanating from compulsory acquisition should in the first instance be referred to the Land Acquisition Tribunal which has power to confirm, vary or quash the decision of the National Land Commission. Further, the Act stipulates that in the event that a party is dissatisfied with the Tribunal’s decision, they can lodge an Appeal to ELC on a question of law. This Court takes judicial notice that the Land Acquisition Tribunal has since been established and is now fully operational and even though the same was not operational at the time the Petition was instituted, I opine that the 2nd and 3rd Petitioners’ still have a recourse to seek redress therefrom in order for the proper amount of compensation accruing to them to be assessed.
22.I further find that the issue of assessing the correct amount of compensation accruing to the Petitioners’ should have been instituted by way of a civil suit and not a Petition. I still insist that the burden of proof was upon the 2nd and 3rd Petitioners’ to present a current valuation report indicating the value of the land acquired but they only annexed a copy of the 18th December, 2017 Valuation Report which is not sufficient.
23.In the circumstances, I direct that the 2nd and 3rd Petitioners’ to lodge an Appeal at the Land Acquisition Tribunal to enable it assess the correct compensation due to them and will grant them leave of thirty (30) days from the date hereof, to do so.
24.It is against the foregoing that I find this Petition unmerited and will proceed to strike it out.
25.I will not make any order as to costs.