Introduction
1.Before this Court is an appeal arising from the Judgement and Decree of Honorable M.A. Otindo delivered on 27 th January 2026 in Nairobi Chief Magistrate’s Court ELC Case No. E179 of 2024 (“the trial court”). In that judgement, the trial court held as follows:
“In the result, the Court makes the following orders
a) The Plaintiff's suit is hereby dismissed in its entirety.
b) The notice of intended demolition/removal dated 2nd April 2024 is lawful
c) The Plaintiff's remedy, if any, in respect of compensation lies before the National Land Commission and the Land Acquisition Tribunal as provided by law.
d) The Plaintiff shall bear the costs of the suit payable to the Defendants.”
2.The Appellant being aggrieved with the said decision filed the appeal vide a Memorandum of Appeal dated 20 th February, 2026 on following grounds. “a) THAT the Learned Magistrate erred in law and fact by finding that the Appellant had failed to prove a valid and enforceable legal or proprietary interest in the suit property despite evidence on record that the Appellant is a lessee in possession of the suit Property since 2004 and would be adversely affected by the threatened eviction by the 1st Respondent.
b) THAT the Learned Magistrate erred in law and fact by upholding that the eviction and demolition notice issued by the 1st Respondent was lawful yet the said notice could not be issued by the 1st Respondent, a stranger with no proprietary or legal interest on the portion of land occupied by the Appellant which was never the subject of the compulsory acquisition.
) THAT the Learned Magistrate erred in law and fact by failing to consider that Kenya Gazette Notices placed in evidence showed that out of Land Reference Number 209/11953 measuring 7.292 hectares, only 6.7549 hectares was compulsorily acquired for the Nairobi Expressway Project, leaving a balance of 0.5371 hectares, which the suit property forms part of and was not subject to the acquisition.
d) THAT the Learned Trial Magistrate erred both in law and fact by failing to apply her mind to the various elements of compulsory acquisition and relating the same to the facts, issues raised by the parties and the evidence tendered in Court.
e) THAT the Learned Trial Magistrate erred in law and fact by arriving at the finding that the Appellant participated in the compulsory acquisition process despite overwhelming documentary evidence to the contrary that the Appellant was neither listed in the Gazette notices nor invited for any public inquiry.
f) THAT the Learned Trial Magistrate erred in law by restrictively limiting the question on whether a cause of action lies solely as against the 2nd Respondent despite the claim being against all the Respondents and thus failed to address this question against the other Respondents.
g) THAT the Learned Trial Magistrate erred both in law and fact by failing to consider each element of compulsory acquisition separately as set out in judicial authorities before the court and thus arrived at a wrong finding that the portion occupied by the Appellant had been compulsorily acquired lawfully.
h) THAT the Learned Trial Magistrate erred in law by failing to appreciate that the predominant issue before the court was rights to occupation of land, land use and boundary rights and that compensation was an alternative remedy and thus divested itself of jurisdiction lightly and on technical grounds and in clear violation of the provision of section 13(2) of the Environment and Land Court Act.
i) That in any event the Learned Magistrate erred in law by failing to appreciate that section 13(2)(b) of the Environment and Land Court Act vests the Court with jurisdiction to hear matters relating to compulsory acquisition of land.
j) THAT the Learned Trial Magistrate erred in law and fact by finding that it lacked jurisdiction to determine matters of compensation yet proceeded to make definitive findings on the merits of compulsory acquisition thereby arriving at a contradictory decision on questions of compensation it had declined jurisdiction over.”
3.The Appellant sought the following reliefs: -
“a) The Appeal be allowed;
b) The Judgment and all consequential orders of the court delivered by the learned Magistrate in Chief Magistrates Court ELC Case No. E179 of 2024 on the 27 th January 2026 be set aside in totality and in its place, Judgment be made allowing the Appellant's claim against the Respondents as prayed for in the Plaint;
c) The Appellant be awarded costs of this Appeal; and
d) Any other suitable relief.”
Background/Litigation History
2.The dispute before this court revolves around Land Reference No. L.R. 209/11953 (“suit property”), which was previously registered in the name of Nairobi Railways Corporation, which subsequently changed to the Trustees of Kenya Railway Coop. Staff Retirement Benefit Scheme, (the 2nd Defendant).
3.The Plaintiff in its plaint and documents filed on record and produced as exhibits stated through Pw1(kahuya) stated that it executed a five-year lease agreement with the 2nd Defendant (, the Registered Trustees of Christ's Co-workers Fellowship & Railways), in respect of the suit property in 2004 for five years which was not renewed upon its expiry in march 2009 though Plaintiff remained in possession, occupation of the suit property and paid rent to the 2 nd defendant latest the year 2020 giving rise to an implied tenancy. The Plaintiff stated that it has occupied the suit property for a period of approximately twenty- two (22) years having paid rent to the lessor/2 nd defendant latest 2020.Appellant produced several documents as exhibits on record in support of its case.
