Mwiu v County Government of Kilifi & another [2025] KELAT 165 (KLR)

Mwiu v County Government of Kilifi & another (Tribunal Appeal E009 of 2024) [2025] KELAT 165 (KLR) (24 April 2025) (Judgment)

Neutral citation: [2025] KELAT 165 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Appeal E009 of 2024

NM Orina, Chair & G Supeyo, Member

April 24, 2025

Between

Alice Kasika Mwiu

Complainant

and

County Government of Kilifi

1st Respondent

National Land Commission

2nd Respondent

Judgment

Complainant's Case 1. The Complainant asserts that she is the lawful and beneficial owner of Plot Numbers 37 and 107, situated at Matanomane Trading Centre within Ganze Sub-County, Kilifi County (hereinafter “the suit properties”).

2. She avers that, in the course of constructing market stalls at the said trading centre, the 1st Respondent unlawfully entered the suit properties, felled several trees worth Ksh. 30,000 thereon, and proceeded to fence off the area without her consent.

3. Despite engaging the 1st Respondent through numerous correspondences to address the alleged encroachment, the Complainant contends that the Respondent has willfully failed and/or neglected to remove the fence.

4. In support of her claim, the Complainant tenders documentary evidence, including a letter of complaint addressed to the 1st Respondent, dated 11th June 2012, wherein it is noted that the contractors were directed to suspend construction activities pending the resolution of the dispute.

5. The Complainant further states that she had intended to develop the suit properties for residential use and, to that end, sought and obtained development approval in 2016. A copy of the said approval is annexed and marked as “AKM6. ”

6. She further avers that the several letters addressed to the 1st Respondent failed to yield any substantive resolution. Consequently, she wrote once again to the 1st Respondent. In a written response dated 20th March 2019, the County Executive Committee Member for Lands, Energy, Housing, and Physical Planning acknowledged that the suit properties had been allocated by the 1st Respondent to Ms. Alice Kasika and one John Mutisya Koso. The letter further indicated that a boundary verification exercise would be undertaken to chart a way forward.

7. The Complainant further lodged a formal complaint with the 2nd Respondent, seeking clarification on the applicable legal procedure governing the acquisition of the suit properties.

8. In response, the 2nd Respondent, through its County Coordinator - Kilifi County, issued an “advisory letter” wherein it was observed that the parcels in question had been temporarily allocated to Ms. Alice Kasika and Mr. John Mutisya Koso through a Temporary Occupational License (TOL). The 2nd Respondent further noted that land rates in respect of the said plots had been duly paid to the 1st Respondent, as evidenced by official receipts annexed to the complaint. Additionally, it was acknowledged that several correspondences had emanated from various departments within the 1st Respondent's offices, yet no conclusive resolution had been reached. Consequently, the 2nd Respondent advised that the suit properties ought to be subjected to the appropriate legal procedure for compulsory acquisition.

9. The Complainant avers that, to date, neither the 1st nor the 2nd Respondent has undertaken any meaningful or substantive action in response to her grievance. She contends that the ongoing encroachment and inaction have occasioned her irreparable loss and damage, as she remains unable to utilize or develop her property.

10. Moreover, the Complainant asserts that should the 1st Respondent seek to compulsorily acquire the suit properties, it is incumbent upon them to compensate her at the prevailing market value in accordance with the law.

11. The Complaint therefore seeks the following reliefs from the Tribunal;I.A declaration that the Complainant’s fundamental rights and freedoms as enshrined under Article 40(1), 40(2)(a), 40(3)(b)(i), 47(1), and 47(2) of the Constitution of Kenya, 2010 have been contravened and infringed upon by the 1st Respondent herein.II.An order of Certiorari to move this Honourable Court and quash the decision by the 1st Respondent to compulsorily acquire the Complainant’s Plot Numbers 37 and 107 located at Matanomane Trading Centre.III.An order of Mandamus compelling the 1st Respondent to remove the fence erected on the Complainant’s Plot Numbers 37 and 107 within Matanomane Trading Centre.IV.An order of compensation in the sum of Kshs. 30,000. V.A conservatory order in the nature of a permanent injunction directed at the 1st Respondent, restraining/prohibiting the 1st Respondent, their agents, officers, or any person acting under their authority from interfering in any manner whatsoever with the Complainant’s quiet possession of Plot Numbers 37 and 107 at Matanomane Trading Centre within Kilifi County.VI.General, exemplary, and aggravated damages under Article 23(3)(e) of the Constitution of Kenya, 2010 for the unconstitutional conduct of the 1st Respondent.VII.Any other orders and directions as this Honourable Court may deem appropriate in the circumstances.VIII.Costs and interest of the complaint.

