Introduction
1. In a plaint dated 19th November 2018, the plaintiff sought against the defendants the following orders:
a) Special damages of Kshs. 325, 490, 138/- against the 1st defendant alone.
b) Compensatory damages on the basis of the open market value of the plaintiff’s remaining portion of the suit property herein being Kajiado/Kaputei-South/2810 measuring 2.391 Hectares (5.908 Acres) or thereabouts situated at Masimba as at the time of judgment against the 2nd defendant alone.
c) Costs of the suit be awarded to the plaintiff in the manner to be directed by the court.
d) General damages.
e) Such further/other relief expedient in the circumstances.
2. The plaintiff stated that she was the registered proprietor of parcel of land known as Kajiado/Kaputei-South/2810, originally measuring approximately 4.05 hectares (10 acres), located at Masimba and enjoying road frontage along the Nairobi-Mombasa Highway.
3. She averred that the 1st defendant, through the 2nd defendant, compulsorily acquired a portion of her land measuring approximately 1.659 hectares (4.099 acres) for the construction of the Standard Gauge Railway (SGR). She confirmed having been paid compensation in the sum of Kshs. 2,369,000/= for the acquired portion, leaving her with a remainder of approximately 2.391 hectares (5.908 acres).
4. The plaintiff stated that prior to the acquisition, she had embarked on plans to develop the suit property into a commercial venture comprising a roadside motel, a highway mini market and restaurant, a petrol station, and a secure truck parking facility. That to this end, she had engaged Gulf Architects to prepare building plans for the project at a fee of Kshs. 10,324,100/=, and had also retained the services of an engineer and a quantity surveyor to prepare a detailed feasibility study at a fee of Kshs. 1,500,000/=.
5. That the feasibility study revealed that the proposed project was viable, projecting cumulative profits before tax of Kshs. 313,666,038/= over the first fifteen years of operation. The Plaintiff further averred that the Kajiado County Physical Planning Department had approved her development application on 20th December 2015. That however, before she could commence construction, the defendants proceeded with the SGR project and related developments. That upon completion, the layout of the SGR and the structures serving as a train station effectively cut off the Plaintiff’s remaining land from the Nairobi–Mombasa Highway, thereby leaving it without any form of access.
6. The Plaintiff contended that as a result, her remaining portion of land was rendered unsuitable and unusable for the intended commercial purposes. She averred that the manner in which the SGR and the associated structures were designed and constructed caused her immense loss, as her project had stalled and could not proceed owing to lack of access. She asserted that the Defendants failed to take into account the impact of their construction activities on her investment, including the loss of access to the property, the wasted expenditure on architectural and feasibility studies, and the loss of potential business and profits. She maintained that the defendants’ actions amounted to negligence and were contrary to the equitable principle of ‘nemo debet locupletari ex aliena jactura’; that no one should be enriched by another’s loss.
7. The Plaintiff particularized the defendants’ negligence as failure to consider that the construction of the SGR and the accompanying buildings would injuriously affect her investment by severing access to her land; failure to take into account the developmental costs already incurred; failure to consider the investment nature and value of the remaining parcel; failure to compensate her for relocation costs and loss of future earnings arising from the diminished usability of her property.
8. She further contended that by reason of the Defendants’ actions, she had suffered substantial loss and damage including loss of use of the remaining 2.391 hectares, architectural and project planning expenses amounting to Kshs. 11,824,100/=, and loss of expected profits amounting to Kshs. 313,666,038/=.
9. The Plaintiff stated that she had duly issued the requisite statutory notice to the defendants under the provisions of the Government Proceedings Act, Cap. 40 Laws of Kenya, prior to instituting this suit and prayed for judgment in her favor and award for the reliefs sought in the plaint, together with costs and interest.
10. The 1st defendant entered appearance on 20th February 2019 and filed defence dated 5th March 2019 in opposition to the plaintiff’s claim.
11. In its defence, the 1st defendant contended that the suit as drawn and filed was bad in law, time-barred, fatally defective, and disclosed no reasonable cause of action against it, amounting to a gross abuse of the court process.
12. The 1st defendant further invoked the provisions of Section 87 of the Kenya Railways Corporation Act, arguing that the Plaintiff had failed to comply with the mandatory requirement of issuing at least one month’s written notice of intention to sue, and that the action had not been commenced within twelve months of the alleged act, neglect, or default as required by law.