4.The Kenya National Highways Authority (KeNHA)- 1 st defendant through its witness (Dw1-Munene) stated that it identified a portion of the property for compulsory acquisition for construction of Nairobi Express Way Road Project via the Gazette Notice Vol. CXXII- No 48 dated 12 th March 2020 and subsequent Gazette Notice Vo. CXXII- No. 163 dated 4 th September 2020 set for inquiry in the acquisition. It averred the compulsory acquisition process inclusive of the portion of land occupied by Appellant was completed and by a letter dated 18 th January 2022, the Nairobi Metropolitan Services issued an eviction notice to plaintiff to vacate the suit property. It further stated that vide a letter dated 27 th January 2022, Nairobi Metropolitan service wrote to the Plaintiff referring to a Gazette Notice CXXII. No 164 of 4 th September 2020, where KENHA subsequently transferred that land to Nairobi Metropolitan Services (NMS) for construction of the Green Bus Terminus.
5. The 2 nd Defendant through Dw2(Obuya) in its evidence admitted that it executed a lease agreement with the plaintiff /appellant which expired in 2009 though appellant stayed on the land till the land was compulsorily acquired for construction of the public road and its interest in the land extinguished upon compulsory acquisition of the land and duly compensated by national land commission.
6.The matter was set for judgement upon the parties filing and exchanging written submissions as directed by the Honourable court on the 9.10.2025 and judgement delivered on the 27.1.2026.
7.Aggrieved by decision of the Learned Trial magistrate, Plaintiff/Appellant instituted the appeal against the appellants.
Directions of the Court
8.On the 23 rd March 2026 maintenance of status quo was extended to apply pending the hearing and determination of the appeal on the 16th of April 2026. On 30 th April 2026 court with consent from the parties directed that the matter be canvassed by way of written submissions. Appellant filed her submissions dated 15 th June 2026, the 1 st Respondent filed submissions dated 29 th June 2026, and 2 nd Respondent file submissions dated 30 th June 2026.
Appellant ‘s written submissions.
9.The Appellant in its submissions dated 15 th June 2026 submitted on the following issues: -
“ 2.1 Your Lordship, having set out the background above, and in the interest of logical flow and brevity, the Appellant proposes to condense and argue the grounds of appeal as follows) Grounds (a) and (b) will each be addressed under separate, independent heads.
ii) Grounds (c), (d), (e) & (g) will be addressed together, as they raise related issues.
ii) Similarly, grounds (h), (i) & (j) will be addressed jointly.v) Ground (f) of the Memorandum of Appeal will be abandoned.”
10.The Appellant invited the appellate court to re-evaluate the evidence and correct errors by the trial court citing the case of Peters v Sunday Post Limited [1958] EA 424 which establishes the duty of an appellate court to reconsider both facts and law, underpinning the Appellant’s challenge to the trial court’s findings. He Appellant contends that only 6.7549 out of 7.292 hectares of Land Reference Number 209/11953 was lawfully acquired for the Nairobi Expressway expansion /construction, excluding of 0.5371 hectares, occupied by Appellant portion.
11.The Appellant’s submitted that all statutory stages of compulsory acquisition (identification, notification, inquiry, compensation) are mandatory and must be strictly followed as stipulated in Murachu & another v The Ministry of Health & another [2024] KECA 1531 (KLR) which were not complied with especially notification and compensation. The Appellant contended that the Respondents failed to produce Gazette Notices or statutory instruments proving acquisition of the remaining portion. The Appellant contended that it was not identified as an occupant, served with notices and compensated, contrary to Article 40(3) of the Constitution 2010 and the Land Act 2012.
12.The Appellant submitted that the 1 st Respondent issued an eviction and demolition notice for land it had no legal interest in hence the notice is unlawful and void. The Appellant contended it established a valid legal interest in the suit property as lessee and legal occupier hence worthy of protection under Article 40(4) of the Constitution 2010 and Section 107(7) of the Land Act, 2012.The Appellant submitted that due process of compulsory acquisition of the suit property was not followed thereby invalidating the acquisition process and rendering it unlawful citing the case Richard Kimaiyo Kiyeng v County Land Registrar [2018] KEELC 1866 (KLR, Ravaspaul Kyalo Mutisya v National Land Commission [2022] eKLR and James Finlay (Kenya) Ltd v National Land Commission & another [2024] KELAT 510 (KLR) in support of the Appellant’s appeal.
13. The Appellant submitted that the defendants’ averments of compensation to persons affected was not supported by evidence thereby rendering the acquisition process incomplete placing reliance in the case Farah v National Lands Commission & another [2025] KEELC 3361 (KLR). The Appellant argued that the trial court had jurisdiction to determine all related matters , in question inclusive of compensation citing the cases of Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another [2018] KEELC 1599 (KLR) and Burrough & another v Mungania & another [2026] KECA 898 (KLR) ,emphasizing on exercise of judicial authority to determine the issue of compensation in favor of appellant .
14.The Appellant urged prayed that the lower court's judgment be set aside and the claim allowed, asserting that the compulsory acquisition process was not lawfully followed and their rights as lawful occupiers were disregarded.
1 st Respondent’s submission:
15.The 1 st Respondent in its submissions dated 29 th June 2026 submitted on the following issues: -
“ The 1 st Respondent contends that the issues for determination are:
a. Whether the appellant has properly and or validly filed the appeal.
b. Whether the learned magistrate erred in law and in facts in her judgement delivered on the 27th January 2026.
c. Who bears the cost of this appeal.”