1st Respondent’s Case 12. The 1st Respondent raised a Preliminary Objection dated 22nd August 2024, challenging the admissibility of the Complaint. The Preliminary Objection primarily contests the jurisdiction of this Honourable Tribunal, and is premised on the following grounds:I.This Honourable Tribunal has no jurisdiction to entertain this complaint as the land in question has not been acquired compulsorily by the National Land Commission on behalf of the 1st Respondent.II.This Honourable Tribunal lacks jurisdiction to entertain the appeal by the Appellant, who is not the legal owner of the land but a licensee of the Respondent under a Temporary Occupation License (TOL).III.This Honourable Tribunal has no jurisdiction to entertain this appeal as the prerequisites to the exercise of its jurisdiction under the Land Act have not crystallised and materialised.IV.This Honourable Tribunal has no jurisdiction to entertain the appeal of the Appellant as the allegations of encroachment and trespass are matters purely exercisable by the Environment and Land Court as duly established.

2nd Respondent’s Case 13. On 7th February 2025, the 2nd Respondent filed its Grounds of Opposition in response to the Statement of Claim dated 28th May 2024.

14. The 2nd Respondent asserts that the Complaint is misconceived, unnecessary, unwarranted, and constitutes an abuse of the Tribunal's process.

15. It further avers that pursuant to Section 107 of the Land Act, 2012, the statutory procedure for the acquisition of land by the National or County Government is clearly outlined. However, the 2nd Respondent maintains that it has not received any formal request from the 1st Respondent for the compulsory acquisition of Plot Numbers 37 and 107 situated at Matanomane Trading Centre, Ganze Sub-County.

16. The 2nd Respondent expressly denies having any statutory or constitutional involvement in the implementation of the Trade Development Programme at Matanomane Trading Centre and, as such, distances itself from any liability whether special, general, or exemplary that may arise from the alleged actions.

17. In conclusion, the 2nd Respondent contends that the Complaint discloses no reasonable cause of action against it and accordingly prays that the same be dismissed with costs.

Analysis and Determination 18. This appeal has been canvassed through written submissions. The Complainant filed her written submissions dated 5th February 2025. The issues for determination as framed therein include:(i)Whether this Honourable Tribunal has jurisdiction to entertain the Complaint;(ii)Whether the 1st Respondent followed the laid-down procedure for compulsory acquisition;(iii)Whether the 1st Respondent infringed the Complainant’s rights to property, the right to be heard, and the right to fair administrative action; and(iv)Whether the Complainant is entitled to the reliefs sought.

19. On the other hand, the 1st Respondent put in its submissions dated 25th March 2025 wherein it raises two issues; (i) whether this court has jurisdiction to entertain the Complaint and (ii) whether the Complainant is entitled to the reliefs sought in the petition.

20. We have considered the submissions by the parties. The question of our jurisdiction takes precedence before we can address the other issues raised by the parties. As we observed in Tom Mwachiti Mwero (suing as a representative of the Estate of Fredrick Mwachiti – Deceased) vs. Kenya Railways Corporation and another (TRLAP no. E001 of 2023):It is trite law that a court or tribunal cannot adjudicate over a matter without jurisdiction to do so. Such jurisdiction flows from the Constitution or any relevant statute. It is without question that a court of law or tribunal must satisfy itself of existence of jurisdiction, suo motu, or when a question of jurisdiction has been raised as it has been in the instant case.

21. This Tribunal derives its mandate from Section 133C which we reproduce herewith, verbatim:133C.Jurisdiction of the Tribunal(1)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.(4)Despite subsection (3), the Tribunal may, for sufficient cause shown, extend the time prescribed for doing any act or taking any proceedings before it upon such terms and conditions, if any, as may appear just and expedient.(5)If, on an application to the Tribunal, the form or sum which in the opinion of the Tribunal ought to have been awarded as compensation is greater than the sum which the Commission did award, the Tribunal may direct that the Commission shall pay interest on the excess at the prescribed rate.(6)Despite the provisions of sections 127, 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, be referred to the Tribunal.(7)Subject to this Act, the Tribunal has power to confirm, vary or quash the decision of the Commission.(8)The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Action Act or any other law.

22. The Preliminary Objection raised by the Respondent is predicated on several jurisdictional grounds: firstly, that no process of compulsory acquisition has been undertaken so as to vest this Tribunal with the requisite mandate under the Land Act; secondly, that the Complainant does not possess legal title over the subject property but merely holds a Temporary Occupation License; and thirdly, that the issues of trespass and encroachment raised fall squarely within the exclusive jurisdiction of the Environment and Land Court.