13. It was the 1st defendant’s position that it was a stranger to the allegations regarding the Plaintiff’s ownership and development intentions in respect of the suit property, the alleged feasibility study, architectural designs, and anticipated profits, and denied that its actions or the construction of the Standard Gauge Railway (SGR) had caused any loss or damage to the Plaintiff or that the project interfered with access to her remaining land.
14. The 1st defendant further stated that the SGR project was a flagship initiative under Kenya’s Vision 2030 development blueprint, designed as a standard-gauge railway line from Mombasa to Malaba, with future extensions to Kampala, Kigali, and Juba. The project, it explained, was the result of intergovernmental agreements signed between Kenya, Uganda, and Rwanda to enhance regional transport efficiency, economic integration, and trade competitiveness.
15. The 1st Defendant averred that the compulsory acquisition of land for the project, including the plaintiff’s property, was undertaken exclusively by the 2nd Defendant, pursuant to its statutory mandate under sections 107 to 133 of the Land Act. It asserted that the 2nd defendant was solely responsible for issuing notices of intention to acquire, receiving representations, determining and awarding just compensation, and making payments to affected persons. The 1st defendant therefore denied playing any role in the assessment or determination of compensation and contended that the plaintiff’s claim against it was misconceived and unsustainable.
16. Further, the 1st defendant maintained that the plaintiff’s alleged losses were too remote to warrant compensation and that she had a duty to mitigate her loss. It contended that the design and route of the SGR had been predetermined prior to acquisition and could not have been altered after approval. That consequently, any alleged lack of access or inconvenience occasioned to the plaintiff’s remaining land could not be attributed to negligence or wrongdoing on its part. The 1st defendant also asserted that at the time of acquisition and construction, the suit property was idle and undeveloped, and that the plaintiff’s alleged commercial development plans had neither commenced nor been approved for implementation.
17. The 1st Defendant further denied that it had in any way interfered with or rendered the plaintiff’s remaining land inaccessible, asserting that the construction was confined strictly to land compulsorily acquired for public use and executed in accordance with approved designs. It averred that all due compensation had been duly made for the acquired portion, thereby discharging any legal obligations. The 1st defendant thus contended that the plaintiff had no residual claim or entitlement to any additional compensation or damages.
18. In response to the plaintiff’s reliance on the Government Proceedings Act, the 1st defendant maintained that the said statute was inapplicable to it, as it was governed by the Kenya Railways Corporation Act, which contains specific provisions regulating the manner of instituting claims against the corporation. The 1st defendant thus argued that the plaintiff’s failure to comply with the mandatory notice requirements rendered her suit incompetent. It also disputed the court’s jurisdiction in light of the procedural and statutory deficiencies pleaded and prayed that the plaintiff’s suit be dismissed in its entirety with costs, contending that it was devoid of merit, statute-barred, and unsustainable both in fact and in law.
19. In a response to the statement of defence filed in court on 6th May 2019, the plaintiff maintained that she duly issued the requisite statutory notice to the 1st defendant vide a letter dated 28th June 2018, received on 6th July 2018, in accordance with the provisions of the law. She reiterated that she is the registered and absolute proprietor of the parcel known as Kajiado/Kaputei-South/2810 and that, at the time of the 1st defendant’s compulsory acquisition and entry upon the property for the construction of the Standard Gauge Railway, she had commenced development, having obtained all necessary approvals and engaged professionals for design and feasibility works.
20. The plaintiff further averred that the 1st defendant’s construction of the railway line and related infrastructure severed access to her remaining land, thereby rendering it unsuitable for its intended commercial use. She contended that she is entitled to compensation not only for the portion compulsorily acquired but also for the loss and damage occasioned to the remaining portion. The plaintiff denied that her claim was remote, asserting that the defendant’s acts occasioned a continuing loss.
21. The matter proceeded to hearing by way of viva voce evidence. The plaintiff presented two witnesses while the 1st defendant presented one witness. The 2nd defendant neither entered appearance, nor participated in the proceedings of this suit despite being duly served.
Plaintiff’s evidence.