16.The 1 st Respondent reiterated the duty of court to interfere with the findings of a trial judge or magistrate on errors of law and fact in exercise of its appellate jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, placing reliance in the case of Machira & Co. Advocates [2013] eKLR and Watt v Thomas (1947) AC 484 . The 1 st Defendant contends that the appellant has no legally enforceable proprietary interest in LR No. 209/11953, its lease having expired in March 2009 without renewal or registration as required under Sections 9(2)(c) and 58(3) of the Land Act, 2012. It submitted further that the alleged presidential assurances are illegal and in contravention of Article 135 of the Constitution requiring presidential decisions to be in writing placing reliance on the case of Mitu Bell Welfare Society v Kenya Airports Authority & 2 Others and Stephen Wanjabi Wariari v Dennis Mutwiri Muriuki & Another [2022] eKLR .
17.The 1 st Respondent contends that the suit property was lawfully acquired through compulsory acquisition under Part VIII of the Land Act and the Kenya Roads Act, with compensation falling exclusively within the mandate of the National Land Commission. The 1 st respondent challenged jurisdiction of the trial court to entertain the acquisition process in the proceedings and urged the appeal be dismissed with costs citing the case of Autobacs Limited v Board of Trustees, Kenya Railway Staff Retirement Benefits Scheme & 3 Others [2025] KEELC 2862 (KLR) .
18.The 1 st Respondent urged the court to find that it acted within its statutory mandate under Section 4(1) of the Kenya Roads Act, while the 2 nd Respondent's interest ceased upon acquisition and compensation. It further invoked the equitable maxim that equity aids the vigilant, not the indolent , and submitted that the Appellant cannot found a claim on expired rights or informal arrangements. Accordingly, the 1 st Respondent prays that the appeal be dismissed with costs and the judgment of the trial court be upheld.
2 nd Respondent’s submissions:
19.The 2 nd Respondent in its submissions dated 30 th June 2026 submitted on the following issues: -
“ a. Whether or not the suit premises were compulsorily acquired.
b. Whether or not the 2 nd Respondent’s rights and/or interest in the suit premises extinguished upon compulsory acquisition of the suit premises.
c. Whether or not the national land commission was a central party to the proceedings.
d. Whether or not the Honourable Court had jurisdiction over the Appellant’s claim in the first instance.
e. Whether or not a cause of action existed against the 2 nd Respondent. ”
20.The 2 nd Respondent submitted that its interest in the suit property was lawfully extinguished upon compulsory acquisition by the Government through the National Land Commission (NLC) and land vested in the government free from any encumbrances Pursuant to Section 120(4) of the Land Act, upon payment of just compensation and taking possession, the land citing the case of Commissioner of Lands v Essaji Jiwanji & Public Trustee [1978] KECA 5 (KLR) , where the Court held that compulsory acquisition extinguishes all proprietary rights of the previous owner by operation of law.
21.It contended further that the National Land commission is the statutory body exclusively mandated to undertake compulsory acquisition and determine compensation process under Sections 107(1) and 127 of the Land Act.,2012 hence any claim relating to compensation or interests arising from the acquisition lies against the National land commission and not the 2 nd Respondent placing reliance on the case of Patrick Musimba v National Land Commission & 3 Others [2016] KEHC 5956 (KLR) .
22.The 2 nd Respondent submitted that the Appellant failed to invoke the statutory dispute resolution mechanism under Section 133A (6) of the Land Act, for settlement of disputes relating to compulsory acquisition and determination to persons affected. compensation to be determined, in the first instance, by the Land Acquisition Tribunal being Reliance is placed on Giciri Thuo & 5 Others v National Land Commission & 4 Others [2022] KEELC 1162 (KLR) .
23.The 2 nd Respondent urged that no cause of action has been disclosed against it, as it neither participated in the impugned demolition notices nor undertook any of the alleged wrongful acts following the compulsory acquisition and accordingly called for dismissal of the appeal against it with costs. that the appeal, insofar as it relates to the 2 nd Respondent, be dismissed with costs.
Issues for determination:
24.Having considered the record of appeal dated 24 th April 2026, the Memorandum dated 20 th February 2026, and grounds raised in the appeal together with the parties’ written submissions and the following issues fall for determination: -
1. Whether the trial court properly evaluated the evidence and legal requirements governing the compulsory acquisition of the suit property.
2. Whether the Appellant established a valid legal or proprietary interest in the Sui property warranting protection.
3. Whether the eviction and demolition notice issued by the 1 st Respondent was lawful.
4. Whether the trial court rendered contradictory findings by declining jurisdiction over compensation while determining the merits of the compulsory acquisition dispute.
Analysis and determination:
25.Jurisdiction: This Court has been called upon as the first Appellate court to reevaluate and consider the evidence on record in determining the merits of the appeal as prescribed in the case of Selle and Another vs. Associated Motorboat Company Ltd & Others, [1968] EA 123 , were Sir Clement De Lestang, stated : -
“(i) An appeal from the High Court is by way of a re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally;
(ii) there was no valid reason for interfering with the learned judge’s finding on the facts;
(iii) …”
26.The Court in Mbogo & Another v Shah [1968] EA 93 coined that: -
“(i) in the circumstances the judge exercised correctly his discretion to refuse the Application to set aside the judgement;
(ii) a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice. ”
27 It is the duty of this court to reassess, reevaluate and analyse the entire evidence on record to a arrive at a just determination of the appeal.
a) Whether the trial court properly evaluated the evidence and legal requirements governing the compulsory acquisition of the suit property.
