The Kenya Land Acquisition Tribunal

The concept of compulsory acquisition of private land by the State, otherwise known as the doctrine of eminent domain, is the power of the State to acquire private land for public use.

The legal framework under which the State exercises the power of eminent domain is provided for under Article 40 (3) of the Constitution as follows:

‘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-

• 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,

• is for public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that –

• • requires prompt payment in full, of just compensation to the person; and

• • allows any person who has an interest in or right over, that property a right of access to a court of law.’

 

The important features of compulsory acquisition under the Constitution are that:

• the private land acquired must be for use in a public purpose,

• the owner of the land acquired, where registered or in occupation as provided under Article 40 (4) of the Constitution, must be paid just compensation, promptly and in full, and

• where there is any grievance as to the amount paid or the process of the acquisition, the affected person must have free access to dispute resolution mechanisms including courts of law.

 

The procedure for compulsory acquisition is aptly provided for under Part VIII of the Land Act and the Kenya Courts have made several pronouncements enforcing the procedure as provided by the law. For instance, disputes arose during the acquisition of land for the Standard Gauge Railway and in the decision of the 5-Judge Bench in Patrick Musimba v National Land Commission & 4 Others [2016] eKLR the process was stated as follows:

• The National Land Commission needs to undertake the necessary diligent inquiries including interviewing the body intending to acquire the property.
• It must publish in the gazette a notice of the intention to acquire the land.

• The notice is also to be delivered to the Registrar as well as every person who appears to have an interest in the land.

• It must also ensure that the land to be acquired is authenticated by the survey department for the rather obvious reason that the owner be identified.

• It is to inspect the land and do all things as may be necessary to ascertain whether the land is suitable for the intended purposes. The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.

• It is then to gazette an intended inquiry and the service of the notice of inquiry on every person attached. The inquiry hearing determines the persons interested and who are to be compensated.

• On completion of the inquiry, it makes a separate award of compensation for every person determined to be interested in the land and then offers compensation either monetary or land of equivalent value, is available.

• Once the award is accepted, it must be promptly.

• Where it is not accepted then the payment is to be made into a special compensation account held by the National Land Commission.

• The process is completed by the possession of the land in question being taken by the National Land Commission once payment is made even though the possession may actually be taken before all the procedures are followed through and no compensation has been made.

 

Composition of the Tribunal

The Land Acquisition Tribunal was established in 2019 under Section 133A of the Land Act. It became operational in 2023 and its registry offices are at Kenya Re Towers, Ground Floor in Upper Hill.

The Tribunal, under Section 133A (1) of the Land Act consists of 3 persons who are appointed by the Cabinet Secretary through a notice in the Gazette. The Chairperson, Dr. Nabil Orina and Mr. George Supeyo, a member, were sworn in to office on 15th September 2023.

The Chairperson is a nominated by the Judicial Service Commission. One member is nominated by the Cabinet Secretary and the other member is nominated by the Attorney General.

The Deputy Registrar and the other staff members are seconded by the Judicial Service Commission.

The Chairperson is appointed for a term of four years and is eligible for re-appointment for one more term of four years while a member is appointed for a term of three years and is eligible for re-appointment for one more term of three years.

 

Jurisdiction of the Tribunal

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

The appeal to the Tribunal is to be filed within thirty days of the decision and the Tribunal is required to determine the appeal in sixty days as provided under Sections 133C (2) and (3), respectively.

Section 133C (4) of the Land Act allows the Tribunal to extend time, where sufficient cause has been shown, prescribed for doing any act or taking any proceedings and give such terms and conditions that are necessary for expediency and for the ends of justice to be met.

Section 133C (5) of the Land Act mandates the Tribunal to direct the Land Commission to award interest on the excess of the compensation that should have been paid where the Tribunal finds that the National Land Commission ought to have awarded a greater sum than that awarded.