22. PW1 was Catherine Njeri Majani, the plaintiff in this matter. She adopted her witness statement dated 19th November 2018 as her evidence in chief and produced documents attached to the list of documents of even date.
23. She reiterated that she is the registered proprietor of the parcel of land known as Kajiado/Kaputei-South/2810 and that a portion measuring approximately 1.659 hectares was compulsorily acquired for the construction of the Standard Gauge Railway, for which she was compensated Kshs. 2,369,000/=.
24. The witness testified that prior to the acquisition, she had initiated a commercial development project on the property and had already obtained the requisite approvals and professional services. That the construction and layout of the railway and train station structures severed access to her remaining land, rendering it unsuitable for the intended use. That despite engaging the defendants for redress, none was forthcoming. She prayed for the Court to find that the remaining portion was rendered unusable and to order full compensation, including recovery of her project costs, loss of profits, and costs of the suit.
25. Upon cross-examination, she confirmed that she received compensation for the portion of her land acquired for the SGR project. She further stated that as at the date of compensation, being 17th October 2014, there were no structures on the land and that the property had not yet been developed for commercial use. On reexamination, the plaintiff testified that she had lodged a complaint with the 2nd defendant regarding the remaining portion of her land and produced a letter addressed to the National Land Commission requesting to be furnished with a map, which was duly received but never responded to. She further asserted that the 1st defendant was fully aware of her grievance concerning the remaining portion of the property and clarified that no approval for change of user was required from Kajiado County Government.
26. PW2 was Jakoyo Patrick Airo, an engineer by profession and the author of the feasibility study report on the proposed development dated September 2014 which was produced by the plaintiff in court.
27. On cross examination, he told the court that they conducted a site visit to the land in March 2014. That at the time of the visit, there was nothing on the land. That thereafter, they embarked on a market study to find out if it was viable for the proposed businesses by the plaintiff. That they carried out traffic count of vehicles from Mombasa to Nairobi and further surveyed the kind of facilities available in Emali and Mtito Andei. That they were satisfied that there was enough traffic and did a projection of earnings on the project.
28. On re-examination, he stated that based on the projections, there would have been a profitable business since the traffic volume has significantly increased. That marked the close of the plaintiff’s case.
1st defendant’s evidence.
29. DW1 was Duncan Mwangi Gachuhi, a surveyor working with the 1st defendant. He adopted his witness statement dated 5th March 2019 as his evidence in chief. He testified that under Section 87 of the Kenya Railways Corporation Act, any person intending to sue the Corporation must issue a one-month written notice and commence the suit within twelve months, which the plaintiff failed to do, rendering the suit incompetent. He explained that the Standard Gauge Railway (SGR) is a national flagship project implemented in phases under Kenya’s Vision 2030, and that the acquisition of land for its construction was undertaken by the 2nd defendant, the National Land Commission, pursuant to Sections 107–133 of the Land Act.
30. The witness further informed court that the 1st defendant had no role in assessing or determining compensation and that the plaintiff had already been duly compensated for the portion compulsorily acquired. He stated that the suit property was undeveloped and idle at the time of acquisition, and that the plaintiff’s claim for additional compensation was misconceived, remote, and contrary to the Land (assessment of just compensation) Rules, 2017. He maintained that the construction of the SGR was carried out strictly within the boundaries of the land lawfully acquired, that no damage was occasioned to the plaintiff’s remaining parcel, and that the plaintiff was therefore not entitled to any further reliefs as sought in the plaint.
31. On cross examination, he stated that he visited the suit land in 2022 and that the plaintiff’s land was still usable. That the process of undertaking the final survey was still ongoing since 2014, and that the delay was occasioned by the challenge of the process of land survey which involves various offices before new titles are issued by the Land Registrar.
32. On reexamination, he stated that the purpose of the final survey was for properties that were partly affected to make provisions for the remainder of the title and that the 2nd defendant was in charge of the compensation process. That marked the close of the defence case.
33. Parties agreed to file and serve submissions. On record are submissions by the plaintiff dated 20th March 2025 and submissions by the 1st defendant dated 27th June 2025, both of which this court has carefully considered.
Plaintiff’s submissions.