28.Article 40 (3) of the Constitution 2010 provides that: -
“ 40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property: -
(a) of any description; and
(b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person:
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
(3) 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:
(a) 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; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that;
(i) requires prompt payment in full of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.”
29.Similarly, the Land Act ,2012 in Part VIII provides an elaborate process for compliance in instances of compulsory acquisition of land. The 5-bench Court in the matter of Patrick Musimba v. National Land Commission & 4 others [2016] KEHC 5956 (KLR) in an elaboration of the process stipulated as follows: -
“86. Under Section 107 of the Land Act, the National Land Commission (the 1 st 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.
87. 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 .
88. 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.
89. The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.
90. 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.
91. 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.
92. 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.
93. 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.
94. 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.
95. 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. ”
29.The 1 st Respondent identified portions of the property for compulsory acquisition for Nairobi Express Way Road Project (Class 8). The Gazette Notice Vol. CXXII- No 48 dated 12 th March 2020 shows the approximate area for acquisition on the suit property which the National Land Commission intended to acquire as 1.0412 ha under L.R No 209/11379 belonging to Kenya Railways Corporation. Further Gazette Notice Vo. CXXII- No. 163 dated 4.9.2020 provides a corrigendum confirming the area for acquisition as 1.054 ha/ L.R No. 109/11379 belonging to Kenya Railways Corporation and 6.7549 ha, owned by the Trustees of Kenya Railway Cooperation Staff Retirement Benefit Scheme (2 nd Defendant) under L.R No . 209/11953 was set for inquiry for the Nairobi Expressway (A8) Road Project. The trial Court considered the Gazette Notices and found that the compulsory acquisition concerned L.R. No. 109/11379 and L.R. No. 209/11953 though the dispute before this Court relates to L.R. No. 209/11953, from which the evidence on record demonstrates that 6.7549 hectares were compulsorily acquired for construction and /or expansion of Nairobi express way.
30.Further, by a letter dated 27 th January 2022, the Nairobi Metropolitan Services (NMS) informed the Appellant that, pursuant to Gazette Notice Vol. CXXII, No. 164 of 4 th September 2020, the acquired land had been transferred by the 1 st Respondent to Nairobi Metropolitan Services for the construction of the Green Park Bus Terminus. The Gazette Notice discloses that the compulsory acquisition undertaken was for the construction of the Nairobi Expressway Project relating to LR NO 209/11953 measuring approximately 6.7549 ha as corroborated by a Report to the Senate on Valuation of L.R No. 209/11953 dated 3.3.2021 confirming the 2 nd Respondent herein was dully compensated Kshs 7,717,313,430.0 as payment for the acquired portion stated above.
31.It is the statutory mandate of the National Land Commission to undertake the process of compulsory acquisition of land identified for use for public interest by identifying persons to be affected and ensuring just compensation to the affected parties. The Appellant’s contended that only 6.7549 hectares of the suit land were compulsorily acquired for expansion of Nairobi Expressway Project as per gazette notices on record through Pw1’s evidence (kahuya) but the portion on which the suit property is situate (Measuring 0.537 ha) was not compulsorily acquired) has been controverted by evidence of Dw1 and 2. There is no doubt the land (LRNO 209/11953) belonged to the 2 nd defendant vide The Certificate of Official Search and Grant produced in evidence that confirm L.R. No. 209/11953 measures 7.2920 hectares and is held under a 99-year lease commencing on 1 st March 1990 but compulsorily acquired by the government.
32.Evidence on cross examination of DW1(Munene), the Director of Survey at the Kenya National Highways Authority (KeNHA), confirmed that the entire parcel was effectively acquired and accounted for the apparent discrepancy in acreage that arose due to a portion of the land already occupied by Ngong Road. Dw2(Obuya) led evidence on record to show that the entire land was compulsorily acquired, and compensation made to the persons affected in accordance with the law. Additionally, vide a letter dated 21 st May 2021, it (2 nd Defendant) duly surrendered the original title to the acquiring entity.
33.Consequently, this court finds that upon the lawful compulsory acquisition of land by the National Land Commission and payment of compensation in accordance with the Land Act, 2012 the 2nd defendant’s proprietor’s rights and interests in the compulsorily acquired land extinguished. Additionally, the parties affected were dully compensated as per the letters and correspondences presented before court.
(b) Whether the Appellant established a valid legal or proprietary interest in the suit property warranting protection.
Section 107 (7) of the Land Act stipulates: -
“ (7) For the purposes of sections 107 to 133, interested persons shall include any person whose interests appear in the land registry and the spouse or spouses of any such person, as well as any person actually occupying the land and the spouse or spouses of such person.”
34.As regards the Appellant’s claim for compensation on account of its registrable interest in the suit property, PW1(Kahuya) admitted that the Appellant’s representatives attended meetings during the acquisition process, where they were allegedly assured that the unacquired portion of the land would be leased to the Appellant upon completion of the acquisition process which assurance was verbal inclusive of the executive verbal assurance. The 1 st t Respondent urged that an inquiry into compensation was conducted on 1 st October 2020. The evidence on record, however, shows that although the Appellant was in occupation of the suit property, it was not identified as a person entitled to compensation as its interest had been extinguished. Further, the testimony of Pw1(Kahuya) is that the church was assured by Nairobi metropolitan services and Head of executive that the land would be r
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1.Before this Court is an appeal arising from the Judgement and Decree of Honorable M.A. Otindo delivered on 27 th January 2026 in Nairobi Chief Magistrate’s Court ELC Case No. E179 of 2024 (“the trial court”). In that judgement, the trial court held as follows:
“In the result, the Court makes the following orders
a) The Plaintiff's suit is hereby dismissed in its entirety.
b) The notice of intended demolition/removal dated 2nd April 2024 is lawful
c) The Plaintiff's remedy, if any, in respect of compensation lies before the National Land Commission and the Land Acquisition Tribunal as provided by law.
d) The Plaintiff shall bear the costs of the suit payable to the Defendants.”
