Salim & 2 others v National Land Commission & another (Civil Appeal E116 of 2023) [2026] KECA 749 (KLR)
The bottom line
#Landowners challenging road-acquisition compensation in Kenya must serve a 30-day statutory notice on KeNHA first, or their case collapses regardless of merit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Judge exercised judicial discretion judiciously in upholding the 2nd Respondent's preliminary objection based on non-compliance with Section 67(a) of the Kenya Roads Act, 2007
- 2.Whether Section 128 of the Land Act exempted the Appellants from the mandatory 30-day statutory notice requirement under Section 67(a) of the Kenya Roads Act
- 3.Whether the Court has jurisdiction to address the merits of the compulsory acquisition and adequacy of compensation
Key legal issues
#Mandatory nature of Section 67(a) of the Kenya Roads Act statutory notice
Non-compliance with the 30-day written notice requirement is fatal to proceedings against the Kenya National Highways Authority and cannot be cured by characterising the suit as an appeal or reference under the Land Act.
The provision uses the word 'shall' and imposes a compulsory obligation. The Appellants initially sued only the National Land Commission and later amended the appeal to join KeNHA without ever issuing the statutory notice to the Director-General. The Court applied its own prior decision in Michael Otieno Nyaguti confirming the provision is mandatory and that a preliminary objection on its breach is a pure point of law.
Interaction between Section 128 of the Land Act and Section 67 of the Kenya Roads Act
Section 128 confers jurisdiction and identifies the proper forum but does not prescribe how proceedings against specific public bodies are commenced, nor does it exempt parties from other statutory procedural requirements.
The Court held that Section 128 is broad and covers Land Act disputes including compensation, but since the 2nd Respondent was joined for the first time after acquisition had concluded, joining it amounted to instituting legal proceedings against a statutory authority without compliance with Section 67. Both sections must be read together and compliance with both was necessary.
Consequence of sustaining a preliminary objection on jurisdiction
Once the trial court sustained the preliminary objection, it had no jurisdiction to proceed to the merits, and this Court likewise has no jurisdiction to address the merits of the acquisition or adequacy of compensation.
Relying on Owners of the Motor Vessel 'Lillian S', the Court reasoned that a court which finds it lacks jurisdiction must down its tools. There was thus no proper foundation for determining the legality of the compulsory acquisition or the adequacy of compensation, and the appellate court's merits jurisdiction fell away with it.
Test for interference with a discretionary decision of a lower court
An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong.
The Court framed the central question as whether the learned Judge exercised discretion judiciously, citing Mbogo v Shah, United India Insurance, and Githiaka v Nduriri. Applying these principles, the Court found no basis to interfere with the Judge's decision to sustain the objection.
Legal principles established
#- Section 67 of the Kenya Roads Act, 2007 is couched in mandatory terms and compliance is a condition precedent to the commencement of proceedings against the Kenya National Highways Authority.
- Section 128 of the Land Act confers jurisdiction on the Environment and Land Court but does not exempt parties from mandatory procedural notice requirements imposed by other statutes; both provisions must be read together.
- A preliminary objection can only be properly upheld where it raises a pure point of law arising from the pleadings, capable of disposing of the suit, on the assumption that all facts pleaded by the opposing party are admitted.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the 2nd Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Second appeal to the Court of Appeal from the Environment and Land Court (statutory basis not expressly stated in the judgment)
Relief refused
#Enhancement of the compensation award to Kshs. 62,000,000
The appeal was incompetent for failure to comply with the mandatory statutory notice under Section 67(a) of the Kenya Roads Act, depriving both the trial court and this Court of jurisdiction to determine the merits
Costs
The appeal is dismissed with costs to the 2nd Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Section 67 is couched in mandatory terms, and compliance is a condition precedent to the commencement of proceedings against the 2nd Respondent. In the absence of the statutory notice, the appeal was rendered incompetent, notwithstanding the nature of the claim or the merits thereof.
The proper legal position is that Section 128 and Section 67 must be read together, and compliance with both was necessary where proceedings are brought against the Kenya National Highways Authority.
In sum, this appeal is without merit and is dismissed with costs to the 2nd Respondent.
Issues in the judgment
#The judgment records an inconsistency in the trial court's approach: it upheld the preliminary objection but nonetheless proceeded to determine the merits of the compulsory acquisition, an approach this Court treats as a jurisdictional error.
The judgment does not state its own appeal number or neutral citation, and the names of the appellants are not set out in the text, only their description as registered proprietors of the suit parcel.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim & 2 others v National Land Commission & another (Civil Appeal E116 of 2023) [2026] KECA 749 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/749/eng@2026-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.