Authored By: Clara Jane Mwende Gitonga
Strathmore University
Introduction
The case of Naomi Njeri Kigotho & Eunice Wairimu Kigotho v The National Land Commission & Kenya National Highways Authority ELC Petition E001 of 2023, is a land issue matter extending to the rights of the petitioners. This matter is significant since it expounds more on compulsory acquisition of land in Kenya, the procedural rights, and what is not part of the procedure. Additionally, this case touches on property law, especially land, conveyancing and constitutional law. It is unique given the judges’ view on the compulsory acquisition and what may not affect the payment of compensation. It is also a case that proceeds to shape our view of compulsory Acquisition. Not only that, but it also shows the aspect of historical searches within conveyancing, though not in a very extensive manner
FACTS OF THE CASE.
The petitioners were the registered owners of a parcel of land in which the respondent wanted to compulsorily acquire for the benefit of the public. The respondents therefore made a gazette notice for the intention to compulsorily acquire the land for the construction of a road. The compensation for the compulsory acquisition was awarded to the petitioner on 28th July 2021. The second respondents confired that they had paid money to the first respondent, whose duty was to give the petitioners the money that was meant to be compensation.
However, the payment of this compensation was not paid to the petitioner despite being awarded. The 1st respondent(The National Land Commission) was the one who would give the compensation after being given by the second respondent, that is, the Kenya National Highways Authority. As a result of the petitioners not getting their compensation, the petitioners argued that Article 40 of the Constitution of Kenya, which is the right to acquire and own property and Article 47 of the constitution which states that every person has a right to fair administration action that is expeditious, efficient, lawful and reasonable and procedurally fair, have been contravened.
LEGAL ISSUES
The following were the legal issues that arose from the facts of the case. They include : 1. Were the land parcels compulsorily acquired in accordance with the law? 2. Were the petitioners’ fundamental rights and freedoms violated?
- Was the petition instituted prematurely, having regard to section 115(1) and (c) of the Land Act 2012?
- Were the petitioners entitled to the prayers sought?
PETIONERS ARGUEMENT
The petitioners stated that after being awarded compensation, the first respondent did not give them any reason as to why their compensation was not awarded and deemed this to be discriminatory. Not only tha,t but the respondents did not inform them of the historical land injustices that were affecting their land and never invited them to any hearing to ventilate their issues. The petitioners relied on the case of Five Star Agencies Ltd vs National Land Commission (2014). They additionally argued that because of this, they are entitled to be awarded damages, and their authority was Pamela Waithera Mburu vs County Government of Kajiado.
RESPONDENT
The respondents submitted that the petition was a subject of pending historical injustice. Therefore, they are precluded from making any payment of compensation where the ownership of the land is disputed. Additionally, the first respondent stated that the compulsory acquisition process was carried out in accordance with the law. As a result of the contention of the title, the petitioners stated that the withholding of funds was justified and relied on the case of Republic ELC PET NO. E001 OF 23 13 vs- Public Procurement Administrative Review Board & Another; Exparte CMC Motors Group Ltd (2020) eKLR. Therefore, this would mean that they have not infringed the petitioners’ rights.
REASONING AND ANALYSIS
The court interpreted the law holistically. The court relied on the case of Patrick Musimba vs National Land Commission (2016), where the respondents had the role to protect the right of an affected person under Article 40(3) of the Constitution. Additonally the court accepted the petioners arguemnt except for the compensation. The court stated there petitoners failed in showing the basis for such damages to be awarded to them.
In the process of legal reasoning, the court assessed the Land Act and the rights that were in contention. The court tried to balance the twoby identifying whether the reason was proportionate to the petitioners not being awarded the compensation. The court also relied on the respondents arguemnet of stating that the compulsory acquisition was well within the law.
Additionally, the court pointed out that the historical injustice was for the land Kiine/Kibingoti/Ngunguini/939 and not the petitioners’ land, which was Kiini/Kibingoti/3101 and 3102, where the respondents had not demonstrated that the two lands correlated with each other.
THE DECISION
On the first issue, the court stated that the compulsory acquisition was conducted well within the law and therefore was right. In light of the second issue, the court found that the rights of the petitioners were contravened by the respondents. On the third issue, the court stated that the deferment of the payment did not constitute a valid reason to withhold the payment, and therefore, because of the above three, the petitioners’ prayers were granted, except for the one claiming for aggravated damages. The court therefore ruled in favour of the petitioners.
ANALYSIS
The judgment made in this case has a positive impact within the world of property law, especially in light of compulsory acquisition. The judgment has shed light on what the National Land Commission can give as an excuse for not paying compensation. Given the historical land grabbing in the previous years, the National Land Commission was created to protect the people from mass land grabbing. Therefore, with the court giving such a judgment, the laws have been interpreted holistically and within the spirit of the constitution.
This judgement clearly has protected the citizens, given the historical land grabbing of citizens by the wealthy and government, and the citizens would not be compensated. This judgment therefor,e has its strength in that aspect. However, this has opened a can of worms of the extent of the court’s power. Is it infringing the power of the National Land Commission by stating what can be a good excuse for not giving compensation? This is one of the weaknesses that has come out from the judgment. Despite that weakness, the strength isbetter taking into account the historical context of the country and the initial purpose for the National Land Commission.
CONCLUSION
This case majorly focus on compulsory Acquisition of land in relation to the rights enshrined in the constitution. It was noted that the laws were read holistically, taking into account the historical background of compulsory acquisitionof land. The most important takeaway from this case is that compensation is essential within compulsory acquisition; however, the law shall be interpreted and read holistically in instances where there is conflict. This judgment will be remembered because of its nature of taking into account the circumstances, the facts and the historical background to interpret the law holistically.
