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NLC faulted for Thika landowner’s cash withheld for 8 years
The tribunal rejected claims by NLC that it was not involved in the compulsory acquisition process, which it asserted was conducted by the then Commissioner of Lands before it was established.
The National Land Commission (NLC) is in the spotlight for the delayed handover of compensation cash to a company whose land the Kenya National Highways Authority (KeNHA) took over irregularly.
The Land Acquisition Tribunal said the agency irregularly acquired a parcel of land from Kariuki Enterprises Limited in March 2018 on claims that it was part of a road reserve.
However, the NLC had not compensated the company Sh59.5 million.
The tribunal found that the company was deprived of the use of the land unlawfully.
However, the compensation funds had been wired by KeNHA to the NLC in 2017 for onward transmission to the company. The land in Thika, Kiambu County, was marked for compulsory acquisition by the government in February 2009.
“The burden falls upon the second respondent (NLC) to prove that due process was followed. Respectfully, the first respondent (KeNHA), being the acquiring entity in the subject compulsory acquisition process, cannot be expected to have knowledge of the salient facts underpinning the subject compulsory acquisition process,” said the tribunal chaired by Nabil Orina.
It said that duty rests solely on the NLC being the successor of the responsibilities of the then Commissioner of Lands in matters of compulsory acquisition of land.
The tribunal declared that the takeover of the land by KeNHA was invalid, null, unlawful, and/or irregular and an affront to the Constitution. It ordered KeNHA and NLC to pay the company and its director, Kariuki Maina, a sum of Sh70 million as compensation for their wrongful occupation of the plot.
“The petitioner has not availed before us justification for the proposed award of Sh20 million per acre for the 14.17 acres of the suit property. Considering the size and proximity of the suit property to the road and the possible business the petitioner would have conducted during the period, we determine that a net sum of Sh10 million per year from the year 2018 until now is sufficient as mesne profits,” said the tribunal.
Mesne profits are damages for unlawful use of land, calculated based on potential earnings.
The tribunal rejected claims by NLC that it was not involved in the compulsory acquisition process, which it asserted was conducted by the then Commissioner of Lands before it was established.
NLC did not deny receiving the compensation sums, but it explained that it had been unable to remit the sums to the petitioner for lack of the necessary documents about the compulsory acquisition process. It had asked the tribunal to dismiss the petition.
“Be that as it may, the second respondent (NLC) has not availed any evidence before us to demonstrate the steps it has taken to regularise the impugned compulsory acquisition of the suit property. It is unimaginable that the second respondent purportedly received funds for compensation in regard to the suit property, but it has not made any effort to verify or compensate the petitioner, eight years later. Despite this situation, the second Respondent argues that the suit property has already vested in the government,” said the tribunal.
“NLC cannot purport to distance itself from the instant matter as it has attempted to do. It is under a duty to ensure that the records pertaining to the subject compulsory acquisition process are in its custody.”
Upon analysing the applicable laws, including the Land Act, the NLC Act, and the Land Acquisition Act, the tribunal said the commission could shirk its responsibility with regard to the instant matter for reasons that the subject compulsory acquisition process was undertaken before its constitution.
The company learnt of the unlawful deprivation of its property in 2018 when it attempted to fence the property. This action led to the arrest of one of its employees and arraignment on a charge of encroachment on a road reserve.
Further, in 2022, the Petitioner was informed by KeNHA that the suit property had been compulsorily acquired in the year 2009.
“It is, therefore, clear to us that the Petitioner has been deprived of the use of its property. For such deprivation, the Petitioner is entitled to damages for trespass,” said the tribunal.
It declared that the compulsory acquisition of the plot by KeNHA without adhering to the provisions of the Land Acquisition Act violated the company’s Constitutional right guaranteed under Article 40(3) (a) & (b) of the Constitution.