34. Counsel for the plaintiff submitted that the acquisition of a portion of her land by the defendants rendered the remaining portion completely severed and inaccessible from the main highway, thereby depriving it of its utility and commercial potential. The also argued that although the plaintiff was compensated the sum of Kshs. 2,369,000/- for the portion acquired, such compensation was grossly inadequate as it failed to account for the resultant loss occasioned by the severance, depreciation in value, and the frustration of her intended commercial development.
35. Counsel argued that prior to the acquisition, she had embarked on an elaborate commercial project comprising a motel, mini-market, petrol station, and truck parking yard. To this end, she had engaged professional consultants, including Gulf Architects, and expended Kshs. 10,324,000/- on architectural plans, Kshs. 1,000,000/- on a feasibility study, and further obtained all requisite development approvals from the Kajiado County Physical Planning Department. The feasibility study projected profits amounting to Kshs. 313,666,038/- over a fifteen-year operational period. She contended that following the acquisition and construction of the SGR line, access to her property was completely obstructed, rendering it unusable for its intended purpose and occasioning substantial loss and damage. Relying on Article 40 of the Constitution of Kenya, they contended that the plaintiff was entitled to prompt payment in full of just compensation.
36. It was counsel’s submission that the 2nd Defendant, being the statutory body mandated under Sections 107–133 of the Land Act to undertake compulsory acquisition and determine just compensation, failed in its constitutional and statutory duty by issuing an arbitrary and unreasoned award. Counsel maintained that the award was made without a supporting valuation report and without due consideration of the consequential loss occasioned by severance. Further that the 2nd defendant should conduct fresh valuation for the remaining unacquired portion being 2.391 hectares and acquire the same and issue an award letter to the plaintiff. Reference was made to the cases of Patrick Musimba v National Land Commission & 4 Others [2016] eKLR and Ravaspaul Musyoka Mutisya v National Land Commission [Civil Appeal No. E004 of 2021], for the proposition that compensation for compulsory acquisition must be prompt, fair, and reflective of the market value as well as any consequential loss suffered. It was their further submission that the impugned award fell short of the constitutional threshold prescribed under Article 40(3) of the Constitution and the principles enunciated in the cited authorities.
37. Counsel also placed reliance on the decision of Odhiambo v Kenya Railways Corporation & 2 Others [2024] KEELC 7061 (KLR), where the Court affirmed that deprivation of access to one’s property constitutes a violation of the right to property protected under Article 40 of the Constitution.
38. They were of the view that the compensation awarded failed to account for the loss of value and economic potential of the remaining portion of her land, which was rendered inaccessible and commercially unviable following the SGR acquisition. To buttress this point, counsel cited the decisions in Julius Musyoka Kimunduu v Commissioner of Lands & National Land Commission [Civil Appeal No. 623 of 2006] and Stanley Munga Githunguri v National Land Commission & Attorney General [Civil Appeal No. 3 of 2014], where the Courts emphasized that compensation for compulsory acquisition must reflect not only the actual value of the land taken but also its potential value and consequential loss arising from the acquisition.
39. On whether the losses incurred by the plaintiff are recoverable from the defendants, counsel submitted positively; averring that the plaintiff’s loss was directly attributable to the defendants’ actions and omissions. They particularized her losses as follows: Kshs. 10,324,000 being architectural work done; Kshs. 1,500,000 being business planning costs; and Kshs. 313,666,038 being loss of business and foregone profit for 15 years. They maintained that despite several written requests addressed to the 2nd defendant on 22nd November 2015 and 15th April 2016, seeking clarification and a survey map of the remaining land, no response had been forthcoming.
1st defendant’s submissions
40. Counsel for the 1st defendant isolated and submitted on four key issues for determination. The first issue, counsel submitted that this court has no jurisdiction to hear and determine the dispute herein which ought to be determined by the Land Acquisition Tribunal by dint of section 133C of the Land Act and Section 29 of the Land Acquisition Act. Counsel relied on the cases of Kariuki v National Land Commission & 2 Others(Land Case No. E003 OF 2024)[2024] KEELC 5848 (KLR) (22 August 2024 (Ruling) and Speaker of the National Assembly v Karume (Civil Application 92 of 1992)(1992) KECA 42 (KLR) (29 May 1992) (Ruling) to buttress their position.