2.The Appellant being aggrieved with the said decision filed the appeal vide a Memorandum of Appeal dated 20 th February, 2026 on following grounds. “a) THAT the Learned Magistrate erred in law and fact by finding that the Appellant had failed to prove a valid and enforceable legal or proprietary interest in the suit property despite evidence on record that the Appellant is a lessee in possession of the suit Property since 2004 and would be adversely affected by the threatened eviction by the 1st Respondent.
b) THAT the Learned Magistrate erred in law and fact by upholding that the eviction and demolition notice issued by the 1st Respondent was lawful yet the said notice could not be issued by the 1st Respondent, a stranger with no proprietary or legal interest on the portion of land occupied by the Appellant which was never the subject of the compulsory acquisition.
) THAT the Learned Magistrate erred in law and fact by failing to consider that Kenya Gazette Notices placed in evidence showed that out of Land Reference Number 209/11953 measuring 7.292 hectares, only 6.7549 hectares was compulsorily acquired for the Nairobi Expressway Project, leaving a balance of 0.5371 hectares, which the suit property forms part of and was not subject to the acquisition.
d) THAT the Learned Trial Magistrate erred both in law and fact by failing to apply her mind to the various elements of compulsory acquisition and relating the same to the facts, issues raised by the parties and the evidence tendered in Court.
e) THAT the Learned Trial Magistrate erred in law and fact by arriving at the finding that the Appellant participated in the compulsory acquisition process despite overwhelming documentary evidence to the contrary that the Appellant was neither listed in the Gazette notices nor invited for any public inquiry.
f) THAT the Learned Trial Magistrate erred in law by restrictively limiting the question on whether a cause of action lies solely as against the 2nd Respondent despite the claim being against all the Respondents and thus failed to address this question against the other Respondents.
g) THAT the Learned Trial Magistrate erred both in law and fact by failing to consider each element of compulsory acquisition separately as set out in judicial authorities before the court and thus arrived at a wrong finding that the portion occupied by the Appellant had been compulsorily acquired lawfully.
h) THAT the Learned Trial Magistrate erred in law by failing to appreciate that the predominant issue before the court was rights to occupation of land, land use and boundary rights and that compensation was an alternative remedy and thus divested itself of jurisdiction lightly and on technical grounds and in clear violation of the provision of section 13(2) of the Environment and Land Court Act.
i) That in any event the Learned Magistrate erred in law by failing to appreciate that section 13(2)(b) of the Environment and Land Court Act vests the Court with jurisdiction to hear matters relating to compulsory acquisition of land.
j) THAT the Learned Trial Magistrate erred in law and fact by finding that it lacked jurisdiction to determine matters of compensation yet proceeded to make definitive findings on the merits of compulsory acquisition thereby arriving at a contradictory decision on questions of compensation it had declined jurisdiction over.”
3.The Appellant sought the following reliefs: -
“a) The Appeal be allowed;
b) The Judgment and all consequential orders of the court delivered by the learned Magistrate in Chief Magistrates Court ELC Case No. E179 of 2024 on the 27 th January 2026 be set aside in totality and in its place, Judgment be made allowing the Appellant's claim against the Respondents as prayed for in the Plaint;
c) The Appellant be awarded costs of this Appeal; and
d) Any other suitable relief.”
Background/Litigation History
2.The dispute before this court revolves around Land Reference No. L.R. 209/11953 (“suit property”), which was previously registered in the name of Nairobi Railways Corporation, which subsequently changed to the Trustees of Kenya Railway Coop. Staff Retirement Benefit Scheme, (the 2nd Defendant).
3.The Plaintiff in its plaint and documents filed on record and produced as exhibits stated through Pw1(kahuya) stated that it executed a five-year lease agreement with the 2nd Defendant (, the Registered Trustees of Christ's Co-workers Fellowship & Railways), in respect of the suit property in 2004 for five years which was not renewed upon its expiry in march 2009 though Plaintiff remained in possession, occupation of the suit property and paid rent to the 2 nd defendant latest the year 2020 giving rise to an implied tenancy. The Plaintiff stated that it has occupied the suit property for a period of approximately twenty- two (22) years having paid rent to the lessor/2 nd defendant latest 2020.Appellant produced several documents as exhibits on record in support of its case.
