Ngoje & 7 others v National Irrigation Authority & another (Civil Appeal E090 & E097 of 2024 (Consolidated)) [2025] KEELC 771 (KLR)
The bottom line
#Eight farmers won damages, interest and a 180-day restoration order after a state irrigation project occupied their land without paying compensation.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Acquisition Tribunal over wayleaves and constitutional complaints
The Tribunal had first-instance statutory jurisdiction over wayleaves and could grant declaratory remedies under section 133C(6) and (8) of the Land Act read with Articles 23(2) and 47 of the Constitution
Section 133C(6) makes matters of wayleaves, easements and public right of way referable to the Tribunal in the first instance. Article 23(2) permits Parliament to clothe subordinate courts with jurisdiction over Bill of Rights violations, and section 133C(8) does so for complaints under Article 47. It would be absurd to require the Tribunal to refer declaratory issues to a superior court and await the outcome. The NIA's jurisdictional objection was therefore misconceived.
Failure of the Tribunal to determine all issues placed before it
The Tribunal abdicated its judicial mandate by failing to address the declaratory reliefs and other claims
A tribunal owes parties and the rule of law a duty to determine all issues canvassed. The Tribunal made findings that the 1st Respondent breached property and environmental rights but failed to distil appropriate declaratory orders, contrary to Articles 10(2)(b) and (c), 27 and 50(1) of the Constitution. It also ignored evidence including correspondence by Engineer Nesline Ogwe and reports by KNHRC and NEMA.
Directive to the National Land Commission to survey and value the suit properties
The order was illegal and unconstitutional: the dispute did not involve compulsory acquisition and NLC is an independent commission not subject to tribunal directions
NLC's mandate to survey and value arises only for compulsory acquisition under sections 107–113 of the Land Act. NLC had not been approached for compulsory acquisition and had itself confirmed this by letter dated 11th March 2021. Under Articles 67, 249(2) and 250, NLC is independent and not subject to direction. Ceding the mandate to a litigant party also constituted abdication.
Validity of the mesne profits award of KShs. 200,000 per appellant
The award was not well grounded because the claim was not strictly proved
Mesne profits are akin to special damages and must be pleaded and strictly proved. Although pleaded, no agricultural report or expert evidence supported the claimed KShs. 25,000 per season; the figure was 'plucked from the blues'. The 1st Respondent's appeal therefore succeeded on this aspect only.
General and exemplary damages for trespass and rights violations
The Tribunal erred in failing to award general damages for the proved trespass and exemplary damages for the oppressive, arbitrary and cynical conduct of the state organ
Trespass was vindicated by the evidence, including letters by Engineer Nesline Ogwe, and is actionable per se. The 1st Respondent, a state organ, disregarded recommendations by NEMA, NLC and KNHRC and behaved oppressively and cynically, squarely within the Rookes v Barnard categories for exemplary damages. The court itself assessed general damages using the undisputed valuation report.
Restoration of the suit properties
A restoration order was appropriate, with NEMA to execute restoration at the 1st Respondent's cost in default within 180 days
The 1st Respondent obtained an ESIA licence from NEMA but failed to implement the mitigation measures, causing flooding and environmental degradation. Relying on the Supreme Court's restorative-remedies framework in the Owino Uhuru case and Articles 42, 69 and 70, the court issued a structural restorative order under section 111 of EMCA.
Legal principles established
#- A statutory tribunal seized of jurisdiction over wayleaves and compulsory acquisition matters may, under section 133C(8) of the Land Act and Article 23(2) of the Constitution, hear and determine complaints and grant declaratory reliefs arising under Article 47 of the Constitution
- Abdication of jurisdiction by a court or tribunal is as serious an error as assumption of jurisdiction where none exists
- An independent constitutional commission such as the National Land Commission is not subject to direction or control by a court or tribunal in the discharge of its mandate
- Mesne profits, being in the nature of special damages, must be both pleaded and strictly proved
- Trespass to land is actionable per se and damages must be awarded once trespass is proved
- Expert/valuation evidence can only be challenged by contrary expert evidence; absent a counter-report the tribunal must act on the valuation on record
Court orders
#- 1.Appeal ELCA No. E090 of 2024 allowed
- 2.Decision of the Tribunal rendered on 14th June 2024 set aside and/or varied
- 3.Declaration that the purported creation of wayleaves and public rights of way over the Appellants' land parcels without just and prompt compensation did not follow the law and is unconstitutional, illegal, unlawful, null and void
- 4.Declaration that the decision to commence construction of MD4 of the Lower Kuja Irrigation Development Project without implementing a resettlement action plan and paying just compensation is unconstitutional and amounts to trespass
- 5.Declaration that the abandoned construction activities without creation of wayleaves and without adequate compensation infringed upon the Appellants' property rights
- 6.General damages for trespass awarded to each of the eight Appellants (ranging from KShs. 90,000 to KShs. 1,440,000)
- 7.Exemplary damages of KShs. 3,000,000 each awarded to the Appellants
- 8.Interest on general and exemplary damages at court rates (14% per annum) from the date of judgment
- 9.Restoration order against the 1st Respondent to restore the suit properties to the status quo ante within 180 days
- 10.In default of restoration, NEMA to undertake restoration at the expense of the 1st Respondent
- 11.Costs of ELCA E090 of 2024 awarded to the Appellants
- 12.ELCA E097 of 2024 dismissed save for the aspect touching on mesne profits
- 13.The Appellant in ELCA E097 of 2024 awarded ¼ costs to be borne by the Respondents in that appeal
- 14.Any other relief not expressly granted declined
- On appeal from
- Land Acquisition Tribunal
- not stated (statements of claim dated 9th February 2024)
- Jurisdiction invoked
- First appellate jurisdiction under section 78 of the Civil Procedure Act over appeals from the Land Acquisition Tribunal established under Section 133C of the Land Act, 2012 (2016)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- National Land Commission v Charlise Development Company Ltd (Environment and Land Appeal E118 of 2025) [2026] KEELC 2059 (KLR)[2026] KEELC 2059 (KLR)16 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Ngoje & 7 others v National Irrigation Authority & another (Civil Appeal E090 & E097 of 2024 (Consolidated)) [2025] KEELC 771 (KLR)", Case Analysis (2025). Milimani ELC Appeal No. E090 of 2024 (consolidated with ELC Appeal No. E097 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/771/eng@2025-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.