41. On whether the Plaintiff was entitled to special damages from the 1st defendant, counsel relied on the case of Jivanji v Sanyo Electrical Company Limited (2003) 1 EA 98 and submitted that special damages must be specifically pleaded and strictly proved.
42. On loss of business and profit for 15 years, counsel relied on the case of Desert Commercial Shipping Limited & Another v OCPD Changamwe Police & 2 Others (Petition E71 of 2021) [2022] KEHC 14452 (KLR)(31 October 2022) (Judgment) on the test to be applied for proof of loss of business and profits. Counsel submitted that the plaintiff failed to prove loss of business and profits claimed as proximate cause was not demonstrated and the claim is too remote because as at the time of acquisition the plaintiff was not in business. Counsel argued that all that the plaintiff had provided was the feasibility study as no step had been taken towards actualizing the alleged business. Counsel maintained that the alleged loss of profits could not be a foreseeable consequence of the acquisition. That after being compensated in 2014, no concern was raised by the plaintiff until April 2016.
43. On reasonable certainty, counsel relied on the case of Peter Ndegwa Kiai T/A Pema Wines & Spirits v Attorney General & 2 Others (Civil Appeal 243 of 2017)[2021] KECA 328 (KLR (17 December 2021) (Judgment) and submitted that a claim for loss of business and profit must be quantified and proved to have arisen from loss of net income to a business which was not the case in this matter.
44. Regarding the claim for architectural work and business planning, counsel submitted that no evidence was presented to show that the work she alleges to have paid for was done by an engineer and quantity surveyor. Reliance was placed on the case of Christine Mwigina Akonya v Samuel Kairu Chege [2017] KEHC 1484 (KLR) to submit that invoices, feasibility reports, or fee notes are not conclusive proof of payment and that receipts must be produced.
45. On whether the plaintiff was entitled to general damages, counsel submitted that this court cannot grant damages for loss of user and referred the court to the case of David Bagine v Martin Bundi [1997] eKLR, while asserting that loss of user cannot be compensated as general damages but must instead be quantified and proved as special damages.
46. On the final issue, as to whether the plaintiff was entitled to the reliefs sought in the Plaint, the 1st defendant submitted that there was no evidence that the Plaintiff’s remaining portion had been rendered inaccessible or unusable, noting that existing easements allow for continued access to the land. It further maintained that the plaintiff failed to demonstrate any direct wrongful act or omission attributable to the 1st Defendant that could give rise to liability. The 1st defendant accordingly prayed that the Plaintiff’s suit be dismissed with costs.
Analysis and determination.
47. This court has carefully considered the pleadings, evidence and submissions. The question of jurisdiction was determined by this court in its ruling of 24th September 2021, in regard to an application dated 30th October 2020 which was dismissed with costs. Therefore, the only issue that arises for the court’s determination is whether the plaintiff is entitled to compensation as sought against the defendants.
48. Part VIII of the Land Act makes provision for compulsory acquisition of interests in land. Section 107 of the Land Act provides that where land is needed by a county or national government, the Government through the respective Cabinet Secretary or County Executive Committee Member as the case may be, submits a request to the National Land Commission (NLC) to that effect. The NLC then publishes such intention and ensures that everyone with interest in the affected land is duly notified. The NLC values the land and provides the criteria for assessing the values of the land to be acquired as provided in section 107A. Therefore, the acquisition process is entirely handled by the NLC. The acquiring department is to submit the request for compulsory acquisition and pay the value thereof as advised by the NLC.
49. Section 107 A (5), (6), (7) and (8) of the Land Act provide circumstances where the increase in the value of the land, in assessing the value, shall be disregarded or taken into account as follows;
“(5) 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;
(b) the increase in the value of the land as at the date of publication of the notice of intention to acquire it is likely to accrue from the use to which the land will be put when acquired;
(c) the increase in the value of the land is occasioned by any development or improvement to the land if—
(i) the improvement was made on the land within two years prior to the date of publication in the Gazette of the notice of intention to acquire the land, unless it is proved that the improvement was made bona fide and not in contemplation of proceedings for the acquisition of the land: Provided that where the national government or the county government makes changes in the use of the land compulsorily acquired to affect other land owners, these owners shall be excluded from the application of this provision.
(ii) the improvement was done after the date of publication in the Gazette of the notice of intention to acquire the land, unless the improvements were necessary for the maintenance of any building in a proper state of repair and are not capital improvements.