Section 133C (6) of the Land Act directs that the Tribunal shall be the first point of determination of any disputes relating to compulsory acquisition of land for any public purpose including creation of wayleaves, easements, rights of way, among others.

The Tribunal has power to confirm, vary or quash the decision of the Land Commission under Section 133C (7) of the Land Act.

The Tribunal has power to determine matters relating to compulsory acquisition of land, hear and determine a complaint before it arises under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Action Act or any other law under Section 133C (8) of the Land Act.

 

Appeals from the decision of the Tribunal

A party that is aggrieved with the decision of the Tribunal should appeal the decision to the Environment & Land Court under Section 133D of the Land Act on only a question of law. The grounds of appeal are:

1. the decision of the Tribunal was contrary to law or to some usage having the force of law;
2. the Tribunal failed to determine some material issue of law or usage having the force of law;
3. 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.

 

Review of Relevant Decisions

Giciri Thuo & 5 Others v National Land Commission & 4 Others; Kenya Human Rights Commission (Interested Party) Dorcas Wairimu Kamau & 154 Others (Intended Interested Parties) [2022] e KLR

The Hon. Court in deciding a preliminary objection on grounds among others that:

1. Judicial proceedings would be instituted only as the last resort and even then, such proceedings would be lodged first before the Tribunal,
2. Section 133C (6) of the Land Act specifically states that disputes relating to compulsory acquisition of land ought to first be lodged with the Tribunal,
3. Proceedings before the Hon. Court can only be instituted through an appeal against the decision of the Tribunal,
4. The petition was premature, mischievous, vexatious and an abuse of the court process. Therefore, the Court lacks jurisdiction to entertain, hear or determine the issues raised in the petition.

The Hon. Court stated that:

“…it is therefore clear from Part VIII and Part VIIIA of the Land Act that disputes relating to proprietary and claims for compensation by persons interested in land which is the subject of compulsory acquisition are to be adjudicated by the National Land Commission through the mechanism of inquiry contemplated under Section 112. If there is no satisfactory resolution of the dispute, the next port of call is the Land Acquisition Tribunal under Section 133 A of the Land Act. If a party is dissatisfied with the determination of the Tribunal, the next port of call is this Court. The appellate jurisdiction of this court is, however, restricted to issues of law.”

The Hon. Court continued to give the rationale for striking out the petition as follows:

“Our courts have umpteen times stated that where Parliament has, through statute, provided a clear procedure for seeking redress, that procedure must be followed…the Court of Appeal reiterated this principle in Speaker of the National Assembly v James Njenga Karume [1992] eKLR, in the following words: – “In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” The Supreme Court of Kenya rendered itself on this principle in Benard Murage v Fine Serve Africa Limited & 3 Others [2015] eKLR as follows: – “Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be persued first”… the Court of Appeal [Makhandia J] emphasized this principle and stated as follows in Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR that: – “To this extent, I find that the learned judge erred in law in finding that the ELC had jurisdiction simply because some of the prayers in the petition were outside the jurisdiction of the Tribunal or National Environmental Complaints Committee. A party or litigant cannot be allowed to confer jurisdiction on a court or to oust jurisdiction of a competent organ through the art and craft of drafting of pleadings. Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively between mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other organs. Neither is original jurisdiction an inclusive clause that confers jurisdiction on a court or body to hear and determine all and sundry disputes. Original jurisdiction simply means the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance…”

The Hon. Court, in granting the preliminary objection held that:

“For the above reasons, it is my finding that the jurisdiction of this court has been prematurely invoked in this petition. At this stage of the state’s exercise of the power of eminent domain, this court does not have jurisdiction to entertain the dispute in this petition. The proper for a where the grievances raised by the petitioners should be ventilated are the inquiry contemplated under Section 112 of the Land Act and the Land Acquisition Tribunal established under Section 133A of the Land Act. This petition, therefore, stands to be struck out. The Petitioners shall be at liberty to pursue appropriate redress as provided under the law.”