4.The Kenya National Highways Authority (KeNHA)- 1 st defendant through its witness (Dw1-Munene) stated that it identified a portion of the property for compulsory acquisition for construction of Nairobi Express Way Road Project via the Gazette Notice Vol. CXXII- No 48 dated 12 th March 2020 and subsequent Gazette Notice Vo. CXXII- No. 163 dated 4 th September 2020 set for inquiry in the acquisition. It averred the compulsory acquisition process inclusive of the portion of land occupied by Appellant was completed and by a letter dated 18 th January 2022, the Nairobi Metropolitan Services issued an eviction notice to plaintiff to vacate the suit property. It further stated that vide a letter dated 27 th January 2022, Nairobi Metropolitan service wrote to the Plaintiff referring to a Gazette Notice CXXII. No 164 of 4 th September 2020, where KENHA subsequently transferred that land to Nairobi Metropolitan Services (NMS) for construction of the Green Bus Terminus.
5. The 2 nd Defendant through Dw2(Obuya) in its evidence admitted that it executed a lease agreement with the plaintiff /appellant which expired in 2009 though appellant stayed on the land till the land was compulsorily acquired for construction of the public road and its interest in the land extinguished upon compulsory acquisition of the land and duly compensated by national land commission.
6.The matter was set for judgement upon the parties filing and exchanging written submissions as directed by the Honourable court on the 9.10.2025 and judgement delivered on the 27.1.2026.
7.Aggrieved by decision of the Learned Trial magistrate, Plaintiff/Appellant instituted the appeal against the appellants.
Directions of the Court
8.On the 23 rd March 2026 maintenance of status quo was extended to apply pending the hearing and determination of the appeal on the 16th of April 2026. On 30 th April 2026 court with consent from the parties directed that the matter be canvassed by way of written submissions. Appellant filed her submissions dated 15 th June 2026, the 1 st Respondent filed submissions dated 29 th June 2026, and 2 nd Respondent file submissions dated 30 th June 2026.
Appellant ‘s written submissions.
9.The Appellant in its submissions dated 15 th June 2026 submitted on the following issues: -
“ 2.1 Your Lordship, having set out the background above, and in the interest of logical flow and brevity, the Appellant proposes to condense and argue the grounds of appeal as follows) Grounds (a) and (b) will each be addressed under separate, independent heads.
ii) Grounds (c), (d), (e) & (g) will be addressed together, as they raise related issues.
ii) Similarly, grounds (h), (i) & (j) will be addressed jointly.v) Ground (f) of the Memorandum of Appeal will be abandoned.”
10.The Appellant invited the appellate court to re-evaluate the evidence and correct errors by the trial court citing the case of Peters v Sunday Post Limited [1958] EA 424 which establishes the duty of an appellate court to reconsider both facts and law, underpinning the Appellant’s challenge to the trial court’s findings. He Appellant contends that only 6.7549 out of 7.292 hectares of Land Reference Number 209/11953 was lawfully acquired for the Nairobi Expressway expansion /construction, excluding of 0.5371 hectares, occupied by Appellant portion.
11.The Appellant’s submitted that all statutory stages of compulsory acquisition (identification, notification, inquiry, compensation) are mandatory and must be strictly followed as stipulated in Murachu & another v The Ministry of Health & another [2024] KECA 1531 (KLR) which were not complied with especially notification and compensation. The Appellant contended that the Respondents failed to produce Gazette Notices or statutory instruments proving acquisition of the remaining portion. The Appellant contended that it was not identified as an occupant, served with notices and compensated, contrary to Article 40(3) of the Constitution 2010 and the Land Act 2012.
12.The Appellant submitted that the 1 st Respondent issued an eviction and demolition notice for land it had no legal interest in hence the notice is unlawful and void. The Appellant contended it established a valid legal interest in the suit property as lessee and legal occupier hence worthy of protection under Article 40(4) of the Constitution 2010 and Section 107(7) of the Land Act, 2012.The Appellant submitted that due process of compulsory acquisition of the suit property was not followed thereby invalidating the acquisition process and rendering it unlawful citing the case Richard Kimaiyo Kiyeng v County Land Registrar [2018] KEELC 1866 (KLR, Ravaspaul Kyalo Mutisya v National Land Commission [2022] eKLR and James Finlay (Kenya) Ltd v National Land Commission & another [2024] KELAT 510 (KLR) in support of the Appellant’s appeal.
13. The Appellant submitted that the defendants’ averments of compensation to persons affected was not supported by evidence thereby rendering the acquisition process incomplete placing reliance in the case Farah v National Lands Commission & another [2025] KEELC 3361 (KLR). The Appellant argued that the trial court had jurisdiction to determine all related matters , in question inclusive of compensation citing the cases of Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another [2018] KEELC 1599 (KLR) and Burrough & another v Mungania & another [2026] KECA 898 (KLR) ,emphasizing on exercise of judicial authority to determine the issue of compensation in favor of appellant .
14.The Appellant urged prayed that the lower court's judgment be set aside and the claim allowed, asserting that the compulsory acquisition process was not lawfully followed and their rights as lawful occupiers were disregarded.
1 st Respondent’s submission:
15.The 1 st Respondent in its submissions dated 29 th June 2026 submitted on the following issues: -
“ The 1 st Respondent contends that the issues for determination are:
a. Whether the appellant has properly and or validly filed the appeal.
b. Whether the learned magistrate erred in law and in facts in her judgement delivered on the 27th January 2026.
c. Who bears the cost of this appeal.”