(iii) the improvement is contrary to any law or is detrimental to the health of the occupiers or to public health generally.
(6) In addition to the provisions of subsection (1), the following circumstances shall not be taken into account in determining the value of the land—
(a) the degree of urgency which has led to the acquisition;
(b) any inconvenience caused to a person interested in the land; or
(c) damage which is likely to be caused to the land after the date of publication in the Gazette of the notice of intention to acquire the land or in consequence of the intended land use;
(7) Despite subsections (1) and (3), the following matters may be taken into consideration in assessing the value of land—
(a) 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 other land;
(b) damage sustained or likely to be sustained by persons interested in the land at the time of the Commission''s taking possession of the land injuriously affecting other property, whether movable or immovable or in any other manner affecting the person''s actual earnings;
(c) if, in consequence of the acquisition, any of the persons interested in the land is or will be compelled to change residence or place of business, the payment of reasonable expenses to be determined by the Commission;
(d) 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; and
(e) the effect of any express or implied condition of title or law which restricts the intended land use.
50. Therefore, the intended use or development of the land to be acquired, inconvenience caused and damage of the land after the date of publication of notice to acquire is not to be taken into account when valuing the land. However, the damage caused by severance of the land, where relocation is necessary and where there is bona fide diminution of profits from the date of publication of notice to acquire and the date of actual possession by NLC, such matters shall be considered in assessing the value of the land.
51. In the instant matter, the plaintiff in her pleadings did not complain that she was not heard before an award in her favour was made by the NLC, neither does she challenge the award made in regard to the acquisition of 1.659 Hectares. Her complaint is that the acquisition of part of the suit property left her with 2.391 hectares which she cannot access due to failure to survey and grant her access to the Mombasa Nairobi Highway and that she had planned to put up a commercial project which would earn her profits in the sum of Kshs. 313, 666, 038/= over a period of 15 years. Her letter of award for acquisition is dated 17th October 2014. The Gazette notice leading to the compulsory acquisition is dated 25th July 2014. On the other hand, the feasibility report is said to be dated September 2014. As the feasibility study was done after the acquisition process was already ongoing, it is clear that the same fell outside the ambit of section 107A (5) as the same was done within two years of the notice of intention to acquire the land, and therefore it could not be taken into account in land assessment.
52. It is trite that special damages should not only be specifically pleaded, but the same should also be strictly proved. In this case the plaintiff sought the sum of Kshs.10, 324, 100/= being loss in respect of architectural work done. She also sought Kshs 1, 500, 000/= for project and business planning work done. No receipts were produced to demonstrate that the plaintiff expended such sums. What the plaintiff produced are fee notes which are not, by any stretch of imagination evidence of payment. I therefore find and hold that the plaintiff did not prove payment in respect of the aforesaid items. In the premises the plaintiff is not entitled to compensation of Kshs. 10, 324, 100/= in respect of architectural work and Kshs. 1, 500, 000/= for project planning.
53. Regarding the plaintiff’s claim for Kshs. 313, 666, 038/= being loss of business and profit foregone for 15 years, the stated profits are anticipated profits where no investment had been made and therefore the same remain speculative. Besides, there is no evidence that the feasibility report was made bona fide and not in contemplation of the acquisition proceedings and hence that claim must fail. Most importantly, the acquisition herein being for the Standard Gauge Railway, a matter that was within public notoriety, and which the plaintiff was aware and or expected to be aware, she could not purport to have a feasibility study done in regard to a parcel already shown to be intended to be acquired for construction of the SGR.
54. Section 107A (8) of the Land Act provide that in determining the damage resulting from diminution of the profits of the land, the commission shall require proof of existence of the profits including evidence of tax returns. Therefore, while actual loss of profits proved by among other documents, tax returns, anticipated or speculative future profits cannot be considered in assessing the value of land acquired compulsorily.
55. The plaintiff did not inform this court that she made presentations regarding the claims she has raised herein to the NLC when she was given opportunity to be heard. For the above reasons, the claim of Kshs. 313, 666, 038/= fails.
56. Section 118 of the Land Act provides for final survey where only a portion and not the entire title of a parcel of land has been compulsorily acquired, as follows;
“118. Final survey
(1) If part of the land comprised in documents of title has been acquired, the Commission shall, as soon as practicable, cause a final survey to be made of all the land acquired.