23. It is not in contention that the Complainant does not possess any title to the suit properties. Further, despite alleging that she holds a Temporary Occupation Licence, the Complainant has not produced a copy of the same before the tribunal. The absence of this license renders it difficult to ascertain the nature, terms, or duration of the alleged licence. Nevertheless, our analysis on whether we have jurisdiction to entertain the claim before us will address the alleged subject matter of the claim being a Temporary Occupation Licence and the complaint itself.

24. It is, therefore, necessary to examine the legal nature of a Temporary Occupation License and whether this Tribunal has jurisdiction over disputes arising therefrom which may include its revocation or encroachment on the area under such a licence. A licence is defined under section 2 of the Land Act as:a permission by the Comissioner in respect of public land or a proprietor in respect of private or community land or a lease which allows the licensee to do some act in relation to the land comprised in the lease which would otherwise be a trespass, but does not include an easement or a profit.

25. Further, Section 20 of the Land Act empowers the National Land Commission to grant temporary licences for use of public land as follows:(1)The Commission may grant a person a licence to use unalienated public land for a period not exceeding five years subject to planning principles as it may prescribe.(2)The Commission may serve a notice to quit upon the licensee at any time after the expiration of nine months from the date of the licence.(3)The fee payable under a licence under this section, the period and the agreements and conditions of the licence, shall be prescribed by the Commission.(4)The licensee may, with the consent of the Commission, transfer the benefit of a licence under this section, and the transfer and the consent thereto shall be endorsed on the licence.

26. Under the previous legal regime being the Government lands Act (repealed) which the alleged TOL may have been issued under, it provided as follows:40(1)Licences to occupy unalienated Government land for temporary purposes may be granted by the Commissioner;(2)Unless it is expressly provided under this section shall continue for one year and thenceforth until the expiration of any three months’ notice to quit. PROVIDED that the notice to quit may be served upon the licensees at any time after the expiration of nine months from the date of the licence.”(3)The rent payable under a licence under this section, the period and the Agreements and conditions of the licence shall be such as may be prescribed by rules under this Act or as may be determined by the Commissioner.(4)The benefit of a licence under this section may, with the consent of the Commissioner, be transferred by the licensee, and the transfer and the consent thereto shall be endorsed on the license.

27. Under the current legal regime and the previous one, a TOL is, therefore, a revocable permit that grants limited and temporary rights to occupy and use public land, without vesting any proprietary interest or conferring legal ownership; accordingly, even if we were to assume that the Complainant possesses a valid TOL, the same does not confer on her any proprietary interests on the suit property. The Court of Appeal in Mugenyuv County Government of Nyeri & 2 others (Civil Appeal E067 of 2023) [2025] KECA 593 (KLR) (21 March 2025) (Judgment) held as follows in this regard: 45. We hold that a temporary occupation license to occupy Government land is not sufficient to create or transfer title to the grantee or his personal representative. The appellant cannot cling on the same and claim that she was offered the said parcel of land by the Commissioner of Lands while it is very clear that the suit property constituted alienated public land, vested in the Ministry of Agriculture, Department of Veterinary Services, and as such the Commissioner of Lands who purported to allocate it to the appellant had no power to alienate or offer for alienation the suit property to her.

46. We reiterate that a TOL was akin to a licence that confers a licensee a right to work on the land in accordance with the terms stipulated in the letter, but which the licensor can withdraw as need arises. The letter does not confer on the holder permanent proprietary rights unlike a Title Deed or Certificate of lease.

28. We, therefore, hold that a TOL does not confer any rights capable of being acquired through the process of compulsory acquisition. In any case, the suit property is still public land and the same cannot be acquired through the process of compulsory acquisition as provided for under Part VIII of the Land Act, 2012.

29. It follows then that a dispute over an alleged encroachment on a parcel of land which is the subject of a TOL is not within our jurisdiction as our jurisdiction is limited to, “matter(s) relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way” pursuant to the provisions of Section 133C (6) of the Land Act. A dispute arising out of a TOL is a matter within the exclusive jurisdiction of the Environment and Land Court pursuant to Section 128 of the Land Act.

Conclusion 30. Having found that we have no jurisdiction, the suit is hereby struck out. There shall be no orders as to costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF APRIL 2025………………………………… ……………………………NABIL M. ORINA, CHAIRPERSONPHD GEORGE SUPEYO, MEMBERIn the Presence of:Ms. Oloo h/b for Mr. Kilonzo for the 1stRespondentN/A for the ComplainantBuluma – Court Assistant4| Page