1 The Plaintiff Manjewa Service Station as per the plaint filed before court on 5/12/2023, is the registered proprietor of all that Plot No Kwale/Mwavumbo/176 on the area government map sheet Number 197/IV & 198/3 Mwavumbo Adjudication Registration Section Kwale District. It is the Plaintiff’s case that sometime in July 2016 the 1st Defendant constructed the Mwembeni Standard Gauge Railway substation at Samburu township and in the process occupied 8.901 acres of the Plaintiff’s land. That the whole process has led into sub division of the property into two parts and hindered use of the same. The Plaintiff now seeks compensation from the 1st Defendant in the tune of Kshs 204,700,000/- and costs of this suit.
2 The A memorandum 1st Defendant to the suit by filing Memorandum of Appearance and defence on 19/1/2024 together with Notice of Preliminary objection dated 18/1/2024. The preliminary objection is the subject of this ruling and raised on the grounds that; -
- The Plaintiff’s claim as pleaded at paragraph 7 of the plaint is for payment of compensation of Kshs 204,700,000/- arising from alleged compulsory acquisition.
- The Plaintiff has failed to exhaust the available statutory mechanisms for seeking redress for claims for compensation arising from compulsory acquisition because;
- Section 112 of the Land Act 2012 confers upon the National Land Commission the jurisdiction to conduct inquiries to hear claims for compensation arising from compulsory acquisition of land
- Section 133C [1] of the Land Act 2012 confers upon the Land Acquisition Tribunal the jurisdiction to hear and determine appeals from decisions of the National Land Commission in matters relating to the process of compulsory acquisition of land.
- The Plaintiff prematurely instituted this suit before first seeking redress from the said inquiry contemplated under Section 112 and the Land Acquisition Tribunal established under section 133A of the Land Act 2012.
- The Environment and Land Court only has appellate jurisdiction under Section 133D [1] of the Land Act 2012 to hear and determine appeals from the decisions of the Land Acquisition Tribunal, which appellate jurisdiction is restricted to questions of law only.
3 On 20/5/2024, the court ordered that the preliminary objection to be dispensed off by written submissions. Counsel for the 1st Defendant intimated to court that they had filed submissions. However, the court did not bear a record of the same. On 12/6/2024 counsels for both the Plaintiff and 1st Defendant informed the court that they had both filed written submissions as earlier ordered. The court however informed them that the same were not in the record and directed that they liaise with the Court Assistant for regularization. At the time of writing this ruling, no submissions have been traced from either party.
4 Is the preliminary objection properly raised? In the case of Mukisa Biscuits V West End Distributors Ltd (1969) E.A 696 the court held thus:
“A preliminary objection consists of a point of law which has been pleaded, or which arises out of clear implication out of the pleadings and which if argued as preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration …
Justice Newbold in the said suit argues that
A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion”
5 The 1st Defendant has based its Preliminary Objection on the ground that this court lacks jurisdiction to hear and determine the Plaintiff’s suit for the reasons hereinabove. The issue of jurisdiction is a pure point of law which can determine the matter without having to consider the merits of the case. It is trite that in the absence of jurisdiction the court should down its tools. In the case of Phoenix of East Africa Assurance Co. Ltd V S M Thiga T/A Newspaper Service (2019) eKLR the Court of Appeal while dealing with the question of jurisdiction, held as follows:
“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint in the court seized with jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction on itself.”
6 It is therefore my finding that the Preliminary Objection raised by 1st Defendant is one on pure points of law that this court must determine at this early stage.
7 According to the Plaintiff, the 2nd Defendant while carrying out the survey exercise and valuation for purposes of compensation did not consult the Plaintiff or take into consideration the 8.901 acres they had invaded. That the said compulsory acquisition of the Plaintiff’s land has been done without compensation to the Plaintiff. Having not consulted them on the same, the Plaintiff’s case is that this suit has been necessitated by alleged unlawful deprivation of its property without compensation.
8 The process of compulsory acquisition was laid down in the decided case of Patrick Musimba v National Land Commission & 4 others (2016) eKLR where the court held as follows;
Under Section 107 of the Land Act, the National Land Commission (the 1st Respondent herein) is ordinarily prompted by the national or county government through the Cabinet Secretary or County Executive member respectively. The land must be acquired for a public purpose or in public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met: the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in these respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property.
Under Sections 107 and 110 of the Land Act, the National Land Commission must then 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.
As part of the National Land Commission’s due diligence strategy, the National Land Commission 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. In the course of such inquiries, the National Land Commission is also to inspect the land and do all things as may be necessary to ascertain whether the land is suitable for the intended purpose: see Section 108 of the Land Act.
The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.
The burden at this stage is then cast upon the National Land Commission and as can be apparent from a methodical reading of Sections 107 through 110 of the Land Act, the landowner’s role is limited to that of a distant bystander with substantial interest.
Section 112 of the Land Act then involves the landowner directly for purposes of determining proprietary interest and compensation. The section has an elaborate procedure with the National Land Commission enjoined 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. The National Land Commission exercises quasi-judicial powers at this stage.
On completion of the inquiry the National Land Commission makes a separate award of compensation for every person determined to be interested in the land and then offers compensation. The compensation may take either of the two forms prescribed. It could be a monetary award. It could also be land in lieu of the monetary award, if land of equivalent value, is available. Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into a special compensation account held by the National Land Commission: see Sections 113- 119 of the Land Act.
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. The property is then deemed to have vested in the National or County Government as the case may be with both the proprietor and the land registrar being duly notified: see Sections 120-122 of the Land Act.
If land is so acquired the just compensation is to be paid promptly in full to persons whose interests in land have been determined: See Section 111 of the Land Act. This is in line with the Constitutional requirement under Article 40(3) of the Constitution that no person shall be deprived of his property of any description unless the acquisition is for a public purpose and subjected to prompt payment in full of just compensation.
The Constitution dictates that acquisition be in accordance with the provisions of the Constitution itself and any Act of Parliament. The Constitution itself only provides for just compensation being made promptly.
The current procedure for acquisition of land by the State is as outlined above. As can be seen parliament considered very seriously its constitutional duty to legislate on the State’s powers of deprivation or expropriation. Perhaps conscious of the emotive nature of land issues, the Legislature appeared scrupulous and contemplative.
9 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.”
10 From the above case law and statute, it is safe to state that the Land Act has set out an elaborate procedure for compulsory acquisition of private Land. It is clear that a proprietor of land ought to be involved in the process in the absence of which, the proprietor is to seek recourse from the 2nd Defendant as a first point of remedy before invoking the jurisdiction of this court. Unquestionably, the Land Acquisition Tribunal has the mandate to hear and determine appeals from the decision of the NLC, in matters relating to the process of Compulsory Acquisition of Land. Clearly the Plaintiff has not exhausted the dispute resolution mechanism provided under the Statute.
11 The doctrine of exhaustion was explained by the Court of Appeal in the case of Geoffrey Muthiga Kabiru & 2 Others -vs- Samuel Munga Henry & 1756 others (2015) eKLR. The Court expressed itself as follows; -
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be for a of last resort and not the first port of call the moment a storm brew…. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.”
12 From the foregoing, it is clear that the suit is prematurely filed before court. This court finds the preliminary objection has merit and is therefore sustained. The suit is hereby struck out for violating the principles of the doctrine of exhaustion.
13 Let each party bear its own costs.
Ruling dated signed and delivered this 1st day of October 2024
Ms. Okumu for the Plaintiff
Mr. Karina for the 1st Defendant
N/A for 2nd Defendant
Mr. Daniel Disii – Court Assistant