(2) Upon completion of final survey under subsection (1), the Commission shall cause to be issued new title documents for every affected parcel.”
57. Therefore, on conclusion of the acquisition of a portion of land to be hived from a title, final survey must be done as soon as practicable. In this case, the land was acquired in 2014 and the SGR has already been constructed and in use. On 23rd March 2023 when the 1st defendant’s surveyor confirmed that survey had not been done, it had been 9 years since the land was acquired. In my view, the 2nd defendant’s actions are in violation of section 118 of the land Act, as 9 years is too long a period for a land owner to know where the boundaries of their land are and where and how they should access their remaining portion of land after acquisition of part of their title.
58. Under section 107A (7) (a) of the Land Act, the NLC is obligated to take into account damage sustained by the land owner by reason of severing the land. In this case, the plaintiff alleged that upon acquisition of 1.659 hectares by the defendants, the remaining portion of 2.391 hectares cannot be put to good use as the plaintiff cannot access the highway. From the parties’ evidence, it is clear that even if the SGR was completed and is in use, till now, no survey was done on the plaintiff’s parcel to show how the plaintiff will access her parcel as the acquired land abuts the highway blocking the remaining portion from access. In not surveying the land to show what was acquired and what remains and how to access what remains, the 2nd defendant has caused the plaintiff loss as she cannot access her land. The omissions of the 2nd defendant are not only injurious to the plaintiff’s rights but they are also callous. In view of the 2nd defendant’s actions, the plaintiff has not been able to put to a proper use her land measuring about 2.391 hectares. The acquisition process cannot be complete in the circumstances of this case without a final survey. The land was idle and not in use as the time of compulsory acquisition, nevertheless, she deserves compensation for loss occasioned by the failure of the 2nd defendant to undertake the final survey. In my view, a sum of Kshs. 1, 000, 000/= as damages in favour of the plaintiff in respect of the inordinate delay in undertaking final survey by the 2nd defendant shall be reasonable compensation.
59. The plaintiff sought that she be compensated for the remaining 2.391 hectares. She argued that the same be valued by the NLC which should proceed to grant it an award for the same. The 1st defendant cannot be given land that it does not need at the tax payers expense, as that would be unnecessary and unlawful, because public funds can only be appropriated in accordance with the law, and for the benefit of the public. Compulsory acquisition is done by the NLC on behalf of a national or County Government department and therefore, paying the plaintiff for the remaining 2.391 hectares, without an attendant requisition from any particular government organ or department, would be unprocedural and unlawful. Therefore, the plaintiff’s claim for compensation of the market value of the remaining land measuring 2.391 hectares is unjustified and is therefore declined.
60. However, the plaintiff is entitled to a final survey to enable her access and enjoy her remaining portion. Therefore, the 2nd defendant shall within 90 days of this judgment, cause the survey of the suit property, severe off the compulsorily acquired portion of 1.659 hectares and ensure that the remaining portion is in the plaintiff’s name and can be accessed by the plaintiff. The case as against the 1st defendant is hereby dismissed with no order as to costs.
61. In the premises, I enter judgment for the plaintiff against the 2nd defendant as follows;
a) The 2nd defendant shall pay the plaintiff damages in the sum of Kshs. 1, 000, 000/= on account of inordinate delay in conducting the final survey of the suit property.
b) The 2nd defendant within 90 days of this judgment, shall cause the survey of land parcel No. Kajiado/ Kaputiei- South/2810 (the suit property), severe off the compulsorily acquired portion of 1.659 hectares, place clear boundaries and or beacons separating the compulsorily acquired portion from the remaining portion belonging to the plaintiff, issue a title in the plaintiff’s name for the remaining portion and ensure that the remaining portion can be accessed by the plaintiff.
c) The 2nd defendant shall within 90 days of this judgment file a report in court confirming compliance with order (b) above.
d) The costs of the suit shall be borne by the 2nd defendant.
62. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 12TH DAY OF NOVEMBER 2025
In the presence of;
Mr. Kariuki for the plaintiff
Mr. Dachi for the 1st defendant
No appearance for the 2nd defendant
Court Assistant: Delphine