16.The 1 st Respondent reiterated the duty of court to interfere with the findings of a trial judge or magistrate on errors of law and fact in exercise of its appellate jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, placing reliance in the case of Machira & Co. Advocates [2013] eKLR and Watt v Thomas (1947) AC 484 . The 1 st Defendant contends that the appellant has no legally enforceable proprietary interest in LR No. 209/11953, its lease having expired in March 2009 without renewal or registration as required under Sections 9(2)(c) and 58(3) of the Land Act, 2012. It submitted further that the alleged presidential assurances are illegal and in contravention of Article 135 of the Constitution requiring presidential decisions to be in writing placing reliance on the case of Mitu Bell Welfare Society v Kenya Airports Authority & 2 Others and Stephen Wanjabi Wariari v Dennis Mutwiri Muriuki & Another [2022] eKLR .
17.The 1 st Respondent contends that the suit property was lawfully acquired through compulsory acquisition under Part VIII of the Land Act and the Kenya Roads Act, with compensation falling exclusively within the mandate of the National Land Commission. The 1 st respondent challenged jurisdiction of the trial court to entertain the acquisition process in the proceedings and urged the appeal be dismissed with costs citing the case of Autobacs Limited v Board of Trustees, Kenya Railway Staff Retirement Benefits Scheme & 3 Others [2025] KEELC 2862 (KLR) .
18.The 1 st Respondent urged the court to find that it acted within its statutory mandate under Section 4(1) of the Kenya Roads Act, while the 2 nd Respondent's interest ceased upon acquisition and compensation. It further invoked the equitable maxim that equity aids the vigilant, not the indolent , and submitted that the Appellant cannot found a claim on expired rights or informal arrangements. Accordingly, the 1 st Respondent prays that the appeal be dismissed with costs and the judgment of the trial court be upheld.
2 nd Respondent’s submissions:
19.The 2 nd Respondent in its submissions dated 30 th June 2026 submitted on the following issues: -
“ a. Whether or not the suit premises were compulsorily acquired.
b. Whether or not the 2 nd Respondent’s rights and/or interest in the suit premises extinguished upon compulsory acquisition of the suit premises.
c. Whether or not the national land commission was a central party to the proceedings.
d. Whether or not the Honourable Court had jurisdiction over the Appellant’s claim in the first instance.
e. Whether or not a cause of action existed against the 2 nd Respondent. ”
20.The 2 nd Respondent submitted that its interest in the suit property was lawfully extinguished upon compulsory acquisition by the Government through the National Land Commission (NLC) and land vested in the government free from any encumbrances Pursuant to Section 120(4) of the Land Act, upon payment of just compensation and taking possession, the land citing the case of Commissioner of Lands v Essaji Jiwanji & Public Trustee [1978] KECA 5 (KLR) , where the Court held that compulsory acquisition extinguishes all proprietary rights of the previous owner by operation of law.
21.It contended further that the National Land commission is the statutory body exclusively mandated to undertake compulsory acquisition and determine compensation process under Sections 107(1) and 127 of the Land Act.,2012 hence any claim relating to compensation or interests arising from the acquisition lies against the National land commission and not the 2 nd Respondent placing reliance on the case of Patrick Musimba v National Land Commission & 3 Others [2016] KEHC 5956 (KLR) .
22.The 2 nd Respondent submitted that the Appellant failed to invoke the statutory dispute resolution mechanism under Section 133A (6) of the Land Act, for settlement of disputes relating to compulsory acquisition and determination to persons affected. compensation to be determined, in the first instance, by the Land Acquisition Tribunal being Reliance is placed on Giciri Thuo & 5 Others v National Land Commission & 4 Others [2022] KEELC 1162 (KLR) .
23.The 2 nd Respondent urged that no cause of action has been disclosed against it, as it neither participated in the impugned demolition notices nor undertook any of the alleged wrongful acts following the compulsory acquisition and accordingly called for dismissal of the appeal against it with costs. that the appeal, insofar as it relates to the 2 nd Respondent, be dismissed with costs.
Issues for determination:
24.Having considered the record of appeal dated 24 th April 2026, the Memorandum dated 20 th February 2026, and grounds raised in the appeal together with the parties’ written submissions and the following issues fall for determination: -
1. Whether the trial court properly evaluated the evidence and legal requirements governing the compulsory acquisition of the suit property.
2. Whether the Appellant established a valid legal or proprietary interest in the Sui property warranting protection.
3. Whether the eviction and demolition notice issued by the 1 st Respondent was lawful.
4. Whether the trial court rendered contradictory findings by declining jurisdiction over compensation while determining the merits of the compulsory acquisition dispute.
Analysis and determination:
25.Jurisdiction: This Court has been called upon as the first Appellate court to reevaluate and consider the evidence on record in determining the merits of the appeal as prescribed in the case of Selle and Another vs. Associated Motorboat Company Ltd & Others, [1968] EA 123 , were Sir Clement De Lestang, stated : -
“(i) An appeal from the High Court is by way of a re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally;
(ii) there was no valid reason for interfering with the learned judge’s finding on the facts;
(iii) …”
26.The Court in Mbogo & Another v Shah [1968] EA 93 coined that: -
“(i) in the circumstances the judge exercised correctly his discretion to refuse the Application to set aside the judgement;
(ii) a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice. ”
27 It is the duty of this court to reassess, reevaluate and analyse the entire evidence on record to a arrive at a just determination of the appeal.
a) Whether the trial court properly evaluated the evidence and legal requirements governing the compulsory acquisition of the suit property.