Mathew v Kenya Electricity Transmission Company Limited (KETRACO) [2014] KLR

The Tribunal, in dismissing an application by the Respondent to refer the matter on compensation of the Applicant for compulsory acquisition of his land to arbitration, examined Section 6 of the Arbitration Act which requires that the party applying to have the matter referred to arbitration should not have taken any procedural step before invoking Section 6 of the Arbitration Act. The Tribunal found that:

“The Respondent’s counsel on record filed a Notice of Appointment on 21st December 2023. Two weeks later, on 4th January 2024, the Respondent filed a Notice of Preliminary Objection. As stated above, the said preliminary objection was dismissed on 31st January 2024 and the instant application filed on 8th February 2024. It is noteworthy that the Respondent’s preliminary objection was on the basis that the- Energy and Petroleum Regulatory Authority (EPRA) has original jurisdiction in disputes involving wayleaves. Essentially, had we allowed the preliminary objection as urged by the Respondent, the assumption is that the Respondent was ready to submit to EPRA’s jurisdiction. The Respondent did not at the first instance ask this Tribunal to down its tools to give way for Arbitration. To that extent, we are convinced that the application before us is an afterthought. Contextually, and this is important in regard to this Tribunal, the Respondent filed this application three (3) days to the expiry of the sixty (60) days statutory timeline for resolving the Claim filed by the Claimant. That cannot be timeous by any standard. We hereby find and hold that the filing of a preliminary objection is a procedural step taken after the entering of appearance of the Respondent. We also hold that the instant application was not filed timeously as required under Section 6 (1) of the Arbitration Act. We have been urged to exercise our discretion in promotion of Article 159 (2) (c) of the Constitution. We are not convinced that a referral of this matter to arbitration at this time would serve the ends of justice. What the Respondent is inviting us to do is to endorse its Stalingrad-like tactics in defending the case against it. We decline.”

This case demonstrates the Tribunal mandate in ensuring that statutory timelines are complied with in a view to resolve disputes effectively.

Republic v National Land Commission & Another, Barua Estate Limited (Exparte); Chief Land Registrar & 2 Others (Interested Parties) [2024] KLR

This matter was transferred to the Environment & Land Court by the Tribunal and the Applicant sought orders that the compensation awarded by the NLC be quashed and an award does issue for the value of land as assessed it the valuation report commissioned by its valuers.

The Applicant contended that the NLC served upon them a letter dated 7th November 2022 notifying it that it had compulsorily acquired the suit property and the suit property would be vested on the NLC free of any encumbrances with effect from September 2022. Further that the NLC had directed the Chief Land Registrar to rectify the register to effect the changes with immediate effect. 

The Tribunal found that while the NLC had published the mandatory notice of intention to acquire the suit property, it had not been served upon the Applicant as required under the law, hence, flawing the process from the start, ab initio. It held that:

“It, therefore, goes without saying that the notice so published must be brought to the attention of the project affected persons…The issuance of the notice under Section 107 (5) is, in our considered view, not a “box-ticking” exercise but should afford a meaningful chance to the affected parties to engage with the 1st Respondent before their land is compulsorily acquired. This engagement, as detailed in Rule 23 (1) of the Land Regulations, 2017 gives an opportunity to the persons who are being deprived of their land through the exercise of the state’s power of eminent domain, a chance to also present their views on the location, area to be acquired, the proposed land use, existing use of the land, improvements on the land, how the compulsory acquisition will affect them, and any other relevant information”.

The Tribunal found that the NLC had violated the Applicant’s constitutional rights under Article 40 (3) and 47 (2) of the Constitution and Section 112 (1) (b) of the Land Act and granted the judicial review orders sought.

 

Conclusion

Since it became operational, the Tribunal has issued various decisions on its jurisdiction and mandate which can be assessed through the Kenya Law Reports portal.

B M Musau & Co., Advocates LLP is a leading advisor in land matters and land transactions. For specific legal concerns or situations, please consult us on email via info@bmmusau.co.ke