28.Article 40 (3) of the Constitution 2010 provides that: -
“ 40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property: -
(a) of any description; and
(b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person:
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
(3) 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:
(a) 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; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that;
(i) requires prompt payment in full of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.”
29.Similarly, the Land Act ,2012 in Part VIII provides an elaborate process for compliance in instances of compulsory acquisition of land. The 5-bench Court in the matter of Patrick Musimba v. National Land Commission & 4 others [2016] KEHC 5956 (KLR) in an elaboration of the process stipulated as follows: -
“86. Under Section 107 of the Land Act, the National Land Commission (the 1 st 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.
87. 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 .
88. 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.
89. The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.
90. 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.
91. 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.
92. 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.
93. 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.
94. 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.
95. 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. ”
29.The 1 st Respondent identified portions of the property for compulsory acquisition for Nairobi Express Way Road Project (Class 8). The Gazette Notice Vol. CXXII- No 48 dated 12 th March 2020 shows the approximate area for acquisition on the suit property which the National Land Commission intended to acquire as 1.0412 ha under L.R No 209/11379 belonging to Kenya Railways Corporation. Further Gazette Notice Vo. CXXII- No. 163 dated 4.9.2020 provides a corrigendum confirming the area for acquisition as 1.054 ha/ L.R No. 109/11379 belonging to Kenya Railways Corporation and 6.7549 ha, owned by the Trustees of Kenya Railway Cooperation Staff Retirement Benefit Scheme (2 nd Defendant) under L.R No . 209/11953 was set for inquiry for the Nairobi Expressway (A8) Road Project. The trial Court considered the Gazette Notices and found that the compulsory acquisition concerned L.R. No. 109/11379 and L.R. No. 209/11953 though the dispute before this Court relates to L.R. No. 209/11953, from which the evidence on record demonstrates that 6.7549 hectares were compulsorily acquired for construction and /or expansion of Nairobi express way.
30.Further, by a letter dated 27 th January 2022, the Nairobi Metropolitan Services (NMS) informed the Appellant that, pursuant to Gazette Notice Vol. CXXII, No. 164 of 4 th September 2020, the acquired land had been transferred by the 1 st Respondent to Nairobi Metropolitan Services for the construction of the Green Park Bus Terminus. The Gazette Notice discloses that the compulsory acquisition undertaken was for the construction of the Nairobi Expressway Project relating to LR NO 209/11953 measuring approximately 6.7549 ha as corroborated by a Report to the Senate on Valuation of L.R No. 209/11953 dated 3.3.2021 confirming the 2 nd Respondent herein was dully compensated Kshs 7,717,313,430.0 as payment for the acquired portion stated above.
31.It is the statutory mandate of the National Land Commission to undertake the process of compulsory acquisition of land identified for use for public interest by identifying persons to be affected and ensuring just compensation to the affected parties. The Appellant’s contended that only 6.7549 hectares of the suit land were compulsorily acquired for expansion of Nairobi Expressway Project as per gazette notices on record through Pw1’s evidence (kahuya) but the portion on which the suit property is situate (Measuring 0.537 ha) was not compulsorily acquired) has been controverted by evidence of Dw1 and 2. There is no doubt the land (LRNO 209/11953) belonged to the 2 nd defendant vide The Certificate of Official Search and Grant produced in evidence that confirm L.R. No. 209/11953 measures 7.2920 hectares and is held under a 99-year lease commencing on 1 st March 1990 but compulsorily acquired by the government.
32.Evidence on cross examination of DW1(Munene), the Director of Survey at the Kenya National Highways Authority (KeNHA), confirmed that the entire parcel was effectively acquired and accounted for the apparent discrepancy in acreage that arose due to a portion of the land already occupied by Ngong Road. Dw2(Obuya) led evidence on record to show that the entire land was compulsorily acquired, and compensation made to the persons affected in accordance with the law. Additionally, vide a letter dated 21 st May 2021, it (2 nd Defendant) duly surrendered the original title to the acquiring entity.
33.Consequently, this court finds that upon the lawful compulsory acquisition of land by the National Land Commission and payment of compensation in accordance with the Land Act, 2012 the 2nd defendant’s proprietor’s rights and interests in the compulsorily acquired land extinguished. Additionally, the parties affected were dully compensated as per the letters and correspondences presented before court.
(b) Whether the Appellant established a valid legal or proprietary interest in the suit property warranting protection.
Section 107 (7) of the Land Act stipulates: -
“ (7) For the purposes of sections 107 to 133, interested persons shall include any person whose interests appear in the land registry and the spouse or spouses of any such person, as well as any person actually occupying the land and the spouse or spouses of such person.”
34.As regards the Appellant’s claim for compensation on account of its registrable interest in the suit property, PW1(Kahuya) admitted that the Appellant’s representatives attended meetings during the acquisition process, where they were allegedly assured that the unacquired portion of the land would be leased to the Appellant upon completion of the acquisition process which assurance was verbal inclusive of the executive verbal assurance. The 1 st t Respondent urged that an inquiry into compensation was conducted on 1 st October 2020. The evidence on record, however, shows that although the Appellant was in occupation of the suit property, it was not identified as a person entitled to compensation as its interest had been extinguished. Further, the testimony of Pw1(Kahuya) is that the church was assured by Nairobi metropolitan services and Head of executive that the land would be r
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